Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCV235958
Reardon, J.
Dan Earls, an employee of a meat processing company briefly elevated to the position of general manager, claimed he was fired for complaining that the owner’s son, who previously served in that capacity and was poised to be reinstated during Earls’s tenure, was a methamphetamine addict who should not be running the company. The company previously had been threatened with the withdrawal of federal inspection services due to the fact that this son suffered a prior felony conviction for possession of methamphetamine. Dan Earls appeals from the judgment of nonsuit entered on his cause of action for wrongful discharge in violation of public policy, and from dismissal by summary adjudication of his contract-related claims.
We conclude that the trial court improvidently entered judgment of nonsuit because Earls made a sufficient showing that his firing implicated the significant public policies of our federal meat and poultry inspection laws. Further, the contract-related claims were not, as the trial court held, preempted by federal law. Accordingly, we reverse the judgment of nonsuit as well as the dismissal of the contract claims.
I. PROCEDURAL HISTORY
After being fired as the general manager of Hagemann Meat Company, Inc. (HMC), appellant Dan Earls sued HMC and Ray and Phyllis Hagemann (collectively, respondents) for breach of contract, wrongful discharge in violation of public policy, unpaid wages, breach of guaranteed personal services contract and other causes. Following a grant of summary adjudication in favor of respondents on the breach of contract, breach of personal services contract and unpaid wages claims, the matter proceeded to trial on the wrongful discharge cause. At the close of Earls’s case-in-chief, respondents moved for nonsuit, arguing that Earls failed to carry his burden of showing wrongful discharge in violation of public policy. The trial court granted the motion and entered judgment accordingly. This appeal followed.
II. NONSUIT
A. Factual Background
We relate the following facts according to the standard of review following a judgment of nonsuit. Under this familiar standard, upon examining the entire record, we view the evidence in the light most favorable to the appellant. We do not consider the credibility of witnesses or weigh the evidence; rather, we accept as true the evidence favoring the plaintiff, and disregard conflicting evidence. (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327.) Engaging this standard, we cannot sustain the trial court’s judgment unless the defendant is entitled to judgment as a matter of law. (Ibid.)
1. Earls is Hired by HMC
HMC is a family-owned wholesale meat processing plant located in Santa Rosa. Phyllis Hagemann has been its sole owner since 1994. Bruce Hagemann, one of Ms. Hagemann’s sons, was the general manager of the company from 1994 through 2000. In 2000, Ray Hagemann, another son, took over as general manager. Previously, he had worked as a journeyman meat cutter. As general manager, Ray Hagemann worked in the front office next to the meat processing room, but his duties included supervising sales and administrative staff, pricing, checking invoices for accuracy, and making major purchases and capital improvements.
Prior to joining HMC in January 2002, Earls had served as executive vice-president, secretary-treasurer and president of United Food and Commercial Workers Union, Local 101 (Local 101), the union representing HMC employees. At an exploratory dinner meeting, Ms. Hagemann indicated she wanted Earls to “step in as . . . No. 2” and expressed concern about Ray Hagemann’s previous drug problems. Earls’s initial duties involved outside sales, and assisting with wage packages, insurance, benefits and the like. In April 2002, Earls took over the assistant manager position, the “No. 2 desk.”
2. USDA Grant of Inspection
As a meat processing plant, HMC’s facility and products are subject to inspection by the United States Department of Agriculture (USDA), pursuant to the Federal Meat Inspection Act (21 U.S.C. § 601 et seq.) (FMIA) and the Poultry Products Inspection Act (id., § 451 et seq.) (PPIA). All such establishments operate under a grant of inspection. (See, generally, 9 C.F.R. §§ 304, 305 and 307 (2007).) The grant of inspection designates the responsible parties within the plant with whom the USDA inspectors interact, ask questions, etc., in their role of certifying that the facilities meet USDA standards.
Without a valid grant of inspection, an establishment does not receive USDA inspection services, and without such services, it cannot distribute products in commerce. (See 9 C.F.R. §§ 304.3, 305.4.) The FMIA provides that the Secretary of the USDA may refuse to provide, or withdraw, inspection services when he or she determines that an applicant for, or recipient of, services “is unfit to engage in any business requiring inspection . . . because the applicant or recipient, or anyone responsibly connected with the applicant or recipient, has been convicted, in any Federal or State court, of (1) any felony. . . .” (21 U.S.C. § 671 (section 671).)
