Goldstein v. Lackard
Filed 10/8/08 Goldstein v. Lackard CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
JENNIFER GOLDSTEIN, Plaintiff and Appellant, v. ANGELA LACKARD ET AL., Defendants and Respondents. | A116945 (Marin County Super. Ct. No. CV061618) |
Plaintiff Jennifer Goldstein appeals from an order quashing service of summons upon out-of-state defendants for lack of personal jurisdiction and from a judgment entered after the court sustained a demurrer brought by in-state defendants without leave to amend. We affirm.
On April 17, 2006, Jennifer Goldstein filed a complaint against Angela Lackard, Michael Byrne, and Melick, Porter & Shea (hereafter collectively, the Melick firm), and Alan Brayton, Donald Donadio, and Brayton Purcell (hereafter collectively, Brayton Purcell). She alleged that Brayton Purcell, a law firm based in Marin County, California, employed her as an attorney from December 6, 2004, to April 15, 2005. Butch LeRoy and Patricia Henle who interviewed [Goldstein] for Brayton Purcell told [her] she would or should move to Novato and/or Petaluma from Sunnyvale; they were aware that [Goldstein] had to move immediately to take this job, that there was no other reason for [Goldstein] to move to these areas and also that many employers of plaintiffs attorneys in the Bay Area will not hire someone who lives in the North Bay because of commute times. Goldstein moved to San Rafael in reliance on these representations, but she never received reimbursement for her moving expenses nor was she employed for a sufficient length of time as to take care of moving expenses in any meaningful way. She sued Brayton Purcell for promissory estoppel on the theory the firm induced her to relocate in reliance on employment continuing long enough to take care of the expenses of moving and/or with reimbursement of moving expenses and she suffered injury (moving expenses, lost income, and other unspecified damages) as a result.
Goldstein also alleged that the Melick firm contacted Brayton Purcell and made representations with the intention of interfering with Goldsteins employment, and gaining an advantage in pending litigation with Goldstein. Inter alia, Goldstein alleged, the Melick firm told Brayton Purcell that she was disabled and that she had litigation pending in Massachusetts. Brayton Purcell thereupon terminated Goldstein on April 15, 2005. However, Brayton Purcell told plaintiff other facts in plaintiffs termination to mislead plaintiff and prevent plaintiff from discovering the concealed facts. Goldstein sued the Melick firm for intentional interference with business relations, intentional interference with contractual relations, intentional interference with prospective economic relations, negligent interference with prospective economic advantage, unreasonable revelation of private facts, defamation, and concealment (for not disclosing that it was going to share her private information with Brayton Purcell). In addition to promissory estoppel, she sued Brayton Purcell for wrongful termination in violation of the Americans with Disabilities Act (ADA, 42 U.S.C. 12101 et seq.) and for concealment, based on the allegedly misleading statements that were made during her termination.
The Melick firm defendants filed a motion to quash service of summons based on a lack of personal jurisdiction. The firm submitted declarations by Lackard and Byrne averring that the firm is based in Massachusetts and employs no attorneys licensed to practice in California, and that neither Lackard nor Byrne spoke to any attorney at Brayton Purcell or knew of anyone else who had done so. Lackard averred that she called the firm once, listened to Goldsteins outgoing voicemail message, and hung up. The firm argued that it was not subject to either general or specific jurisdiction. Goldstein responded with a declaration that challenged Lackards credibility. She asked for an opportunity to conduct discovery so she could establish jurisdiction. The court denied leave to conduct discovery and granted the motion to quash.
Brayton Purcell demurred to the original complaint. On the ADA claim, it argued Goldstein failed to allege exhaustion of administrative remedies. On the promissory estoppel claim, it argued that Goldstein failed to allege that Brayton Purcell made her a clear promise of continuing employment. On the concealment claim, it argued that Goldstein failed to plead with sufficient particularity. The court sustained the demurrer with leave to amend.
On October 3, 2006, Goldstein filed a first amended complaint against the Brayton Purcell defendants only. The amended complaint included the following additional allegations about Brayton Purcells alleged inducement of her relocation to Marin County.
During a preemployment interview, Patricia Henle of Brayton Purcell told Goldstein she could not live in Sunnyvale if she accepted a job with the firm. She said people who worked for Brayton Purcell bought houses in Petaluma (plaintiff understood from this that she was referring to employees whose employment was secure) and that because plaintiff could not live in Sunnyvale if she were hired, plaintiff would and should do the same as these other employees if she were hired. She said Youll move (out of Sunnyvale) And Youll buy a place in Petaluma. When Goldstein received an offer of employment, she told the human resources department she needed two weeks hotel accommodations in order to start working because she could not commute from Sunnyvale. The firm paid for those accommodations.
