In this case, we review a trial court's judgment regarding the contract and tort claims of an alien employee who was induced to come to the United States by defendants and who, within just a few months of his arrival, had his promised salary reduced and then was pressured to resign.
Gurpreet Singh moved from India to California to work as a general manager for Southland Stone, U.S.A., Inc. (Southland Stone). Ravinder S. Johar was president of the company. After Singh resigned and had returned to India, he filed suit against Southland Stone and Johar (collectively, defendants), alleging a number of causes of action. The jury awarded Singh compensatory damages for economic and emotional injuries, and punitive damages. Defendants appeal the judgment and the denial of their motion for judgment notwithstanding the verdict. Singh also appeals, challenging a limiting jury instruction and the denial of leave to amend his complaint during trial.
We therefore will affirm the judgment in part and reverse in part, and affirm in part and reverse in part the denial of defendants' motion for judgment notwithstanding the verdict.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Johar is the president and owner of Southland Stone, an importer and distributor of natural stone based in North Hollywood. Johar and Singh are related through marriage. Johar is married to Singh's first cousin. During a visit to India in November 2003, Johar informed Singh that Southland Stone was seeking a general manager for Internet sales.
Singh visited the Los Angeles area for 10 days in January 2004, at Johar's invitation, to learn more about the employment opportunity. After returning to India, Singh corresponded with Johar regarding potential employment terms. Johar offered a monthly salary of $10,000. He stated in an e-mail to Singh that employment in the United States was "`at will'" and, "This is not intended to be a 1 year contract." Singh responded by asking Johar what "at will" meant and, upon hearing that it meant that his employment could be terminated at any time, responded that he was uncomfortable with that.
Southland Stone submitted to the United States Immigration Customs and and Enforcement (ICE) in July 2004 a petition for an H-1B1 nonimmigrant visa
Singh resigned from his employment in India in September 2004, before he and Johar had agreed to all of the terms of his employment. The ICE notified Southland Stone in November 2004 that the visa petition was approved and that the visa was valid from October 2004 through September 2007. Southland Stone sent a copy of the approval notice to Singh in November 2004 and also, for the first time, sent him a copy of the petition. Singh expressed concerns regarding his job title and salary as stated in the petition. Johar responded that the information in the petition was meant for government officials and not for Singh, and that the information for Singh would be in an appointment letter.
Singh returned to the Los Angeles area for three weeks in November and December 2004 to work as a consultant for Southland Stone. Johar provided an appointment letter at that time. The letter stated that Singh's salary was $10,000 per month and that he would receive 10 percent of the net profits from the Web site in addition to his salary. The letter did not state how long he would be employed on those terms and did not state either that Singh was employable at will or that his employment was terminable only for good cause. The letter concluded, "The appointment is subject to a 90 day probationary period."
Johar had hired a company to develop a Web site for Internet sales and was hopeful that the Web site would be operational by February 2005. The technical development experienced delays, and the Web site was not operational until June 2005. Meanwhile, Singh worked on logistical issues regarding Internet sales, including trucking and warehousing arrangements, establishing a payment system, contracting with an Internet service provider, and other matters. During this time, Johar expressed his dissatisfaction with Singh's job performance and work ethic.
Singh's wife resigned from her employment in India and moved to the Los Angeles area with their two children in May 2005. Johar reduced Singh's monthly salary from $10,000 to $5,000 in early June 2005. The parties
Johar continued to express his dissatisfaction with Singh's job performance and, after the salary reduction, increasingly berated him and insulted him with profanities. Johar suggested that Singh should resign and repeatedly asked him to provide an "exit plan." Singh tendered his resignation in writing, by fax, on February 19, 2006.
Singh returned to the office on February 24, 2006, to return some items and pick up his last paycheck. Southland Stone's bookkeeper, Sunita Singh (known as Choti), met with him first and offered him three checks, including his last regular salary ($991.61), compensation for two weeks' unused vacation time ($1,875.89), and an expense reimbursement.
