NAGY v. WHITTLESEY AUTOMOTIVE GROUP

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Court of Appeal, Fourth District, Division 3, California.

Gabor NAGY, Plaintiff and Appellant, v. WHITTLESEY AUTOMOTIVE GROUP, et al., Defendants and Respondents.

No. G014221.

Decided: December 07, 1995

David Boros, Santa Ana, for Plaintiff and Appellant. Cotkin & Collins, William D. Naeve and Terry L. Kesinger, Santa Ana, for Defendants and Respondents.

OPINION

Gabor Nagy appeals the judgment of dismissal entered after the defendants' (collectively Whittlesey) demurrer was sustained, contending he stated causes of action for wrongful termination and violation of Penal Code sections 632.1  We reverse.

Nagy alleged that while employed as a car salesperson for Whittlesey, Whittlesey asked him to allow certain of his telephone conversations with purported customers to be tape recorded without Nagy's knowledge.   The “customers” in these conversations were actually employees of Phone Pops, Inc., a company Whittlesey had engaged to conduct a sales training program.   The tapes would be played back at a sales meeting, and the salesperson's technique would be critiqued.   Nagy, and all but one other salesperson, refused to sign the consent form allowing the tape recordings.

Nonetheless, the program was implemented, Nagy was taped, and the tape was played back at a sales meeting.   After this incident, Nagy was again pressured to sign the agreement, and again he declined.   He was eventually fired because of his “negative attitude.”

Nagy's first amended complaint alleged causes of action against Whittlesey for wrongful termination, breach of the implied covenant of good faith and fair dealing, breach of employment contract, violation of section 632, and conspiracy to violate sections 631 and 632.2  Whittlesey demurred to the complaint and the demurrer was sustained.

I

Nagy contends he stated a cause of action for wrongful termination in violation of public policy.   He asserts Semore v. Pool (1990) 217 Cal.App.3d 1087, 266 Cal.Rptr. 280 dictates this result.   In Semore, the court found the plaintiff stated a cause of action for wrongful termination based on an invasion of privacy where the plaintiff alleged he was fired for refusing to submit to a pupillary reaction test.  (Id. at p. 1097, 266 Cal.Rptr. 280.)   He reasons the alleged violations of sections 631 and 632 implicate the same privacy interests as were present in Semore.3  We agree with Nagy's contention, but for a different reason.

 An employer may be held liable in tort for terminating an otherwise “at will” employee if the termination violates public policy, “since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public weal.”   (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665, 254 Cal.Rptr. 211, 765 P.2d 373.)   The tort action lies if the employer “condition[s] employment upon required participation in unlawful conduct by the employee.”   (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178, 164 Cal.Rptr. 839, 610 P.2d 1330.)

In Foley v. Interactive Data Corp., supra, 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, the court upheld the termination of an employee who had informed his supervisor another employee was being investigated by the F.B.I.  (Id. at pp. 669–671, 254 Cal.Rptr. 211, 765 P.2d 373.)   The alleged violation of public policy arguably rested on an employee's statutory duty to disclose all relevant information to an employer, but the court found it unnecessary to determine whether the violation had to arise from statutory or constitutional sources.  (Id. at p. 669, 254 Cal.Rptr. 211, 765 P.2d 373.)   The court held the discharge must “affect[ ] a duty which inures to the benefit of the public at large rather than to a particular employer or employee.”   (Ibid.)  It concluded Foley's action inured, at most, to the company's benefit.  (Id. at p. 670, 254 Cal.Rptr. 211, 765 P.2d 373.)

