Bruni v. The Edward Thomas Hospitality Corporation

Filed 5/14/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THEODORE BRUNI, B305689
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No.19STCV35693)
THE EDWARD THOMAS
HOSPITALITY
CORPORATION, et al.,
Defendants and
Respondents.
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 and
Respondents.
________________________________
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 Santa Monica Municipal Code section 4.66.010 et
seq.1 (the recall ordinance), which provides laid off employees
that have been employed by the employer for six months or more
with a right to be rehired in certain circumstances. We conclude,
as did the trial court, that the right of recall does not apply here
because Bruni did not work for the Hotel for “six months or more”
before he was involuntarily separated from employment for
economic reasons. (Ibid.)
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.
1 All undesignated section references are to the Santa
Monica Municipal Code.
2
Additionally, Bruni attempted to state a Tameny2 tort
claim based on the Hotel’s allegedly wrongful failure to rehire
him in violation of public policy. We conclude the Tameny claim
was not well pled because there was no violation of the recall
ordinance on which the Tameny claim was based. Moreover, a
Tameny claim must be predicated on a fundamental public policy
that is expressed in a constitutional or statutory provision (Gantt
v. Sentry Insurance (1992) 1 Cal. 4th 1083, 1995 (Gantt)), as
opposed to a public policy that finds expression in a municipal
ordinance.
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
2 Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167
recognized a cause of action in tort where an employee is
wrongfully discharged in contravention of fundamental public
policy.
3 We note that certain California municipalities, including
Los Angeles and San Diego, have recently instituted ordinances
that provide a laid-off employee with the right to be recalled to
work. (See, e.g., L.A. Ord. No. 186,602 (COVID-19 Right of
Recall), eff. June 14, 2020, adding § 200.30 et seq. to the L.A.
Muni. Code; San Diego Ord. No. 0-21231, relating to COVID-19
worker recall and retention, eff. Sept. 8, 2020, and adding
§ 311.0101 et seq. to S.D. Muni. Code.) Also, during the pendency
of this appeal, on April 16, 2021, the Governor signed Senate Bill
3
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.” (§ 4.66.020.)
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.” (§ 4.66.010.)4
No. 93 (2021-2022 Reg. Sess.), which requires covered employers
to offer employees laid off due to the COVID-19 pandemic
available positions on a preference basis. (Lab. Code, § 2810.8,
added by Stats. 2021, ch. 16, § 1, eff. Apr. 16, 2021.) The newly
enacted statute expressly provides that it does not “prohibit a
local government agency from enacting ordinances that impose
greater standards than, or establish additional enforcement
provisions to, those prescribed by this section.”
(Lab. Code, § 2810.8, subd. (f).)
4 Although the recall ordinance had its genesis in the events
of September 11, 2001, the text of the ordinance does not limit its
reach to employees who were laid off as a consequence of that
economic downturn. The parties disagree as to whether the
recall ordinance was intended to apply to separations such as
Bruni’s, which was concededly unrelated to the attacks of
September 11, 2001. We do not address that issue because we
affirm the judgment of dismissal based on Bruni’s failure to
satisfy the “six months or more” work requirement (§ 4.66.010),
which made him ineligible for recall under the ordinance.
4
Section 4.66.030, which creates a right of recall, states in
relevant part: “(a) Preference for Laid Off Employees. An
employer shall offer in writing, to the last known address of laid
off employees, all positions which are or become available after
the effective date of this Chapter for which the laid off employees
are qualified. A laid off employee is qualified for a position if the
employee: (1) held the same or similar position at the same site
of employment at the time of the employee’s most recent
separation from active service with the employer; or (2) is or can
be qualified for the position with the same training that would be
provided to a new employee hired into that position. The
employer shall offer positions to laid off employees in an order of
preference corresponding to categories (1) and (2) in the
preceding sentence. Where more than one employee is entitled to
preference for a position, the employer shall offer the position to
the employee with the greatest length of service with the
employer at the employment site.”5
5 With respect to remedies, section 4.66.050 states: “Any
person, including the City, may enforce the provisions of this
Chapter by means of a civil action for injunctive and monetary
relief. The burden of proof in such cases shall be preponderance
of the evidence. Any person who violates or aids another person
to violate the provisions of this Chapter is liable for each and
every such offense for the actual damages suffered by any
aggrieved party or for statutory damages in the sum of five
hundred dollars, whichever is greater, and shall be liable for such
attorneys’ fees and costs as may be determined by the court in
addition thereto. The court may also award punitive damages to
any plaintiff, including the City, in a proper case as defined by
Civil Code Section 3294. The burden of proof for purposes of
punitive damages shall be clear and convincing evidence.” We
note the City is not a party to this case.