Goldstein began work on December 6, 2004. Sometime that month,[1] Butch LeRoy, a junior partner with the firm, asked her about moving from Sunnyvale. Goldstein explained that she planned to move to Oakland. Immediately after she told him her plans, Butch told plaintiff not to move to Oakland. He told her Youll move to Novato (and not to Oakland.) Goldstein checked with other attorneys at the firm and found out that few of them lived in Novato, only those who had been with the firm for years.
In reliance on LeRoys statement, Goldstein changed her relocation plans. Later in December 2004, Goldstein told Henle that she was moving to Marin County. Henle asked about the price plaintiff planned to pay and after plaintiff responded, said that she expected that that was the kind of price she could afford with her salary. Plaintiff told her it was a year-long lease.
Also in December 2004, Alan Brayton gave Goldstein a check for about $1,000.00 and in a card, wrote to plaintiff in substance that this check was in anticipation of a great year and successful career with Brayton Purcell.
Sometime between February and April of 2005, Goldstein submitted a list of her moving expenses to human resources who had asked for them. Human resources told her they were submitting it to Alan Brayton for approval of reimbursement as part of their administrative procedure.
Goldstein again alleged that the Melick firm called Brayton Purcell in or around February 2005 and told Brayton Purcell about her disability. She alleged Brayton Purcell terminated her without cause on April 15, 2005.
In the amended complaint, Goldstein brought the same three causes of action against Brayton Purcell: promissory estoppel, discharge in violation of the ADA, and concealment. In her ADA cause of action, she alleged, Any failure to comply with administrative remedies is because of plaintiffs inability to obtain discovery against former defendant [the Melick firm] and discovery against these defendants. In her concealment cause of action, she alleged that Brayton Purcell did not tell plaintiff about any conversation they had with Angela Lackard regarding her disability and thereby misleading plaintiff, preventing plaintiff from discovering these concealed facts. She further alleged that had she been aware of the concealed facts, she would have immediately challenged the termination and succeeded in preventing her termination.
Brayton Purcell demurred to the first amended complaint. The court sustained the demurrer without leave to amend. On the promissory estoppel claim, it ruled that Goldstein failed to allege a clear promise that she would be employed for one year, or that she would be reimbursed for her moving expenses. The cause of action could not be amended to state a claim under Labor Code section 970 because such a claim would be barred by the statute of limitations. On the ADA claim, the court ruled that Goldstein could not rely on equitable estoppel or equitable tolling to excuse her failure to exhaust her administrative remedies. On the concealment claim, the court ruled the claim failed under Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174.
I. Motion to Quash Service of Process
A. Sufficiency of Notice of Appeal
As a preliminary matter, we address the Melick firms argument that Goldstein failed to perfect her appeal of the order granting the motion to quash service of process because she did not clearly identify the order in her notice of appeal. Goldsteins notice of appeal states that she appeals from the judgment dated 12/21/07 [sic] in this case, including the ruling on the allowance of the motion to quash subpoenas, the allowance of the demurrer, and the modified judgment dated 2/07/07.[2] (Italics added.)
The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. (Cal. Rules of Court, rule 8.100(a)(2).)[3] [W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified─in either a single notice of appeal or multiple notices of appeal─in order to be reviewable on appeal. [Citation.] (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) Where it is reasonably clear that the appellant intended to appeal from a particular order and the respondent would not be misled or prejudiced, the notice of appeal may be interpreted to apply to the order. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 202.)
The order granting the motion to quash service of process was an independently appealable order and thus had to be separately identified in the notice of appeal. (Code Civ. Proc., 904.1, subd. (a)(3).) Although the notice of appeal identified the ruling on the allowance of the motion to quash subpoenas rather than the ruling granting the motion to quash service of process, the notice was reasonably clear because the only motion to quash ever filed or granted in the action was the motion to quash service of process. Goldsteins designation of the record, which was served on the Melick firm defendants shortly after the appeal was filed, listed the motion to quash service of process, the briefs on that motion, and the courts ruling on that motion, and did not list any documents related to any motion to quash a subpoena.
The cases cited by the Melick firm are distinguishable. In two cases, there was no mention whatsoever in the notice of appeal of the independently appealable order. (Sole Energy Co. v. Petrominerals Corp., supra, 128 Cal.App.4th at p. 240; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) A notice of appeal mentioning only the underlying judgment would not make it reasonably clear the appellant also intended to appeal from a separate and directly appealable order granting a new trial. (Sole Energy Co., at p. 240.) In the other case, the notice of appeal specified one specific part of the judgment, under the rules governing partial appeals, the court lacked jurisdiction to review an unspecified part of the judgment. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.)
We conclude the notice of appeal adequately identified the order granting the motion to quash service of summons.
