Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC339309. George H. Wu, Judge.
Law Offices of Richard A. Marcus, Richard A. Marcus; Law Offices of William R. Ramsey and William R. Ramsey for Plaintiffs and Appellants.
Poole & Shaffery, Karl W. Kime and David Poole for Defendants and Respondents.
ASHMANN-GERST, J.
Plaintiffs and appellants Kellie Smith (Smith) and Carly Mushinski (Mushinski) appeal from a judgment following the trial court order’s granting summary adjudication of their claim for wrongful termination in violation of public policy in favor of defendants and respondents Sunshine Child Care & Learning Centers, Inc., and Sunshine Day Camp, Inc. (collectively Sunshine).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
Sunshine is a child care facility. Appellants were employed by Sunshine as school age counselors.
On February 22, 2005, appellants were on school property for a staff meeting. While on the premises, they approached the vehicle of a parent they knew, Rachel Jones (Jones), who was there to pick up her child. She informed appellants that she had “‘blazed up about 1/2 hour ago.’” Appellants took this statement to mean that she had smoked marijuana. In fact, according to appellants, “[t]he smell of marijuana was . . . emanating from the vehicle.”
After speaking with Jones, appellants entered the school for the meeting. The child was apparently released to Jones by another Sunshine employee, Jesse Suarez (Suarez).
At some point after entering the school, appellants reported the incident to their supervisor, Matthew Millett (Millett). He responded by stating “Really.” When appellants asked whether Millett intended to contact the Department of Children and Family Services (DCFS), Millett indicated that he did not know if he would do anything. Smith then informed Millett that it was now his problem since she had reported the incident to him, her supervisor. Appellants did not report the incident to DCFS.
Sunshine’s weekend leadership retreat commenced on February 23, 2005, the day following the incident. During that retreat, Millett discussed the incident with his regional director, Michael Mehl, and Sunshine’s executive director, Timothy Borruel. During the course of the retreat, three decisions were made. First, Sunshine would terminate appellants’ employment on February 28, 2005, because they allowed a child to leave campus with an apparently intoxicated person. Second, Sunshine would suspend Millett without pay for several days because he failed to report the incident to governmental authorities immediately. Third, Sunshine determined that the incident would be reported on the subsequent business day, February 28, 2005, which it was.
Consistent with Sunshine’s decision, on February 28, 2005, Millett met with Smith and Mushinski and terminated their employment. As a follow-up, he sent them separate letters explaining that each was terminated for a “flippant attitude,” “poor judgment and uncaring attitude regarding the policies of [Sunshine] and the lack of concern for the children [each] care[s] for.” The letters summed up Sunshine’s position as follows: “Releasing a child to an adult who is under the influence of drugs or alcohol is unacceptable.”
Suarez was not disciplined for releasing the child to Jones.
Procedural Background
On September 2, 2005, appellants filed their complaint against Sunshine, alleging causes of action for wrongful termination in violation of public policy, breach of contract, and breach of the implied covenant of good faith and fair dealing. According to the complaint, the public policies implicated are those embodied in Penal Code section 11166 (mandating that child care professionals report child abuse or neglect) and Labor Code section 6310 (prohibiting termination of an employee for complaining of employee safety or health issues). Appellants alleged that they were terminated because they advised Millett that DCFS had to be notified of the incident and that neither Millett nor any other Sunshine employee notified, or intended to notify, DCFS of the incident.
Sunshine filed its answer on October 7, 2005.
On May 10, 2006, Sunshine moved for summary adjudication of the first cause of action only, arguing that appellants’ termination did not violate public policy. Regarding the two statutes identified in appellants’ complaint, Sunshine asserted that Labor Code section 6310 did not apply because appellants did not allege an occupational health or safety issue. Additionally, citing Division of Labor Law Enforcement v. Sampson (1976) 64 Cal.App.3d 893 (Sampson), appellants could not maintain a claim for violation of public policy based upon an informal complaint made directly to an employer. As for Penal Code section 11166, Sunshine argued that that statute only obligated appellants (not Sunshine) to report the incident because they were the ones who had personal knowledge of what had occurred.
Appellants opposed the motion. First, they argued that Labor Code section 6310 did support a cause of action because it applied to complaints regarding unsafe working conditions. According to appellants, they complained “that a parent had picked up her child from their place of work while under the influence of drugs and asked their employer to report the incident to social services. They were fired for making that request.”