Johar then asked Singh to sign the letter. Singh signed, but only after striking some words from the letter. Johar insisted that Singh sign the letter as originally presented and told him to go to the conference room. Once in the conference room, Singh again refused to sign. Johar threatened to physically throw him out of the office and grabbed him by the lapels. Johar and Choti both shouted at Singh, and he left the office. According to Choti, she gave the envelope containing the three checks to another Southland Stone employee to mail to Singh. According to Singh, he received only a check for his final salary in the mail.
Singh returned to India in March 2006. He worked as a consultant for an employment recruiter for several months and then started his own employment recruiting company.
2. Pretrial Proceedings
Singh filed a complaint against defendants in April 2006. His second amended complaint filed in June 2007 alleges counts for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) unpaid wages, also seeking a waiting time penalty (Lab. Code, §§ 201, 203); (4) false promise; (5) wrongful termination in violation of public policy; (6) intentional infliction of emotional distress; (7) promissory estoppel; and (8) misrepresentation to induce relocation for employment (Lab. Code, § 970).
Defendants moved for judgment on the pleadings in January 2008, arguing that several counts failed to allege facts sufficient to state a cause of action and that the count for intentional infliction of emotional distress was barred by the workers' compensation exclusivity rule. The trial court denied the motion.
The jury trial commenced on February 1, 2008. On February 7, 2008, Singh moved for leave to amend his complaint to add statutory (Pen. Code, § 632) and common law counts for invasion of privacy. He argued that evidence produced by defendants for the first time at trial showed that they had intercepted his private e-mail messages in violation of his privacy rights. The court stated that the proposed amendments would introduce new issues that were completely different from the issues being tried and denied the motion.
After the presentation of Singh's case-in-chief, Johar moved for a nonsuit on all counts on the grounds that the proper defendant was Southland Stone as the employer and that there was no basis for Johar to be held liable individually. Southland Stone also moved for a nonsuit on the second through eighth counts on the grounds that the evidence did not support a finding of liability. Southland Stone also argued that the count for intentional infliction of emotional distress was barred by the workers' compensation exclusivity rule. The court granted Johar's motion for a nonsuit as to the first, second, third, fifth, and eighth counts only, and denied the motion as to the other counts. The court also granted Southland Stone's motion for a nonsuit as to the fifth count only, finding that there was no evidence of any public policy violation. The court denied the motion as to the other counts against Southland Stone.
The trial court denied defendants' request for the following special jury instruction regarding the salary reduction: "In an at-will employment relationship, a reduction in the rate of pay is not a breach of the relationship. It is, in
The court instructed the jury, at defendants' request, that the visa petition was admitted in evidence for a limited purpose: "The petition for the H-1 visa was admitted into evidence for the limited purpose [of] showing the contents of the petition and for no other purpose. You may not consider the contents of the petition for H-1 visa as evidence of any provision of any employment agreement between Mr. Singh and his employer in this action."
The court also instructed, on CACI No. 361, that Singh could not be awarded duplicative damages on different counts: "Gurpreet Singh has made claims against Southland Stone U.S.A., Incorporated, for breach of contract, breach of implied covenant in fair dealing [sic], promissory fraud, Labor Code violation for nonpayment of wages, promissory estoppel, and Labor Code violations based on willful misrepresentation and claims against Ravinder Johar for promissory estoppel and promissory fraud. If you decide that Gurpreet Singh has proved one or more than one of these claims against Southland Stone, U.S.A., Incorporated, or Ravinder Johar, the same damages that resulted from both claims can be awarded only once."
The jury was also instructed on counts for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) promissory estoppel, (4) false promise, (5) misrepresentation to induce relocation for employment, (6) intentional misrepresentation, (7) concealment, (8) unpaid wages and waiting time penalty, and (9) intentional infliction of emotional distress.
