GARDNER v. CHARLES SCHWAB CO INC (1990)

Carolyn Gardner prevailed in a wrongful discharge lawsuit against her former employer, appellant Charles Schwab & Co., Inc.;   the jury awarded Gardner $250,000 in claimed lost wages plus $500,000 in damages for “emotional distress.”

In the published portions of this opinion, we conclude that (1) the trial court did not err in instructing the jury according to BAJI No. 10.12 on the question of an implied employment contract, and (2) the award for “emotional distress” must be reversed because that award may not be sustained on any of the three theories Gardner asserted at trial.   In the unpublished portions of this opinion, we address other issues unique to the facts of this particular case, which we conclude do not affect the result.   We, therefore, modify the judgment to delete the award of “emotional distress” damages, and affirm the judgment as so modified.

I. FACTS AND PROCEDURAL HISTORY

Prior to going to work for Schwab, Gardner was employed for six years in progressively more responsible positions by Fireman's Fund Insurance Companies in San Francisco.   She commuted during her last few years at Fireman's Fund from her home in Palo Alto.   In the spring of 1982, after Fireman's Fund had announced plans to relocate its offices to Novato, Gardner interviewed for and received the position of Director of Training at Schwab in San Francisco, earning $43,000 per year in salary plus bonuses tied to performance.

Gardner originally supervised three employees in the training department and reported to Barbara Wolfe, Schwab's Senior Vice President of Administration.   At the beginning of 1983, Tom Seip was hired by Schwab as Vice President of Human Resources;  and Gardner began reporting to Seip rather than directly to Wolfe, who now directly supervised Seip.   Gardner knew Seip because, oddly enough, Seip had been the executive search consultant, or “head hunter,” who had placed Gardner with Schwab.

During early 1983, Gardner added three more employees to the department she supervised and started a number of new training programs.   In June of 1983, Seip took Gardner out to lunch, and told her that she was doing an outstanding job and would be promoted to Vice President of Training, at a $7,000 annual increase in salary.   At this time, Gardner was pregnant;  and she took off work for six weeks at the birth of her child in January 1984.

Prior to Gardner's departure on maternity leave, there were a number of problems in the department.   Seip and Gardner had a meeting with the training staff in December 1983 which degenerated into chaos, with both staff members and Seip resorting to profanity and hostile invective.   During Gardner's absence, Seip directly supervised the department.   When Gardner returned to work in March of 1984, Seip criticized the performance of the employees in the department, who in turn criticized Seip's management.   Several training projects had not been completed on schedule, including one important program, computer based training (CBT).   In April of 1984, top management at Schwab determined that CBT should be given priority and should be completed by August 1, 1984 (a date apparently suggested by Seip without his first attempting to ascertain whether it was, in fact, possible to complete the project by then).   Seip told Gardner and the other training department employees that his, Gardner's, and all of their jobs were “on the line.”   Gardner thought the August 1 deadline was “quite unreasonable.”

Gardner's relationship with Seip had also suffered for other reasons.   When Gardner returned from her maternity leave, she found Seip's working materials in her office, which he had used while she was out on leave.   Gardner gathered Seip's papers up and put them in a box outside the door.   Seip told Gardner that putting his working papers outside the door was “rude” and had upset him, and that she should have waited and spoken to him about it.   Gardner said she was sorry Seip felt that way, but she felt it was her office, and she needed to use it.   Seip became angry and told Gardner that the office belonged to the company, not to her;  and that he liked the office.   Seip then told Gardner to “get [her] things together and [ ] move out.”   When Gardner protested, Seip asked if she was going to be “insubordinate.”   Gardner responded that the matter should be taken up with Wolfe, Seip's boss.   After consultation with Wolfe, who seems to have tried to calm the parties to this dispute, Gardner moved out of the office for a few days, while Seip found another place from which to work;  and Gardner then returned to her office.   Gardner was “[v]ery concerned” about this incident and the damage to her working relationship with Seip.

After Gardner was told repeatedly by Seip that the training staff was not performing well and had a poor attitude, Gardner met with her staff.   She in turn was upset by their poor attitude towards their work and the company;  and wrote a memo to them expressing the need for improvements in attitude, for less complaining, and for more quiet time for getting work done.

However, the CBT program continued to lag;  and morale problems persisted in the department.   On June 28, 1984, Seip met with Gardner in his office to review the status of work in the training department.   Gardner told Seip the department could not make the August 1 deadline.   Seip became angry and told Gardner that he was unhappy with her management of the project.   Seip next asked Gardner if she would be interested in working elsewhere within the Schwab company as a branch manager.   Gardner said she wasn't interested because there would be a cut in pay.   Seip then told Gardner that he did not feel he could work together with her anymore, and that she would have to leave her current position, but that he could help her find another position within the company.   Gardner declined the offer of assistance in finding another job, because she felt Seip's hostility to her would make him a poor advocate for her within the company.   Seip told Gardner that her tenure as Vice President of Training would end in 60 days, on August 30, 1984;  and that she would have to find another position before then.

Gardner continued to come to work in the training department in the interim.   About two weeks later, she received a memo from Seip memorializing their previous conversation.   Gardner discussed the memo with members of her staff in the training department, and told them she had been fired.   Later that same day, Friday, July 13, 1984, an employee named Earlene Perry came to Seip's office, visibly upset.   Perry was employed by Schwab's then corporate parent, Bank of America, and was due to become an employee in the Schwab training department the following week.   She told Seip and his supervisor, Wolfe, she was upset because she had heard from Gardner that all the employees in the training department, which would include her, would be fired next.

Seip and Wolfe then met with Gardner, and told her that she should not have been upsetting her staff with stories of their supposed impending dismissal.   Gardner protested she had not said the words attributed to her;  but both Seip and Wolfe concluded that Gardner's protestations were irrelevant, and that Perry's version was credible.   Seip and Wolfe told Gardner that she should leave the premises immediately, and that her services were no longer required.   Gardner then left the building, accompanied by a secretary.   She protested her discharge in a letter to Wolfe, but received no response.   She was paid through August 30, 1984, by Schwab.

Slightly less than a year after her discharge, Gardner brought this action, alleging:  (1) wrongful discharge in violation of a “total employment agreement,” which she contended included written, oral, and implied-in-fact agreements, and required “good cause” for discharge;  (2) breach of an “implied-in-law covenant of good faith and fair dealing”;  (3) “[i]ntentional [i]nfliction of [e]motional [d]istress” due to the discharge;  (4) “[n]egligent [i]nfliction of [e]motional [d]istress” due to the discharge;  (5) “[f]raud” due to alleged misrepresentations to Gardner “that she would have a career with Schwab and that she could rely on them treating her fairly, as if she were a member of the ‘family’ ”;  and (6) “[n]egligent [m]isrepresentation” to the same effect.