Similarly, the PPIA provides for refusal to provide or withdrawal of services where the applicant or recipient or responsible party, as defined, has been convicted, within the past 10 years of “any felony . . . indicating a lack of the integrity needed for the conduct of operations affecting the public health.” (21 U.S.C. § 467(a) (section 467(a).)
USDA-inspected plants must provide office space and a desk for the assigned inspector. (9 C.F.R. § 307.1 (2007).) As well, each plant must develop and implement a hazard analysis and critical control point plan, which is similar to a quality control system. (Id., §§ 304.3, 417.2(b).) At the pertinent times, Ray Serna was the certified hazard analysis and critical control point plan manager for HMC.
In the spring of 2002, the grant of inspection needed updating and Ray Hagemann submitted his name, along with Earls, Serna and Ms. Hagemann. In the application, Ray Hagemann admitted that he had been convicted of felony possession of methamphetamine. The Food Safety and Inspection Service of the USDA filed an administrative complaint to withdraw federal inspection services from HMC under the business fitness provisions of the meat and poultry inspection statutes, based on Ray Hagemann’s felony conviction. The matter was resolved by a stipulated consent decree effective July 2002, pursuant to which inspection services were withdrawn but the withdrawal was held in abeyance provided that HMC complied with conditions imposed for an 18-month probationary period. Under the consent decree, Ray Hagemann was not to commit any felony and was required to participate in a business training program; and HMC was required to develop and implement an approved corporate code of conduct. Other provisions related to compliance with the FMIA and PPIA and related regulations.
Enacted in October 2002, the corporate compliance code provided, among other things, that HMC would not tolerate “illegal drug use or abuse of alcohol or other legally controlled substances by its employees. [HMC] is dedicated to ensuring a drug-free work place.”
The consent decree called for reports to be submitted at six-month intervals summarizing the company’s compliance efforts. Earls drafted the letter reports, submitting them to the company lawyer for review and then to Ray Hagemann for signature.
3. Ray Hagemann’s Conduct and Behavior Postconsent Decree
Notwithstanding his commitment to forswear committing any felony, Ray Hagemann purchased at least a half ounce of crystal methamphetamine from an HMC employee in September 2003. He testified to using the drug a maximum of 25 times following the purchase, with his last use occurring in April 2004. Regarding his representations to the USDA pursuant to the six-month reporting requirement that he had not committed “any felony,” Hagemann had this to say: “I had not committed any felony of record. Perhaps as a white lie, or something of that nature, being in possession of this is a felony. But I guess as long as you don’t get caught, it’s all good, if you know what I mean. I had not committed a felony with the law . . . on the books.”
A former employee testified that in April 2005, months after Earls was fired, she saw drug paraphernalia (a glass pipe) in Hagemann’s desk drawer, along with two cylinders, one with marijuana and one with a crystal-like substance.
Employees testified to their belief that Ray Hagemann was under the influence of drugs on occasion at the workplace. The former HMC secretary, who had been through a drug and alcohol recovery program herself, told Hagemann she thought he was on drugs. She pointed to the fact that he was coming in later and later, his “real high-strung behavior,” the “increase in anger,” and “micromanaging things.” Because of his “amped” behavior, weight loss and sporadic thinking, she thought he was using methamphetamine. This employee related an incident in April 2004 in which, during an argument, Hagemann came within inches of her face. She could see a white powdery substance on his mustache. She was upset and scared, flew out of the office, and resigned shortly thereafter.
Others noted that Hagemann started coming in later and later, and sometimes not at all.
Ray Serna, the former hazard analysis and critical control point plan supervisor, testified to a 2003 incident in which Hagemann physically confronted him, getting within inches of his face. Serna could see a ring of white substance around Hagemann’s nose, Hagemann was acting erratically, and his words were slurred. Serna also related that in 2002 he found frozen poultry being thawed out “in a truck outside with the door open,” in the sun, with flies all around. This procedure was unacceptable and the poultry was discarded. Hagemann made the directive to thaw the product this way because he wanted to make sure it was ready for his customer. Another time Serna tried to enforce a USDA protocol directing that gowns worn by processing workers are kept inside the facility to ensure they are “cleaned and sanitized.” When he brought it to Hagemann’s attention that workers were wearing aprons outside, Hagemann said it was “a chicken-shit call.”
A former foreman also saw a white residue around Hagemann’s nostril on one occasion in 2004. As well, he observed strange behavior that year that persisted “at least for 14 days straight.” Hagemann would sit in his car for long periods of time, and then walk around it, opening and closing doors, sometimes for 20 minutes, sometimes for an hour. The foreman also related an incident in which Hagemann put several cases of frozen ribs in an outside garage area for quick thawing, although meat should be thawed under refrigerated conditions so it does not attract bacteria.