4. Special Verdict and Judgment
The jury returned a special verdict finding that:
(1) the employment agreement did not specify a duration of employment;
(3) defendants did not promise to employ Singh for a period of three years or promise to sponsor him for permanent residency;
(4) defendants did not make an important promise that they had no intention of performing at the time it was made;
(5) defendants did not misrepresent the kind, character, or existence of work;
(6) defendants intentionally or recklessly misrepresented an important fact, and Singh reasonably relied on the representation, and he suffered or will suffer $99,600 in past economic loss, $227,500 in future economic loss, and no past or future noneconomic loss as a result;
(7) defendants intentionally concealed an important fact, and Singh reasonably relied on the concealment, but he suffered no damages as a result;
(8) defendants failed to pay Singh $6,800 in earned wages;
(9) defendants' conduct was outrageous and was a substantial factor in causing Singh to suffer severe emotional distress, and he suffered or will suffer $2,500 in past economic loss, $1,250 in future economic loss, $100,000 in past noneconomic loss, and $150,000 in future noneconomic loss as a result; and
(10) defendants acted with malice, oppression, or fraud.
In the second phase of trial, the jury awarded Singh $350,000 in punitive damages.
The trial court entered a judgment on April 16, 2008, awarding Singh (1) $253,750 in past and future noneconomic damages for intentional infliction of emotional distress; (2) $327,100 in past and future economic damages for misrepresentation; (3) $45,000 in past economic damages for breach of the implied covenant of good faith and fair dealing; (4) $6,800 in damages for failure to pay earned wages; and (5) $350,000 in punitive damages.
5. Motions for New Trial and for Judgment Notwithstanding the Verdict
Defendants moved for a new trial, arguing among other things that workers' compensation provided the exclusive remedy for all counts alleged
Defendants also moved for judgment notwithstanding the verdict, asserting some of the same arguments. The court denied that motion as well.
Defendants filed a notice of appeal from both the judgment and the denial of their motion for judgment notwithstanding the verdict. Singh filed a notice of appeal from the judgment.
Defendants contend in their appeal that (1) the refusal of their proposed instruction on the salary reduction was error; (2) the jury's effective finding that there was no breach of the employment contract is inconsistent with its finding that defendants breached the implied covenant of good faith and fair dealing; (3) the jury's findings in favor of defendants with respect to false promise, promissory estoppel, and misrepresentation to induce relocation for employment are inconsistent with its finding that defendants had misrepresented and concealed a material fact; (4) the economic damages awarded for intentional misrepresentation are excessive; (5) the noneconomic damages awarded for intentional infliction of emotional distress are excessive; (6) the damages awarded for unpaid wages are excessive, and Singh is not entitled to a civil penalty for willful nonpayment; (7) the evidence does not support the jury's findings of outrageous conduct and severe emotional distress; (8) workers' compensation provides the exclusive remedy for all counts alleged in the complaint; (9) the evidence does not support the jury's finding of malice, oppression, or fraud, as required to support an award of punitive damages; and (10) the jury's finding of malice, oppression, or fraud is inconsistent with its other findings.
Singh contends in his appeal (1) the instruction limiting the admissibility of the visa petition was error; and (2) the denial of leave to amend his complaint to allege counts for violation of privacy was error.
1. The Singh Appeal
a. Singh Has Shown No Prejudicial Error in the Limiting Instruction
The trial court instructed the jury that the visa petition was admitted "for the limited purpose [of] showing the contents of the petition and for no other purpose," and that the contents of the petition could not be considered as evidence of any provision of the employment agreement. This limiting instruction was based on the court's stated conclusion that the visa petition was not part of the employment agreement and therefore, under the parol evidence rule, could not be considered to contradict the terms of the agreement. Singh disagrees and argues that (1) the visa petition is admissible to show that the parties agreed to an employment term of three years, for purposes of his count for breach of contract, and (2) defendants promised to employ him for three years, for purposes of his counts for promissory estoppel, intentional misrepresentation, and related counts. Thus, the question presented by Singh's claim of error is whether the trial court properly applied the parol evidence rule.