B. Personal Jurisdiction Over the Melick Firm Defendants
California courts may exercise jurisdiction over out-of-state defendants on any basis consistent with the state and federal constitutions. (Code Civ. Proc., 410.10; In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 107 (Antitrust Cases).) Personal jurisdiction may be general or specific. A nonresident defendant may be subject to the general jurisdiction of California courts if its contacts in this state are substantial, continuous and systematic. [Citations.] . . . If general jurisdiction is proper, this test may bring the defendant before California courts even if the cause of action is unrelated to the defendants activities in this state. [Citation.] [] If a nonresident defendant does not have sufficient contacts in California to establish general jurisdiction, it may still be subject to the specific jurisdiction of our courts if there is a sufficient nexus among the defendant, the state and the litigation. [Citations.] (Antitrust Cases, supra, 135 Cal.App.4th at pp. 108-109.)
Goldstein relies on specific jurisdiction to challenge the order quashing service of process.[4] She argues the court has jurisdiction over this lawsuit because it arises from the Melick firms commission of torts that were intended to have effects within California. We assume for purposes of argument that tortious conduct that is committed outside California but is expressly aimed at California and that will foreseeably cause harm in California supports the exercise of personal jurisdiction over the tortfeasor in a suit arising from the tortious conduct. (See Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 270-273; Archdiocese of Milwaukee v. Superior Court (2003) 112 Cal.App.4th 423, 436; Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 113-115.)
The plaintiff has the burden of proving jurisdictional facts by a preponderance of evidence. (Antitrust Cases, supra, 135 Cal.App.4th at p. 110.) The Melick firm argues the court correctly granted the motion to quash because Goldstein produced no evidence of the alleged conduct, whereas the firm produced evidence that it did not commit the alleged acts. At oral argument, Goldstein contended, incorrectly, that the mere allegation of facts supporting specific jurisdiction suffices to carry her burden. That failing, she contends the trial court erred in denying her vague and belated request for discovery on this point.
The granting of a discovery request lies in the discretion of the trial court. (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 911.) The court did not abuse its discretion in rejecting Goldsteins vague requests for discovery, which were buried in her declaration in opposition to the motion to quash or raised verbally at the hearing on the motion. In her opposition declaration, Goldstein alleged facts that she argued raised questions about Lackards credibility and added: (For the above reasons (inattention, carelessness, forgetfulness, and/or misrepresentation), Ms. Lackards representations should be verified by additional discovery.) In her opposition brief, she wrote that the Melick firm had enough admitted contacts with California to justify discovery for the purpose of determining what actually happened and whether or not there is jurisdiction, and that the nature of the firms contacts with California must be ascertained by discovery. As far as the record discloses, she never served discovery demands on the Melick firm defendants. She did not seek a continuance of the hearing on the motion to quash so that she could conduct discovery. In neither her opposition brief nor her opposition declaration did Goldstein identify specific discovery she planned to pursue. She did not follow correct procedures to contest the courts tentative ruling on the motion to quash and set it for oral argument, although the court forgave the error and allowed the argument to proceed. At the hearing, Goldstein for the first time identified specific discovery that she could request on the jurisdictional issue: limited telephone records. The court did not abuse its discretion in denying this belated, procedurally flawed request for discovery on jurisdiction.
We affirm the trial courts grant of the Melick firms motion to quash.
We review the order sustaining Brayton Purcells demurrer de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) In doing so, we assume the truth of all material factual allegations together with those matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If we find that an amendment could cure the defect, we will conclude that the trial court abused its discretion and reverse. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.)
In her amended complaint, Goldstein alleged causes of action for promissory estoppel, discharge in violation of the ADA, and fraudulent concealment. She argued in the trial court, and she argues on appeal, that she stated valid claims for relief under these causes of action and that she can amend her complaint to state claims for breach of an implied employment contract, violation of Labor Code section 970, and fraudulent inducement to move. We address Goldsteins arguments in the following order: contract causes of action (implied contract and promissory estoppel), fraudulent inducement causes of action (fraudulent inducement to move and Labor Code section 970), and ADA-related causes of action (violation of the ADA and fraudulent concealment).
Labor Code section 2922 provides that [a]n employment, having no specified term, may be terminated at the will of either party on notice to the other. At-will employment may be ended by either party at any time without cause, for any or no reason, and subject to no procedure except the statutory requirement of notice. [Citations.] (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335 (Guz).)
Despite this presumption of at-will employment, an employer and employee can contract to limit the employers termination rights. (Guz, supra, 24 Cal.4th at pp. 335-336.) An employment contract may be express or implied in fact, arising from the parties conduct evidencing their actual mutual intent to create such enforceable limitations. (Id. at p. 336.) [S]everal factors, apart from express terms, . . . may bear upon the existence andcontent of an . . . [implied-in-fact] agreement placing limits on the employers right to discharge an employee. [Citation.] These factors might include the personnel policies or practices of the employer, the employees longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged. [Citation.] (Id. at pp 336-337, italics omitted.) The totality of the circumstances must be examined to determine whether the parties conduct demonstrates the existence of an actual mutual understanding on particular terms and conditions of employment. (Id. at p. 337, first italics added.)