Second, appellants claimed that Penal Code section 11166 supported their cause of action. No personal knowledge was required to report an incident of child abuse; in fact, Millett was suspended for failing to report the incident immediately, as he was required to do.
Appellants further asserted that Sunshine’s stated reason for their termination (failure to report the incident to DCFS) was pretextual for the actual reason for their termination—Sunshine’s intent to avoid reporting the incident.
In opposing Sunshine’s motion, appellants relied heavily upon the following facts: (1) Appellants were not on duty at the time of the incident; (2) Appellants were never told that they had a flippant attitude; (3) Before her termination, Smith never received any reprimands or other disciplinary actions; and (4) Appellants later received letters offering them their jobs back.
Following oral argument, on October 6, 2006, the trial court granted Sunshine’s motion for summary adjudication of the first cause of action. It found that Labor Code section 6310 did not apply for two independent reasons. First, reports of a parent, who is intoxicated while picking up a child, do not involve employee health or safety. Second, pursuant to Sampson, supra, 64 Cal.App.3d 893, informal complaints made by an employee directly to an employer are not covered by Labor Code section 6310.
As for Penal Code section 11166, a violation would occur where an employer attempted to prevent an employee from making a report or terminated an employee for contacting a governmental authority. As there was no evidence that (1) Sunshine prevented or discouraged appellants from reporting the incident, or (2) appellants ever contacted DCFS or any other governmental authority, appellants could not state a claim pursuant to this statute.
Appellants filed a petition for writ of mandate, challenging the trial court’s order granting Sunshine’s motion for summary adjudication. On November 1, 2006, we summarily denied their writ petition.
On February 1, 2007, appellants filed a request for dismissal of the remaining causes of action in their complaint. Judgment was entered, and this timely appeal ensued.
DISCUSSION
I. Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
Like the trial court, “[w]e first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [ Citation.]” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.) “[W]e construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.” (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)
II. The Trial Court Properly Granted Sunshine’s Motion for Summary Adjudication
Appellants allege that their termination violated public policy. The elements of a claim for wrongful termination in violation of public policy are: (1) an employer-employee relationship, (2) the employee was subjected to an adverse employment action, (3) the adverse employment action violated public policy, and (4) the adverse employment action caused the employee damages. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) For an adverse employment action to have violated public policy, the employee must establish that his or her “dismissal violated a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fns. omitted.)
As noted by the trial court, the issue raised by Sunshine’s motion for summary adjudication is whether Sunshine’s termination of appellants’ employment violated public policy. According to appellants’ complaint, the public policies at issue here are embodied in Labor Code section 6310 and Penal Code section 11166. We address each in turn.
Labor Code section 6310 provides, in relevant part: “No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to the division, or other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.”
Quite simply, this statute is not implicated by appellants’ allegations as they do not allege or provide evidence that they complained to Sunshine about an unsafe work environment. Rather, according to their complaint, Sunshine terminated their employment for complaining to Millett that the proper governmental authorities had to be notified of the incident and neither he nor any Sunshine employee intended to notify DCFS of the incident. Making a complaint to an employer does not satisfy the statutory requirements of Labor Code section 6310; rather, an employee must complain about unsafe working conditions. (Lab. Code, § 6310, subds. (a) & (b); Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299.) Because appellants do not allege that they complained about an unsafe work environment, they cannot sustain a cause of action pursuant to this statute or otherwise avoid summary adjudication of this cause of action against them.
Sunshine contends that, pursuant to Sampson, supra, 64 Cal.App.3d 893, Labor Code section 6310 does not involve private, informal complaints made by an employee to his or her employer. We disagree. Sampson did hold that Labor Code section 6310 only concerns retaliation for lodging formal complaints with the Department of Industrial Relations. (Sampson, supra, 64 Cal.App.3d at pp. 896–898.) However, at that time, Labor Code section 6310 only prohibited the discharge of any employee who “made any . . . complaint . . . relating to his rights.” (Former Lab. Code, § 6310, subd. (a).) Following the decision in Sampson, the Legislature amended Labor Code section 6310 to expressly cover complaints made to an employer. (See Hentzel v. Singer Co., supra, 138 Cal.App.3d at p. 299.)