In Semore v. Pool, supra, 217 Cal.App.3d 1087, 266 Cal.Rptr. 280, the Court of Appeal found Semore's action, involving the right to privacy, inured to society's benefit:  “ ‘The right of privacy ․ is a fundamental and compelling interest.   It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose․’ ”  [Citations.]  [¶] [T]here is a public policy concern in an individual's right to privacy.   Plaintiff's right not to participate in the drug test is a right he shares with all other employees.   In asserting the right, he gives it life.   While rights are won and lost by the individual actions of people, the assertion of the right establishes it and benefits all Californians in the same way that an assertion of a free speech right benefits all of us.”  (Id. at pp. 1096–1097, 266 Cal.Rptr. 280.)

Whittlesey relies on Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 267 Cal.Rptr. 618, which reached the contrary result.   The court held Luck did not state a cause of action for wrongful termination based on his refusal to submit to a urinalysis test.  (Id. at p. 29, 267 Cal.Rptr. 618.)   The court reasoned, “The right to privacy is, by its very name, a private right, not a public one.   The parties could have lawfully agreed that Luck would submit to urinalysis without violating any public interest.   Such an agreement between Luck and Southern Pacific would not have been against public policy.  [Citation.]   Therefore, under [Foley v. Interactive Data Corp., supra, 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373], there was no violation of public policy.”  (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 28, 267 Cal.Rptr. 618.)

 Perhaps because Luck was decided shortly after Semore, the Luck opinion did not consider Semore 's rationale.   But we need not attempt to reconcile the cases or decide which one reached the correct conclusion.   Neither Foley, nor Semore, nor Luck involved the violation of a criminal statute.   As noted, employment conditioned on the employee's perpetration of illegal acts violates public policy.  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 665, 254 Cal.Rptr. 211, 765 P.2d 373;  Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d at p. 178, 164 Cal.Rptr. 839, 610 P.2d 1330.)   Where, as here, employment is conditioned on the employee's agreement to be a crime victim, public policy is equally violated.

 This is so even though there are consent exceptions to sections 631 and 632.   Even if coerced consent is a defense to criminal charges brought under those sections (but see Pen.Code § 261.6 [consent in rape case must be an act of free will, positive cooperation in act or attitude];  People v. Hernandez (1988) 47 Cal.3d 315, 344, 253 Cal.Rptr. 199, 763 P.2d 1289 [coerced consent would not be a defense];  2 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Crimes Against Property, § 575, p. 652 [fraud or trickery vitiates any consent to taking of property] ), such consent would not ameliorate the public policy violation.   Terminating an employee for refusing to have “consensual” sex or for declining to “consensually” turn over some of the employee's property to the employer certainly would be contrary to public policy, by any stretch of the imagination.

Nagy alleges he was fired because he was an unwilling victim of Whittlesey's crime,4 and he complained about it.   These allegations adequately allege a violation of public policy, and the trial court should not have sustained the demurrer to the wrongful termination cause of action.

II

 Nagy argues he also stated a cause of action under section 637.2.   That section provides for civil damages against “the person who commit[s] [a] violation” under sections 631 or 632.5  Relying on Warden v. Kahn (1979) 99 Cal.App.3d 805, 160 Cal.Rptr. 471, Whittlesey urges that liability under the statute only attaches to the perpetrator of the prohibited acts.

The court in Warden found the complaint was insufficient to state a cause of action under section 632 against defendants who did not make the covert recordings in question.  (Id. at p. 815, 160 Cal.Rptr. 471.)   But the court did not hold that section 637.2 applies only to perpetrators.   It merely held the complaint “contain[ed] no allegations giving rise to a violation of section 632 on the part of the remaining defendants.”  (Ibid.)  This is understandable since the complaint contained no allegations the non-perpetrator defendants encouraged or participated in any way in making the recordings.6

To the extent the Warden court held section 637.2 is not applicable to those other than one who perpetrates a violation of section 631 or section 632, we respectfully disagree.   Perpetrators and those who aid or abet the crime both violate the proscription against the criminal act and are subject to the same punishment.7  Aiders and abettors “commit[ ] the violation,” as the term is used in section 637.2, as much as the perpetrator does.8  Each violates the criminal statute.   If the Legislature had intended to limit liability to perpetrators, it could have used that term.   By using the language it did, the Legislature included aiders and abettors and distinguished them from those who merely make use of the product of the eavesdropping later.9  The trial court erred in sustaining the demurrer to this cause of action as well.