Goldstein alleges the existence of an implied contract binding the firm to continue to employ [Goldstein] for at least one year, sufficient to cover the expenses of moving and renting for one year, and that if she were fired, it would be for cause, and that if she were fired for cause, her moving expenses to and from San Rafael and extra costs she incurred because of the move and time involved would be covered.
As words or conduct that gave rise to the alleged contract, Goldstein does not allege many of the factors cited in Guz or other cases that have credited an implied contract theory in the employment context. She does not allege that Brayton Purcell issued personnel policies that restricted its right to terminate employees or committed it to reimburse employees for their relocation costs. (Guz, supra, 24 Cal.4th at pp. 345-346 [procedures for implementing reductions in force]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 664, 681-682 (Foley) [written termination guidelines that set forth express grounds for discharge and a mandatory seven-step pretermination procedure]; General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1178 [published discharge procedures] (General Dynamics); Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1489 [written layoff procedures that afforded significant protection to long-term employees].) She does not allege that the firm had an unwritten policy or practice along those lines, and she does not allege that law firms in general follow such a policy or practice. (Cf. Pugh v. Sees Candies, Inc. (1981) 116 Cal.App.3d 311, 317 (Pugh) [company presidents had practice of not terminating administrative personnel except for good cause, overruled on other grounds by Guz at p. 351].) She does not allege that any Brayton Purcell agent made oral assurances that she would not be terminated except for cause, that she would be employed for a sufficient amount of time to allow her to recoup her initial relocation expenses or to honor her year-long lease, or that she would be reimbursed for her relocation expenses (with the exception of two weeks of hotel accommodations).[5] (Cf. Foley, at p. 681 [repeated oral assurances of job security]; General Dynamics, at p. 1178 [plaintiff hired as career oriented employee with an expectation of permanent employment]; Pugh, at p. 317 [plaintiff told if you are loyal to [Sees] and do a good job, your future is secure ].) Obviously, she could not allege long tenure with the company or a history of steady promotions and favorable performance reviews that, in combination with the aforementioned evidence, might give rise to an implied contract. (Cf. Guz, at p. 341 [20 plus years]; Foley, at p. 681 [six years and nine months]; General Dynamics, at p. 1178 [14 years]; Pugh, at pp. 315, 329 [32 years].)
Rather, Goldstein relies solely on the alleged statements of LeRoy, Henle, and Brayton (in the card accompanying the $1,000 check) and the firms financial inducements alleged in the amended complaint.
Goldstein alleges that Henle told her during her interview that she would have to move from Sunnyvale if she accepted employment at Brayton Purcell. She accepted the job with this understanding. She alleges that she requested and received compensation for two weeks hotel accommodations to assist in her transition. However, she alleges no other express or implied promise by Brayton Purcell and no other mutual understanding between her and Brayton Purcell regarding the duration of her employment, the conditions under which she could be terminated, or her right to be reimbursed for her relocation costs. In the absence of such facts, Goldsteins employment was at will, and she had no reasonable expectation to the contrary.
Goldstein alleges that she initially planned to move to Oakland in order to shorten her commute to Brayton Purcell, but that she changed her plans when LeRoy told her she needed to move to Novato. Goldstein alleges facts that led her to believe Brayton Purcell intended to employ her long-term: she determined that only long-term employees lived in or around Novato; Henle told her she could afford the apartment she found in Marin County given her salary at Brayton Purcell, knowing she had to sign a year-long lease; and Brayton gave her a check for about $1,000 in anticipation of a great year and successful career with Brayton Purcell.
Brayton Purcells optimistic attitude regarding Goldsteins future with the firm is not inconsistent with at-will employment. Given the cost of recruitment and training of new employees, employers generally hire people they hope to retain for a substantial period of time. In no way does this hope or expectation affect the presumption that the employment relationship is at will. Goldstein cites no statements or conduct promising her something in return for her relocation to Marin County or demonstrating an intention on the part of Brayton Purcell to limit its right to terminate her in exchange for her incurring the costs of relocation.
Case law amply demonstrates that the alleged words and conduct of Brayton Purcell were insufficient to give rise to the alleged implied contract. Like Goldstein, the plaintiff in Eisenberg v. Alameda Newspapers, Inc., made general allegations in support of his assertion that he understood respondents toimply he would not be terminated without good cause. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1389.) For example, the employer allegedly assured him it was comfortable with his hard-hitting style of journalism, told him he would ultimately be named a columnist, reassured him about the financial stability of the newspaper, and discussed his vacation and pension benefits. (Ibid.) In the absence of any representation about the length of the plaintiffs employment or the possible grounds for his termination, however, the representations were insufficient to create an implied contract altering his status as an at-will employee. (Id. at pp. 1389-1390.) [O]blique language will not, standing alone, be sufficient to establish agreement. (Foley, supra, 47 Cal.3d at p. 681.)