The answer to Gardner's complaint asserted affirmative defenses, including the defense that worker's compensation was Gardner's exclusive remedy, “including but not limited to any and all of [Gardner's] claimed physical and emotional injuries and distress.”

After extensive discovery and hearings on motions, the case was tried to a jury for three weeks commencing in August of 1987.   The jury's special verdict rejected Gardner's claims of fraud, negligent misrepresentation, and intentional infliction of emotional distress.   The jury found there was a “contract between [Gardner] and [Schwab] that required that [Gardner] not be terminated without good cause,” and that the contract was breached causing Gardner damages of $252,400 in “earnings and other monetary compensation.”   The jury also found that the discharge violated the “covenant of good faith and fair dealing” and constituted negligent infliction of “emotional distress.”   The jury awarded $500,000 in damages “as compensation for emotional distress[.]”

After its motions for judgment notwithstanding the verdict (JNOV) and new trial were denied, Schwab timely appealed.

II. DISCUSSION

A. Implied-in-Fact Contract Requiring Good Cause **

B. Use of BAJI No. 10.12 in Jury Instructions

Raising what appears to be an issue of first impression, Schwab argues that the trial court erred when it refused a proffered instruction by Schwab and instructed the jury in terms adapted from BAJI No. 10.12, defining an implied-in-fact employment contract.   The court's adaptation of BAJI No. 10.12 provided:  “An obligation in an employment contract for an unspecified term not to discharge an employee except for good cause is implied and becomes a term of that contract even though not expressly stated by the employee and employer [,] [w]hen from all of the circumstances surrounding the employment, whetherfrom writings, words or conduct, it is reasonable for the employee to conclude and believe and the employee does conclude and believe that his employment will not be terminated except for good cause.  [¶] Factors which you may consider in determining whether there is such an implied agreement include, but are not limited to[:]  the duration of employment, the promotions of the employee, salary increases to the employee, commendations to the employee, lack of criticism of the employee's work, assurances by the employer that the employee will continue to be employed, the employer's acknowledged employment policies, the employer's custom and practices with respect to employees[,] and whether the employee was recruited away from prior employment.”  ((1987 New) (mod.) (7th ed. 1988 pocket pt.) p. 47, emphasis added.)

This instruction summarizes the factors enumerated by such cases as Pugh v. See's Candies, Inc. (1981) 116 Cal.App.3d 311, 171 Cal.Rptr. 917, and relied upon by the Supreme Court in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373;  and is not an erroneous statement of the law in that respect.   However, Schwab argues the instruction should have been modified or supplemented so as to provide that an implied-in-fact contract could only arise “when an intent to promise and mutual agreement between the employer and the employee are not expressed in words, but rather are the result of the conduct of the parties.”  (Emphasis added.)   Schwab argues that it cannot be bound by an implied-in-fact contract when “there was no mutual intent to enter into [it]․”;  i.e., that the instruction given literally did not require the employer to have the intention to enter into an implied-in-fact employment contract, while binding the employer to such a contract.

The parties have not cited and our own research has not discovered any California case which either endorses or rejects BAJI No. 10.12, or directly addresses the issue of mutual intent and agreement Schwab raises here in the context of an implied-in-fact promise for continued employment.   However, Schwab's postulated requirement, that there must be mutual intent or mutual agreement on the same subject matter in order for an implied-in-fact promise to arise, appears to run directly contrary to the language of the Supreme Court in a case which Schwab mistakenly cites as supporting its position, Desny v. Wilder (1956) 46 Cal.2d 715, 736, 299 P.2d 257:  “A so-called ‘implied-in-fact’ contract, however, as the term is used by some writers, may be found although there has been no meeting of the minds.   Even an express contract may be found where there has been no meeting of the minds.”  (Emphasis added.)

The Supreme Court also there analyzed the issue based upon its reading of Professor Williston:  “Professor Williston recognizes in effect, if not specifically, that the law implies (or construes) contractual obligations in many cases where there is no true contract in the historically conventional sense and that such implied obligations are of the nature of, and governed by the rules applicable to, contracts termed implied-in-fact by many writers.”   (Ibid.)  Moreover, the Supreme Court also quoted with approval from the analysis of Professor Costigan on the Williston position:  “Concerning the same subject Professor Costigan, in a paper published in 33 Harvard Law Review 376, at 398, states his view:  ‘Professor Williston is absolutely right in his contention that the no-meeting-of-the-minds express contracts—the objective but not subjective test contracts—are properly to be denominated contracts instead of quasi-contracts, and the reason for that concession was that on their breach the normal contract measure of damages is applied.   But that same reason has led us to the further conclusion that there are genuine implied-in-fact contracts of both the meeting-of-the-minds and the no-meeting-of-the minds varieties.’ ”  (Id., 46 Cal.2d at pp. 736–737, 299 P.2d 257.)

In short, the Supreme Court in Desny came to the conclusion an implied-in-fact contract could exist, both in cases where the parties subjectively intended to and did agree on the same thing, and in cases in which they did not so intend or agree.   That conclusion obviously does not support Schwab's position.

While the discussion of this issue in Desny could be properly characterized as dictum, it appears to be an authoritative and well-considered dictum, which has been repeatedly quoted and relied upon in cases decided in diverse factual contexts since Desny.  (See, e.g., Minniear v. Tors (1968) 266 Cal.App.2d 495, 502, 72 Cal.Rptr. 287 [“ ‘A so-called “implied-in-fact” contract, however, as the term is used by some writers, may be found although there has been no meeting of the minds.’ ”   Quoting Desny, supra.];  Arcade County Water Dist. v. Arcade Fire Dist. (1970) 6 Cal.App.3d 232, 236, 85 Cal.Rptr. 737 [“The so-called ‘implied-in-fact’ contract, however, is a true contract despite the possible absence of a simultaneous ‘meeting of the minds.’ ”   Citing Desny, supra, in omitted fn.];   accord Blaustein v. Burton (1970) 9 Cal.App.3d 161, 176–183, 88 Cal.Rptr. 319 [quoting Desny, supra ].)   This position is also in accord with the general rule that a party may be bound by a contract even though it does not intend to be so bound, since it is the reasonably understood expression of assent, whether expressly through words or impliedly through conduct, and not the intent of the parties which is relevant.  (See Rest.2d Contracts, § 17, com. (c), p. 52 [“The parties to most contracts give actual as well as apparent assent, but it is clear that a mental reservation of a party to a bargain does not impair the obligation he purports to undertake.”];   see also op. cit. supra, § 21, p. 63 [“Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract․”];  accord 1 Witkin, Summary of Cal.Law (9th ed. 1987) Contracts, § 119, pp. 144–145 [“Every contract requires mutual assent or consent.  [Citation.]  But ordinarily ․, the outward manifestation or expression of assent is controlling.   Mutual assent is gathered from the reasonable meaning of the words and acts of the parties, and not from their unexpressed intentions or understanding․  [¶] This fundamental rule is constantly restated by courts and commentators.  [Citations.]”  Emphasis in original.].)   We note this section from Witkin was cited with approval by the Supreme Court in Foley, supra.

