Opinion
Review Granted June 20, 1986.
Opinions on pages 505-566 omitted. [*]
[223 Cal.Rptr. 552]Reed, Peckham & McCortney and Carroll A. McCortney, Covina, for plaintiff and appellant.
Bewley, Lassleben & Miller and Kevin P. Duthoy, Whittier, for defendants and respondents.
Assigned by the Chairperson of the Judicial Counsel.
NATURE OF THE APPEAL
Appeal from a summary judgment granted to defendant employer (respondent herein), on a complaint for wrongful termination of employment contract.
OUR HOLDING
We hold (1) any tort action would be barred by the one year statute of limitations; (2) the breach of the oral contract would have been barred by the statute of frauds.
FACTS
Appellant was hired by respondent on July 9, 1979, as a construction-architectural salesperson. The employment contract was oral, there was no express or implied term, and there existed no written employer-employee procedures, policies or guidelines that defined their relationship. Appellant was paid as a commission salesperson receiving a monthly draw against future commissions. Appellant was terminated on February 25, 1981.
On March 5, 1981, appellant made a demand upon respondent for a statement on commissions. When the parties were unable to resolve their differences, a Los Angeles Superior Court action was initiated by respondent, LASC No. SEC 37637. This case was ultimately resolved by judgment in favor of the respondent for approximately $1,200. Thereafter, on June 25, 1982, the instant action was commenced. The second amended complaint was filed on October 13, 1983. A motion for summary judgment was granted in favor of defendant. Plaintiff appeals. We affirm.
DISCUSSION
Plaintiff's second amended complaint pleads two causes of action for wrongful termination of employment contract. The first cause of action relies upon a violation of public policy pursuant to Labor Code section 216. Clearly, a cause of action founded upon a violation of public policy is a tort action. (Newfield v. Insurance Co. of the West (1984) 156 Cal.App.3d 440, 443, 203 Cal.Rptr. 9.)
Labor Code section 216 reads:
The statute of limitations in a tort action is governed by Code of Civil Procedure section 340. Generally, statute of limitations governing tort actions commence to run from the date of the act causing injury. (Petrucci v. Heidenreich (1941) 43 Cal.App.2d 561, 111 P.2d 421; [223 Cal.Rptr. 553] Jefferson v. Kenoss (1940) 38 Cal.App.2d 496, 101 P.2d 711.)
Since the plaintiff was terminated on February 25, 1981, and the initial complaint in the instant action was filed on June 25, 1982, 16 months later, the first cause of action is clearly barred by the statute of limitations of one year established in Code of Civil Procedure section 340.
Plaintiff's second cause of action was for breach of contract. Plaintiff's pleadings include the following allegations:
"XVI. There is an implied covenant of good faith and fair dealing in every contract, including a contract of employment, that neither party will do anything which will injure the rights of the other to receive the benefits of the agreement. In a contract of employment, an employer thereby owes a duty to do nothing which would deprive the employee of the benefits of that employment bargain. Termination of employment without just cause violates such implied duty owed by the employer to his employee."
We note that in the instant case we have an oral agreement having no specified term. "An employment, having no specified term, may be terminated at the will of either party on notice to the other." (Lab.Code, § 2922.) We find no violation of good faith. The employee received what he bargained for. There is no record that an employment contract for a specific term was desired by either party.
We further note that the appellant claims that there may have been agreement for an indefinite term. But, if such a contract did exist, it clearly must follow that such a contract is for a period of more than one year since the employment lasted more than 19 months. "In such a situation when the terms of an oral agreement make it evident by clear implication from the subject matter of the contract that a period longer than one year was contemplated by the parties, the statute of frauds applies to bar the action." (Newfield v. Insurance Co. of the West, supra, 156 Cal.App.3d 440, 447, 203 Cal.Rptr. 9; Lacy v. Bennett (1962) 207 Cal.App.2d 796, 800, 24 Cal.Rptr. 806; Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 327, 325 P.2d 130.)
The judgment is affirmed.
SPENCER, P.J., and LUCAS, J., concur.
[*] See post, page 1532 for opinions withdrawn and subsequent case histories.
"In addition to any other penalty imposed by this article, any person, or an agent, manager, superintendent, or officer thereof is guilty of a misdemeanor, who:
"(a) Having the ability to pay, willfully refuses to pay wages due and payable after demand has been made.
"(b) Falsely denies the amount or validity thereof, or that the same is due, with intent to secure for himself, his employer or other person, any discount upon such indebtedness, or with intent to annoy, harass, oppress, hinder, delay, or defraud, the person to whom such indebtedness is due."