Additional cases specifically undermine Goldsteins reliance on Braytons statements and accompanying payment. In Hillsman, a statement in a written employment contract that the employer look[ed] forward to a long, pleasant, and mutually satisfactory relationship with the prospective employee was simply an expression of hope or expectation rather than a promise. (Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743, 750.) To contend otherwise was to twist[] defendants polite closing salutation far beyond its obvious purpose, which was simply to add a touch of personal warmth to an otherwise businesslike letter. (Ibid.) The same can be said for Braytons comments in the card accompanying the $1,000 check. In Kelly v. Stamps.com Inc., the plaintiff was induced to remain with the company with a promise of a bonus to be paid one-third in 90 days and two-thirds in 180 days provided she remained employed. (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1092.) The court rejected the plaintiffs argument that the two-stage bonus represented an implied promise that that defendant would retain her until the second payment came due. (Id. at p. 1102.) Much less could Braytons hopeful remarks about a successful year constitute a promise of continued employment. (See also Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 965, 969 [contract providing that performance review would take place after 12 months of employment did not imply a promise to employ for 12 months].)
In a 1990 case, this court ruled in favor of a plaintiff who relocated in reliance on an offer of employment and was terminated before he even had a chance to start working. (Sheppard v. Morgan Keegan & Co. (1990) 218 Cal.App.3d 61 (Sheppard).) The employment offer was for an unspecified term, and there were no other circumstances that demonstrated an implied agreement to limit the employers right to terminate the plaintiff─that is, the contract was for at-will employment. (Sheppard, at pp. 64-66; Lab. Code, 2922.) We held that implicit within the implied covenant of good faith and fair dealing[] is the understanding that an employer cannot expect a new employee to sever his former employment and move across the country only to be terminated before the ink dries on his new lease, or before he has had a chance to demonstrate his ability to satisfy the requirements of the job. (Sheppard, at p. 67.)
Although Sheppard at first blush seems helpful to Goldstein, on closer analysis it fails to support her arguments. First, a subsequent case limited Sheppard to its facts. In Kohli v. Trecom Business Systems, Inc., the court affirmed summary judgment for an employer who terminated an at-will employee eight days after she started work. (Kohli v. Trecom Business Systems, Inc. (N.D. Cal. 1998) 1998 U.S. Dist. Lexis 17163, at pp. *4-*6.) The court distinguished Sheppard because the plaintiff there never commenced work and thus no [at-will] employment relationship had been created. [Citation.] Here, it is undisputed that plaintiff . . . worked for Trecom for eight days. According to the express terms of the at-will employment agreement, Trecom could terminate plaintiffs employment any time with or without cause . . . . (Id. at pp. *8-*9.) The plaintiff had had the opportunity to perform the functions of the job for which she was hired. (Id. at pp. *9-*10.) Here too, Goldstein worked for Brayton Purcell for four months during which time she had the opportunity to perform the functions of the job for which she was hired.
More importantly, the above-quoted holding of Sheppard is no longer persuasive in light of an intervening Supreme Court decision. In Guz, the Supreme Court held that the implied covenant of good faith and fair dealing cannot change the terms of a contract. (Guz, supra, 24 Cal.4th at p. 327.) If an employment is at will, and thus allows either party to terminate for any or no reason, the implied covenant cannot decree otherwise. (Ibid.) The implied covenant exists merely to prevent one contracting party from unfairly frustrating the other partys right to receive the benefits of the agreement actually made. [Citation.] (Id. at p. 349.) For the reasons explained above, Goldstein was hired as an at-will employee who was required to relocate in order to work at the firm. The implied covenant of good faith and fair dealing cannot give rise to additional substantive terms, such as a restriction on the firms right to terminate her or a right to reimbursement of her relocation expenses.
Goldstein has not alleged any words or conduct demonstrating a mutual understanding between her and Brayton Purcell that the firm would employ her for at least one year, that the firm would terminate her only for cause, or that the firm would reimburse her for her relocation expenses. She has not shown that she could amend her complaint to allege additional facts that would state a valid claim for breach of contract. The trial court properly sustained the demurrer without granting Goldstein leave to amend her complaint to state a claim for breach of contract.
Under the doctrine of promissory estoppel, A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. [Citations.] Promissory estoppel is a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced. (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority [(2000)] 23 Cal.4th [305,] 310 (Kajima/Ray); [citations].) The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages measured by the extent of the obligation assumed and not performed. [Citation.] (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 692, italics added (Toscano).)
Goldstein does not allege that Brayton Purcell made her a clear promise that it would employ her for at least one year, terminate her only for cause, or reimburse her for her relocation expenses. (Cf. Toscano, supra, 124 Cal.App.4th at p. 689 [employer expressly promised plaintiff a job starting on a specific date].) Therefore, she has not stated a valid claim for promissory estoppel.