Schwab correctly points out that the courts have sometimes loosely spoken both in terms of fulfilling the “reasonable expectation” of the employee, which does not rely necessarily on the employer's intent, and in terms of the “intent” of the parties when discussing other issues concerning implied-in-fact contracts.   For instance, the Supreme Court in Foley observed that, “The absence of an express written or oral contract term concerning termination of employment does not necessarily indicate that the employment is actually intended by the parties to be ‘at will,’ because the presumption of at-will employment may be overcome by evidence of contrary intent.”  (47 Cal.3d at p. 677, 254 Cal.Rptr. 211, 765 P.2d 373, emphasis added.)   In so doing, the courts are using “intent” as a shorthand term for “manifestation ․ of assent” (emphasis omitted), because in most cases the parties do intend to manifest their assent or agreement.   However, the Supreme Court also spoke more precisely to the requirement the employer's conduct give rise only to an employee's “reasonable expectation that he would not be discharged except for good cause.”  (Id., 47 Cal.3d at p. 681, 254 Cal.Rptr. 211, 765 P.2d 373.)   This language, of course, mirrors that of BAJI No. 10.12.   Further, the Supreme Court's citation to the language from Witkin we have previously quoted indicates it is the reasonable expectation of a manifestation of assent or agreement, not a subjective or undisclosed intent, which must be implied in fact by the conduct of the parties.

 BAJI No. 10.12 was given in this case together with an adapted version of BAJI No. 10.10, which provided that, “An employment contract having no specified term may be terminated at will by the employer by giving notice to the employee, unless the employer and the employee have expressly or impliedly agreed that the employee will not be discharged except for good cause.”  ((1987 New) (mod.) (7th ed. 1988 pocket pt.) p. 45, emphasis added.)   Thus, the jury was properly instructed it must find that the employer by its conduct impliedly agreed to the contract, based upon the factors enumerated in BAJI No. 10.12.   The trial court did not err in refusing to modify the instructions to require that Schwab have the intent to enter into a binding implied-in-fact contract with Gardner as an antecedent condition to such an employment contract, since parties may be bound, regardless of their subjective intent, by actions constituting an implied manifestation of assent reasonably interpreted as such by the other party.  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 675, 254 Cal.Rptr. 211, 765 P.2d 373 [Plaintiff “does not allege explicit words by which the parties agreed that he would not be terminated without good cause.   Instead he alleges that a course of conduct ․ created a reasonable expectation to that effect.   Thus, his cause of action is more properly described as one for breach of an implied-in-fact contract.”   Emphasis added, fn. omitted].)

We find no error in the jury instructions.   Further, on the precise facts of this case, if error were assumed arguendo to have occurred, it would seem to be harmless since the jury in this case (in another special interrogatory addressed to the issue of Schwab's statute of frauds defense, a defense Schwab has now withdrawn in light of its rejection in Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 249 Cal.Rptr. 5 and Foley ) concluded Gardner and Schwab “intend [ed] [the implied-in-fact employment] contract [requiring good cause] extend for a reasonable time that was longer than one year [.]”  (Emphasis added.)   A finding Schwab intended the contract to last more than one year is obviously based on the contract's existence.

We reject Schwab's claim of error here.

C. Evidence of Breach of Implied Contract ***

D. “Emotional Distress” Damages

The jury also awarded, by means of a special verdict, $500,000 in tort damages for “emotional distress.”   We conclude that this award cannot stand after Foley, because Foley bars tort damages for breach of the covenant of good faith and fair dealing;  and the award also may not be sustained on Gardner's alternative theories of breach of implied contract or negligent infliction of emotional distress.

1. Breach of Covenant

 Tort damages may not be awarded for the breach of the implied-in-law covenant of good faith and fair dealing in an employment contract.  (Pugh v. See's Candies, Inc., supra, 116 Cal.App.3d at p. 329, 171 Cal.Rptr. 917 [“We need not go that far, however”;  declining to follow tortious breach of covenant analysis.   Fn. omitted];  accord Hejmadi v. AMFAC, Inc., supra, 202 Cal.App.3d at p. 549, 249 Cal.Rptr. 5 [declining to find that breach of an employment contract ordinarily gives rise to tort damages];  Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 700, 254 Cal.Rptr. 211, 765 P.2d 373 [“[W]e hold that tort remedies are not available․”];  Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 976, 258 Cal.Rptr. 592, 772 P.2d 1059 [Foley 's ruling applied retroactively].)   Therefore, an award of “emotional distress” damages may not be sustained upon a theory of breach of the implied-in-law covenant.

2. Breach of Implied–In–Fact Contract

 Gardner, however, presents an imaginative argument to the effect that damages for “emotional distress” may be awarded as a result of the breach of the implied-in-fact contract, even though the trial court instructed the jury otherwise.   It is true the majority in Foley observed by way of a footnote that, “We need not here resolve questions concerning the measure of damages in a wrongful discharge action based on breach of contract․  [T]he issue is not before us.”  (47 Cal.3d at p. 682, fn. 24, 254 Cal.Rptr. 211, 765 P.2d 373.)   The court also observed, “[W]e believe that focus on available contract remedies offers the most appropriate method of expanding available relief for wrongful terminations.”  (Id., 47 Cal.3d at p. 699, 254 Cal.Rptr. 211, 765 P.2d 373.)   It is also true Justice Broussard, in a discussion not joined by the majority, observed that damages for “emotional distress” have been awarded in a narrow class of contract actions, such as those for mishandling of a corpse;  and opined that these precedents could perhaps be applied in the wrongful discharge area, although they had not previously been so applied.   (Id., 47 Cal.3d at p. 702, 254 Cal.Rptr. 211, 765 P.2d 373.)   Gardner argues that her case is an appropriate one for extension of this principle to wrongful discharge litigation.   We disagree.

Gardner relies upon the facts that she supplied one-half of the income for her family, that she supported a son who has a hearing disability, and that “emotional distress” to her from a discharge might be foreseeable to an employer in these circumstances.   A similar rationale was rejected by the Supreme Court in Foley as a basis for tort damages for the breach of covenant.  (47 Cal.3d at pp. 693, 699, 254 Cal.Rptr. 211, 765 P.2d 373 [Tort remedies rejected even though “potential effects on an individual caused by termination of employment arguably justify additional remedies for certain improper discharges.”  “We are not unmindful of the legitimate concerns of employees who fear arbitrary and improper discharges that may have a devastating effect on their economic and social status.   Nor are we unaware of or unsympathetic to claims that contract remedies for breaches of contract are insufficient․  These defects, however, exist generally in contract situations.”].)