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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 positions. Taking into account
Bruni’s earlier period of employment with the Hotel that ended
with his voluntary resignation in April 2018, at the time of the
layoff Bruni had been an employee of the Hotel for more than six
months. However, after Bruni was laid off, the Hotel did not
extend to him any written offers of employment for available
server positions.
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
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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.
7
Pursuant to the stipulation, the trial court struck the first
amended complaint, and thereafter entered a judgment of
dismissal. Bruni filed a timely notice of appeal from the
judgment.
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” (§ 4.66.010) may be satisfied
by aggregating separate periods of employment. The
interpretation of the ordinance presents a question of law that we
review de novo. (Tower Lane Properties v. City of Los Angeles
(2014) 224 Cal. App. 4th 262, 268.)
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
6 Bruni elected to stand on his pleadings in the trial court
and does not contend in his appellate briefs that leave to amend
is warranted. Therefore, there is no issue in that regard. (See
8
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,
and specifically, its requirement that to be eligible for recall, an
employee must have worked for the employer for “six months or
more” before being laid off. (§ 4.66.010.)
“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).)
Fischer v. Time Warner Cable Inc. (2015) 234 Cal. App. 4th 784,
790 [an appellant bears the burden on appeal of showing a
reasonable possibility exists that the complaint can be
successfully amended].)
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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.” (§ 4.66.010, italics
added.) Under a literal reading of the ordinance, which is
essentially what Bruni urges, it is arguable that it is sufficient if
(1) the employee worked for the employer an aggregate time of six
months or more, and (2) the employee’s most recent separation
from employment was due to an economic decision by the
employer. However, we may reject a literal construction that is
contrary to the legislative intent apparent in the ordinance, or
that would lead to absurd results. (Simpson, supra, 49 Cal.4th at
p. 27.)
Santa Monica Ordinance No. 2031, adopted on December
11, 2001, and presently codified at section 4.66.010 et seq.,
declared the intent of the ordinance as follows: “WHEREAS, the
nation has, for many months, been in economic decline; and [¶]
WHEREAS, the terrorist attacks of September 11, 2001
exacerbated the adverse economic conditions; and [¶] WHEREAS,
tourism and visitor-serving industries have suffered particularly
dire economic consequences; and [¶] WHEREAS, many low-
income Santa Monica workers are employed in visitor-serving
industries; and [¶] WHEREAS, in Santa Monica, these industries
are concentrated in the Coastal Zone and extended downtown
core; and [¶] WHEREAS, most low-income workers employed by
visitor-serving businesses in these areas are heads of household
10
who bear primary responsibility for supporting their families;
and [¶] WHEREAS, in recent weeks, many of these workers have
been laid off without any reassurance that they will be recalled to
their jobs when economic conditions improve; and [¶] WHEREAS,
the City has an interest in promoting a stable workforce within
the community and within its primary industries; and [¶]
WHEREAS, heads of household and others who are unemployed
and therefore cannot support their families must rely on public
resources to meet their basic needs; and [¶] WHEREAS,
requiring the fair recall of Santa Monica workers will promote
the community’s welfare, [¶] NOW, THEREFORE, THE CITY
COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY
ORDAIN AS FOLLOWS.”
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
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shorter period of employment to satisfy the “six months or more”
requirement. (§ 4.66.010.)
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
section 4.66.010. We simply conclude that an earlier period of
employment that ended in a voluntary resignation cannot be
aggregated with a later period of employment that ended in a
layoff to meet the six-month minimum period of employment.
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.
We also note that because the ordinance applies to
“employers doing business at a location in the Coastal Zone or
Extended Downtown Core with gross receipts over five million
dollars in the year 2000 for that location” (§ 4.66.020), the
question arises as to whether the ordinance has become
unworkable because its benchmark is based on a business’s
revenues more than two decades ago, and without any indication
12
as to how the ordinance would apply to newly established
businesses. However, those issues are also beyond the scope of
the case at bench.
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
7 Statutorily authorized regulations that effectuate the
Legislature’s purpose may also be included as a source of
fundamental public policy. (Green v. Ralee Engineering Co.
(1998) 19 Cal. 4th 66, 82.)
13
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.
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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.
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