Testacross v. Santa Anita Church
Filed 1/30/14 Testacross v.
Santa Anita Church CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
JOANNE
TESTACROSS,
Plaintiff and Appellant,
v.
THE SANTA
ANITA CHURCH et al.,
Defendants and Respondents.
B248319
(Los
Angeles County
Super. Ct. No. GC048293)
APPEAL from
a judgment of the Superior Court of Los
Angeles County,
C. Edward Simpson, Judge.
Affirmed.
Law Office
of J. Lawrence David and Larry David for Plaintiff and Appellant.
Berman
Berman Berman Schneider & Lowary, James W. McCord and Karen E. Adelman for for
Defendants and Respondents.
_____________________________________
This
appeal arises from a former employee’s action alleging
by the act of terminating employment. The
fundamental issue in the case is whether the employment agreement allowed the
defendant employer, a private church school, to terminate the employee with or
without cause. The trial court entered
summary judgment in favor of the defendant employer and certain members of its
board of trustees. Plaintiff former
employee appeals. We affirm.
FACTS
The Original Written Employment Agreement
Defendant
The Santa Anita Church operates defendant Barnhart School, a
kindergarten through 8th grade school located in Arcadia. Defendants James E. Anderson and Paul Savoie
are members of Barnhart’s board of trustees.
Defendant Terry Keenan is the church’s senior minister and an ex officio
member of Barnhart’s board of trustees.
In
March 2007, Barnhart and plaintiff Joanne Testacross executed a nine-page
written employment agreement. The
agreement stated an effective date of July 1, 2007. Section 1(a) of the
that Barnhart would employ Testacross in the position of “Head of School,†and
that Testacross accepted the employment, for an “Initial Term†from July 1, 2007 through June 30, 2009.
Section
1(b) of the employment agreement provided that, at the discretion of the
Barnhart Board of Trustees, the agreement could be “renewed and extended for a
period of one or more years†provided that the board advised Testacross of its
desire and intent to renew and extend the agreement by no later than June 30,
2009. Further, Section 1(b) provided: “In no event . . . shall
this agreement, including [Testacross]’s employment with Barnhart, extend
beyond June 30, 2009, absent further express written agreement between the
parties hereto respecting further continuation of [Testacross]’s employment
with Barnhart, and no provision in this section or in this agreement may be
construed to extend such employment beyond June 30, 2009.â€
Section
4 of the employment agreement governed “Termination of Employment.†Section 4 specified five circumstances in
which Testacross’s employment with Barnhart would be or could be terminated. For example, Testacross’s employment would be
terminated by her death, or by disability
preventing her, after reasonable accommodation, from performing her
duties. Under Section 4(c), Barnhart
could terminate Testacross’s employment “for cause,†with defined grounds constituting
cause. Under Section 4(d), Testacross
could terminate her employment for “good reason,†including any material breach
by Barnhart of its obligations to Testacross.
The
fifth circumstance for termination of employment is found in Section 4(e) of
the employment agreement. Section 4(e)
reads:
“For Other Than Cause or Death or
Disability. [Barnhart] or
[Testacross] may terminate [her] employment at any time upon ninety (90) days written
notice to the other party.â€
(Underscoring in original.)
Subsequent Events
In
Paragraph 14 of her operative first amended complaint, Testacross alleged: “In or about May 2009, [Barnhart] and
Ms. Testacross renewed Ms.
Testacrosss[’s] employment agreement.†(Italics
added.) In their answer, the defendants
admitted the truth of this “renewed†allegation.
she testified that she signed a document (of an unidentified nature) related to
her employment “approximately around . . . July 2009.†At the time of her deposition, she testified that
she had only one page of the document that she signed in July 2009, and that it
had been produced. In her opening brief
on appeal, Testacross makes reference to a “Renewal Contract†executed “in or
about May 2009,†but her references to the record on appeal do not show such a
contract or its terms. She concedes in
her opening brief: “No complete copy of
the Renewal Contract was ever presented to the lower court by either party in
this matter.†Also in Paragraph 14 of
her operative first amended complaint, Testacross alleged: “On or about September 14, 2010, [Barnhart] extended Ms. Testacross’s
employment agreement . . . .†(Italics added.) Again, the defendants admitted her
allegation. The extension of the employment
agreement in September 2010 was accomplished by a document which we discuss next.
