Hennessy v. Boston Men's Health Center

Filed 4/18/06 Hennessy v. Boston Men's Health Center CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Colleen Hennessy appeals a judgment following the grant of summary judgment in favor of respondent Boston Men's Health Center, Inc., on her claims for wrongful discharge in violation of public policy and unfair practices pursuant to Business and Professions Code section 17200 et seq. She argues that she presented sufficient evidence to the trial court to show there were triable issues of material fact as to both claims. We agree that she demonstrated a triable issue of material fact on her wrongful discharge claim, but not on her unfair practices claim. We therefore reverse in part and affirm in part.

I. Factual and Procedural Background

Respondent manages or owns several clinics, called Boston Medical Group, which are devoted to treating erectile dysfunction and premature ejaculation. This action stems from Michael Hennessy's employment by respondent as a medical advisor/assistant from May 21, 2001 to May 17, 2002. Hennessy was responsible for providing clinical support and sales assistance to respondent's San Francisco clinic as well as accurately tracking inventory in that office.

Hennessy filed a complaint on January 12, 2004, alleging four causes of action in connection with his termination by respondent. Hennessy also alleged a cause of action for unfair business practices (Bus. & Prof. Code, § 17200 et seq.) in connection with respondent's alleged unlawful activities. Hennessy died on June 17, 2004, and appellant Colleen Hennessy, Michael Hennessy's sister and sole heir, was substituted as plaintiff about one month later.[1] (Code Civ. Proc., § 377.31.)

Following appellant's voluntary dismissal of three causes of action and the trial court's granting of respondent's motion for judgment on the pleadings with leave to amend as to the two remaining causes of action, appellant filed a first amended complaint on March 24, 2005. The amended complaint alleged two causes of action, one for wrongful termination in violation of public policy, and one for unfair business practices. Appellant alleged that respondent fired Hennessy because he refused to perform illegal activities, namely, dispensing â€