Not a Lexis Advance subscriber? Try it out for free.

Cabesuela v. Browning-Ferris Indus.

Court of Appeal of California, Sixth Appellate District

October 27, 1998, Decided

No. H017364.


 [*105]  [**61]   MIHARA, J. 

After the demurrer of defendants Browning-Ferris Industries of California, Inc. (Browning-Ferris) and Lynne Ashcraft (Ashcraft) to plaintiff Lupe Cabesuela's first amended complaint was sustained, plaintiff's action against defendants was dismissed. Plaintiff appeals from the ensuing judgment on the grounds that the court erred in sustaining defendants' demurrer. For the reasons stated below, we reverse the judgment.


On March 26, 1996, plaintiff filed a complaint alleging 1) wrongful termination [***2]  in violation of public policy, 2) wrongful termination in violation of Labor Code sections 1101, subdivision (b), 1102, 1102.5, subdivisions (a) and (b), 6310, subdivisions (a)(1), (2) and (b), 1 3) fraud and deceit, 4) interference with civil rights, 5) defamation, and 6) intentional infliction of emotional distress. The trial court sustained defendants' demurrer to the complaint with leave to amend all causes of action except the second. The second cause of action was sustained without leave to amend.

Plaintiff's first amended complaint alleges that plaintiff, a convicted felon who was on parole at all pertinent times, was employed as a truck driver by Browning-Ferris from about May 23, 1995, to November 8, 1995. Ashcraft  [*106]  was the district manager at the  [**62]  Browning-Ferris facility where plaintiff worked.

Sometime prior to November 3, 1995, a Browning-Ferris employee killed another Browning-Ferris [***3]  employee, then committed suicide. As a result of this incident, tension among Browning-Ferris employees ran high.

On or about November 2, 1995, Ashcraft called a meeting to discuss safety and health issues. One of the issues plaintiff raised at the meeting was the drivers' extended working hours of more than 12 hours per day and more than 60 hours per week, which plaintiff believed posed a health and safety hazard.

During the course of the meeting, Steven Porter, a Browning-Ferris employee, asked the employees to "trust" him or the company. In response, plaintiff stated, "Trust you? Over trust we just had a killing." Ashcraft informed plaintiff that the homicide-suicide had nothing to do with the meeting, to which plaintiff responded that the employees were being pushed too hard.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

68 Cal. App. 4th 101 *; 80 Cal. Rptr. 2d 60 **; 1998 Cal. App. LEXIS 996 ***; 98 Cal. Daily Op. Service 8782; 14 I.E.R. Cas. (BNA) 1105; 98 Daily Journal DAR 12163; 137 Lab. Cas. (CCH) P58,583

LUPE CABESUELA, Plaintiff and Appellant, v. BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., et al., Defendants and Respondents.

Subsequent History:  [***1]  The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 30, 1998.

Prior History: Superior Court of Santa Clara County. Super.Ct.No. CV756890. Jeremy Fogel, Judge.

Disposition: The judgment is reversed and the action remanded for further proceedings. Costs are awarded to appellant.


cause of action, alleges, terminated, demurrer, violence, rights, amended complaint, subdivision, public policy, wrongful termination, defendants', threatening, employees, working conditions, health and safety, intimidation, unsafe, threat of violence, physical violence, leave to amend, defamation, provisions, emotional, enjoyment, distress

Civil Procedure, Responses, Defenses, Demurrers & Objections, Defects of Form, General Overview, Demurrers, Pleadings, Amendment of Pleadings, Leave of Court, Appeals, Standards of Review, Abuse of Discretion, Governments, Legislation, Statutory Remedies & Rights, Labor & Employment Law, Employment Relationships, At Will Employment, Duration of Employment, Exceptions, Tort Exceptions, Public Policy Violations, Wrongful Termination, Public Policy, Remedies, Wrongful Termination, Courts, Common Law, Torts, Intentional Torts, Defamation, Defamation Per Se, Slander, Libel, Intentional Infliction of Emotional Distress