It is true, as Gardner contends, that some authority indicates “emotional distress” damages may be awarded against an employer which breaches a contractual obligation other than by an alleged wrongful discharge.  (See, e.g., Fireman's Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 996–997, 216 Cal.Rptr. 796 [“emotional distress” damages awarded on contract action for breach of secrecy agreement].)   However, we cannot find any such obligation extraneous to the employment contract assumed by Schwab.

“The diversity of possible solutions [to the problem of adequate compensation for wrongful discharge] demonstrates the confusion that occurs when we look outside the realm of contract law in attempting to fashion remedies for a breach of a contract provision.   As noted, numerous legislative provisions have imposed obligations on parties to contracts which vindicate significant social policies extraneous to the contract itself.   As Justice Kaus observed in his concurring and dissenting opinion in White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 901 [221 Cal.Rptr. 509, 710 P.2d 309], ‘our experience in Seaman's [Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 206 Cal.Rptr. 354, 686 P.2d 1158] surely tells us that there are real problems in applying the substitute remedy of a tort recovery—with or without punitive damages—outside the insurance area.   In other words, I believe that under all the circumstances, the problem is one for the Legislature․’ ”  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 700, 254 Cal.Rptr. 211, 765 P.2d 373.)   We agree.

3. Negligent Infliction of “[E]motional [D]istress”

For two independent reasons, we reject Gardner's claim that the award to her may be sustained on the theory of a claim of negligent infliction of “emotional distress.”   First, this claim for negligence clearly is barred by the exclusivity principle of the workers' compensation laws, an affirmative defense which Schwab raised by its answer and never waived.   Second, even if that affirmative defense had not been asserted, Gardner has no claim for negligent infliction of emotional distress as a matter of law.

a. Workers' Compensation Exclusivity

(1) No Waiver

 As to the affirmative defense of workers' compensation exclusivity, Schwab raised the defense by its original answer and repeated it thereafter.   Gardner observes Schwab did not concentrate on presenting evidence of Gardner's covered status as an employee in support of this defense at trial, implying that Schwab somehow waived the legal issue.   However, Schwab did not need to present any evidence in support of this defense at trial;  Gardner's own testimony established that she was employed by Schwab, assuming such testimony would be necessary in an action for wrongful discharge.   As an employee, by law, she was covered by workers' compensation and did not at trial, and cannot now, seriously contend otherwise.   She testified that Schwab paid for her “benefits” of employment, and her damages expert included the value of such legally-required benefits in his damages analysis of the loss to Gardner as a result of her termination.   Schwab raised the issue of workers' compensation exclusivity by its answer, properly relied upon respondent's evidence for its application, and could raise the issue again by way of a motion for JNOV.   There was no waiver.  (See Doney v. Tambouratgis (1979) 23 Cal.3d 91, 97, 151 Cal.Rptr. 347, 587 P.2d 1160 [No employer liability in tort where “the complaint affirmatively alleges facts [supporting an employment relationship] indicating coverage by the [Workers' Compensation] [A]ct.”];   cf. Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 224, 239 Cal.Rptr. 470 [defense waived where “the City did not plead the exclusive remedy bar as an affirmative defense,” fn. omitted].)

(2) The Defense

 On the merits of this defense, we find that it was a good one, which defeats a claim for negligence causing “emotional distress” as a matter of law.   Division One of this court has recently so ruled:  “[W]e conclude that the court did not err in summarily adjudicating that the exclusive remedy for appellant's claims of injury to his psyche [from the negligent or intentional infliction of ‘emotional distress'], whether caused by on the job harassment or by termination [of employment], is provided by the Workers' Compensation Act.”  (Pichon v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488, 498, 260 Cal.Rptr. 677;  see also Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160, 233 Cal.Rptr. 308, 729 P.2d 743 [“[The tort] action is barred by the exclusiveness clause no matter what its name or technical form․”].)

Gardner attempts to distinguish Cole, supra, and Pichon, supra, by arguing that those cases turned, at least in part, upon a disabling injury compensable under workers' compensation;  and that indications to the contrary in those opinions must be considered dicta.   Gardner's suggestion is that the exclusivity doctrine applies only to shield an employer from employee claims of disability, rather than from emotional injury which does not happen to be disabling, as claimed here.

The relevant statute which establishes the exclusive remedy principle is Labor Code section 3600.   The statute provides that it is “liability” in tort for injuries sustained by employees arising out of and in the course of employment, not simply a particular type of injury limited to disability, which is the determining factor in applying the exclusivity principle:  “Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person ․, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment․”  (Lab.Code, § 3600, emphasis added.)   This statutory language, which speaks uncompromisingly of a bar to “any other liability whatsoever ․ for any injury,” is inconsistent with the gloss Gardner would place upon it in order to limit the effect of the statute only to liability for those acts which result in injuries which are disabling.   Thus, as the Supreme Court has said, an employee's “action is barred by the exclusiveness clause no matter what its name or technical form․”  (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160, 233 Cal.Rptr. 308, 729 P.2d 743.)

This appeal does not concern intentional infliction of emotional distress.   That issue was given to and rejected by the jury.   No assignment of error regarding any claim or issue of intentionally inflicted emotional distress is before us.   This appeal only concerns the alleged negligent infliction of emotional distress on Gardner by Schwab.   We need not deal here with any argument that an exception might exist on certain facts for an intentional tort resulting in emotional distress.  (Cf. Id., 43 Cal.3d at pp. 155–157, 233 Cal.Rptr. 308, 729 P.2d 743, and authorities there cited on the question of intentional infliction of emotional distress.)

Further and more importantly, if such a claim for negligence resulting in emotional distress were not barred, the exclusivity principle embodied in Labor Code section 3600 would rapidly become a dead letter.   Presumably most injuries incurred by employees in the course of employment would result in some level of emotional distress to the employee.   If employees could escape the exclusivity principle simply by pleading an action for emotional distress proximately caused by the employer's alleged negligence, we would substitute for the present exclusivity principle, as defined by statute, a new and undefined system in which employees had the unilateral option of pursuing a claim in the workers' compensation system or filing a tort action.   Not only would this be inconsistent with the language of Labor Code section 3600, it would undermine the decision by our Supreme Court in Cole, which recognized that the current system of workers' compensation, whatever its faults, is a creature of legislation which attempts to balance the respective interests of employer and employee.   Our creation of an exception heretofore unrecognized for the negligent infliction of emotional distress would violate this legislative scheme:  “Such an exception would be contrary to the compensation bargain and unfair to the employer.”  (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160, 233 Cal.Rptr. 308, 729 P.2d 743.)

Gardner's cause of action for negligent infliction of “emotional distress” was barred by the Workers' Compensation Act.

b. No Claim Even in the Absence of Exclusivity Defense

 Even if Gardner's claim were not barred by workers' compensation, or assuming arguendo Schwab had waived that defense, Gardner could not prevail on such a cause of action here as a matter of law for three independent reasons.

