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VERDUZCO v. GENERAL DYNAMICS

April 3, 1990

MAX R. VERDUZCO, Plaintiff,
v.
GENERAL DYNAMICS, CONVAIR DIVISION, a Delaware corporation, Defendants



The opinion of the court was delivered by: GILLIAM

 EARL B. GILLIAM, UNITED STATES DISTRICT JUDGE

 FACTS

 Max R. Verduzco worked for General Dynamics for thirty-seven years. In 1984, General Dynamics told Verduzco that he had been targeted for termination because his work was unacceptable within the context of an overall work force reduction. Verduzco chose early retirement over the other options that General Dynamics offered to him.

 On March 5, 1985, Verduzco filed a wrongful termination suit against General Dynamics in state court. On November 23, 1988, General Dynamics removed the case to this court. On September 11, 1989, the court permitted Verduzco to amend his complaint.

 Verduzco's first amended complaint alleges a claim for retaliatory discharge in violation of public policy. He claims that the public policy of the United States government and its Defense Department is that "private contractors obligated to fulfill government contracts must do so with reasonable care, under strict security procedures and using quality material assembled in a workmanlike manner." First Amended Complaint, at 6. As a basis for that claim, Verduzco alleges that General Dynamics Convair Division is in the business of building weapons systems for the United States Department of Defense. Verduzco alleges that he was a production control supervisor in charge of subassemblies for the Cruise Missile, a defense department project.

 Verduzco alleges that he confronted General Dynamics Convair Division's head of security, Mr. Mendoza,

 
with serious charges that security was so lax that workers at the plant could walk off with blueprints and other material, dissemination of which, he reasonably believed, would compromise the nation's security interests.

 First Amended Complaint, at 5. Verduzco alleges that he complained, to whom he does not say, that workers with inadequate security clearances commonly reviewed documents that required a higher security clearance. Verduzco also alleges that he complained when the materials needed for assembly were shoddy or unavailable. Verduzco claims that he was repeatedly assured that General Dynamics would take care of the problems.

 DISCUSSION

 In a motion to dismiss, the court must consider only the face of the complaint, assuming the facts plead to be true and viewing them in the light most favorable to the nonmoving party. Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981); California v. United States, 512 F. Supp. 36, 39 (N.D. Cal. 1981). In a motion to dismiss for failure to state a claim, the court must decide whether the facts alleged, if true, would give rise to an enforceable legal right. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978).

 Verduzco is asking this court to recognize a public policy that is not based on or derived from a statute. In addition, because Verduzco never reported the alleged security violations to anyone outside General Dynamics Convair Division, he is asking the court not to require him to have done so in order to state a claim for retaliatory discharge in violation of public policy.

 In Foley v. Interactive Data Corp., 47 Cal. 3d 654, 254 Cal. Rptr. 211, 765 P.2d 373 (1988), the California Supreme Court expressly reserved ruling on whether the "public policy" alleged in a claim for retaliatory discharge in violation of public policy must be based on a violation of a statute or derived from a statute. Foley, 47 Cal. 3d at 669, 765 P.2d 373, 254 Cal. Rptr. 211. Lower courts have gone both ways on this issue. Some courts have held that the state legislature is the only source of this type of public policy determination. Shapiro v. Wells Fargo Realty Advisors, 152 Cal. App. 3d 467, 477, 199 Cal. Rptr. 613 (1984); see also Tyco Industries, Inc. v. Superior Court, 164 Cal. App. 3d 148, 159, 211 Cal. Rptr. 540 (1985). Other courts have stated that courts, as well as the legislature, may enunciate ...


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