California Court of Appeals, Second District, Fourth Division
JORGE L. VASQUEZ, Plaintiff and Appellant,
FRANKLIN MANAGEMENT REAL ESTATE FUND, INC., Defendant and Respondent.
Pub. Order 12/31/13 (see end of opn.)
APPEAL from a judgment of the Superior Court of Los Angeles No. BC449064, Malcolm Mackey, Judge.
Employment Lawyers Group, Karl Gerber and Ann Guleser for Plaintiff and Appellant.
Kimball, Tirey & St. John, Karl P. Schlecht and Michaelene H. Kapson for Defendant and Respondent.
Appellant Jorge L. Vasquez contends the trial court abused its discretion in sustaining respondent Franklin Management Real Estate Fund, Inc.’s demurrers to appellant’s claims for constructive discharge in violation of public policy and intentional infliction of emotional distress. The trial court found appellant’s allegation that respondent violated the Labor Code by assigning appellant tasks that required extensive use of his vehicle and refusing to reimburse him for mileage did not support either claim. The issue presented is whether the facts alleged supported claims for constructive discharge in violation of public policy or intentional infliction of emotional distress, or could be amended based on factual contentions made by appellant to state such causes of action. We agree with the trial court that appellant did not assert facts sufficient to support the intentional infliction of emotional distress claim. However, we conclude appellant should have been permitted leave to amend his claim of constructive discharge in violation of public policy and therefore reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original Complaint and Demurrer
Respondent employed appellant as a maintenance technician from May 2009 until August 2010. In November 2010, appellant brought suit against respondent. The complaint alleged that during appellant’s term of employment, respondent paid him a wage of $10 per hour for a 40-hour week. After the first month, appellant’s supervisors began instructing him to drive his own truck for work-related errands, such as going to the hardware store to buy items needed for apartments owned or managed by respondent. Appellant estimated that he thereafter drove a minimum of 30 miles per day running errands related to his employment. According to the complaint, appellant told his supervisors nearly every week that he could not afford to pay for the gasoline and vehicle maintenance, and he requested reimbursement. Despite his repeated requests, his supervisors continued to assign him tasks that required many miles of driving and consistently informed him he would not be reimbursed.
In August 2010, appellant informed a new supervisor that he could not afford to maintain his vehicle due to using his money to purchase gasoline for work-related errands. Appellant told the new supervisor he could not “tolerate the work environment of only being paid $10.00 per hour, not being paid for gas and having to drive around town for work without being reimbursed for mileage.” When respondent continued to refuse to reimburse for mileage, appellant had “no choice but to resign.” Based on these allegations, appellant brought suit for violation of Labor Code section 2802. He also asserted claims for constructive wrongful termination in violation of public policy and intentional infliction of emotional distress. According to the complaint, the public policy respondent allegedly violated was embodied in Labor Code sections 2802 and California’s unfair competition law (Bus. & Prof. Code, § 17200, et seq.).
Respondent demurred to the claims for constructive discharge and intentional infliction of emotional distress. Respondent contended that failure to reimburse for mileage was not sufficiently intolerable or aggravated to support a claim of constructive discharge. Respondent further contended that appellant failed to allege sufficiently outrageous and extreme conduct to support a claim for intentional infliction of emotional distress.
The trial court sustained the demurrer with leave to amend the claim for constructive discharge and without leave to amend the claim for intentional infliction of emotional distress. The court found that the complaint failed to allege facts sufficient to constitute a constructive discharge and failed to allege any outrageous conduct on the part of respondent.
B. FAC and Demurrer
Appellant filed a first amended complaint (FAC), adding more detail to the allegations of the original complaint. The FAC alleged that appellant should have been reimbursed $330 per month based on driving 30 miles each workday and the standard mileage rate of 55 cents per mile, and that this represented a significant percentage of his $1, 600 monthly salary. Appellant contended that the failure to reimburse him for mileage resulted in his salary of $10 per hour being effectively reduced to less than the minimum wage. However, in asserting his claim for constructive discharge in violation of public ...