First, an employer's alleged breach of an implied-in-fact employment contract may not be transmuted into a tort dependent upon negligence without violating the rule, repeatedly reaffirmed (Pugh v. See's Candies, Inc., supra, 116 Cal.App.3d at p. 329, 171 Cal.Rptr. 917 [“We need not go that far, however.”];  Hejmadi v. AMFAC, Inc., supra, 202 Cal.App.3d at p. 549, 249 Cal.Rptr. 5;  Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 700, 254 Cal.Rptr. 211, 765 P.2d 373), that tort remedies should not be available in all such breach of contract actions.   Here, for instance, there was no substantial evidence that Schwab “negligently” breached its implied promise to Gardner, because it intended to discharge someone else but through some mistake the termination notice was mistakenly addressed to Gardner.  (Cf. Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 919–920, 167 Cal.Rptr. 831, 616 P.2d 813 [defendant's negligent diagnosis of syphilis, allegedly leading to accusations of marital infidelity and a break-up of plaintiff's marriage, stated cause of action for negligent infliction of emotional distress].)   Schwab intended to and did discharge Gardner.   Accepting the jury's conclusion this was a breach of contract, that breach is not also a tort.

Gardner argues that an employer, as any other person, is required to exercise due care and is liable for injuries caused by negligence.   We have noted above that such liability in tort for negligence would be limited, as to claims by employees, by the workers' compensation exclusivity principle;  further, the rationale of Foley, properly read as a whole, is that a discharge is not normally the type of action which may be the predicate for liability in tort as opposed to contract.   Thus, the Supreme Court noted that the courts in recognizing such liability are “in essence acting to protect ‘the interest in having promises performed’ (Prosser, Law of Torts (4th ed. 1971) p. 613)—the traditional realm of a contract action—rather than to protect some general duty to society which the law places on an employer without regard to the substance of its contractual obligations to its employee.”  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at pp. 689–690, 254 Cal.Rptr. 211, 765 P.2d 373.)   The first principle from which we must proceed after Foley is that a bare discharge from employment, without more, creates only a remedy for breach of contract, not a remedy in tort.

Second, there is no substantial evidence here that the circumstances of this discharge transcended the necessarily upsetting nature of any discharge.   Respondent's discharge was communicated to her in private meetings with her supervisors, and there was no evidence that offensive language was used or that negligent methods were employed.   Accepting Gardner's claim that a secretary escorted her out of the building so she would not have further contact with other employees while Schwab was trying to reassure them they would not be discharged, there is still nothing which rises to the level of a tort extraneous to the breach of the implied-in-fact promise.   Certainly the circumstances did not rise to the level of outrageousness which has justified recovery for intentional infliction of emotional distress in other circumstances.  (Cf. Rulon–Miller v. International Business Machines Corp. (1984) 162 Cal.App.3d 241, 254–255, 208 Cal.Rptr. 524 [invasion of privacy accompanied by innuendo regarding employee's alleged disloyalty and sexual relationship];  Agarwal v. Johnson (1979) 25 Cal.3d 932, 945–947, 160 Cal.Rptr. 141, 603 P.2d 58 [employee subjected to racial epithets and profanity].)   Here, Gardner is left with the fact that she was discharged in breach of a contract, which is not a tort.

Finally, a claim for negligent infliction of emotional distress would be defeated by applicable privilege.   As Division Four of this district recently held, an employer “cannot be subject to liability for infliction of emotional distress when it has merely pursued its own economic interests and asserted its legal rights.”  (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 885, 257 Cal.Rptr. 338 [granting summary judgment on such claims].)   Schwab would certainly be privileged to communicate to Gardner its position regarding the reasons for her discharge, as this court (Div. 2) has indicated.  (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995–996, 225 Cal.Rptr. 852.)   There, we applied the privilege of Civil Code section 47, subdivision 3 in an employee's action against his employer, holding that the privilege protected assertions between “a communicator and a recipient with a common interest, although to be protected the communication must be one ‘reasonably calculated to further that interest.’  [Citation.]”  (Id., 180 Cal.App.3d at p. 995, 225 Cal.Rptr. 852.)   While we also there noted that in some circumstances the privilege could be defeated by evidence of intent to injure or of malice (Id., 180 Cal.App.3d at pp. 996–1000, 225 Cal.Rptr. 852), only an intentional tort, not a tort dependent upon mere negligence, could provide the necessary showing to defeat the privilege.  (See, e.g., Agarwal v. Johnson, supra, 25 Cal.3d at pp. 944–945, 160 Cal.Rptr. 141, 603 P.2d 58 [evidence of malice and intent to injure plaintiff defeated privilege in a claim for intentional infliction of emotional distress].)

Here, we cannot create a remedy for negligent infliction of emotional distress resulting from a discharge without eviscerating the rationale stated in Pugh, supra, Hejmadi, supra, and most importantly in Foley, supra, that tort damages are not available as a matter of course for the breach of an implied employment contract.   We decline the invitation to do so.

4. Error in Failing to Instruct Jury

First, Gardner asserts she is entitled to a remand and new trial, because the trial judge refused to instruct the jury that Gardner could recover emotional distress damages for breach of contract.   Gardner contends she was not “ ‘aggrieved’ ” thereby until we struck the jury's tort award for emotional distress.   Because of the “ ‘aggrieve[ment]’ ” allegedly arising from our decision, she now contends she is entitled to remand and trial on an emotional distress claim arising from contract under the refused instructions.   We do not decide this appellate “ ‘aggrieve[ment]’ ” contention because, on the facts proved at trial, the judge did not err.   As this court (Div. Two) has observed, “[A]s a general rule, damages for mental suffering may not be granted for breach of contract.  [Citations.]”  (Dryden v. Tri–Valley Growers (1977) 65 Cal.App.3d 990, 999, 135 Cal.Rptr. 720;  accord 1 Witkin, Summary of Cal.Law, op. cit. supra, Contracts, § 829, p. 746 [“Ordinarily, damages are not recoverable for mental suffering resulting from a breach of contract.”   Emphasis in original.].)

In employment contract cases specifically, “[i]t has long been established” that such damages for injury to feelings are not recoverable.  (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1081, fn. 4, 195 Cal.Rptr. 576.)  “To whatever extent plaintiff's complaint alleges that such damages arise from a breach of contract, it fails to state a cause of action.”  (Ibid.)  Supreme Court authority on this point states the rule in especially uncompromising terms.  “In such a case [for breach of an employment contract] the defendant cannot be held liable for damages to plaintiff's health, nor for injury to her feelings or reputation, by reason of her wrongful discharge.”  (Westwater v. Grace Church (1903) 140 Cal. 339, 341, 73 P. 1055.)

