Santa Clara County Superior Court S.Ct. No. CV233484 Hon. Carol W. Overton, Hon. Neal Anthony Cabrinha, Hon. Patricia M. Lucas Judge
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The Employment Law Group and David L. Scher for Plaintiff and Appellant.
Ropers, Majeski, Kohn & Bentley, Michael J. Ioannou, Terry Anastassiou and Susan H. Handelman for Defendant and Respondent.
Linda Ferrick, a former employee of Santa Clara University (SCU), a private institution, appeals from a judgment of dismissal after an order sustaining a demurrer to Ferrick’s second amended complaint (complaint) without leave to amend. The complaint’s sole cause of action is for wrongful termination in violation of public policy, otherwise known as a Tameny claim (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330] (Tameny)). The court found that the complaint failed to allege that her discharge violated any fundamental public policy.
Although the complaint charges Nick Travis (Travis), allegedly SCU’s “Director of Real Estate” and Ferrick’s immediate supervisor, with extensive wrongdoing and inappropriate behavior, only some of that conduct was allegedly reported by Ferrick to SCU’s management. Based upon her limited disclosures to SCU as alleged, Ferrick argues that the complaint states a cause of action. We conclude that the complaint does state a cause of action for wrongful termination in violation of public policy on a very narrow basis. Accordingly, we will reverse the judgment.
I Standard of Review
Appellate review of an order sustaining a demurrer is de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 [106 Cal.Rptr.2d 271, 21 P.3d 1189].) "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)
“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]” (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 [197 Cal.Rptr. 783, 673 P.2d 660].) In reviewing the ruling on a demurrer, “the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]....” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal.Rptr. 88, 468 P.2d 216].) "To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [138 Cal.Rptr.3d 1, 270 P.3d 699].) A complaint’s allegations are construed liberally in favor of the pleader. (Skopp v. Weaver (1976) 16 Cal.3d 432, 438 [128 Cal.Rptr. 19, 546 P.2d 307]; see Code Civ. Proc., § 452.)
“[W]hen [the demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406].) In this case, Ferrick has not shown that her complaint may be amended in any factual respect.
A. Second Amended Complaint
The complaint alleges that Ferrick worked for SCU as a senior administrator in its real estate department and Travis was the department’s director. It contains allegations indicating that Travis has a bad character and behaved unprofessionally, for example, it states that Travis has a “ ‘playboy ethic, ’ ” he sent “ ‘inappropriate emails, ’ ” he arrived late to the office, he took long lunches, he sometimes failed to come into work, and he “frequently drank alcohol at work and left empty beer cans in his office....”
The complaint generally alleges: “Ferrick witnessed and reported numerous instances of her immediate supervisor, Nick Travis... embezzl[ing] funds, engag[ing] in kickback schemes, evad[ing] taxes, misdirect[ing] public monies, mak[ing] false representations in real estate deals, violat[ing] state code controlling licensed realtors, and threaten[ing] public health and safety. All of these substantial policy concerns harm members of the public beyond SCU.” It also states: “Travis’ activities violated statutes and significant public policy concerns by harming SCU students, parents, customers, taxpayers, regulators, bond issuers, local business, and community members and is therefore a matter of public policy.”
According to the complaint, Travis asked Ferrick’s son-in-law, David Rego, a construction supervisor at SCU, to procure a truck for SCU’s real estate department. Rego procured a truck for $6,000. When processing an invoice for $21, 000 from Rego in August 2011, Ferrick allegedly “changed the total from $21,000 to $27,000 believing, incorrectly, that the bill did not reflect the $6,000 for the truck.” “Rego subsequently returned a check for $6, 000 that was overpaid” and “Ferrick immediately deposited it in an SCU account, correcting the error.”
On September 9, 2011, SCU informed Ferrick that there would be a full audit of its real estate department. SCU placed Ferrick and her son-in-law on paid administrative leave. On October 12, 2011, Travis terminated Ferrick “for ‘questionable finance practices’ that he characterized, at worst, ‘as fraud and embezzlement from the University.’ ”
The allegations of the complaint indicate that at various times Ferrick made disclosures about Travis to Harry Fong, SCU’s director of finance, or Sam Florio, SCU’s risk manager. It also alleges that she provided a list of SCU tenants of Steve Sundeen, a property owner who paid Travis a fee of 3
percent on new leases, to SCU’s budget director, Dennis Roberts, a little more than a month before SCU announced an internal audit of the real estate department.
B. Ruling on Demurrer
The court sustained SCU’s demurrer to the complaint without leave to amend because it failed to state facts sufficient to show that the university terminated Ferrick in violation of a fundamental public policy. It found that “the alleged illegal conduct by [Ferrick’s] supervisor that she reported to her superiors involved an injury only to the pecuniary interests of SCU, a private institution, and not the public at large.” It indicated that Ferrick’s “conclusory allegations that her supervisor’s alleged conduct generally result in harm to students and others are insufficient to demonstrate that he violated laws which inure benefits to the public at large.” The trial court determined that Ferrick had not shown that she could add factual allegations to state a claim.
A. Law Governing Tameny Claim
“An action in tort seeking damages for discharge from employment in contravention of public policy is an exception to the general rule, now codified in Labor Code section 2922, that unless otherwise agreed by the parties, an employment is terminable at will. That exception was recognized in Tameny v. Atlantic Richfield Co.[, supra,] 27 Cal.3d 167....” (Jennings v. Marralle (1994) 8 Cal.4th 121, 129 [32 Cal.Rptr.2d 275, 876 P.2d 1074], fn. omitted.) Tameny stated: “[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny, supra, 27 Cal.3d at p. 170.)
To prevail on a claim for wrongful termination in violation of public policy, a plaintiff must show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge harmed the plaintiff. (See Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641 [17 Cal.Rptr.3d 336]; CACI No. 2430.)
B. Public Policy
1. Nature of Public Policy Supporting Wrongful Termination Claim
The public policy supporting a claim of wrongful termination must meet the following four criteria: “First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890 [66 Cal.Rptr.2d 888, 941 P.2d 1157], fn. omitted.) Administrative regulations implementing a statute may also be a source of fundamental public policy. (See Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79-80, 82 [78 Cal.Rptr.2d 16, 960 P.2d 1046] (Green).) The determination whether the public policy exception applies “depends in large part on whether the public ...