Without citing any supportive legal authority, appellants claim that allowing an intoxicated parent to drive onto Sunshine’s campus constitutes an unsafe working condition. We cannot agree with this stretched construction of the Labor Code. Labor Code, Division 5, Part 1, which includes Labor Code section 6310, was “enacted for the purpose of assuring safe and healthful working conditions . . . by authorizing the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions, and by providing for research, information, education, training, and enforcement in the field of occupational safety and health.” (Lab. Code, § 6300.) Moreover, “[t]here is a certain risk of crime in any workplace.” (Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 451, overruled on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Here, there is no evidence that Sunshine was actually unsafe as a result of Jones’s illegal actions on February 22, 2005. And, appellants direct us to no evidence that once Sunshine learned that Jones was under the influence of marijuana, it allowed her to drive onto the campus.
It appears that appellants did not raise this theory below. According to their opposition to Sunshine’s motion for summary adjudication, they were discharged, in violation of Labor Code section 6310, for complaining that a parent, while under the influence of drugs, had picked up her child and for asking that Sunshine report the incident. “It is a general rule of appellate review that arguments waived at the trial level will not be considered on appeal.” (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122.) Thus, we could refuse to consider this argument.
Similarly, appellants have not stated a claim pursuant to Penal Code section 11166, subdivision (a). That statute provides: “Except as provided in subdivision (d), and in [Penal Code] Section 11166.05, a mandated reporter shall make a report to an agency specified in [Penal Code] Section 11165.9 whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” (Pen. Code, § 11166, subd. (a).)
Appellants appear to argue that they were terminated because they reported the incident to their supervisor, Millett. In other words, they were terminated for bringing to Sunshine’s attention an incident that Sunshine did not intend to report to DCFS or other governmental authorities. As the trial court found, this argument is absurd. There is no evidence that Sunshine discouraged the reporting of child abuse. In fact, as required by law, Sunshine’s employee handbook mandated that its employees report child abuse or neglect. Moreover, after discussing the incident during the staff weekend retreat, Sunshine reported the incident to DCFS and suspended Millett for failing to report it sooner.
Appellants devote much argument in their appellate briefs to the question of whether Sunshine’s stated reason for the termination of their employment (failure to report the incident to DCFS) was pretextual for the actual reason for their termination. Appellants do not make clear, however, what the purported “actual” reason for their termination was. Based upon our review of the underlying motion papers, it seems that appellants are contending that the actual reason for their termination was bringing the incident to Sunshine’s attention when Sunshine actually intended to avoid it. As discussed, this argument is ludicrous. For this reason, we do not delve into an analysis regarding pretext and its application herein.
In urging us to reverse the trial court’s judgment, appellants cite to particular facts, which they contend create a triable issue of fact. We cannot agree.
First, appellants rely heavily upon the fact that they were not “on duty” at the time of the incident. This fact is irrelevant. Nothing in Penal Code section 11166 or Penal Code section 11165.7, subdivision (a), which defines “mandated reporter,” limits the reporting obligation of child care custodians to when they are “on duty.”
Second, appellants claim that Sunshine failed to adhere to its progressive discipline policy, as set forth in its employee handbook. After all, Smith had no prior record of discipline at the time of the incident and at the time her employment was terminated. As pointed out by Sunshine in its respondent’s brief, this contention is irrelevant to whether appellants’ termination violated public policy. At best, this claim may pertain to a cause of action for breach of contract. However, that cause of action was not at issue in Sunshine’s motion for summary adjudication, and it was dismissed by appellants prior to instituting this appeal.
Moreover, appellants utterly ignore the “catch-all” provision in the discipline policy that allows for “immediate[] dismiss[al] . . . with no warning if a serious violation occurs.” Appellants do not challenge Sunshine’s determination that allowing a student to drive away with an intoxicated person was sufficiently serious to warrant immediate termination without warning.
Third, appellants take issue with Sunshine’s reference to their “flippant” attitude. Again, appellants’ attitude is irrelevant to the question of whether the termination of appellants’ employment violated public policy.
Fourth, appellants direct us to the fact that Suarez was not disciplined for his release of the child to Jones. While Sunshine perhaps should have disciplined Suarez, its failure to do so does not suggest that appellants were terminated in violation of public policy.
Finally, appellants rely heavily upon the fact that Sunshine delayed in reporting the incident until the first business day after its staff weekend retreat. While its delay is not laudable, it does not aid appellants’ cause on appeal. As set forth above, there is no evidence that Sunshine was attempting to avoid reporting the incident. Rather, it is undisputed that Millett was disciplined for his failure to immediately report the incident, and Sunshine did report the incident to DCFS immediately following the staff retreat, during which time the incident was discussed and a course of action was decided.
DISPOSITION
The judgment of the trial court is affirmed. Respondents are entitled to costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.