Foley certainly did nothing to change these precedents;  in fact, its rationale is based upon them.   The unavailability of tort remedies in contract was one of the predicates of the analysis of Cleary v. American Airlines, Inc. (1980) 111 Cal.App.3d 443, 456, 168 Cal.Rptr. 722, which extended to wrongful discharge cases the rationale of insurance precedents allowing for the recovery of tort damages for the breach of covenant, rather than limiting recovery to contract damages.  “The Cleary court erred in its uncritical reliance on insurance law and its casual extension of Tameny [v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330] to find tort damages recoverable in the case before it.”  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 687, 254 Cal.Rptr. 211, 765 P.2d 373.)   In Foley, our Supreme Court did not specifically rule on the issue of the damages available in contract actions, since that matter was not before it;  but it declined to extend insurance precedents allowing a plaintiff to “recover in tort for emotional damages․”  (47 Cal.3d at p. 684, 254 Cal.Rptr. 211, 765 P.2d 373, emphasis added.)   The rationale for this ruling applies with equal force in contract actions:  “We therefore conclude that the employment relationship is not sufficiently similar to that of insurer and insured to warrant judicial extension of the proposed additional tort remedies․”  (Id. at p. 693, 254 Cal.Rptr. 211, 765 P.2d 373, emphasis added.)

Of course, in theory nothing prevents an employer and employee from agreeing to the terms of a contract which does specifically contemplate emotional distress damages as an element of recovery.   In such a case, as in those cited by Justice Broussard in his dissent in Foley, emotional distress damages might be within the contemplation of the parties just as, for example, mishandling of a corpse might result in emotional distress to the surviving relatives.  (47 Cal.3d at p. 702, 254 Cal.Rptr. 211, 765 P.2d 373, relying upon Allen v. Jones (1980) 104 Cal.App.3d 207, 163 Cal.Rptr. 445.)   We note, however, that Allen v. Jones did not in fact hold emotional distress damages, standing alone, were available for breach of contract:  “We need not address that question in the present case, however, because plaintiff alleged that the cremated remains were lost because of defendants' negligence in preparing them for shipment.   Plaintiff has thereby pleaded an action in tort as well as in contract.”  (104 Cal.App.3d at p. 213, 163 Cal.Rptr. 445, emphasis added.)   Cases allowing recovery for emotional distress as a tort remedy do not support such recovery in contract actions.  (Cf. Jung and Harkness, Life After Foley:  The Future of Wrongful Discharge Litigation, 41 Hastings L.J. 131, 146 [“Unfortunately, the precedent supporting such a position [that emotional distress damages should be recoverable for a breach of contract] is thin.   The cases which Justice Broussard cites as supporting recovery are unusual cases;  in each, the subject of the contract was highly personal, and the facts were such that an independent tort action easily could have been maintained, thus providing an alternative explanation for the award of emotional distress damages.   Indeed, in the only California case to address the issue, the [S]upreme [C]ourt held that damages for emotional distress are too remote a consequence to be recoverable in a wrongful discharge case.”   Fns. omitted.].)

The record in this case provides a complete statement of the circumstances Gardner claims would support recovery of emotional distress damages for breach of an implied employment contract.   As we have previously indicated, that record shows nothing more than breach of a contract which did not fall within any postulated exception allowing recovery of damages for emotional distress.   Here, as in another of our recent cases, “We do not mean in any way to belittle [Gardner's] position, which is a forceful and principled argument for the extension of [the remedies available under] existing law.   We simply hold that in this context any extension of the applicable law must come through legislation.”  (Korens v. R.W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1063, fn. 2, 261 Cal.Rptr. 137;  see also Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 700, 254 Cal.Rptr. 211, 765 P.2d 373.)

5. Additional Arguments Concerning Negligent Infliction of Emotional Distress

a. Judicial Notice Requests

 Next, Gardner mistakenly relies upon an argument involving the intentional infliction of emotional distress to support her contention that we erred in holding she has no claim for negligent infliction of emotional distress.   She supports this argument with the absurd demand that we take judicial notice of a mound of correspondence, directed at the Supreme Court in an effort to secure the “depublication” of another case, which unlike this one involved the intentional infliction of emotional distress.¹  These letters from disappointed lawyers, some of whom represented no parties to the action, who sought the erasure of a precedent adverse to their clients' interests after the case was settled and the petition for review was withdrawn, are not “[r]ecords of ․ any court of this state․”  (Evid.Code, § 452, subd. (d).) ²

No provision of law or court rule authorizes submission to this court of the correspondence we are asked to judicially notice.   The California Rules of Court regarding publication of opinions, rules 976 through 978, explicitly provide only that a “person,” i.e., someone who is not necessarily a party, may request an appellate court or the Supreme Court to order publication of appellate court opinions not certified for publication.³  However, there is no explicit provision in the Rules of Court authorizing persons who are not parties to the proceedings to request depublication;  or providing for notice to the opposing party or to any party or to the Court of Appeal of a request to the Supreme Court to depublish an opinion, a hallmark of due process.   Nor is there any explicit requirement that the arguments submitted by a stranger seeking depublication have been raised before the Court of Appeal deciding the case, one of the central tenets of appellate procedure.   In short, the “depublication” letters Gardner asks us to judicially notice do not meet the requirements of the “decisional ․ law” which, under the federal or the state constitution, must mandatorily be subject to judicial notice (Evid.Code, § 451, subd. (a));  or which may discretionally be subject to judicial notice.  (Evid.Code, § 452, subd. (a).)  We seriously doubt that such letters become a “record” of the Supreme Court within the meaning of Evidence Code section 452, subdivision (d) by the simple expedient of being forwarded there and lodged.   Even assuming arguendo such letters could be “[r]ecords of ․ any court of this state ․” as to which discretionary judicial notice might be taken under Evidence Code section 452, subdivision (d), we would deny that request because they are patently self-serving and “tantamount to producing another advocate to argue plaintiff's case.”  (Love v. Wolfe (1964) 226 Cal.App.2d 378, 403, 38 Cal.Rptr. 183.)   We further refuse to take such judicial notice because it cannot be known whether the decision to “depublish” was based upon, or in any way influenced by, contentions or arguments in the letters submitted.⁴

Ours is a case in which the jury rejected a claim of intentional infliction of emotional distress, and no issue is raised by this appeal which concerns that question.   Consequently, the contentions and correspondence which dealt with that issue in the depublished Giorgi case are simply irrelevant here.   This request for judicial notice seems to imply we should be influenced by the possibility of another such letter-writing campaign for depublication to the Supreme Court in this case if we do not grant a rehearing.   We vigorously decline to give official sanction or tacit approval to such inappropriate efforts to compel appellate consideration by such means.   For all the foregoing reasons, we reject the request for judicial notice of such letters regarding some other, irrelevant issue as applicable to our decision on negligent infliction of emotional distress in this case.

b. Unsolicited Communication from Non–Party, Non–Amicus Counsel

 Since the petitions for rehearing were filed herein and during their pendency, we have received substantial correspondence from various counsel not of record in this case who have never sought or attained amicus curiae status.   These communications urge action on us, while we retain jurisdiction, with respect to rehearing or decertification of publication of those portions of our decision we certified for publication.   This practice is one of increasing frequency in this court, and we deem it appropriate to address it and determine its propriety.