Earls, who had received training in the area of methamphetamine abuse as an officer and agent for the union, testified that over the course of the last half of 2002 and throughout 2003, he observed in Ray Hagemann a continuing pattern of lateness; incidents of loss of memory, agitation, anger at minor issues, hostility, erratic behavior and microinspecting invoices; and “deterioration of . . . physical stature,” i.e., “getting extremely thin.” Earls and Hagemann had an argument in April 2004 in which Earls accused his boss of being on drugs. Hagemann finally admitted it, stating, “I will continue to do the drugs as long as my mother owns this company. . . . If I feel like doing drugs, I’m going to do drugs.”
Earls also related another argument that arose when Hagemann objected to paying a $250 emergency room bill for treating an employee who cut his arm and required stitches.
4. Earls Becomes HMC Manager
Earls resigned as assistant manager in July 2004 following a verbally abusive luncheon with Ray Hagemann, attended also by Ms. Hagemann. Earls accepted an offer at another company. Later that month Bruce Hagemann called him, indicating that Ms. Hagemann finally realized her son had a drug problem. A meeting was set up to discuss changes. At the meeting Bruce Hagemann stated that they all knew his brother had drug issues for a long time, and the absence of Earls for the past several weeks had caused concern. Earls agreed to take over as HMC’s manager on assurance that he would have the power to terminate Hagemann if he returned to work with a drug habit. Earls requested a guaranteed personal service contract from Ms. Hagemann for three years. They both signed this one-page agreement to that effect. As well, there was a discussion at the meeting about Hagemann getting treatment for his drug problems. Bruce Hagemann suggested that his brother be given a month to figure out what he was going to do.
Earls began his short stint as manager on August 3, 2004. On September 15, 2004, Ray Hagemann showed up unannounced and said he wanted his desk (the designated manager’s desk) and parking space back and would be checking invoices. Earls thought Hagemann was under the influence of methamphetamine. The next day Hagemann came again and demanded that Earls vacate the desk. Eventually Hagemann got his mother on the phone. She started screaming that Hagemann was vice-president. Earls tried to dissuade her from bringing her son back while he was on drugs and had not undergone rehabilitation.
Ms. Hagemann and son returned to the facility late in the afternoon. Again, Earls indicated “this is a breach of our agreement. Ray is still a drug addict.” Earls looked at Hagemann and said he was a drug addict. Ms. Hagemann, prompted by her son, told Earls he was fired.
5. Expert Testimony
Robert Resner testified as an expert on the effects of methamphetamine abuse. Psychological effects of methamphetamine use include anger, violence, irritability and paranoia. When the drug is present in the user’s system, the behavior most noted is repetitive behavior, or “tweaking”—doing the same action over and over again without any logical reason for doing so. Methamphetamine use can cause cognitive difficulties and impair judgment. The effects of the drug last up to 72 hours, with the maximum effect occurring during the first 12 to 24 hours.
The use of a half-ounce of crystal methamphetamine on 15 to 25 occasions would not constitute recreational use. Only one-eighth to one-quarter gram of crystal methamphetamine or less would be needed to “get high” if smoked with a glass pipe. An ounce being 28.35 grams, a half-ounce would yield between 56.7 and 113.4 doses.
6. Trial Court Ruling
Granting the nonsuit motion, the trial court orally explained that it did not see a nexus between methamphetamine abuse, on the one hand, and the federal meat and poultry laws and the USDA grant of inspection, on the other. “Those acts—you’re attempting to have a sanitary, healthy environment for the production of those products. If a person in management, who’s not on the floor, he’s not cutting the meat . . . I don’t see a nexus . . . .” The court analogized to a manager getting drunk at lunch. If he or she then “messes up on the billing or invoicing, I don’t see where that’s going to have an effect on the world at large, or public policy.”
B. Discussion
1. Standard of Review
On appeal from a judgment of nonsuit, we view the evidence in the light most favorable to the plaintiff and will sustain the lower court’s judgment only if the defendant is entitled to judgment as a matter of law. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) However, in our favorable evaluation of the plaintiff’s evidence, a scant thimbleful will not create a conflict for jury resolution; there must be substantial evidence to create such conflict. (Ibid.)
