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Grinzi v. San Diego Hospice Corp.6/30/2004
CERTIFIED FOR PUBLICATION
Joan Grinzi (Grinzi) appeals a dismissal of her first amended complaint after the court sustained, without leave to amend, the demurrer of San Diego Hospice Corporation (Hospice). Grinzi contends she was wrongfully terminated from employment in violation of established public policy supported by the First Amendment of the United States Constitution and Labor Code sections 96, subdivision (k), and 98.6.
We find the First Amendment free speech provision fails to establish public policy against terminations by private employers for speech-related activities because this provision applies only to government actions and expresses no public policy regarding terminations by private employers. Further, we hold section 96, subdivision (k), provides only procedure under which the Labor Commissioner shall exercise jurisdiction rather than independent public policy creating a private right of action. (Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 533 (Barbee).) Finally, we find the Legislature did not intend section 98.6 to establish public policy against terminations for conduct not protected under the Labor Code. Therefore, we affirm the judgment of dismissal.
Factual and Procedural Background
Grinzi worked as a case manager for Hospice, a private corporation, for about 13 years. During her employment, she received a promotion, commendations and raises. Hospice never warned or disciplined her, and she performed all her duties and obligations. In early 2002, Grinzi alleges Hospice fired her explaining her termination was because of her membership in Women's Garden Circle, an investment group Hospice believed to be an illegal pyramid scheme. A few days later, Hospice told her she was terminated for wrongful use of Hospice's email system. Grinzi alleges this second explanation was a pretext. She asserts the true reason for her termination was her lawful conduct, outside working hours, consisting of membership in Women's Garden Circle.
Grinzi sued Hospice for wrongful termination in violation of public policy, breach of implied contract and intentional infliction of emotional distress. Hospice filed a cross-complaint and a general demurrer. The court sustained Hospice's demurrer with leave to amend. Grinzi answered the cross-complaint and filed a first amended complaint alleging a single cause of action, wrongful termination in violation of public policy. The court sustained Hospice's demurrer to Grinzi's first amended complaint, without leave to amend, and dismissed the action. The parties have stipulated to stay proceedings on Hospice's cross-complaint until resolution of this appeal.
Discussion
I. STANDARD OF REVIEW
A demurrer tests the legal sufficiency of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Therefore, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. (Hill v. Miller (1966) 64 Cal.2d 757, 759.) "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) The trial court exercises its discretion in declining to grant leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If it is reasonably possible the pleading can be cured by amendment, the trial court abuses its discretion by not granting leave to amend. (Ibid.) The plaintiff has the burden of proving the possibility of cure by amendment. (Ibid.)
II. CONTENTIONS OF WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
Section 2922 provides a presumption of employment at will,
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