City of Moorpark v. Superior Court of Ventura County8/17/1998
y to public policy and sound morality.' " (Gantt, supra, 1 Cal.4th at p. 1101, quoting Petermann v. International Brotherhood of Teamsters, supra, 174 Cal.App.2d at p. 188.) Termination in violation of section 132a is just as " `obnoxious to the interests of the state and contrary to public policy and sound morality' " as sexual or racial discrimination. (Gantt, supra, 1 Cal.4th at p. 1101.) Therefore, a section 132a violation, like sexual and racial discrimination, falls outside the compensation bargain, and workers' compensation is not the exclusive remedy.
In addition, the Portillo court relied in part on Labor Code section 5300, which provides that proceedings " or the recovery of compensation, or concerning any right or liability arising out of or incidental thereto" "shall be instituted before the [Workers' Compensation] ppeals oard and not elsewhere . . . ." (Lab. Code, ยง 5300, subd, (a), italics added; see Portillo, supra, 131 Cal.App.3d at p. 287.) But, even assuming an employee's rights under section 132a are "right . . . incidental" to "the recovery of compensation," Labor Code section 5300 merely establishes the Workers' Compensation Appeals Board as the exclusive forum for pursuing a section 132a claim; it does not establish that the section 132a claim is the employee's exclusive remedy. Therefore, Labor Code section 5300 provides weak support for the Portillo court's Conclusion.
Finally, the Portillo court emphasized that section 132a addressed the precise wrong that the plaintiff alleged (Portillo, supra, 131 Cal.App.3d at pp. 288-289) and that courts should not "say that a different rule for the particular facts should have been written by the Legislature." (Id. at p. 290; see also Angell, supra, 21 Cal.App.4th at p. 996 [making a similar argument]; Adkins v. State of California, supra, 50 Cal.App.4th at pp. 1819-1822 [following Angell]; Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at pp. 668-670 [same].) This argument, however, fails to recognize that the Legislature sometimes enacts a new remedy, intending to supplement other remedies. (See, e.g., Rojo, supra, 52 Cal.3d at pp. 75, 82 [the FEHA does not preempt common law remedies].) When courts enforce a common law remedy despite the existence of a statutory remedy, they are not "say that a different rule for the particular facts should have been written by the Legislature." (Portillo, supra, 131 Cal.App.3d at p. 290.) They are simply saying that the common law "rule" coexists with the statutory "rule."
Accordingly, we find Portillo's reasoning unpersuasive. Moreover, the Court of Appeal cases that followed Portillo do not persuade us that section 132a is exclusive. In Pickrel, the court simply cited Portillo and followed much of its reasoning. The court noted that the result in Portillo was "consonant with the trend of recent decisions" (Pickrel, supra, 205 Cal.App.3d at p. 1064), but of course we do not decide cases based on trends. In Usher, Denney, and Fortner, the court merely followed Pickrel. (Usher v. American Airlines, Inc., supra, 20 Cal.App.4th at pp. 1526-1527; Denney v. Universal City Studios, Inc., supra, 10 Cal.App.4th at p. 1235; Fortner v. Safeway Stores, Inc., supra, 229 Cal.App.3d at pp. 548, 551.) In Angell, as in Portillo, the court failed to recognize that the Legislature sometimes intends statutory remedies to supplement, not supplant, common law remedies. (Angell, supra, 21 Cal.App.4th at p. 996; Portillo, supra, 131 Cal.App.3d at p. 290.) In Adkins and Langridge, the court merely followed Angell. (Adkins v. State of California, supra, 50 Cal.App.4th at pp. 1819-1822; Langridge v. Oakland Unified School Dist., supra, 25 Cal.App.4th at pp. 668-670.)
The prov
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