Generally, we will consider only the grounds detailed by the defendant in support of the nonsuit motion. (Marvin v. Adams (1990) 224 Cal.App.3d 956, 960.) Earls contends that the trial court granted the motion on grounds not articulated by defendants, but that is not the case. Respondents broadly argued that Earls’s cause of action for wrongful termination in violation of public policy must fail, noting, among other points, that the purported policies enshrined in the FMIA and PPIA were not “ ‘substantial or fundamental’ ” in that they did not clearly alert respondents that Ray Hagemann’s continuing substance abuse was a perversion of those policies rendering him unfit to remain in the business. Arguing the motion, counsel for respondents stated there was no “well-defined, understood public policy,” no “well-declared public policy, [and] it is not the job of this court to” create one. These articulations were sufficient to come within the rule of Marvin v. Adams, supra, 224 Cal.App.3d 956 .
2. The Tort of Wrongful Termination in Violation of Public Policy
The tort of wrongful termination in violation of public policy is an exception to the rule that an at-will employee may be terminated for no reason, or for a reason that is arbitrary or irrational. (Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1104.) Typically, the tort arises in circumstances where the employer retaliates against an employee who (1) refused to violate a statute; (1) performed a statutory obligation; (3) exercised a statutory right or privilege; or (4) reported an alleged violation of a statute of public importance. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083,1090-1091, overruled on another point in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80,fn.6.)
Because the concept of a “public policy” defies precise definition and courts are loath to venture into this arena to avoid judicial policymaking, the policies encompassed by the exception have been limited to those which are “carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions . . . .” (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1095.) Administrative regulations may also serve as a fundamental public policy touchstone where they are promulgated under and support important policies delineated in the enabling statute, and the regulations themselves inure to the benefit of the public and advance a fundamental policy interest. (Green v. Ralee Engineering Co., supra, 19 Cal.4th at pp. 84-85.)
In Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480, the reviewing court explained: “A requirement that a policy be ‘delineated’ [in a statute or constitutional provision] entails more specificity than merely being ‘derived from’ or ‘based’ on its source. To ‘delineate’ means ‘. . . to describe in detail, esp. with sharpness or vividness’ [citation]; ‘. . . to describe, portray, or set forth with accuracy or in detail’ [citation].” Because employers are deemed to have knowledge of the fundamental public policies expressed in state and federal Constitutions and statutes, the constraint of delineation in a given provision ensures that employers are on notice of the policies which, if contravened in discharging an employee, will subject them to tort liability. (Silo v. CHW Medical Foundation, supra, 27 Cal.4th at p. 1104.) And, although the employer’s precise wrongful act, such as firing an employee for refusing to commit a crime, need not be specifically prohibited in order for the public policy exception to apply, the provision in question must sufficiently describe the kind of conduct that is prohibited to enable an employer to know the fundamental public policies that are expressed in that particular law. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fn. 9, overruled on another point in Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 498; Sequoia Ins. Co. v. Superior Court, supra, 13 Cal.App.4th at p. 1480.)
The “public” aspect of the “public policy” exception means that the policy at issue must affect our society at large, not just “a purely personal or proprietary interest of the plaintiff or employer . . . .” (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1090.) For example, in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, the plaintiff employee asserted he was fired because he reported to upper management that his supervisor was under investigation for embezzlement from another company. Further, he charged that the firing was in derogation of the public policy imposing a duty on an employee to disclose information pertinent to the employer’s business interests. This policy impacted only the employer’s private interests, not the greater public interest, and thus the plaintiff’s cause was doomed. (Id. at pp. 664, 669-671.) So, too, allegations that an employee had been discharged after complaining that the company was not following its own internal policies and collective bargaining agreements did not implicate a fundamental policy enshrined in a statutory or constitutional provision. “The tort of wrongful discharge is not a vehicle for enforcement of an employer’s internal policies or the provisions of its agreements with others.” (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1257.)
Finally, the policy must be well established at the time of the employee’s discharge, and must be fundamental and substantial. (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1090; Green v. Ralee Engineering Co., supra, 19 Cal.4th at p. 76.) Similarities, if any, between the policy in question and other policies declared to be substantial and fundamental will be a significant factor in deciding whether a given public policy is substantial and fundamental. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 895-896.) So, too, broad, consistent and abiding legislative and statutory support can support an inference that the policy has substantial and enduring value. (Id. at p. 896; Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 944.)
For example, the court in Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 298 determined that the alleged discharge of an employee for attempting to secure a reasonably smoke-free workplace environment violated a substantial public policy. It reasoned that the safety of workers in the workplace has long been a substantial legislative concern in this state. That purpose, in turn, would be substantially undermined if employers were able to discharge employees for protesting working conditions which they reasonably believe constitute a hazard to their own health and safety, or that of others. The policy at stake extended beyond any question of fairness to the complaining employee. Rather, it also concerned protection of workers against retaliatory dismissal for conduct which, in light of our protective labor statutes, should be encouraged, rather than inhibited. (Id. at pp. 297-298.)