In Sheppard, we relied on a theory of promissory estoppel in addition to the aforementioned implied covenant theory to reverse summary judgment for the employer. (Sheppard, supra, 218 Cal.App.3d at p. 67.) Even though the promised employment was at will, we held: [U]nder the facts of this case the [plaintiff] had a right to assume he would be given a good faith opportunity to perform his duties to the satisfaction of [defendant] once he was on the job. [Citation.] (Ibid. [quoting analogous Minnesota case].)[6] In Sheppard, the employer made a clear promise to employ the plaintiff and it reneged on that promise after the plaintiff had detrimentally relied on it. Here, Goldstein has not alleged a clear promise that was not kept by Brayton Purcell.
Goldstein alleges she relocated to Marin County because she understood it was a job requirement. In other words, she relocated to Marin County rather than Oakland in reliance on the promise she would continue to be employed. She alleges no promises that she would be terminated only for cause. Therefore, she relocated to Marin County in reliance on a promise she would continue to be employed for an indefinite period as an at-will employee. She relocated and the firm did continue to employ her until April 15, 2005. Her termination, allegedly without cause, was consistent with the promised at-will employment. Therefore, she cannot demonstrate that she reasonably relied on a promise to her detriment.
Goldstein has not alleged or shown that she could allege facts that would state a valid cause of action for promissory estoppel. The trial court properly sustained the demurrer to this cause of action without leave to amend.
B. Fraudulent Inducement Causes of Action
1. Fraud in the Employment Context
As a preliminary matter, we reject Brayton Purcells argument that Goldsteins fraud claims are precluded by Hunter v. Up-Right, Inc., supra, 6 Cal.4th 1174 (Hunter). The Supreme Court has clarified the holding of Hunter, explaining that a discharged employee is precluded from collecting fraud damages only where the alleged fraudulent misrepresentation was made to effect the termination, as by inducing the employee to resign directly. (Lazar v. Superior Court (1996)12 Cal.4th 631, 641.)
In Hunter, an employer made a misrepresentation in order to induce an employee to resign. (Lazar, supra, 12 Cal.4th at pp. 639-640, citing Hunter, supra, 6 Cal.4th at p. 1179.) The Supreme Court held that the employee could not recover tort damages based on this allegedly fraudulent act. (Lazar, at p. 640, citing Hunter, at pp. 1178, 1184-1185.) Up-Right could have accomplished Hunters termination directly (incurring the risk of contract liability only) and had merely introduced the element of misrepresentation in the course of effecting that result. ([Hunter] at pp. 1178, 1184.) Hunter, therefore, could not be said to have relied to his detriment on the misrepresentations in suffering constructive dismissal. (Id. at p. 1184.) (Lazar, at p. 640.) That is, Hunter had no cause of action for fraud under traditional principles of fraud. (Ibid.)
Where, on the other hand, an employer uses a misrepresentation to accomplish what it could not accomplish directly (such as inducing an employee to enterinto an employment contract that is later breached by a termination without cause), an employee can recover tort damages for fraud. (Lazar, supra, 12 Cal.4th at pp. 642-643.) Hunter does not preclude tort recovery in every case involving a termination. While in previewing our rationale in Hunter, we indicated it would support tort recovery only with respect to a misrepresentation that is separate from the termination of the employment contract (see Hunter, supra, 6 Cal.4th at p. 1178), we did not mean thereby to suggest that simply effecting a termination in conjunction with fraudulent conduct will insulate an employer from an otherwise properly pled fraud claim. We meant, rather, to preclude fraud recovery only where the result of [the employer]s misrepresentation is indistinguishable from an ordinary constructive wrongful termination. (Hunter, supra, 6 Cal.4th at p. 1184.) (Lazar, at p. 643.)
Goldstein does not allege that Brayton Purcell used fraud to effect her termination. She alleges Brayton Purcell fraudulently induced her to move by representing that, absent good cause to terminate her, she would be employed long enough to allow her to recoup her relocation expenses. She alleges that Brayton Purcell fraudulently concealed the true reason for her termination in order to induce her not to file a timely EEOC complaint for disability discrimination. She makes no specific allegations about the manner in which she was terminated, much less allege that her termination was accomplished by way of a misrepresentation. Her claims are not barred by Hunter.
The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citations.] (Lazar, supra, 12 Cal.4th at p. 638.) Promissory fraud is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.] (Ibid.) Fraud must be pleaded with specificity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
In Lazar, the plaintiff alleged that an employer intensively recruited him to resign from long-term lucrative employment and to move from New York to California, while specifically assuring him that his job would be secure. (Lazar, supra, 12 Cal.4th at pp. 635-636.) The employer allegedly made intentionally false representations about the financial health of the company and had no intention of providing secure employment. (Id. at p. 636.) The Supreme Court found the plaintiff stated a valid claim for promissory fraud. (Id. at p. 639.)
Goldstein did not allege intentional misrepresentation in her amended complaint. In fact, she affirmatively alleged that LeRoy told her to relocate to Novato because he knew the firm planned to employ her for a period of at least a year. Absent allegations of intentional misrepresentation or the making of a promise with no intent to carry out the promise, Goldstein has not stated a valid cause of action for fraud.