On
September 14,
2010, Testacross and Barnhart (by defendant
Anderson, acting as “School Board Presidentâ€) executed a writing entitled “Agreement
of Understanding.†The substantive text
of this document, in its entirety, reads as follows:
“Joanne Testacross has agreed to extend
her contract as Head of School through the 2011-2012 school year as determined
by the School Board of Trustees and her mutual agreement. [¶]
year’s targeted goals, Joanne Testacross will receive an increase in
compensation by 8%, resulting in an annual salary of $155,606. The car allowance is not included in this
total. Salary is effective from July 1,
2010.†(Italics added.)
Termination
On
May 5, 2011, Barnhart, acting through defendants Anderson and Savoie, told
Testacross that it was terminating her employment with the school effective in
90 days. At the same time on the same
date (May 5), Barnhart, by Anderson and Savoie, advised Testacross that she was
relieved of her duties immediately, and demanded or asked that she surrender
her keys, which she did. Barnhart
continued to pay Testacross through August 2011, based on her annual salary,
pro-rated for 90 days.
Litigation
Testacross
commenced an action against the church, Barnhart, Anderson, Savoie and
Keenan. She filed her operative first
amended complaint alleging the following causes of action, listed respectively:
breach of contract; breach of the covenant of good faith and fair dealing;
defamation; and intentional infliction of emotional distress (IIED). Her operative pleading alleges that Barnhart
breached their employment agreement by the actions of Anderson and Savoir on
May 5, 2011 as stated above.
The
church, Barnhart, Anderson, Savoie and Keenan (hereafter collectively Barnhart)
filed a motion for summary judgment
(MSJ) or, in the alternative, summary adjudication of each of Testacross’s four
causes of action. As to the contract-related
causes of action, the MSJ argued that Testacross could not prevail because she
could not demonstrate breach – the contract of employment as shown by the
written employment agreement gave Barnhart the right to terminate employment at
will, without any cause. As to Testacross’s
cause of action for defamation, the MSJ argued that she had no evidence that
any defendant ever made any defamatory statement about Testacross. As to the cause of action for IIED, the MSJ
argued that there had never been any outrageous conduct on the part of any
defendant.
Thereafter,
Testacross dismissed her causes of action for defamation and IIED. The parties argued the merits of Barnhart’s
MSJ to the trial court; the court signed
and entered an order granting Barnhart’s MSJ and entered judgment in favor of
Barnhart.
Testacross
filed a timely notice of appeal.
DISCUSSION
I. Summary Judgment ––– Disputed Facts
Testacross
contends summary judgment must be reversed because material issues of fact are
in dispute. Specifically, she claims
that it is uncertain what was contained in her employment contract.
agreement of understanding dated September 14, 2010, did not incorporate the
written employment agreement dated July 1, 2007. She cites the following rule of law in
support of her argument: for terms in
one document to be incorporated into a second document executed by the parties,
the incorporating reference must be “‘clear and unequivocal.’†(Wolschlager
v. Fidelity National Title Ins. Co. (2003) 111 Cal.App.4th 784, 790.) The failure to incorporate the July 1, 2007 employment agreement, argues Testacross, means “there exists a
material question of fact as to what the employment contract between [her] and
[Barnhart] was a the time [she] was fired . . . .†Testacross seems to be arguing there
documents or oral contract which governed her employment at Barnhart, apart
from or in addition to the employment documents dated July 1, 2007 and September
14, 2010. She may be referring to a
so-called “Renewal Contract†which she discusses in her briefs on appeal. We are not persuaded to reverse summary
judgment on this argument.
