THEODORE BRUNI v. THE EDWARD THOMAS HOSPITALITY CORPORATION, et al.
No. B305689
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 5/14/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 19STCV35693)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Affirmed.
Hennig Ruiz & Singh, Hennig Kramer Ruiz & Singh, Rob A. Hennig, Sereena J. Singh, Samuel Marion Brown and Helen Mei You for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, John J. Manier, David J. Fishman and Janet S. Soultanian for Defendants
Plaintiff and appellant Theodore Bruni (Bruni) appeals a judgment of dismissal following the sustaining of a demurrer by defendants and respondents The Edward Thomas Hospitality Corporation and Neptune‘s Walk, LLC, dba Hotel Casa del Mar (collectively, the Hotel).
Bruni was a restaurant server who alleged he was laid off after about four months when his employer, the Hotel, eliminated all part-time positions. Bruni brought this action alleging a violation of
Bruni had a prior stint of employment with the Hotel that lasted about ten months, which ended when he voluntarily resigned due to scheduling difficulties. However, the purpose of the recall ordinance is to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons. Therefore, we conclude that Bruni‘s earlier period of employment that ended with his voluntary resignation does not count toward the six-month minimum period of employment, leaving him ineligible for recall under the ordinance. Accordingly, Bruni failed to state a cause of action under the recall ordinance.
Additionally, Bruni attempted to state a Tameny2 tort claim based on the Hotel‘s allegedly wrongful failure to rehire him in violation of public
Therefore, the judgment of dismissal is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Overview of the recall ordinance.
In the wake of the economic downturn following the September 11, 2001 terrorist attacks, the City of Santa Monica adopted the recall ordinance, which established a preference for laid off employees and gave them the right to be rehired in specified circumstances.3 The recall ordinance, which is now
found in chapter 4.66 of the Santa Monica Municipal Code, applies to employers doing business at a location in areas of the City of Santa Monica that are defined as “the Coastal Zone or Extended Downtown Core with gross receipts over five million dollars in the year 2000 for that location.” (
The ordinance defines the term “laid off employee” as “[a]ny employee who was employed by the employer for six months or more and whose most recent separation from active service occurred after September 11, 2001, and was due to lack of business, a reduction in force or other, economic, non-disciplinary reason.” (
2. Pleadings: the original complaint.
On October 7, 2019, Bruni filed this action against the Hotel alleging two causes of action: violation of the recall ordinance; and a Tameny tort claim for failure to rehire him in violation of public policy. The complaint included the following allegations:
Bruni worked for the Hotel as a part-time server from approximately June 2017 to September 2017, and as a full-time server from then to April 2018, at which time he voluntarily resigned due to scheduling difficulties.
In July 2018, Bruni was hired by the Hotel as a part-time server. Less than four months later, on October 31, 2018, he was laid off on the ground the company was eliminating all part-time positions in its food and beverage operations. Thus, Bruni was laid off by the Hotel for an economic, non-disciplinary reason.
Based on information and belief, at least two server positions became available at the Hotel after Bruni was laid off, and he was qualified for those
3. The Hotel‘s demurrer.
The Hotel demurred to the complaint in its entirety. It contended Bruni‘s first cause of action for violation of the recall ordinance failed as a matter of law because Bruni did not satisfy the ordinance‘s “six months or more” employment requirement. The Hotel argued, inter alia, that the necessary period of employment of six months cannot be aggregated because the purpose of the ordinance was to promote stability in the workforce. “Workforce stability is not promoted by forcing an employer to rehire an employee who works intermittently for the employer. Here, [Bruni] voluntarily quit his employment with [the Hotel], returned for three months, and is now claiming an entitlement to rehire in the name of workforce stability. He is clearly not among the employees that the [o]rdinance seeks to protect.”
As for the Tameny claim, the Hotel contended no cause of action was stated because even assuming the recall ordinance has been violated, the ordinance did not inure to the benefit of the general public because of its extremely limited application to layoffs in the tourism industry following the September 11, 2001 terrorist attacks.
4. The trial court‘s ruling.
On January 6, 2020, the matter came on for hearing. The trial court sustained the Hotel‘s demurrer to both causes of action with leave to amend. With respect to the first cause of action for violation of the recall ordinance, the trial court ruled: “The employee worked less than 6 months and the Ordinance does not apply.” With respect to the second cause of action for wrongful failure to rehire in violation of public policy, the court stated: “There is no violation of public policy.”
5. Subsequent proceedings.
On January 16, 2020, Bruni filed a first amended complaint that realleged the same two causes of action. On February 10, 2020, the parties stipulated that the first amended complaint would be stricken so as to enable Bruni to proceed with an appeal from the order sustaining the demurrer to the original complaint.