Masterson, supra, 68 Cal.2d 222, stated two alternative tests to determine whether extrinsic evidence of a collateral agreement is admissible.
As the jury expressly found, there is no express provision in the written employment agreement as to the duration of Singh's employment. A collateral agreement on a three-year employment term therefore would not contradict the written agreement, but would establish an additional term. The parties in their prior negotiations had identified the duration of employment as an item of some concern. Singh requested in February 2004 that his salary be stated as "$120,000 per annum and subject to review thereafter" rather than $10,000 per month, and asked, "Is there a difference between stating the
Singh later objected to a provision in a draft of the employment agreement stating that he was employable at will. That provision was removed and a provision establishing a 90-day probationary period was added. Singh also objected to statements in the visa petition regarding his job title and the amount of his salary. According to Singh, Johar responded: "`This is not meant for you. This is meant for the embassy. What is meant for you is the appointment letter.'"
The employment agreement addressed Singh's job title and responsibilities, monthly salary, profit sharing, expense reimbursement, health insurance, and 90-day probationary period. It also included confidentiality provisions and a covenant not to compete.
In light of the demonstrated importance to the parties of their respective rights with respect to the duration of employment, the trial court properly concluded that they would have included in the written agreement a provision establishing a fixed term of employment if they had in fact agreed to such a term. Accordingly, we hold that the parties intended the written agreement to be a complete and exclusive statement of the terms of their agreement and that the court properly instructed the jury not to consider the visa petition as evidence of a collateral agreement.
Singh also contends the visa petition is evidence of a promise or representation of three years of employment and supports his counts for promissory estoppel, intentional misrepresentation, and related counts. Our reversal of the judgment on the counts for promissory estoppel, misrepresentation to induce relocation for employment, false promise, intentional misrepresentation, and concealment (discussed post) makes it unnecessary for us to decide whether the limiting instruction was prejudicial error with respect to those counts. Moreover, in light of our affirmance of the judgment on the count for breach of contract, it is unlikely that the same instruction would be given on remand or that the issue would arise again in a new trial. (Code Civ. Proc., § 43.)
b. The Denial of Leave to Amend Was Proper
The proposed amendments concerning invasion of privacy would have introduced issues distinct from the other issues at trial. In our view, it was not an abuse of discretion for the trial court to conclude that defendants would be prejudiced by the amendments during trial and to deny the motion. In any event, the trial court may consider any appropriate motion for leave to amend that may be made on remand of this matter.
2. Defendants' Appeal
a. Defendants Are Entitled to Judgment in Their Favor on the Count for Breach of the Implied Covenant of Good Faith and Fair Dealing
Labor Code section 2922 creates a presumption that employment is at will. (Guz, supra, 24 Cal.4th at p. 335.) The presumption can be overcome by evidence of an express or implied-in-fact agreement that the employment is for a specified term or can be terminated only for good cause. (Id. at p. 336.) Singh sought damages for breach of contract based on the theory that the parties agreed that he would be employed as a general manager for a period of three years and that Southland Stone breached the agreement by forcing his resignation. As we have explained (see, e.g., fn. 6, ante), the jury found
"The at-will presumption authorizing an employer to discharge or demote an employee similarly and necessarily authorizes an employer to unilaterally alter the terms of employment, provided that the alteration does not violate a statute or breach an implied or express contractual agreement. (Scott v. Pacific Gas & Electric Co., supra, 11 Cal.4th at p. 465; DiGiacinto, supra, 59 Cal.App.4th at p. 637.) An `employee who continues in the employ of the employer after the employer has given notice of changed terms or conditions of employment has accepted the changed terms and conditions.' (DiGiacinto, supra, 59 Cal.App.4th at p. 637.)" (Schachter, supra, 47 Cal.4th at p. 620.)