In her opposition to the demurrer to the amended complaint, Goldstein requested leave to amend her complaint to make additional allegations to clarify the causes of action applicable to the facts stated in the amended complaint. She obliquely refers to this request on appeal. Although we could exercise our discretion to ignore the argument for failure to raise it clearly on appeal, we will explain why it fails on the merits. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived].)
Goldstein sought leave to allege that Brayton Purcell through its agents Butch LeRoy and Alan Brayton misrepresented to plaintiff the firms actual plans regarding plaintiffs continuing employment by telling her to move to a rental in Novato with year-long contracts and by offering $1,000 in consideration of continuing employment with plaintiff. [] Brayton Purcell knew they were misrepresenting the firms plans to plaintiff because they knew that David Donadio did not want the firm to employ plaintiff from the beginning and that the firm would therefore terminate her employment.
First, the proposed additional allegations do not clarify how the facts stated in the amended complaint give rise to the proposed causes of action because the new allegations are inconsistent with the facts stated in the amended complaint. Goldstein alleged in her amended complaint that LeRoy told her to move to Novato, not that he told her to move to a rental in Novato and sign a year-long lease. She alleged that Brayton gave her a check for about $1,000 and in a card, wrote . . . in substance that this check was in anticipation of a great year and successful career with Brayton Purcell, not that he offered her $1,000 in consideration for continuing employment with the firm.
Second, the alleged statements and actions were not misrepresentations of the firms actual plans regarding plaintiffs continuing employment. Even if we assume LeRoys telling Goldstein to move to Novato, and Braytons anticipation of a great year and successful career impliedly represented that the firm intended to continue to employ her, they did not impliedly represent that she would be employed other than as an at-will employee. The representation that she would continue to be employed as an at-will employee was not false or misleading. In fact, the firm did continue to employ Goldstein as an at-will employee through April 15, 2005.
Finally, Donadios alleged disagreement with the firms decision to hire Goldstein does not render LeRoys and Braytons representations intentionally false or misleading. Disagreement among managers about hiring decisions is hardly unusual. Goldstein does not allege facts demonstrating that Donadios dissenting position supports her conclusion that the firm would therefore terminate her employment. It is entirely consistent with at-will employment for the management team to evaluate a new hires performance on the job and evaluate whether she should be retained. Goldstein was never told she was anything other than an at-will employee. Therefore, she has not alleged misrepresentation.
Goldstein did not allege or show that she could allege facts that would state a valid cause of action for fraudulent inducement. The trial court properly sustained the demurrer without granting Goldstein leave to amend her complaint to state a fraudulent inducement claim.
Labor Code section 970 (section 970) provides: No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State . . . for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning . . . [] . . . [] (b) The length of time such work will last, or the compensation therefor . . . . For the reasons just stated, Goldstein does not allege that the defendants made knowingly false representations that induced her to move to Marin County.
For the reasons just stated, Goldstein has not alleged or shown that she could allege intentional misrepresentations by Brayton Purcell agents that induced detrimental reliance on her part. By way of comparison, the employer in Finch v. Brenda Raceway Corp. made repeated assurances to the plaintiff of lifetime employment and long-range commitment to [its] employees, even though he intended to replace her once his preferred candidate became available. (Finch v. Brenda Raceway Corp. (1994) 22 Cal.App.4th 547, 551-552.) On these facts, the employer was held liable for violating section 970. (Id. at p. 554.) Similarly, in Seubert v. McKesson Corp.,the employer induced a plaintiff to move to California based on intentionally false representations about the nature of the position the plaintiff was offered and was held liable under section 970. (Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514, 1517, disapproved on other grounds by Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 394, fn. 2.) Finally, in Collins v. Rocha, the employer held liable under section 970 had hired 44 persons in Los Angeles and transported them 400 miles based on intentionally false representations about the nature andduration of the work, which was promised to last one or two weeks. (Collins v. Rocha (1972) 7 Cal.3d 232, 235, 239.) Six were discharged three hours after they began work and several others were discharged within three days. (Id. at p. 235.) Goldstein has not alleged similar intentional misrepresentations.
Goldstein has not alleged and has not shown that she could allege facts that would state a valid claim for violation of section 970. The trial court properly sustained the demurrer without granting Goldstein leave to amend her complaint to state a cause of action for a section 970 violation.
C. ADA-Related Causes of Action
Goldstein alleges that Brayton Purcell terminated her because of her disability in violation of the ADA.
