Opinion
C086487
09-24-2019
Wilfert WILLIAMS, Plaintiff and Appellant, v. SACRAMENTO RIVER CATS BASEBALL CLUB, LLC, Defendant and Respondent.
Law Offices of Jean Schaefer and Jean Schaefer, Sacramento; and The Rosa Law Group and Andrea Rosa, for Plaintiff and Appellant. Murphy, Pearson, Bradley, & Feeney, William A. Munoz, Sacramento and Nathan T. Jackson, for Defendant and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I, IIB, and IIC of the discussion.
Law Offices of Jean Schaefer and Jean Schaefer, Sacramento; and The Rosa Law Group and Andrea Rosa, for Plaintiff and Appellant.
Murphy, Pearson, Bradley, & Feeney, William A. Munoz, Sacramento and Nathan T. Jackson, for Defendant and Respondent.
Robie, J.
Plaintiff Wilfert Williams sued defendant Sacramento River Cats Baseball Club, LLC in a common law tort action for failing to hire him due to his race. His complaint also alleged discrimination under the Unruh and Ralph Civil Rights Acts and that defendant engaged in unfair business practices under Business and Professions Code section 17200. The trial court dismissed plaintiff's complaint after sustaining defendant's demurrer. Plaintiff stipulated the dismissal be entered without leave to amend. Defendant asserts as a threshold matter that plaintiff lacks standing in this appeal given his stipulation in the trial court was tantamount to a nonappealable consent judgment and in any event, his causes of action fail on the merits. In the unpublished portion of this opinion, we reject defendant's contention that plaintiff lacks standing to appeal but agree the trial court properly dismissed plaintiff's causes of action for discrimination under the Unruh and Ralph Civil Rights Acts and for unfair business practices.
The complaint also named the office of the commissioner of baseball, doing business as Major League Baseball, and Robert Manfred, Jr., as defendants for the unfair business practices cause of action. Those defendants are not parties to this appeal.
In the published portion of this opinion, we address plaintiff's common law failure to hire claim. Central to that claim is the applicability of Tameny . (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 ( Tameny ).) While we agree with the parties that failing to hire a prospective employee based on race violates public policy, specifically the Government Code as well as our state Constitution, that prospective employee's remedies are grounded in the Fair Employment and Housing Act (the Act). Tameny on the other hand requires "the prior existence of an employment relationship" between the parties upon which to predicate a tort duty of care. ( Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900, 80 Cal.Rptr.3d 690, 188 P.3d 629.) Because defendant did not owe plaintiff any duty, plaintiff cannot bring a failure to hire claim against defendant in a common law tort action and must instead proceed under the Act. Accordingly, we affirm the judgment of dismissal.
Government Code section 12900 et seq.
FACTUAL AND PROCEDURAL BACKGROUND
I
Factual Allegations
From April 2014 through July 2015, plaintiff catered meals to the visiting and home team players at Raley Field, home of defendant's minor league baseball team. He was hired by the visitor clubhouse manager, Wayne Brown, and the home clubhouse manager to do so. He also helped Brown with meal preparation during that time. While assisting Brown, the job of assistant visitor clubhouse manager became available and plaintiff applied for the job. Brown recommended plaintiff to both defendant's human resources director and to the baseball operations and public relations coordinator, Daniel Emmons. Plaintiff was never interviewed for the position even though he was already performing some of the tasks of assistant clubhouse manager and had experience running his own catering business. Instead, defendant hired a Caucasian teenager who was still in high school and did not meet any of the qualifications for the job. In June 2015, while plaintiff helped Brown in the visitor clubhouse as Brown's guest, plaintiff witnessed a visiting team's trainer and coach berate, intimidate, assault, and swear at Brown, who is African American, "as if he were a slave or servant, not an employee." "Plaintiff could do nothing but stand by and endure the harassing conduct, based on the threat that either [the trainer] or [the coach] would turn their wrath on him, the only other African American present." Emmons was present and observed the harassing conduct but failed to stop it and appeared to condone the conduct by siding with the visiting trainer and coach.
II
Legal Proceedings
Plaintiff's operative complaint alleged three causes of action. The first was a common law tort action for "Failure to Hire" based on "Race Discrimination in Violation of Public Policy" as articulated by the Act under Government Code section 12940, subdivision (a), which prohibits prospective employers from refusing to hire individuals based on race. The second cause of action was for violation of the Unruh and Ralph Civil Rights Acts based on the conduct of the visiting trainer and coach while plaintiff was in the visiting clubhouse with Brown. The third cause of action was for unfair business practices based on defendant's conduct of underpaying Brown, who in turn had to underpay plaintiff for his catering work, which served to transfer costs so defendant could spend money otherwise earmarked for the visiting clubhouse on other operations. This conduct, plaintiff alleged, provided defendant with an unfair competitive advantage and with illegal profits.
