Barton v. New United Motor Manufacturing, Inc.

Page 328

51 Cal.Rptr.2d 328

43 Cal.App.4th 1200, 12 IER Cases 368,

96 Cal. Daily Op. Serv. 2046,

96 Daily Journal D.A.R. 3419

Mark Terrance BARTON, Plaintiff and Appellant, v. NEW UNITED MOTOR MANUFACTURING, INC., Defendant and Respondent.

No. A071127.

Court of Appeal, First District, Division 1, California.

March 26, 1996.

Review Denied June 12, 1996. ^*

[43 Cal.App.4th 1203] Mark Terrance Barton, Los Gatos, in pro per.

Robert T. Fries and Tamara Mason-Williams, Steinhart & Falconer, San Francisco, for Respondent.

STRANKMAN, Presiding Justice.

We hold in this case that the statute of limitations for an action for wrongful discharge in violation of public policy is the one-year period provided by Code of Civil Procedure section 340, subdivision (3).

FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 1994, plaintiff Mark Terrance Barton filed a complaint against defendant New United Motor Manufacturing, Inc., for breach of contract and an intentional tort, alleging wrongful termination. Defendant removed the action to federal court, on the ground plaintiff's claims were preempted by federal law because they could be resolved only by reference to the collective bargaining agreement between defendant and plaintiff's authorized bargaining representative. The federal district court dismissed with prejudice plaintiff's claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional interference with a contractual relationship and prospective economic advantage. It remanded the only remaining claim, wrongful discharge in violation of public policy, to the superior court.

Plaintiff filed an amended complaint in superior court, alleging with more specificity that he was terminated in violation of public policy. He alleged that before October 1992, he complained to management at defendant's factory about certain unsafe working conditions. Defendant did not correct those conditions and plaintiff continued to complain. On October 12, 1992, he was terminated, allegedly in retaliation for reporting the unsafe conditions.

Defendant filed a demurrer, on the ground the action was barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340, subdivision (3) (hereafter section 340(3)). ¹ The trial court sustained the demurrer without leave to amend and dismissed the action. Plaintiff appeals, appearing, as he has throughout these proceedings, in propria persona.

DISCUSSION

On appeal from a judgment or order of dismissal after the trial court has sustained a demurrer, this court must assume the truth of all properly pleaded material allegations of fact. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 635, 49 Cal.Rptr.2d 377, 909 P.2d 981.) Nevertheless, a trial court does not err in sustaining a demurrer without leave to amend where the complaint discloses on its face that the action is barred by the statute of limitations. (Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823, 245 Cal.Rptr. 178, 5 Witkin, Cal. Procedure (3d ed. 1985) § 912, p. 349.)

It is settled that an employer's discharge of an employee in violation of a fundamental public policy embodied in a constitutional or statutory provision gives rise to a tort action. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252, 32 Cal.Rptr.2d 223, 876 P.2d 1022; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1089-1090, 4 Cal.Rptr.2d 874, 824 P.2d 680 (Gantt); Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 663, 254 Cal.Rptr. 211, 765 P.2d 373 (Foley ); Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178, 164 Cal.Rptr. 839, 610 P.2d 1330 (Tameny ).) An employer who fires an employee in retaliation for protesting unsafe working conditions violates fundamental public policy, and the discharged employee may bring a tort action for wrongful discharge in addition to his or her statutory remedies. (Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 300-304, 188 Cal.Rptr. 159; see Greene v. Hawaiian Dredging Co. (1945) 26 Cal.2d 245, 251, 157 P.2d 367; Lab.Code §§ 6310, subd. (a)(1), 6402.) The question in this case is not whether plaintiff has stated a cause of action, but whether his complaint was timely filed.

Some uncertainty exists as to what statute of limitations governs a wrongful termination action. ² (See 3 Wilcox, Cal. Employment Law (1995) § 60.09, p. 60-107; Barlow et al., Advising Cal. Employers (Cont.Ed.Bar 1995 Supp.) § 1.73A, p. 93.) The one year provided by section 340(3) was applied in Regents of University of California v. Superior Court (1995) 33 Cal.App.4th 1710, 39 Cal.Rptr.2d 919, but only because plaintiff conceded its applicability, and the court commented that the matter appeared to be an open question. (Id. at p. 1716 & fn. 5, 39 Cal.Rptr.2d 919.) ³ The Ninth Circuit has stated in one case that California would apply a two-year statute to a wrongful discharge action (Daniels v. Fesco Division of Cities Service Company (9th Cir.1984) 733 F.2d 622, 623), but in other cases, has concluded that section 340(3) applies. (Funk v. Sperry Corp. (9th Cir.1988) 842 F.2d 1129, 1133 [citing as authority a state Court of Appeal case in which review had been granted, but which later was retransferred to that court for reconsideration]; Hinton v. Pacific Enterprises (9th Cir.1993) 5 F.3d 391, 394 [dicta].)

