Baker v. Prudential Overall
Supply
Filed 1/28/14 Baker v. Prudential Overall Supply CA2/6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KATIE BAKER,
Plaintiff and Appellant,
v.
PRUDENTIAL OVERALL SUPPLY, INC.,
Defendant and
Respondent.
2d Civil No. B247586
(Super. Ct. No. 56-2011-396798-CU-BC-SIM)
(Ventura County)
Katie
Baker appeals from the summary judgment
entered in favor of respondent Prudential Overall Supply, Inc. (Prudential) on
her first amended complaint for wrongful
termination. (Code Civ. Proc., § 473c.)
set aside based on the inexcusable neglect of her trial attorney. (§ 473, subd. (b).) We affirm.
Facts
Appellant sued Prudential for wrongful termination,
unfair business practices (Bus. & Prof. Code, § 17200) after she was
terminated as a sales representative in 2009.
The first amended complaint alleges that appellant was hired in 2008 and
received good job reviews until her manager, Chuck Bradley, "forged"
a document extending her
probation period. Appellant was
terminated on May
11, 2009, allegedly without cause and in
violation of the employment agreement.
Prudential
filed a summary judgment motion based
on requests for admissions (RFAs) that were deemed admitted when appellant
failed to respond to discovery.
Appellant's trial attorney, Michael Fox, blamed the discovery default on
a contract attorney who failed to appear at a discovery hearing. Appellant signed verified RFA responses that
were lodged with the trial court.
The
trial court, over Prudential's objection, considered the RFA responses. The court also reviewed the employment
agreement ("Summary of Employment Offer") which is attached to the
First Amended Complaint, finding that it is an at-will employment contract. Based
on the verified RFA responses, the trial court ruled there were no triable
material facts that Prudential breached the employment
agreement or that appellant was wrongfully terminated.
Discussion
The
grant of summary judgment is reviewed de novo.
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) As with any appeal from a judgment, it is
appellant's responsibility to affirmatively demonstrate error and to point out
the triable issues by citation to the record and supporting authority. (Bains v. Moores (2009)
172 Cal.App.4th 445, 455.)
Appellant
argues that the action was dismissed based on a discovery default. The trial court, however, considered
appellant's verified RFA responses.
"[W]hen discovery has produced an admission or concession on the
part of the party opposing summary judgment which demonstrates that there is no
factual issue to be tried," controverting affidavits may be
disregarded. (D'Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 21; Union Bank v. Superior Court
(Demetry) (1995) 31 Cal.App.4th 573, 580.)
It is
undisputed that appellant signed an employment agreement requiring that she
meet a sales quota during a 21 week probation period. The
verified RFA responses admit that appellant signed a February 23, 2009
"Probationary Period Extension Document" acknowledging that she had
not met her $720/week sales quota and that she was granted a four-week
probation extension to meet the sales quota.
(RFA 5.) Appellant further admits
that she did not meet the required standards for employment as set forth in a
company training schedule (RFA 9.) For
summary judgment purposes, a party is bound by his or her admissions made in
the course of discovery. (
128 Cal.App.4th 1510, 1525, fn. 6.)
Appellant's
assertion that she is entitled to section 473 relief based on the neglect of
her trial attorney is without merit. The mandatory relief provision of section
473, subdivision (b) does not apply to summary judgments. (Huh v. Wang (2007) 158 Cal.App.4th
1406; 1417; English v. Ikon Business Solutions, Inc. (2001) 94
Cal.App.4th 130, 142-143.) "[A]
summary judgment is neither a 'default,' nor a 'default judgment,' nor a
'dismissal.' " (Id., at p. 143.)
There
are no triable material facts that Prudential engaged in unfair business
practices or breached the employment agreement by not training appellant. Absent a contract provision to the contrary,
it is presumed that appellant's employment is terminable at will. (Lab. Code, § 2922; Guz v. Bechtel National, Inc.,
24 Cal.4th at pp. 349-350.) Appellant's job application so provides and
states: "Agreement for At-Will
Employment. I understand that all
Prudential Overall Supply associates are employed at will, and that either I or
Prudential Overall Supply may terminate my employment at any time, with or
without cause . . . ." The trial
court reasonably concluded that appellant cannot defeat her at-will employment
status based on implied covenant that is inconsistent with the terms of the job
application and employment agreement.
(Rutter, Cal. Practice Guide (2012) Employment Litigation [¶] 4:341.1, p. 4-45; Nein v.
HostPro, Inc. (2009) 174 Cal.App.4th 833, 852.)
The
judgment (order granting summary judgment) is affirmed. Prudential is awarded costs on appeal.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
>
Barbara A Lane,
Judge
Superior Court County of Ventura
______________________________
Katie
Baker, in pro per, Appellant.
Edward
Gordon, John D. Gibson; Gibson & Gibson, for Respondents.
name="_ftn1" title="">[1] All statutory references are
to the Code of Civil Procedure unless otherwise stated.