Defendant demurred to the operative complaint arguing plaintiff's first cause of action failed because California law does not recognize a cause of action for failure to hire in violation of public policy. The second cause of action failed, defendant argued, because the conduct plaintiff complains of was not prohibited by the Ralph Civil Rights Act and also because the Unruh Civil Rights Act did not recognize " ‘environmental’ " claims, where the complained of conduct is directed at someone other than the complaining party. As to the third cause of action, defendant argued plaintiff failed to allege an injury in fact or a causal relationship between its conduct and plaintiff's harm. Defendant further argued that, to the extent plaintiff's claim was derivative of his first cause of action, it failed because plaintiff's first cause of action was meritless.
The trial court issued a tentative ruling sustaining defendant's demurrer as to all causes of action. In its reasoning, the court stated the demurrer was sustained with leave to amend; however, the court's ruling provides: "Parties stipulated and the Court accepted that the Demurrer to the [operative] Complaint be sustained WITHOUT leave to amend." When making its decision to sustain the demurrer, the court reasoned plaintiff did not state a cause of action for failure to hire because California does not recognize a common law cause of action for failure to hire in violation of public policy. Further, to the extent plaintiff alleged a statutory claim under the Act, he failed to do so because he failed to allege he exhausted his administrative remedies. As to plaintiff's second cause of action, the court found he did not state a cause of action under the Unruh Civil Rights Act because he failed to allege that he was the victim of the discriminatory conduct. This cause of action also failed under the Ralph Civil Rights Act because plaintiff did not allege he was the victim of violence. Finally, plaintiff failed to state a cause of action for unfair business practices because plaintiff did not show he was defendant's employee or that he was directly injured by defendant. Further, the cause of action failed as a derivative claim of plaintiff's Tameny cause of action because that cause of action failed as well.
The judgment of dismissal provides that "The Court, having sustained [defendant's] demurrer to all causes of action alleged in [plaintiff's complaint] without leave to amend, based on a stipulation of the Parties, hereby" dismisses the case in its entirety. As a result, plaintiff's entire case was dismissed.
Plaintiff appeals.
DISCUSSION
See footnote *, ante .
II
Demurrer Standard Of Review
A demurrer tests the legal sufficiency of factual allegations in a complaint. ( Title Ins. Co. v. Comerica Bank - California (1994) 27 Cal.App.4th 800, 807, 32 Cal.Rptr.2d 735.) We review de novo the dismissal of a civil action after a demurrer is sustained without leave to amend. ( Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, 6 Cal.Rptr.2d 151.) In doing so, "we determine whether the complaint states facts sufficient to constitute a cause of action." ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) " ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’ " ( Ibid. ) "Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." ( Ibid. ) We will affirm if any proper ground for sustaining the demurrer exists. ( Cantu , at p. 880, fn. 10, 6 Cal.Rptr.2d 151.)
On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law. ( Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43, 96 Cal.Rptr.2d 354.) To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged "facts sufficient to establish every element of that cause of action. " ( Cantu v. Resolution Trust Corp. , supra , 4 Cal.App.4th at p. 879, 6 Cal.Rptr.2d 151.) If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer. ( Id. at p. 880, 6 Cal.Rptr.2d 151.)
A
Plaintiff Failed To State A Cause Of Action Under Tameny
Plaintiff contends the trial court erred by sustaining defendant's demurrer to his failure to hire cause of action because the reasoning of Tameny , recognizing a tort action for wrongful termination in violation of public policy, extends to failure to hire claims. We disagree.
In Tameny , the plaintiff alleged his former employer had discharged him because he refused to participate in an illegal scheme to fix retail gasoline prices. ( Tameny , supra , 27 Cal.3d at p. 169, 164 Cal.Rptr. 839, 610 P.2d 1330.) Our Supreme Court held these allegations supported a tort action for wrongful discharge. ( Id. at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.) In doing so, it concluded that an employer's obligation to refrain from discharging an employee who refuses to commit a criminal act does not depend on any express or implied promises set forth in the employment contract, but rather reflects a duty imposed by law on all employers in order to implement the fundamental public policy embodied in the penal statutes. ( Id. at p. 176, 164 Cal.Rptr. 839, 610 P.2d 1330.) Thus, " ‘where the employer's motivation for [a] discharge contravenes some substantial public policy principle, then the employer may be held liable to the employee for damages ....’ " ( Id. at p. 177, 164 Cal.Rptr. 839, 610 P.2d 1330.)
Following Tameny , our Supreme Court provided guidance in Stevenson on how to determine whether an employer's conduct contravened a substantial public policy giving rise to a wrongful termination cause of action. ( Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894, 66 Cal.Rptr.2d 888, 941 P.2d 1157 [A tortious discharge claim requires that the employee be discharged in violation of a policy that is: "(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental"].) It is upon the factors announced in Stevenson that plaintiff focuses his argument. Defendant, however, concedes that failing to hire a prospective employee based on race violates public policy, and we agree. (See Cal. Const., art. I, § 8 ["A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin"]; see also Gov. Code, § 12940, subd. (a).) Instead, it focuses on the relationship between the parties and whether an employment relationship existed giving rise to a duty not to violate public policy. We find defendant's inquiry much more relevant to the issue presented in this case.