Singh sought damages for breach of the implied covenant of good faith and fair dealing based on the theory that defendants prevented him from performing his duties by failing to provide the necessary resources and deprived him of the benefits of his employment. He argued that the Web site was nonfunctional for several months after he began his employment, that he had no support staff and only limited assistance from outside consultants, and that he was subjected to mistreatment and a salary reduction that deprived him of the benefits of the employment agreement. He argued further that his damages included the amount of the salary reduction and approximately $22,000 in expenses incurred in moving his family to California and back to India again after only six weeks. The court instructed the jury that to prevail on this count, Singh must prove that Southland Stone reduced his salary without good cause and failed to act in good faith.
Although defendants did not move for judgment notwithstanding the verdict on the count for breach of the implied covenant on this ground, it is apparent that there is no substantial evidence to support the award. An appellate court may reverse a judgment with directions to enter a different judgment if it appears from the record that no new evidence of significance would be presented in a new trial and there is only one proper judgment. (Code Civ. Proc., § 43; Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1459, fn. 7 [66 Cal.Rptr.2d 518]; see Paterno v. State of California (1999) 74 Cal.App.4th 68, 76 [87 Cal.Rptr.2d 754].) We conclude that after a trial in which these issues were fully litigated, there is no indication that any different evidence would be presented in a new trial. Defendants are entitled to judgment in their favor on the count for breach of the implied covenant.
b. The Special Verdict Findings Are Inconsistent
(1) Applicable Law
On appeal, we review a special verdict de novo to determine whether its findings are inconsistent. (Zagami, supra, 160 Cal.App.4th at p. 1092.) With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict. (Ibid.; Mendoza, supra, 81 Cal.App.4th at pp. 302-303.) "`"Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error."' [Citations.]" (City of San Diego v. D.R. Horton San Diego Housing Co., Inc. (2005) 126 Cal.App.4th 668, 682 [24 Cal.Rptr.3d 338].) "The appellate court is not permitted to choose between inconsistent answers. [Citations.]" (Ibid.) The proper remedy for an inconsistent special verdict is a new trial. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344 [100 Cal.Rptr.2d 446].)
(2) The Findings Regarding Alleged Misrepresentations and Promises Made to Singh Are Inconsistent
Singh sought damages for promissory estoppel, misrepresentation to induce relocation for employment (Lab. Code, § 970), and false promise based on the theory that defendants represented that he would be employed for a period of three years at an annual salary of $120,000, that Southland Stone would sponsor him in his application for permanent residency, and, with respect to the latter two counts, that defendants had no intention of fulfilling those promises at the time they were made. He sought an award of $1,279,000 in lost income based on his projected earnings up to age 65.
Singh's counsel stated in closing argument that the counts for promissory estoppel, misrepresentation to induce relocation, and "fraud" were closely related to each other and were based on the same alleged misrepresentations. He did not distinguish those counts from the counts for intentional misrepresentation and concealment. The court instructed the jury that to establish
The closing argument, the instructions, and the evidence presented at trial strongly suggested that the counts for promissory estoppel, misrepresentation to induce relocation, false promise, intentional misrepresentation, and concealment all were based on the same alleged misrepresentations or concealments in connection with Singh's decision to accept employment with Southland Stone, particularly with respect to the duration of employment, amount of salary, and assistance in applying for permanent residency.
On this record, we conclude that the jury's special verdict findings that defendants (1) had in fact made no promise to employ Singh for a period of three years or to sponsor him for permanent residency, (2) had made no important promise that they had no intention of performing at the time the promise was made, and (3) had not misrepresented the kind, character, or existence of work are inconsistent with and cannot be reconciled with the jury's other findings that defendants had intentionally or recklessly misrepresented an important fact and intentionally concealed an important fact. The appropriate remedy is to reverse the judgment for a new trial on the affected counts.