As indicated, such practice is nowhere explicitly allowed by the rules of court.   The rules provide for the appearance in cases pending before us by interested counsel, not representing parties to the litigation, as amici curiae.  (Cal.Rules of Court, rule 14(b).)   That rule provides for letters to be filed in appellate courts for very limited purposes.   Only the Supreme Court may receive a letter from an individual or entity in lieu of a brief of amicus curiae;  such letter is allowed to be lodged in that court only for the limited purpose of supporting or opposing the granting of a petition for review or an original writ.   The letter for this limited purpose must conform to the requirements of rule 28(e) as to incorporation of documents and annexed material;  consideration of such letter is discretionary with the Supreme Court;  and the lodging of such letter does not, per se, permit its author to file a brief amicus without compliance with rule 14(b).

Rule 14(b) provides, inter alia, as applicable to this court:  “A brief of amicus curiae on the merits of an action or proceeding may be filed on permission first obtained from the ․ presiding justice subject to conditions which may be prescribed.” ⁵

We begin our examination of this practice involving such communication with an analysis of judicial responsibilities.   Canon 3 A of the Code of Judicial Conduct ⁶ indicates that it is improper for a court to consider communications from non-parties who have not received leave of court pursuant to rule 14(b), unless they are otherwise explicitly authorized to communicate with the court.   That canon provides, in pertinent part:  “[Justices] should[,] ․ except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.”  (Cal.Code Jud.Conduct, canon 3 A(4) [23 West's Cal.Codes Ann.Rules, pt. 2 (1989 Supp.) p. 289], emphasis added.)   The commentary to this canon states:  “The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding except to the limited extent permitted․  [¶] An appropriate ․ procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.”  (Ibid., emphasis added.)

A trial judge would be shocked to imagine that counsel not representing parties to the litigation, and not having become amici curiae, could with impunity press their unsolicited views on him concerning an undecided but submitted matter.   Such practices are equally improper in appellate courts.   While such petitioning may be common in addressing legislative bodies, that practice has never been approved in judicial proceedings and for good reason.

Judges must be immune from and resist the politicizing of their function.   Trial judges decide cases on the facts and law presented them in an adversary but orderly proceeding by parties and amici, if any, subject to the safeguards of the right to cross-examine and confront witnesses, present relevant evidence, and argue the law in a setting where all sides have the opportunity to receive and respond to the positions of all others.   Courts of appeal reach their decisions on the record thus made below;  and on the briefed legal positions of the parties to the litigation and of amici curiae, to which the parties may address themselves in completing the briefing submissions of the case on appeal.

Judicial decisions cannot be made, consistent with litigants' receipt of due process (as canon 3 A(4), supra, recognizes), if influenced by partisan communications from counsel who are not parties to the proceedings under consideration who lack required standing as amici curiae.   Fundamentally, such communicants may not fully understand the issues presented;  and their motives are frequently indiscernible.   Their actions can be easily promoted by unsuccessful counsel.   Such communications violate conventional rules of fairness established by a briefing process which insures that all parties are heard in an orderly manner.   The law abhors adjudicative responsibilities being affected or influenced by such petitions of pressure groups or individuals who never participated in the litigation.   Were the reverse true, the integrity of the judiciary would be called into question and public confidence in the courts would be destroyed.  “Judges should be unswayed by partisan interest, public clamor, or fear of criticism.”  (Cal.Code Jud.Conduct, canon 3 A(1), op. cit. supra, emphasis added.)   The acceptance or consideration of such communications by judges or justices as to pending matters is expressly forbidden by the canons which govern their conduct.   It follows that appellate courts should not receive what they are forbidden to consider.

Accordingly, we order the clerk to strike from the records and files of this court all communications, which were lodged or inadvertently filed, from persons or entities who are neither parties nor amici curiae, requesting any particular action in this case on petition for rehearing, other than publication of unpublished portions of our opinion.  (Cal.Rules of Court, rule 978(a).)

c. Exclusivity of Workers' Compensation Remedy

Gardner incorrectly contends we exceeded our jurisdiction when we applied the exclusive remedy provisions of the workers' compensation laws, Labor Code sections 3600 through 3602.   Moreover, Gardner's argument regarding negligent infliction of emotional distress, based upon her contention that an exception should exist for intentional infliction of emotional distress not resulting in compensable disability, does not help her.   This argument by Gardner of necessity goes far beyond even the dissent of Chief Justice Bird in Cole, supra, which advocated an exception on certain facts for the intentional infliction of emotional distress.  (See 43 Cal.3d at pp. 164–170, 233 Cal.Rptr. 308, 729 P.2d 743.)   To support this contention, Gardner would have to establish (1) that negligence which results in a nondisabling injury is not barred by those statutory exclusive remedy provisions;  and (2) that Schwab failed to prove Gardner's injury (for which the jury awarded $500,000) would in fact be compensable under the Workers' Compensation Act.   This she cannot do because she is wrong on both the law and the facts.   The statutory scheme devised by the Legislature, through Labor Code sections 3600 through 3602, specifically mentions and clearly bars claims for negligence;  if it did not bar claims for negligence, it would not bar anything at all.   We cannot repeal these statutes in the guise of interpretation.⁷  In a negligence action such as this one, liability is barred by the Workers' Compensation Act as a matter of law.  (Williams v. Schwartz (1976) 61 Cal.App.3d 628, 131 Cal.Rptr. 200 [negligent infliction claim brought by non-employee spouse barred by Workers' Compensation Act;  demurrer properly sustained];  accord Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 163, 233 Cal.Rptr. 308, 729 P.2d 743 [demurrer properly sustained on similar claims for intentional infliction of emotional distress, relying upon Williams, supra.].)   The fact, moreover, is that this exclusivity defense was raised by Schwab through its pleadings in the trial court.   If so raised, the application of the Workers' Compensation Act in this case becomes a matter of law for the court.⁸  (Doney v. Tambouratgis, supra, 23 Cal.3d at p. 97, 151 Cal.Rptr. 347, 587 P.2d 1160.)

d. Employer's Privilege

Finally, Gardner urges us to grant rehearing since, if her negligent infliction claim were not barred by the exclusive remedy provisions, she would contend Schwab's actions constituted that tort and were unprivileged.   However, while we recognize certain conduct can constitute both a tort and a breach of contract, we also observe that Foley, supra, went to considerable lengths in terms of analysis of precedent, considerations of public policy, and discussion of economic implications in order to reject the notion that tort remedies should be available as a matter of course for a wrongful discharge, which is what Gardner is forced to contend.  (47 Cal.3d at pp. 682–700, 254 Cal.Rptr. 211, 765 P.2d 373.)   There was nothing unique to the facts of this discharge which would alter the general rule.⁹