Barnhart’s
MSJ presented evidence showing the employment agreement documents governing the
parties’ employment relationship, namely, the written employment agreement dated
July 1, 2007 and the written agreement of understanding of September 14,
2010. Based on this showing, Barnhart
argued it had the contract right to terminate Testacross’s employment without
cause, pointing to Section 4(e) of the July 1, 2007 employment agreement. (Ante.) For her part, Testacross has never produced
or shown, either in her pleadings or in any materials submitted for and against
Barnhart’s MSJ or in any of her arguments on appeal, any contract document or
oral contract apart from or in addition to the employment documents dated July
1, 2007 and September 14, 2010. Further,
she has never specifically shown or even stated the terms from any contract
apart from or in addition to the employment documents dated July 1, 2007 and
September 14, 2010. In sum, Testacross
has never presented evidence showing the existence of a contract document or
oral contract or contract term, apart from the employment documents dated July
1, 2007 and September 14, 2010, which denied Barnhart the contract right to
terminate her without cause.
The
judicially established fact, made by her own admission, was that in May 2009,
Barnhart and Testacross “renewed†their employment agreement. This leads inextricably to the conclusion
that as of May 2009, we are back to the employment agreement dated July 1, 2007
as the governing employment agreement document upon which Testacross’s breach
of contract claim in her complaint is based.
A “renewed†agreement is not a “new†agreement. And, the judicially admitted fact that, in
September 2010, Barnhart “extended†Testacross’s employment agreement brings us
to the same place.
But
even if we followed Testacross’s “lack of incorporation†rule of law, this means
that, as of September 2010, there was no July 1, 2007 employment agreement in
place. As a result, the parties’
employment relationship would be governed by terms imposed by law, rather than
by the terms of any written or oral employment agreement. But this cannot be where Testacross means to
take us by with her argument. In the
absence of any written or oral contract entered into by the parties, Testacross’s
breach of contract claim alleged in her complaint makes no sense. And, if she is claiming a breach of a
contract obligation imposed by law, then her claim of a breach is fatally
flawed because the law presumes employment is at will. (Lab. Code, § 2922.)
In
the end, we find that Testacross cannot defeat summary judgment by offering
that there might be some unidentified
contract that would support her breach of contract claim. That some contract “might exist†does not
equate with a dispute in the evidence.
Even if we deemed the
evidence to be in state of equipoise
on a matter upon which Testacross must establish by a preponderance of the
evidence at trial -- that there was a governing employment agreement -- then summary
judgment was properly granted against Testacross because no reasonable trier of
fact could find in her favor. (See
25 Cal.4th 826, 857.) For all of these
reasons, we conclude that summary judgment must be evaluated in light of the
terms contained in the July 1, 2007 employment agreement for the reason that it is the contract
document underpinning Testacross’s breach of contract claim.
II. Summary Judgment – Contract
Interpretation
Testacross
next contends summary judgment must be revered because the trial court erred in
interpreting the July 1, 2007 employment
agreement. Specifically, she argues the
court erred in construing the agreement to give Barnhart a contractual right to
terminate her employment “at will;†she argues “the parties’ express intention
was that termination would be ‘for cause’ . . .†We find no contract interpretation error.
Testacross’s
initial argument is that Sections 1(a) and 1(b) of the employment agreement of July 1, 2007 show “the parties expressed their intention to limit any ‘at will’
presumption . . . .â€
Testacross’s argument is not persuasive because she has done little more
than quote the language of Sections 1(a) and 1(b), and neither of those
provisions contain any language concerning whether or not Barnhart could or
could not terminate Testacross’s employment with or without good cause. The provisions in Sections 1(a) and 1(b)
concern only the initial term, i.e., the length in time, of the parties’
employment agreement, and the rules for renewing and extending the
agreement. None of the legal authorities
cited by Testacross support the proposition that the parties to a contract for
a stated period of time may not further agree on provisions for terminating the
agreement short of –– and other than by –– the expiration of the period of time
for the contract. If such termination
provisions exist, a provision restricting termination “only for cause†is not
reasonably implied. And, as noted above,
Section 4 of the employment agreement here between Barnhart and Testacross contains
provisions concerning what can trigger termination of the agreement.
Testacross
next argues that the July 1, 2007 employment
agreement contains “conflicting at-will and for-cause termination provisionsâ€
and that these conflicting provisions result in ambiguity. She argues that this ambiguity “preclude[s]
summary judgment as interpretation created material issues of fact.†Apparently, Testacross believes that an
evidentiary exposition at trial is necessary to allow the trial court to interpret
the meaning of the parties’ employment agreement correctly. We do not agree.