3. FMIA and PPIA
Earls relies upon the federal inspection laws for his assertion of public policy violation. Unquestionably, these laws were enacted in the public interest to protect the health and welfare of consumers by ensuring that meat and poultry products are wholesome, unadulterated, and properly marked, labeled and packaged. (21 U.S.C. §§ 451, 602.) Although an applicant for federal inspection services may have qualified for such services, the government may file a complaint to withdraw services for a variety of reasons specifically relating to health and safety standards, as well as for managerial unfitness as specified in sections 467 and 671. (9 C.F.R. § 500.6 (2007).)
The managerial unfitness provisions of the FMIA and PPIA are not mandatory and thus do not direct the USDA to deny inspection services automatically to any meatpacking firm employing a convicted felon in a position of responsibility. (Chernin v. Lyng (8th Cir. 1989) 874 F.2d 501, 504.) The plaintiff in Chernin lost his job with a meatpacking business after the USDA determined that his connection to the enterprise rendered the company unfit to engage in the business and refused to provide inspection services unless the company severed its ties with him. Three years earlier, Chernin had pleaded guilty to multiple counts related to a fraudulent accounting scheme he participated in as a plant manager of another company. Chernin challenged enforcement of the consent decree requiring the employer to terminate him, asserting violation of his due process rights. In deciding the due process issue in Chernin’s favor, the court explained that the FMIA authorizes the USDA to refuse inspection services where “the agency determines that the felon’s connection to the firm renders it unfit to engage in the meatpacking business. To reach this determination, the agency must form a judgment about the nature of the employee’s offense, including any mitigating circumstances, and the extent to which this past criminal conduct threatens the objectives of the [FMIA]. [Citations.]” (Ibid.)
Thus, the fitness determination is made on a case-by-case basis. Whether a conviction in and of itself is substantial evidence of unfitness will vary with the nature of the predicate felony. “The more closely related the conduct strikes at the policies of the Act, the more likely it alone will support a determination of unfitness regardless of mitigating factors.” (Wyszynski Provision Co. v. Sec’y of Agriculture (E.D. Pa. 1982) 538 F.Supp. 361, 364-365 [agency did not act in arbitrary or capricious manner in withdrawing inspection services and then suspending withdrawal based on condition that company’s vice-president, who pleaded guilty to three felony counts of selling and transporting adulterated or misbranded meat, would not associate in any way with company].)
Earls relies on the decision in Utica Packing Co. v. Bergland (E.D. Mich. 1981) 511 F.Supp. 655, which emphasizes the legislative purpose of the managerial fitness provisions as contrasted with the discretion vested in the agency under those provisions. There, the targeted company argued that a felony conviction by itself was inadequate to support withdrawal of inspection services. Rather, it urged there must also be evidentiary findings that it was necessary to terminate inspection services to ensure that unwholesome meats were not released into the stream of commerce. (Id. at pp. 658, 661.) Rejecting this point of view, the court explained: “In enacting § 671 Congress has declared that, in order to effectuate the purposes declared in the above-quoted preamble, there are two types of criminal convictions which render a program participant unfit to continue in the industry; any felony, or two lesser crimes undermining the national interest in wholesome, unadulterated foods. Implicit is the congressional finding that the likelihood of such persons introducing unwholesome meats into commerce in the future is unacceptably strong, regardless of the quality of their meats at the time of the adjudication.” (Ibid.) This expression of congressional intent, of course, does not change the reality that the secretary is the ultimate arbiter of whether a particular inspected enterprise is unfit to engage in business because it employs a convicted felon in a responsible position.
4. Analysis
Earl’s theory of the case is this: He was fired for reporting Ray Hagemann’s methamphetamine abuse and opposing Phyllis Hagemann’s decision to “reinstate” her son. In turn, by these efforts he sought to uphold the statutes valuing managerial fitness and the drug-free workplace rules promulgated by HMC in response to the USDA’s regulatory action against it under these statutes. Earls insists that his efforts—and his employer’s response—invoke the important public policies enshrined in the FMIA and PPIA. We agree.
