McDonald v. Eisenhower Med. Center

Filed 9/19/07 McDonald v. Eisenhower Med. Center CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Law Offices of John G. Monkman, Jr. and John G. Monkman, Jr. for Plaintiff and Appellant.

Madory, Zell and Pleiss, Stephen H. Zell, Stephen J. Martino; FitzGerald & Mul, Stephen E. FitzGerald and Quynhvi B. Sotelo for Defendant and Respondent.

1. Introduction

Plaintiff Arlene A. McDonald appeals from a judgment entered after the trial court sustained without leave to amend the demurrer of defendant to McDonalds third amended complaint for wrongful termination.

Our independent review confirms McDonald failed to state a cause of action. We affirm the judgment.

2. Factual and Procedural Background

McDonalds opening brief is deficient. It does not [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(C).) It does not [p]rovide a summary of the significant facts limited to matters in the record. (Cal. Rules of Court, rule 8.204(a)(2)(C).) We have reviewed the record in an attempt to summarize it for this opinion but McDonald cannot be heard to complain that we have overlooked any disputed or undisputed material facts. [Citation.] (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435-436, fn. 2.)

McDonald filed her original complaint in June 2002. After three successful demurrers by defendant, she filed her third amended complaint on March 11, 2004.

The third amended complaint alleges McDonald, a hospital administrator, had been employed by defendant hospital more than 20 years when she was fired in June 2001 without good cause. The complaint asserts six causes of action for breach of written contract, fraud, intentional tort, general negligence, breach of oral contract, and breach of implied contract. Although there are no supporting allegations, the general allegations of the complaint refer to a seventh cause of action for damages due to age discrimination and an eighth cause of action for violation of civil rights act.

After the court sustained defendants fourth demurrer without leave to amend, the court filed its order on May 24, 2004. The entire action was dismissed on May 25. The clerk gave notice of the order concerning the demurrer on May 26.

McDonald filed a motion for reconsideration that was denied and the order filed on July 17, 2004. Notice of ruling was given on August 9 and filed on August 11.

On September 21, 2004, McDonald filed a notice of appeal. The appeal was dismissed on November 1, 2004. (McDonald v. Eisenhower Medical Center (2004), E036751.) According to the records of the State Bar of California, McDonalds attorney was suspended from practice for 90 days from December 24, 2004, until March 24, 2005.

A judgment prepared by McDonalds attorney was filed on November 7, 2005. McDonald gave notice of entry of judgment on March 1, 2006. McDonald filed a second notice of appeal on April 28, 2006, within 60 days of the notice of entry of judgment.

3. Discussion

McDonalds appellate briefs are also deficient in legal analysis. Except for some mention of general principles of employment law, appellant does not offer particularly pertinent argument or authority. California Rules of Court, rule 8.204(a)(1)(B), provides an appellate brief shall [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority. Otherwise an argument raised in such perfunctory fashion is waived. (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1451, citing People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)

a. Dismissal of Appeal

The trial court sustained the demurrer without leave to amend on May 24, 2004. The notice of appeal was filed almost two years later on April 28, 2006. In the meantime, on November 1, 2004, this court issued an order, dismissing the previous appeal because we had not been provided with an appealable order or judgment. Neither party undertook to obtain entry of judgment until McDonald submitted a judgment dated September 11, 2005, and filed November 7, 2005. Then neither party gave notice of entry of judgment until McDonald did so on March 1, 2006.

Defendant argues persuasively the instant appeal should be dismissed as untimely because McDonald did not file a notice of appeal within 180 days of May 25 or May 26, 2004 (Cal. Rules of Court, rule 8.104(a)(3)); within 30 days of July 7, 2004 (Cal. Rules of Court, rule 8.108(d)); or within 60 days of November 7, 2005. (Cal. Rules of Court, rule 8.104(a)(2).)

The record, however, reflects that the procedural delay in obtaining a formal entry of judgment was due to lack of diligence by both parties. If defendant had wanted to limit the period of time for McDonald to file an appeal, it could have obtained judgment and given notice much earlier. For that reason, we are inclined to give McDonald the benefit of the argument and consider the merits of the appeal.

b. Demurrer

On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com., supra, 105 Cal.App.4th at p. 1445.)

The third amended complaint bases its six (or eight) causes of action on the same set of general allegations. McDonald alleges that on June 20, 2000 (and numerous prior years), McDonald and defendant made written and verbal agreements, based on written employment materials and custom and practice, that defendant would not terminate McDonalds employment without good cause and McDonald would be offered alternative employment if her position was eliminated. As exhibit A to her complaint, McDonald attached a letter purportedly written by McDonalds supervisor, in which she describes the circumstances of McDonald being fired and asserts she was not offered alternative employment.

The complaint, in its fourth version, does not state a cause of action. The first cause of action for breach of written contract fatally does not plead the express terms of a written contract or attach a copy of the contract itself: If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59.) (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459, fn. 4; Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

The second cause of action for fraud contains no specific allegations of the necessary elements of fraud against a corporation: Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made. [Citations.] [] The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citations.] (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) None of the foregoing appears in the second cause of action or the third duplicative cause of action for intentional tort.

The fourth cause of action for negligence is similarly deficient in failing to allege any facts showing (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury. [Citation.] (Jackson v. Ryder Truck Rental (1993) 16 Cal.App.4th 1830, 1837.)

The fifth and sixth causes of action for breach of an oral contract or an implied contract also fail. In Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 336-338, citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, the California Supreme Court offered a detailed analysis of the theory apparently relied upon by McDonald. Guz acknowledged that an employee and an employer may agree an employment relationship may not be terminated except for cause: Among the many available options, the parties may agree that the employers termination rights will vary with the particular circumstances. The parties may define for themselves what cause or causes will permit an employees termination and may specify the procedures under which termination shall occur. The agreement may restrict the employers termination rights to a greater degree in some situations, while leaving the employer freer to act as it sees fit in others.

The contractual understanding need not be express, but may be implied in fact, arising from the parties conduct evidencing their actual mutual intent to create such enforceable limitations. [Citation.] In Foley, we identified several factors, apart from express terms, that may bear upon the existence and content 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. [Citations.]

. . . We did not suggest, however, that every vague combination of Foley factors, shaken together in a bag, necessarily allows a finding that the employee had a right to be discharged only for good cause, as determined in court. . . . (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 336-337.)

In the present case, the conclusory and cursory allegations offered by McDonald do not constitute a viable claim for wrongful termination under Guz or Foley.

As previously noted, McDonalds two bare references to the seventh and eight causes of action for age discrimination are also wholly inadequate to state a claim.

4. Disposition

We uphold the ruling of the trial court sustaining without leave to amend defendants demurrer to third amended complaint. We affirm the judgment. Defendant shall recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Richli

J.

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