Testacross
argues there is ambiguity in the July 1, 2007 employment
agreement because “there were clearly two interpretations of the same Alleged
Contract asserted by the
parties.†(Emphasis added.) Testacross’s argument is misdirected. She is correct that two interpretations of
the employment agreement of July 1, 2007 were “asserted byâ€
the parties, but this does not necessarily establish that there is a true
ambiguity. This is so because Barnhart’s
asserted interpretation made sense, whereas Testacross’s did not. A contractual provision is ambiguous
when it is susceptible to more than one reasonable
interpretation. (See, e.g.,
(1995) 37 Cal.App.4th 69, 82.) But a
court may not label a contract provision ambiguous in isolation and in the
abstract; rather, a court must construe the provision in relation to the
contract as a whole, with each clause giving meaning to the other. (Ibid.) That parties assert two different interpretations does not necessarily mean
there are two reasonable interpretations.
Testacross
asserts that Section 4(e) in the employment agreement is ambiguous. As noted above, Section 4(e) reads as follows:
“For Other Than Cause or Death or
Disability. [Barnhart] or
[Testacross] may terminate [Testacross]’s employment at any time upon ninety
(90) days written notice to the other party.â€
She argues it is ambiguous because it
conflicts with another provision of the employment agreement (see Section 4(c))
which states that it may be terminated “for cause.†We do not see any ambiguity.
Section
4(e) plainly says that Barnhart could terminate Testacross’s employment (and
vice versa) “for other than cause,†“at any time,†upon giving 90 days notice.
on its face. It says what it says. Even if we were abstractly inclined to accept
Testacross’s verbal formulation that the phrase “at any time†is ambiguous in
that it does not expressly state whether cause is required (but see
Cal.4th 384, 391), such a construction is simply impossible here because the
Section 4(e)’s introductory, underscored language explains that both parties
had the contract right to terminate the employment agreement “for other than
cause.†Testacross’s argument that
Barnhart needed cause to termination is belied by the plain language of Section
4(e).
In
addition, we find that no ambiguity is created in Section 4(e) based on Section
4(c). Testacross’s argument that 4(e)
and 4(c) “conflict†is simply wrong. The
parties’ employment agreement expressly provided that it would be or could be
terminated in five circumstances, to wit: (1) death; (2) disability; (3) for cause; (4)
for good reason; and (5) “For Other Than Cause or Death or Disability.†(Underlining in original.) Each of these circumstances stands on its
own, independently of the others; none conflicts with any of the others. The existence of alternatives, alone, does not
create ambiguity, and certainly does not do so in the particular written
agreement involved in the current case.
Although
the parties’ subjective intentions are not governing where, as here, contract
language is plain and unambiguous; we observe that in the context of the operation
of a private school, providing alternative bases for termination of an employment
agreement make sense. First, such a school
may reasonably terminate a head of the school for cause, e.g., when he or she
is convicted of a felony. If the
school were to invoke this ground, no 90 day notice would be needed. Second, such a school or such a head of the
school may reasonably determine that “things are just not working out.†Where, as here, both a school employer and a
school employee have an express mutual contract right to walk away from the
other upon giving 90 days notice, we will not read any contrary, more
restrictive, provision into their employment agreement.
DISPOSITION
The
judgment is affirmed. Respondents are
awarded costs on appeal.
BIGELOW, P. J.
We concur:
RUBIN, J. GRIMES, J.
name="_ftn1" title="">
end date is alleged for the “renewed†agreement; no terms are alleged for the
“renewed†agreement. In light of the
judicial admissions in the pleadings, we accept that Testacross and Barnhart
renewed her employment agreement sometime around May 2009. Given the context of the pleadings, it
appears that, in May 2009, the employment agreement dated July 1, 2007 was
“renewed†for an unstated term.
name="_ftn2" title="">
argument on appeal is consistent with her pleadings in the sense that she
plainly is asserting a claim for breach of a written contract.