Without question, the managerial or business fitness provisions serve the overarching and significant public policy announced in the FMIA and PPIA, namely the policy of protecting the health and welfare of consumers against unwholesome, unadulterated meat and poultry products. (See 21 U.S.C. §§ 451, 602.) Indeed, under these provisions the discretion to refuse or withdraw services is authorized for the period, or indefinitely, that the USDA Secretary “deems necessary to effectuate the purposes of this chapter.” (§§ 671, 467(a), italics added.) It is also true that the statutes in and of themselves do not prohibit any specific employer conduct or mandate that inspection services will be withdrawn if anyone working in a responsible management position for an inspected facility has suffered a felony conviction. However, these statutes do subject an inspected facility to USDA enforcement, namely a proceeding to withdraw inspection services upon an agency determination, after the opportunity for a hearing, that a person holding a responsible management position is unfit to serve in that business by virtue of having been convicted of “any felony” or certain more specific violations.
Viewing the evidence most favorably to plaintiff as we must at the nonsuit stage of this proceeding, it is apparent that the Hagemann family and the company’s attorneys were cognizant of the meat and poultry inspection laws and their pertinent managerial fitness provisions. The record also supports the reasonable inference that they were aware that the protective policies enshrined in these laws could jeopardize the grant of inspection if Ray Hagemann continued to abuse drugs and suffered another drug conviction. Indeed, any potentially affected employer in similar circumstances would be charged with knowledge of the relevant statutes and their underlying policies and would be aware of this dynamic.
Further, it is apparent that Ray Hagemann did not “Say no” to using methamphetamine after the USDA administrative complaint to withdraw inspection services was resolved by the consent decree. Instead, he continued to use drugs, sometimes while on the job, purchasing a quantity that could yield between approximately 57 and 113 uses. His erratic behavior caused problems and tension with other employees. On at least two occasions he imprudently neglected safety concerns about thawing meat and poultry products, and ignored protocol concerning the wearing of protective gowns. A reasonable inference could be drawn that Hagemann was so impaired by drug abuse that he was indifferent to following the appropriate food safety rules. And even though he was a manager, not a meat cutter, he influenced operations. Thus, his continued drug use in defiance of the consent decree implicated the policies of the FMPIA and PPIA and in particular the managerial fitness provisions. Moreover, while Hagemann had not suffered an actual subsequent felony conviction as required by these provisions, clearly the public policy concerns that they advance were brought front and center by Earls’s efforts to confront management about Ray Hagemann’s continued drug use. We therefore conclude that Earls’s case-in-chief on his cause of action for wrongful termination in violation of public policy survives respondents’ nonsuit attack.
III. SUMMARY ADJUDICATION
A. Factual Background
1. Contract for Reemployment; Grievance, Charge and Appeal
After Earls resigned from HMC, Bruce Hagemann asked him to consider returning. Earls prepared a typewritten list of the employment terms he wanted in order to ensure they would govern his reemployment. The typewritten list read as follows:
“Dan Earls
“Position- General Manager of Hagemann Meat Company
“Reinstate full employment effective 7-2-04 “No break in seniority
“Reinstate all benefits Union and otherwise “Car, phone, three weeks vacation
“Effective August 2, 2004 a guaranteed three-year personal service contract with Phyllis Hagemann to be employed with Hagemann Meat Company.
“Salary Effective August 2, 2004- $1000 per week
Effective August 2, 2005- $1100 per week
Effective August 2, 2006- $1200 per week”
At a meeting to discuss his return, additional handwritten terms were added, including: “Subject to terms & conditions of colective [sic] bargaining agreement.” Earls and Ms. Hagemann executed the agreement. On September 10, 2004, Ms. Hagemann sent Earls an e-mail stating that “under the collective bargaining there is no position of general manager” and suggested that due to his increase of wages as general manager, he pay his own health and welfare benefits.
After termination, Earls sought assistance from Local 101 in pursuing a grievance against HMC. The union refused, concluding that Earls, now part of management, was not covered by the collective bargaining agreement (CBA), “per the Act.” Following the union’s denial of his grievance, Earls filed an unfair labor practice charge with Region 20 of the National Labor Relations Board (NLRB). This, too was rejected, as was his appeal to the NLRB regional director. The director explained that as general manager of the employer, Earls was not an employee within the meaning of the National Labor Relations Act, regardless of his status under the CBA.
2. Summary Adjudication Proceedings
Earls’s lawsuit included contract causes of action against HMC and Ms. Hagemann, as well as a cause of action for nonpayment of wages and benefits due under his contract. Moving for summary adjudication, respondents argued that these causes were preempted under section 301 of the Labor Management Relations Act, 1947 (section 301) because (1) they involved interpretation of the CBA, and (2) any suit for breach of such an agreement must allege a cause of action against the union, but Earls failed to join Local 101 as a party. Alternatively, they charged that the claims were unenforceable due to mutual mistake and impossibility because at the time of executing the contract, neither Ms. Hagemann nor Earls knew that he would not be covered by the CBA.