We note our Supreme Court concluded in Tameny that the duty to comport with "fundamental public policies embodied in the state's penal statutes" applied to "all employers," which taken in isolation seems to apply the duty to those offering employment. ( Tameny , supra , 27 Cal.3d at p. 176, 164 Cal.Rptr. 839, 610 P.2d 1330.) The reasoning underlying this conclusion, however, makes clear the employer's duty is owed to their employees after having entered an employer-employee relationship. Our Supreme Court characterized the duty as ex delicto, meaning it evolved "from a breach of duty growing out of the contract ...." ( Ibid. ) In saying so, the court relied on Sloane , one of the original California cases recognizing that a wrongful act committed in the course of a contractual relationship gives rise to both tort and contractual relief. ( Tameny , at pp. 175-176, 164 Cal.Rptr. 839, 610 P.2d 1330.) In Sloane , our Supreme Court held a plaintiff who was wrongfully ejected from a train before her destination "could either bring an action simply for the breach of contract, or she could sue ... in tort for [defendant's] violation of the duty ... which it assumed upon entering into such a contract." ( Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 677, 44 P. 320.)
Moreover, our Supreme Court in Miklosy , a case involving wrongful termination claims against the University of California and the employees' supervisors, stated that as it pertained to the supervisors, "Plaintiffs ... overlook the fact that a Tameny action for wrongful discharge can only be asserted against an employer .... This conclusion flows logically from our reasoning in Tameny . [¶] The tort we recognized in Tameny , and reaffirmed in Gantt , is premised on the wrongful termination of an employment relationship. If an employer terminates an employment relationship for a reason that contravenes some fundamental public policy, then the employer breaches a general duty imposed by law upon all employers and the employee's remedy therefore sounds in tort. [Citation.] In that case, the various terms of the employment relationship are not the source of the employee's legal rights; rather, tort law is the source of the employee's legal rights, and the employment relationship is merely the medium through which the tort is inflicted. [Citation.] Nevertheless, the breach of the employment relationship is an indispensable element of the tort, because it serves factually as the instrument of injury. Thus, there can be no Tameny cause of action without the prior existence of an employment relationship between the parties." ( Miklosy v. Regents of University of California , supra , 44 Cal.4th at p. 900, 80 Cal.Rptr.3d 690, 188 P.3d 629, italics omitted.)
Subsequent cases have complied with this basic principle and declined to extend Tameny claims to independent contractors (see Sistare-Meyer v. Young Men's Christian Assn. (1997) 58 Cal.App.4th 10, 14, 16-17, 67 Cal.Rptr.2d 840 ; Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 75, 80-82, 17 Cal.Rptr.2d 649 ; Abrahamson v. NME Hospitals, Inc. (1987) 195 Cal.App.3d 1325, 1328-1329, 241 Cal.Rptr. 396 ), and those seeking renewal of employment contracts (see Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 678, 682, 145 Cal.Rptr.3d 766 ; Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, 45, 63 Cal.Rptr.2d 727 ). Similarly, courts have recognized the claim's applicability to employees who have experienced adverse employment actions, such as demotions or suspensions. (See Andersen v. Pacific Bell (1988) 204 Cal.App.3d 277, 283, 251 Cal.Rptr. 66 ; Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1562, 232 Cal.Rptr. 490, abrogated on other grounds in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1093, 4 Cal.Rptr.2d 874, 824 P.2d 680.)
Thus, before we can determine whether a duty was breached per the Stevenson factors, we must first determine whether a duty was owed. To do so, we must determine whether plaintiff was defendant's employee. ( Miklosy v. Regents of University of California , supra , 44 Cal.4th at p. 900, 80 Cal.Rptr.3d 690, 188 P.3d 629.) Plaintiff does not argue he was defendant's employee but concedes he was a job applicant. Because plaintiff was not an employee, defendant did not owe him a duty; thus, plaintiff's Tameny claim must fail.
This does not mean that plaintiff is without recourse. Not only does it violate public policy to fail to hire a prospective employee based on race, it violates the law. ( Cal. Const., art. I, § 8 ; Gov. Code, § 12940, subd. (a).) The employer, however, has not committed a tort against the prospective employee because it owed no duty to that person. ( Miklosy v. Regents of University of California , supra , 44 Cal.4th at p. 900, 80 Cal.Rptr.3d 690, 188 P.3d 629.) Instead, plaintiff must proceed under the Act, which provides a statutory cause of action. ( Gov. Code, § 12940.) Accordingly, the trial court properly sustained defendant's demurrer to the first cause of action. B-C
See footnote *, ante .
DISPOSITION
The judgment is affirmed. Defendant is awarded costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(2).)
We concur:
Blease, Acting P. J.
Krause, J.