Moreover, as Schwab pointed out in its briefs on appeal, its actions were not tortious and were privileged as a matter of law.   Schwab correctly observed that it “had every right to ask someone to accompany Gardner out of the building ․,” and relied upon Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67, 248 Cal.Rptr. 217 for the quoted proposition that, “A party is not subject to liability for infliction of emotional distress when it has merely pursued its own economic interests and properly asserted its legal rights.”  Kruse in turn derived this proposition from Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 395, 89 Cal.Rptr. 78, wherein Justice Kaufman observed that the privilege could be lost if a party engaged in “outrageous” conduct.   There was no “outrageous” conduct in this case, as we have observed.   Whether an instruction on the question of privilege was provided to the jury is not the issue;  the issue is whether in a negligence action as a matter of law a party is privileged to assert its legal rights by informing an employee that she must find another job, and by asking her to leave its premises.   A claim for emotional distress is barred by privilege in such circumstances.  (See Trerice v. Blue Cross of California, supra, 209 Cal.App.3d at pp. 883–885, 257 Cal.Rptr. 338 [a case cited to us by Gardner in one of her counsel's nine unsolicited documents attempted to be filed after briefing had closed,¹⁰ affirming summary judgment on such claims based upon Fletcher, supra, and Kruse, supra, since there was no issue requiring a trial].)   The fact Gardner did not respond further to the privilege argument until her petition for rehearing does not require that we grant the petition;  review of the supplemental briefing Gardner has provided on the issue does not indicate we should reach another result.

We repeat our conclusion that Schwab incurred no liability for an alleged unprivileged act, justifying recovery of tort remedies totalling $500,000, when it told Gardner she needed to look for another job and paid her salary for a few more months while she did so.

III. DISPOSITION

The judgment is modified by the deletion of the award of $500,000 for “emotional distress.”   As so modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

1.   These letters are, Gardner contends on rehearing, the “best evidence of the Supreme Court's reason for depublishing Giorgi [v. Verdugo Hills Hospital (Cal.App.) ].”   Credulity is stretched to the breaking point by this tacit assertion that appellate courts should divine the Supreme Court's intention on important questions of law through an order of depublication based on letters from strangers to the litigation with an obvious axe to grind, who for a variety of reasons urge that depublication.   Adoption of this assertion would allow appellate law in this state to be shaped by unsolicited and partisan correspondence addressed to the Supreme Court.   We emphatically reject it.

2.   Gardner also demands that we take judicial notice of a photocopy of an unpublished order in a federal case, Mosely v. Metropolitan Life Ins. Co., Docket No. C–88–0905 RFP, which relied in part upon Justice Broussard's dissent in Foley in denying a motion for summary judgment.   We have grave doubts about the propriety of this request for judicial notice of an unpublished decision which would not normally be considered a precedent, and we note further that an order in which the federal court was simply attempting to interpret California law for diversity purposes is not binding upon us;  rather, the reverse is true.   Even if this request were appropriate (and we believe to the contrary), the federal decision aptly observes that, “The California Supreme Court in Foley and Newman intended to preclude tort damages, such as emotional distress, in connection with wrongful termination claims.”  (Slip op. at p. 4.)

3.   These rules do not provide for receipt of similar requests, which seek an order of decertification of an opinion an appellate court has published, directed to such courts.

4.   Gardner implicitly states that rules 976 and 978 are interpreted to allow some “person” to request depublication of a published case by the Supreme Court.   Regardless of the interpretation of these rules or the procedure of the Supreme Court in connection therewith, we fail to see how such requests are in any way interpretive of that court's reasons for ordering depublication of an appellate court decision.   We would necessarily have to assume, in following Gardner's logic, that letters of third parties, and not the independent determination of the Supreme Court in exercising its depublication power, triggered its decision to depublish an appellate opinion.   We decline the evident invitation of Gardner to assume the Supreme Court simply parrots the reasoning and analysis of individual or group special-interest writers, and thereby surrenders its important depublication authority to partisan politicalism by those who never participated in the appellate court case.

5.   The requests we receive do not even purport to be amicus curiae briefs, apart from the fact that they do not comply with the rules concerning such briefs.

6.   We take judicial notice of these canons and the commentary thereon, discussed post, under Evidence Code section 452, subdivision (h).

7.   Gardner has miscited overruled authority in which a defense of exclusive federal jurisdiction was held not assertible for the first time on appeal.  (Thorman v. Intl. Alliance etc. Employees (1958) 49 Cal.2d 629, 633, 320 P.2d 494.)   Gardner claims Thorman supports her contention, that Schwab waived its defense of the exclusivity of the workers' compensation laws as applied to Gardner, because Schwab allegedly raised such defense for the first time on appeal.  Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721, footnote 8, 73 Cal.Rptr. 213, 447 P.2d 325, expressly overruled Thorman on this point, allowing the defense of federal preemption to be raised for the first time on appeal.

8.   Gardner also insists our holding denies her any remedy for a negligent infliction of emotional distress claim related to her termination in the absence of a disabling injury accompanying the emotional injury, i.e., that the exclusive remedy provisions of the workers' compensation law are inapplicable to such remedies.   Even authority upon which she mistakenly relies has recognized that, for a claim of negligent infliction of emotional distress, the “exclusive remedy [is] by a workers' compensation proceeding.”  (Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 839, fn. 3, 147 Cal.Rptr. 447.)   Further, it has long been established that an employee need not have a physical injury in order to have a workers' compensation remedy for emotional upset.  (Albertson's, Inc. v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 308, 182 Cal.Rptr. 304 [employee properly recovered workers' compensation benefits because of emotional injuries suffered after her supervisor (a) criticized her for leaving food out of the freezer, (b) wrongly laid her off, and (c) changed her work schedule];  see also Traub v. Board of Retirement (1983) 34 Cal.3d 793, 195 Cal.Rptr. 681, 670 P.2d 335;  Baker v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 852, 96 Cal.Rptr. 279.)

9.   Gardner is not aided by two cases she cites which preceded Foley, and which merely discussed deficiencies in pleading the tort of negligent infliction of emotional distress.  (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285–286, 186 Cal.Rptr. 184;  Gray v. Superior Court (1986) 181 Cal.App.3d 813 822–823, 226 Cal.Rptr. 570.)   Neither case deals with workers' compensation exclusivity or with privilege.   Further, these cases preceded Foley and could not, therefore, address the Supreme Court's rejection of tort remedies in this context.

10.   Except for respondent's brief and appellant's reply brief, “No additional or supplementary briefs may be filed except by permission of the Chief Justice or Presiding Justice.”  (Cal.Rules of Court, rule 14(a).)   At oral argument, Gardner's counsel explained this procedure, which we emphatically disapproved, as “zealous advocacy.”   Advocacy, whether zealous or not, must be undertaken pursuant to the rules by which it is conducted.

PETERSON, Associate Justice.

KLINE, P.J., and BENSON, J., concur.