In the summary adjudication proceedings, Earls indicated that during his tenure with Local 101, the HMC general manager position was considered by the union and the company to be included within the bargaining unit for CBA purposes, and both Bruce and Ray Hagemann had participated in all union pension and health and welfare benefits. This was so because that position reported to and was controlled by the owner-operator of the company, and the actual duties attendant to the position involved bargaining unit work at least 50 percent of the time. Further, Earls understood that individual union members could negotiate their own contracts with HMC, outside the union.
A union representative for Local 101 explained in his deposition that Ray Hagemann as general manager was “grandfathered in” as part of the bargaining unit through an agreement “signed a long time ago where they allowed the owners of the company to be in the bargaining unit for the purposes of insurance and pension.” Because Earls was not Ms. Hagemann’s son, he was not covered by the CBA.
The trial court issued its tentative ruling granting respondents’ summary adjudication motion on the basis of preemption. At the subsequent hearing, counsel for Earls asserted that the preemption ruling could not withstand the logic and holding of Wanland v. Los Gatos Lodge, Inc. (1991) 230 Cal.App.3d 1507 (Wanland) Wanland held that federal law does not foreclose a threshold determination of noncoverage under a CBA as preliminary to adjudicating a managerial employee’s state law claims. (Id. at p. 1517.)
Earls did not rely on or cite Wanland in his opposing brief.
Notwithstanding this argument, the trial court adopted its tentative ruling, taking into account the filings as well as arguments of counsel. On appeal Earls urges that by its terms, the CBA did not apply to his position as general manager, and thus pursuant to Wanland, his contract-related causes of action were not preempted by section 301.
B. Discussion
1. No Theory of Trial Barrier
Respondents take the position that Earls’s reliance on Wanland represents a change of position on appeal, and under the theory of trial doctrine, his argument is waived. We disagree. Respondents ignore the procedural history related above, namely that Earls raised the applicability of Wanland at the summary adjudication hearing following the court’s tentative ruling. A party to a summary judgment proceeding has a right to present oral argument. (Brannon v. Superior Court (2004) 114 Cal.App.4th 1203, 1211.) “An oral hearing on a summary judgment motion will ensure the parties’ critical pretrial rights are protected by providing the parties with an opportunity to address perceived legal and factual misconceptions in the court’s tentative rulings, and will also enhance the quality of justice, reduce the need for appellate and/or writ review, and promote the appearance of fairness. (Id. at pp. 1210-1211.) A motion for summary adjudication is procedurally identical to a motion for summary judgment. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.)
2. Analysis
Section 301 provides that “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court . . . .” (29 U.S.C. § 185(a).) Suits by individual employees to vindicate rights arising from a CBA also fall within the scope of section 301 coverage. (Smith v. Evening News Assn. (1962) 371 U.S. 195, 200.)
The preemptive sweep of section 301 is so wide that it displaces any state law cause of action concerning employment rights created by or governed by a CBA (Franchise Tax Bd. v. Laborers Vacation Trust (1983) 463 U.S. 1, 23-24) and any cause whose resolution substantially depends on the analysis of a CBA (Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 220). However, section 301 will preempt an application of state law only when such application requires the interpretation of a CBA. (Lingle v. Norge Division of Magic Chef, Inc. (1988) 486 U.S. 399, 412.) Thus, the mere fact that a CBA will be consulted in the course of state law litigation does not mandate extinguishment of the claim. (Livadas v. Bradshaw (1994) 512 U.S. 107, 124.)
Here, determination of whether Earls was covered by the CBA necessitates perusal of the agreement. Our examination of the CBA reveals that the position of general manager is not included within the employee classifications subject to its recognition and jurisdiction. This is consistent with the National Labor Relations Act, which excludes managerial employees from the categories of employees entitled to the benefits of collective bargaining. (NLRB v. Yeshiva University (1980) 444 U.S. 672, 674.)
The classifications subject to the CBA are jobbing butchers; miscellaneous workers (whose jobs include work such as driving, loading and unloading truck; work in the selling departments; shipping, receiving, warehousing; slicing, packing, preparation for production and handling of products; and plant maintenance); and salesperson.