Pursuant to the stipulation, the trial court struck the first amended
CONTENTIONS
Bruni contends: the trial court misconstrued the clear and unambiguous language of the recall ordinance by adding an eligibility requirement of employment continuity, and assuming arguendo the language of the ordinance is ambiguous, the ambiguity cannot be resolved on demurrer; and the ordinance codifies fundamental public policy and therefore gives rise to a Tameny tort claim for failure to rehire him in violation of public policy.
DISCUSSION
1. Standard of appellate review.
This appeal requires us to determine whether the recall ordinance‘s provision that a laid off employee must have been employed for “six months or more” (
Likewise, our review of the order sustaining the demurrer is de novo (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162), with the plaintiff bearing the burden of demonstrating that the demurrer was sustained erroneously. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52).6
2. No cause of action stated for violation of the recall ordinance.
a. Principles of statutory interpretation.
The principles of statutory construction apply equally to the construction of ordinances. (Russ Bldg. Partnership v. City & County of San Francisco (1988) 44 Cal.3d 839, 847, fn. 8.) Thus, the usual rules guide our interpretation of the recall ordinance,
“As in any case involving statutory interpretation, our fundamental task is to determine the [legislative] intent so as to effectuate the law‘s purpose. [Citation.] ‘We begin with the text of the statute as the best indicator of legislative intent’ [citation]), but we may reject a literal construction that is contrary to the legislative intent apparent in the statute or that would lead to absurd results. [Citation.]” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27 (Simpson).)
b. Bruni‘s theory that his two periods of employment should be aggregated would contravene the intent of the ordinance and would lead to an absurd result.
As indicated, the recall ordinance defines the term “laid off employee” as “[a]ny employee who was employed by the employer for six months or more and whose most recent separation from active service . . . was due to lack of business, a reduction in force or other, economic, non-disciplinary reason.” (
Santa Monica Ordinance No. 2031, adopted on December 11, 2001, and presently codified at
Thus, the clear intent of the recall ordinance was to protect workers who were involuntarily laid off due to economic circumstances beyond their control. The recall ordinance was not intended to protect individuals who voluntarily quit for personal reasons; such individuals are not within the class of persons that the recall ordinance was intended to protect. This conclusion militates against including a previous period of employment that ended with a voluntary resignation in calculating whether the employee worked for “six months or more” before being laid off.
As indicated, the complaint alleged that Bruni‘s earlier period of employment, about 10 months spanning June 2017 through April 2018, ended when he “voluntarily resigned from his position due to scheduling difficulties.” As discussed, however, the ordinance was not intended to protect employees who voluntarily quit their jobs. We therefore conclude that Bruni‘s earlier period of employment, which ended with his voluntary resignation, cannot be combined with his subsequent shorter period of employment to satisfy the “six months or more” requirement. (
We also observe that Bruni‘s theory that his earlier period of employment that ended in his resignation should be counted toward the six-month period would lead to an absurd result. Under his approach, an individual who worked for an employer decades ago for at least six months, before quitting, and then returned to the same employer and worked for a single day, before being laid off, would be entitled to recall under the ordinance. Clearly, that is not what the ordinance was intended to accomplish.
It is unnecessary, for purposes of this case, to reach the issue of whether discrete periods of employment may ever be aggregated to satisfy the “six months or more” requirement of
c. Other issues not reached.
In view of Bruni‘s failure to satisfy the recall ordinance‘s six-month work requirement, it is unnecessary to address the Hotel‘s arguments concerning the ordinance‘s applicability or inapplicability to seasonal workers.
3. No cause of action stated against the Hotel for its alleged failure to rehire Bruni in accordance with the public policy expressed in the recall ordinance.
Bruni‘s second cause of action alleged a wrongful failure by the Hotel to rehire him in violation of the public policy expressed in the recall ordinance of “promoting a stable workforce in the Santa Monica community.”
As discussed in the preceding section, Bruni failed to allege facts showing his eligibility for recall under the ordinance. Given Bruni‘s inability to allege that the recall ordinance applies to him, it necessarily follows that he cannot state a Tameny claim predicated on an alleged violation of the public policy expressed in the recall ordinance.
Moreover, the Tameny claim fails because a municipal ordinance cannot serve as the predicate for a Tameny tort claim. In Gantt, our Supreme Court recognized that courts in Tameny actions “may not declare public policy without a basis in either constitutional or statutory provisions. A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public.7 The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their
constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law. Employees are protected against employer actions that contravene fundamental state policy. And society‘s interests are served through a more stable job market, in which its most important policies are safeguarded.” (Gantt, supra, 1 Cal.4th at p. 1095, italics added.)
Additionally, the mere nonrenewal of an employment contract—as opposed to the unlawful termination of an employment contract in violation of public policy—is not a basis for a Tameny claim. ( Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.4th 97, 112-113; Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 684.)
For all these reasons, the Hotel‘s alleged failure to rehire Bruni in accordance with the recall ordinance cannot give rise to a Tameny claim.
DISPOSITION
The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION
SALTER, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.