Bruni v. The Edward Thomas Hospitality Corp.Annotate this Case
Plaintiff, a restaurant server, filed suit alleging that he was laid off after about four months when his employer, the Hotel, eliminated all part-time positions. Plaintiff alleged a violation of Santa Monica Municipal Code section 4.66.010 et seq. (the recall ordinance), which provides laid off employees that have been employed by the employer for six months or more with a right to be rehired in certain circumstances.
The Court of Appeal affirmed the trial court's denial of a judgment of dismissal following the sustaining of a demurrer by defendants, the Hotel. The court concluded, as did the trial court, that the right of recall does not apply here because plaintiff did not work for the Hotel for "six months or more" before he was involuntarily separated from employment for economic reasons. In this case, plaintiff had a prior stint of employment with the Hotel that lasted about ten months, which ended when he voluntarily resigned due to scheduling difficulties. The court explained that the purpose of the recall ordinance is to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons. Therefore, the court concluded that plaintiff's earlier period of employment that ended with his voluntary resignation does not count toward the six-month minimum period of employment, leaving him ineligible for recall under the ordinance. Accordingly, plaintiff failed to state a cause of action under the recall ordinance. Finally, the court concluded that the Tameny claim was not well pled because there was no violation of the recall ordinance on which the Tameny claim was based. Furthermore, a Tameny claim must be predicated on a fundamental public policy that is expressed in a constitutional or statutory provision, as opposed to a public policy that finds expression in a municipal ordinance.