The instant case is factually similar to Wanland. There, the plaintiff was promoted to catering manager after holding a front desk clerk job at a lodge. The plaintiff refused to resign her union membership because she wanted to keep her union pension plan. She was later removed from the manager position for unrelated reasons, refused reassignment and resigned. Like Earls, after termination of employment, the plaintiff sought the union’s representation in her dispute with the lodge, but the union declined to assist because she had been employed as a manager. (Wanland, supra, 230 Cal.App.3d at p. 1515.) The plaintiff sued for breach of contract. In the trial court and on appeal, the lodge argued that because the parties disagreed as to whether the CBA encompassed the catering manager position, section 301 preempted the plaintiff’s action. (Id. at pp. 1515-1516.)
As explained by the court in Wanland: “The mere fact that resolution of the issue whether plaintiff was covered by the CBA entailed judicial scrutiny of its provisions does not mean that her action is preempted. That issue is necessarily a threshold question in every state-law wrongful termination action by a plaintiff who holds membership in a union. . . . [Citation.] The goal of consistency and uniformity in federal labor law is in no way frustrated by affording remedies under state law to one who is not entitled to invoke the grievance procedures of a CBA.” (Wanland, supra, 230 Cal.App.3d at p. 1517.)
As in Wanland, the issue here is not whether the CBA governs Earls’s claims, but whether the CBA itself applies to him. (Wanland, supra, 230 Cal.App.3d at p. 1517, fn. 1.) We find Wanland dispositive.
Respondents attempt to avoid the impact of Wanland, pointing to the distinguishing fact that the plaintiff in Wanland had stated her belief that the catering manager position was not covered by the CBA, whereas Earls insisted in the lower court proceedings that he should have been covered by the CBA and still claims entitlement to union benefits in his wrongful discharge appeal. This factual distinction does not change the legal import of Wanland, namely that where the salient issue is whether the CBA itself applies to a plaintiff, examination of the CBA on this threshold coverage point does not doom a cause to preemption.
Respondents also refer us to Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, wherein the plaintiff cited Wanland to argue his claims were not preempted, notwithstanding that his complaint was expressly anchored on the allegation that he should have been covered by the CBA, and was entitled to certain of its benefits pursuant to side letters between the union and his employer. (Id. at p. 765.) Specifically, the plaintiff asserted a third party beneficiary claim (failure to provide him union wages and benefits as required under a side letter), as well as breach of the covenant of good faith and fair dealing, also premised on entitlements per the side letter. (Id. at pp. 760, 763, fn. 9.) The reviewing court concluded that the side letters could not be distinguished from the CBA itself for purposes of section 301 preemption analysis, and since his contract claims relied on labor management agreements, they were preempted. (Id. at p. 763.)
Although it is true that in the summary adjudication proceedings, Earls maintained his position as general manager was covered by the CBA, he in effect conceded the coverage issue when he argued that the tentative decision was wrong under the authority of Wanland. With this concession his contract-related claims do not, as respondents urge, call for interpretation of the CBA and the parties’ past practices under it.
Respondents further suggest that because Earls pursued contract damages for lost early retirement benefits in the trial of his wrongful discharge cause of action, he cannot argue against preemption in his appeal from the summary adjudication of his contract claims. The idea is that pension-related evidence is subject to federal preemption. As Earls points out, respondents’ summary adjudication motion did not embrace the public policy wrongful discharge cause. In any event, the granting of summary adjudication on one cause does not operate to bar another cause to which summary adjudication was either not sought or denied. (Code Civ. Proc., § 437c, subd. (n)(2).) Further, the high court has explained that a CBA may contain information such as rate of pay and other economic benefits that may be helpful in ascertaining the damages to which a worker prevailing in a state-law suit is entitled. Consulting the CBA for this information does not result in preemption. “Although federal law would govern the interpretation of the agreement to determine the proper damages, the underlying state-law claim, not otherwise pre-empted, would stand.” (Lingle v. Norge Division of Magic Chef, Inc., supra, 486 U.S. at p. 413, fn. 12.)
An action for tortious discharge in violation of public policy generally involves questions factual in nature that do not require construing the terms of a CBA and thus it is independent of the CBA for purposes of section 301 preemption. “[Section] 301 cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law . . . . [I]t is the legal character of a claim, as ‘independent’ of rights under [a CBA] . . . that decides whether a state cause of action may go forward.” (Livadas v. Bradshaw, supra, 512 U.S. at pp. 123-124, fns. omitted; Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 42-43.)
IV. DISPOSITION
We reverse the judgment of nonsuit on Earls’s cause of action for wrongful discharge in violation of public policy, as well as the order granting summary adjudication of his contract-related claims. Respondents to bear costs on appeal.
We concur: Ruvolo, P.J., Rivera, J.