Moreover, we believe that this inconsistency in the special verdict findings also extends to the finding that defendants had acted with malice, oppression, or fraud (Civ. Code, § 3294, subd. (a)), which finding apparently was based on the same alleged misconduct. To the extent that the finding may have been based on other conduct in connection with the count for intentional infliction of emotional distress, our conclusion that the workers' compensation exclusivity rule precludes an award of damages on that count (discussed post) compels the conclusion that the finding of malice, oppression, or fraud and
(3) CACI No. 361 Should Not Be Used with Special Verdict
The trial court instructed the jury, with CACI No. 361, that Singh could not be awarded duplicative damages on different counts, thus suggesting that it was the jury's responsibility to avoid awarding duplicative damages. But neither the instructions nor the special verdict form told the jury how to avoid awarding duplicative damages. With a single general verdict or a general verdict with special findings, where the verdict includes a total damages award, the jury presumably will follow the instruction (such as the one given here) and ensure that the total damages award includes no duplicative amounts. A special verdict on multiple counts, however, is different. If the jury finds the amount of damages separately for each count and does not calculate the total damages award, as here, the jury has no opportunity to eliminate any duplicative amounts in calculating the total award. Absent any instruction specifically informing the jury how to properly avoid awarding duplicative damages, it might have attempted to do so by finding no liability or no damages on certain counts, resulting in an inconsistent verdict.
We believe that the better practice is to instruct the jury to consider each question separately and that its answer to one question should not affect its
Our decision in DuBarry Internat., Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552 [282 Cal.Rptr. 181], is not on point. The jury in that case found in a special verdict that the plaintiff was entitled to recover $1,502,604 for breach of contract and had suffered the same amount of damages as a result of the defendant's bad faith denial of the existence of the contract.
c. Defendants Have Shown No Error in the Award of Damages for Unpaid Wages
Defendants offered to pay Singh his final salary in the amount of $991.61 and vacation pay in the amount of $1,875.89, but only if he signed a release. Singh refused to do so. According to defendants, they later mailed the checks to Singh. Singh disputes this and testified at trial that he received a check for his salary only and received no vacation pay.
The court instructed the jury pursuant to Labor Code sections 201, 202, and 203 that Singh was entitled to recover the amount of any unpaid, earned wages and that he was entitled to a waiting time penalty if Southland Stone willfully failed to pay the wages. The jury found that Southland Stone failed to pay $6,800 in earned wages, but did not find that the failure to pay was willful because it did not reach that question on the verdict form. Instead, pursuant to the directions on the verdict form, the jury stopped after answering "no" to a prior question. The parties do not challenge the special verdict form on appeal.
Defendants argue on appeal that the jury must have included a waiting time penalty in its award of $6,800 for unpaid wages and that Singh is not entitled to the penalty because defendants were justified in withholding payment.
Labor Code section 203, subdivision (a) states, in relevant part: "If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days." Labor Code section 206, subdivision (a) states: "In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed."
The plaintiff in Sayre, supra, 76 Cal.App.2d 793, was the general manager of a bowling alley and cafe. His compensation included a salary in addition to payment of the net profits as a monthly "bonus." (Id. at p. 795.) Several weeks after the end of each month, he would receive his bonus payment together with an accounting. (Id. at p. 796.) The defendants terminated his employment at the end of January and paid $500 toward his bonus, the full amount of which had yet to be determined. The defendants paid another $500 toward his bonus in February. (Ibid.) The defendants tendered a check for $261.87 as the remainder of his bonus in March, together with an accounting, and asked the plaintiff to sign "a release of all claims for wages and bonuses." The plaintiff refused to sign the release. (Id. at pp. 796-797.) The plaintiff sued the defendants to recover the unpaid $261.87, an additional $100 that he later determined was due and owing, and a penalty under Labor Code section 203. (Sayre, supra, at pp. 797-800.)