The order sustaining the demurrer and dismissing the action is reversed with directions to enter an order overruling the demurrer.10

FOOTNOTES

1.   All statutory references are to the Penal Code.*   *   *   *   *   *

2.   Section 631 provides in relevant part:  “(a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state;  or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable․”Section 632 provides in relevant part:  “(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished․ [¶] (b) The term ‘person’ includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.  [¶] (c) The term ‘confidential communication’ includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

3.   Section 630 states the purpose of the anti-eavesdropping legislation:  “The Legislature by this chapter intends to protect the right of privacy of the people of this state.”

4.   The parties appear to agree Whittlesey did not personally eavesdrop, but we conclude in the next part that Whittlesey can be held responsible if it countenanced Phone Pops, Inc., doing so as part of Whittlesey's training program.

5.   Section 637.2 reads:  “(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:  [¶] (1) Five thousand dollars ($5,000).  [¶] (2) Three times the amount of actual damages, if any, sustained by the plaintiff.”

6.   This is how the court described the complaint:  “The first amended complaint alleged that plaintiff Warden, an attorney at law, had represented defendant Melvin Kahn from 1964 to 1974 in ‘disputes and litigations' between Melvin Kahn and others;  that following enactment of the Invasion of Privacy Act in 1967 Melvin Kahn ‘did secretly and without the knowledge and consent of plaintiff record telephone conversations between plaintiff and said Melvin Kahn’ concerning such matters;  that Melvin Kahn made the recordings of such conversations available to the defendant Julius Kahn;  and that Julius Kahn communicated the contents thereof and made the recordings available to the defendants Lorin Blum and Blum & Blum, a law corporation, for the use of defendant Julius Kahn in ‘presenting fraudulent claims against plaintiff, and to extort settlements and/or monetary concessions from plaintiff to said Julius Kahn to which said Julius Kahn was not justly entitled.’ ”  (Id. at pp. 808–809, 160 Cal.Rptr. 471.)

7.   Section 31 provides:  “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”   In People v. Montoya (1994) 7 Cal.4th 1027, 31 Cal.Rptr.2d 128, 874 P.2d 903, the Supreme Court expressed the unity of culpability aiders and abettors share with perpetrators:  “Because section 31 defines as principals all who directly commit a given offense or who aid and abet in its commission, the same criminal liability attaches whether a defendant directly perpetrates the offense or aids and abets the perpetrator.  [Citations.]   The doctrine ․ that one may be liable when he or she aids the perpetrator of an offense, knowing of the perpetrator's unlawful purpose and intending, by his or her act of aid, to commit, encourage, or facilitate commission of the offense, ‘snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime.’ ”  (Id. at pp. 1038–1039, 31 Cal.Rptr.2d 128, 874 P.2d 903.)

8.   The Supreme Court made reference to the quoted language in Kimmel v. Goland (1990) 51 Cal.3d 202, 271 Cal.Rptr. 191, 793 P.2d 524, but had no cause to rule on its meaning or limits.  (Id. at p. 213, 271 Cal.Rptr. 191, 793 P.2d 524.)

9.   The latter category would include the other defendants in Warden v. Kahn, supra, 99 Cal.App.3d 805, 160 Cal.Rptr. 471.

10.   The trial court sustained the demurrer as to causes of action for breach of the implied covenant of good faith and fair dealing, breach of employment agreement, and conspiracy to violate sections 631 and 632.   Neither of the parties discussed how the arguments, here and below, impacted those causes of action.   Because Whittlesey presented no other grounds for invalidating these causes of actions, we reverse as to them as well.

WALLIN, Associate Justice.

SILLS, P.J., and SONENSHINE, J., concur.

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