As a prerequisite to maintaining an ADA action, a plaintiff must file a timely charge of discrimination with the EEOC. (42 U.S.C. 2000e-5(e), 12117(a).) The complainant must file the charge within 180 days of the last act of alleged discrimination unless the complainant initially institutes proceedings with a state or local agency, in which case the EEOC charge must be filed within 300 days. (42 U.S.C. 2000e-5(e); Santa Maria v. Pacific Bell (9th Cir. 2000) 202 F.3d 1170, 1176 (Santa Maria).) An ADA cause of action for wrongful discharge accrues, and the 180- or 300-day period begins to run, when the employee learns of his or her injury. (Cada v. Baxter Healthcare Corp. (7th Cir. 1990) 920 F.2d 446, 450 (Cada).) Here, Goldsteins alleged injury was her termination, and she knew about her termination on the date it occurred, April 15, 2005. Her ADA claim accrued on that date, and she was required to file an EEOC complaint within 180 days of her termination or 300 days if she first filed a state charge. At the latest, the time limit to file an EEOC charge expired in February 2006.
Goldstein does not allege in her complaint that she ever filed an EEOC complaint, and she conceded at oral argument that she has not. She argues that she is entitled to the benefits, or equitable estoppel, or equitable tolling to extend the time within which she may file an EEOC complaint (see generally Santa Maria, supra, 202 F.3d at p. 1176), but does not explain how such estoppel or tolling would make a future EEOC complaint timely. Goldstein knew enough at the time she filed her complaint to suspect she had an ADA cause of action against Brayton Purcell and yet she has not filed a claim within 300 days of even that late date.
Because Goldstein concedes she has never filed an EEOC complaint and has not demonstrated how a future EEOC complaint could be timely under the doctrines of equitable estoppel or tolling, we affirm the trial courts sustaining the demurrer to her ADA cause of action without leave to amend.
As stated earlier, the elements of fraud are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar, supra, 12 Cal.4th at p. 638.)
Goldstein alleges that Brayton Purcell did not tell plaintiff about any conversation they had with Angela Lackard regarding her disability and thereby misled plaintiff, preventing plaintiff from discovering these concealed facts. She alleges that had she been aware of these concealed facts, she would have immediately challenged her termination and would have succeeded in not being terminated. In her opposition to the demurrer to the amended complaint, Goldstein requested leave to make new allegations with respect to this cause of action, but her proposed new allegations were substantively equivalent to the allegations in the amended complaint.
Goldsteins fraudulent concealment claim fails because she cannot show reasonable reliance or injury. At least by the time she filed her complaint, Goldstein had sufficient information to lead her to suspect she was terminated because of her disability. If she had filed a complaint with the EEOC, she would have been able to use that agencys fact-gathering mechanisms to determine if there was an evidentiary basis for her suspicions. It was unreasonable for Goldstein to rely on Brayton Purcells nondisclosure of the unlawful reason for her termination as a reason not to file an EEOC charge, given that she suspected the termination was unlawful. Moreover, because the filing of the EEOC charge would have led to factfinding, Brayton Purcells nondisclosure did not prevent Goldstein from discovering the alleged conversation with Lackard. In other words, the alleged fraudulent nondisclosure did not cause Goldstein harm.
Goldstein has not alleged or shown that she could allege facts that would state a valid claim for fraudulent concealment. The trial court properly sustained the demurrer to this cause of action without leave to amend.
We affirm the order quashing service of process, the order sustaining the demurrer to the amended complaint without leave to amend, and the judgment. Goldstein shall pay the defendants costs on appeal.
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REARDON, J. *
We concur:
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JONES, P. J.
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NEEDHAM, J.
* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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[1] Goldstein alleges that LeRoy spoke to her in December 2005. She also alleges that she spoke to Henle about moving to Marin County in December 2005 and that she received the $1,000 check from Brayton in December 2005. Goldstein explained at the hearing on the demurrer to the amended complaint that these were typographical errors because Goldstein alleges that she was employed with Brayton Purcell from December 2004 to April 2005.
[2] The court entered judgment for Brayton Purcell on December 21, 2006, and awarded costs to Brayton Purcell. On February 2, 2007, the court entered an amended judgment that included a specific award of $828 in costs to Brayton Purcell.
[3] All rule references are to the California Rules of Court.
[4] Goldstein notes as an aside that the Melick firm defendants do travel to California to engage in legal work. We do not construe this as an argument that the order should be reversed on the ground of general jurisdiction. (See rule 8.204(a)(1)(B) [each point should be stated under separate heading or subheading and supported by argument and legal authority, if possible].)
[5] Hereafter, when we refer to reimbursement of Goldstein relocation expenses, we refer to expenses in addition to the two weeks of hotel accommodations.
[6]Toscano is factually similar to Sheppard, supra, 218 Cal.App.3d 61. The plaintiff prevailed on a theory of promissory estoppel, where he had resigned from a job in reliance on a promise of employment for an unspecified term─that is, at-will employment. (Toscano, supra, 124 Cal.App.4th at pp. 689-690.) The appellate decision in Toscano, however, did not address the legal validity of the plaintiffs cause of action, but only addressed the proper measure of damages. (Id. at p. 689.)