Sayre, supra, 76 Cal.App.2d 793, concluded that the trial court properly rejected the plaintiff's contention that the full bonus payment was due and payable immediately upon his discharge, concluding instead that the parties' course of dealings indicated an agreement that the bonus was not due until the completion of an accounting several weeks after the end of each month. (Id. at pp. 798-799.) Sayre also rejected the plaintiff's contention that the signing of a release was a "condition" prohibited by Labor Code section 206, concluding instead that section 206 was inapplicable because there was no dispute between the parties as to the amount of wages due at the time the check was tendered. (Sayre, supra, at p. 799.) Sayre concluded that the defendants were "justified" in conditioning the final payment on the plaintiff's release of claims for any further salary or bonus, citing Manford v. Singh (1919) 40 Cal.App. 700, 702 [181 P. 844], and People v. Porter (1930) 107 Cal.App. 782,
We therefore conclude that defendants have shown no error in the amount of the award.
d. The Workers' Compensation Exclusivity Rule Precludes an Award of Damages for Intentional Infliction of Emotional Distress
(1) Applicable Law
An injury is compensable under the workers' compensation law only if the statutory conditions of compensation exist and the injury involves a physical or emotional injury to the person.
Moreover, the workers' compensation exclusivity rule applies only if the risks resulting in the injury were encompassed within the "compensation bargain." (Vacanti, supra, 24 Cal.4th at pp. 811-812.) The exclusivity rule is based on the "presumed `compensation bargain'" in which the employer assumes liability for injury or death arising out of and in the course of employment without regard to fault and compensation is relatively swift, in exchange for limitations on the amount of liability. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16 [276 Cal.Rptr. 303, 801 P.2d 1054].) The compensation bargain does not encompass conduct that contravenes a fundamental public policy or exceeds the risks inherent in the employment relationship. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902-903 [80 Cal.Rptr.3d 690, 188 P.3d 629] (Miklosy); Vacanti, supra, 24 Cal.4th at pp. 811-812.)
(2) Intentional Infliction of Emotional Distress
Defendants moved for judgment notwithstanding the verdict on the count for intentional infliction of emotional distress based on the workers' compensation exclusivity rule, in addition to their motions for judgment on the pleadings, nonsuit, and new trial against this count on the same ground. A party is entitled to judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the evidence compels a judgment in favor of the moving party as a matter of law. (Code Civ. Proc., § 629; Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68
Singh sought damages for intentional infliction of emotional distress based on evidence that Johar mistreated him at work. Singh testified that Johar berated and humiliated him, criticized his job performance, and insulted him with profanities on a regular basis beginning in June 2005. Johar entered his office one day while Singh was eating lunch and working on his laptop computer. According to Singh, Johar was irate about something that he wanted immediately. When Singh responded that he would provide it after he finished eating lunch, Johar stated that he wanted it right away and slammed the laptop computer shut onto Singh's hand, which held a sandwich. Singh also testified that on another occasion, Johar shouted at him, grabbed his lapels, and threatened to throw him out of the office if he did not sign a release.
We conclude that such misconduct all occurred in the normal course of the employer-employee relationship. The misconduct all occurred in the workplace and involved criticisms of job performance or other conflicts arising from the employment. Although the misconduct was offensive and clearly inappropriate, we believe that it all arose from risks encompassed within the
(3) Promissory Estoppel, Misrepresentation to Induce Relocation for Employment, False Promise, Intentional Misrepresentation, and Concealment
(4) Unpaid Wages
The judgment is affirmed as to the denial of relief on the count for breach of contract and the award of damages on the count for unpaid wages. The judgment is reversed in all other respects and the matter is remanded with directions to the trial court to (1) conduct a new trial on the counts for promissory estoppel, misrepresentation to induce relocation for employment, false promise, intentional misrepresentation, and concealment, and (2) enter a judgment in favor of defendants on the count for breach of the implied covenant of good faith and fair dealing at the conclusion of the trial court proceedings. The denial of defendants' motion for judgment notwithstanding
Klein, P. J., and Aldrich, J., concurred.