Section 340 (3), establishes a one-year limitations period for an "action for ... injury to ... one caused by the wrongful act ... of another...." This statute encompasses not only bodily injury but also a broad range of infringements of "personal rights." (Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453, 1460, 232 Cal.Rptr. 685 [conspiracy resulting in infliction of emotional distress]; Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 719, 228 Cal.Rptr. 398 [malicious prosecution]; Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 50, 147 Cal.Rptr. 565 [intentional infliction of emotional distress]; Rutherford v. Johnson (1967) 250 Cal.App.2d 316, 318, 58 Cal.Rptr. 546 [defamation]; see 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, §§ 403-404, pp. 433-434.)

But not all tort actions are governed by that statute. Section 339, subdivision 1 (hereafter section 339(1)) provides a two-year limitations period for "[a]n action upon a contract, obligation or liability not founded upon an instrument of writing...." This provision applies not only to actions for breach of oral or implied contracts and to quasi-contractual actions, but also to certain tort actions that do not come within the scope of other statutes of limitations. (Davies v. Krasna (1975) 14 Cal.3d 502, 509-510, fn. 6, 121 Cal.Rptr. 705, 535 P.2d 1161.) Courts often have been called upon to determine which of these two statutes governs in a particular tort action, and the rule that has emerged is that section 340(3) applies to infringements of "personal rights" and section 339(1), to "property rights." ⁴ Based on that distinction, courts have held that section 339(1) governs tort actions alleging damage to business operations and business reputation from a wrongful levy of execution (Tu-Vu Drive-In Corp. v. Davies (1967) 66 Cal.2d 435, 436-437, 58 Cal.Rptr. 105, 426 P.2d 505), damage to intangible property interests from professional negligence (Slavin v. Trout (1993) 18 Cal.App.4th 1536, 1539, 23 Cal.Rptr.2d 219), spoliation of evidence (Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8, 16 Cal.Rptr.2d 400), trade libel (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 479, 222 Cal.Rptr. 79), insurance bad faith (Richardson v. Allstate Ins. Co. (1981) 117 Cal.App.3d 8, 12, 172 Cal.Rptr. 423), inducement of a breach of contract (Trembath v. Digardi (1974) 43 Cal.App.3d 834, 836, 118 Cal.Rptr. 124; Kiang v. Strycula (1965) 231 Cal.App.2d 809, 811-812, 42 Cal.Rptr. 338), and arbitrary restriction of physician's hospital privileges (Edwards v. Fresno Community Hosp. (1974) 38 Cal.App.3d 702, 705-706, 113 Cal.Rptr. 579).

Plaintiff contends that section 339(1) should control in this case because he had a property right in his employment and his wrongful termination action concerns damage to that right, not a personal injury. Although he did not suggest this theory to the trial court, it presents only a question of law and is therefore cognizable in this appeal. (Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1787, 26 Cal.Rptr.2d 812.)

The statute of limitations to be applied in a particular case is determined by the nature of the right sued upon or the principal purpose of the action, not by the form of the action or the relief requested. (Davies v. Krasna, supra, 14 Cal.3d at p. 515, 121 Cal.Rptr. 705, 535 P.2d 1161; Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 718, 7 Cal.Rptr. 899, 355 P.2d 643.) What is significant for statute of limitations purposes is the primary interest invaded by defendant's wrongful conduct. (See Richardson v. Allstate Ins. Co., supra, 117 Cal.App.3d at pp. 11-13, 172 Cal.Rptr. 423.)

As the present case demonstrates, this seemingly straightforward rule can be troublesome to apply when a cause of action appears to implicate both personal and property rights. In one such case, Edwards v. Fresno Community Hosp., supra, 38 Cal.App.3d 702, 113 Cal.Rptr. 579, the court looked to the "essential character" of the action to determine the proper limitations period. The court held that the two-year statute was controlling in an action by a physician alleging wrongful curtailment of his hospital privileges, even though the term "hospital privileges" connoted personal activity and personal rights might have been involved incidentally in the exercise of those privileges. Relying on cases characterizing the right to pursue any lawful business or profession as a property right, the court reasoned that the right of a qualified physician to use hospital facilities to...