Writ granted: producers of Desperate Housewives granted directed verdict on actress's wrongful termination claim.

August 23, 2012
By Justice Steven Vartabedian (Ret.) on August 23, 2012 6:00 AM |

In Touchstone Television Productions v. Superior Court (B241137, filed August 16, 2012), petitioner Touchstone had an agreement with actress Nicollette Sheridan for the first season of the television series Desperate Housewives in which Touchstone had the exclusive option to renew Sheridan's services on an annual basis for an additional six seasons. During Season 5, Touchstone informed Sheridan it would not renew her contract for Season 6, while paying her for the entirety of Season 5. Sheridan sued for wrongful termination in violation of public policy, alleging that she was "fired" because she had complained about a battery committed against her by the series' creator Mark Cherry. A jury deadlocked on this claim resulting in a mistrial. Touchstone's motion for a directed verdict was denied by the trial court, and Touchstone petitioned the Court of Appeal for extraordinary relief.

The Court of Appeal, Second Appellate District, Division Four, stayed the pending retrial, issue an alternative writ of mandate, and, after receiving briefing and oral argument, concluded the trial court erred in denying Touchstone's motion for directed verdict. The court was convinced there was clear legal precedent on the merits: "A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment, but, instead, an expiration of a fixed term contract. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39.)"

The appellate court, however, rather than ordering the entire action dismissed, sent the matter to the trial court to allow Sheridan to file an amended complaint alleging a cause of action under California Labor Code section 6310 that Touchstone retaliated against her for complaining about unsafe working conditions (in the form of Cherry's conduct) by deciding not to exercise its option to renew her contract. The court noted that, after this petition was filed, Sheridan had moved the trial court to allow her to amend her complaint to add the Section 6310 claim; the trial court had denied that motion.

Sheridan arguments that the requested relief should be denied were found unpersuasive by the court:
(1) In response to the claim that writ relief was inappropriate, without explanation, the court found Touchstone's remedy at law is inadequate, citing Hoversten v. Superior Court (1999) 74 Cal.App.4th 644.
(2) Her argument that Daly does not apply to someone fired before the contract expires is wrong on the facts because here she was merely informed that she would not be retained for a new contract period starting with Season 6.
(3) Her claim that she has a triable issue on the dismissed claim concerning her argument that the decision not to renew her contract was pretextual is irrelevant to this writ proceeding in light of her opportunity to prove pretext on her potential section 6320 claim.
(4) This is not analogous to the terminating of an at-will employee, as argued by Sheridan. In that situation the employment remains employed indefinitely absent termination.

This case's proceeding on an extraordinary writ to require a directed verdict is a bit surprising to me. That the Courts of Appeal have broad discretion in ruling on writs and a writ of mandate has great flexibility cannot be denied. But in my experience, I have found such courts reluctant to exercise their discretion by taking a broad view of a party's adequate remedy at law. Here, there would appear to be an adequate remedy for Touchstone to retry the case and renew its motion on retrial, and should it lose then, it would have a right to appeal. Longtime California Supreme Court authority states that an appeal is generally not deemed to be an inadequate remedy merely because of greater effort, expense, and/or time consumption. (Jollie v. Superior Court (1951) 38 Cal.2d 52.)

How did this court address Sheridan's argument that writ relief is inappropriate? It said that it found no adequate remedy at law, without giving any explanation. Further, its citation to Hoversten provides no explanation because there the respondent claimed the writ should be denied in light of an adequate remedy at law, to which the court replied, "Our issuance of an alternative writ establishes the lack of any adequate remedy." In other words, there is no adequate remedy when we say so.

What appears to have happened here was the appellate court decided to get involved in the management of the case below. Because it felt the law was clear that the public policy claim could not prevail, it decided to intervene now before a retrial. That an issue is straightforward and is easily disposed of typically can be a route taken when a trial is obviated and the case ends. But here, the case does not end. I suppose the appellate court was trying to avoid a second retrial by making sure that the retrial proceeded on a legally viable cause of action that the trial court had not previously allowed, rather than on a nonviable cause of action allowed by the trial court.

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