Swartz v. American Bioscience

Filed 5/23/06  Swartz v. American Bioscience CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Morris  B. Jones, Judge.  Judgment is affirmed.

            Law Offices of L. Douglas Brown and L. Douglas Brown for Plaintiff and Appellant.

            Sheppard, Mullin, Richter & Hampton, Charles F. Barker and Jocelyn Riedl for Defendants and Respondents.

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            In this suit for breach of a written employment agreement, plaintiff Carl Swartz (plaintiff) appeals from a summary judgment entered in favor of his former employer, defendant American Bioscience, Inc. (defendant).  The judgment was entered after the trial court determined that plaintiff had not presented evidence of intolerable working conditions that would constitute a constructive discharge from his employment.  Although plaintiff asserts on appeal that the trial court should not have applied constructive discharge law to his breach of contract claim, the reality is that (1)  plaintiff's complaint essentially alleges a constructive discharge (2)  plaintiff himself presented the issue of constructive discharge to the trial court, and (3)  plaintiff's breach of contract claim necessarily involves a claim of constructive discharge.

            We find the trial court correctly applied the applicable law, and we will affirm the summary judgment.

BACKGROUND OF THE CASE

            1.            The Operative Complaint

            Plaintiff's operative complaint (complaint) alleges the following.  Plaintiff graduated from the United States Naval Academy with a B.S. in engineering, obtained an M.S. in engineering from U.C.L.A., and a J.D. from Georgetown Law Center.  He worked for a company called SimpleTech, Inc. as its vice president and general counsel, leaving that employment on September 1, 1999.  He is a highly experienced corporate manager and over the years has occupied senior officer positions with a number of companies, including Northrop Corp.

            In August 1999, he was recruited by defendant's president and CEO Patrick Soon-Shiong, M.D. (Soon-Shiong), to leave SimpleTech, Inc. and come to work for defendant as defendant's chief operating officer (COO).  He accepted the position with defendant pursuant to a written employment agreement, and the written agreement's implied in fact agreement that plaintiff would direct the operations of the defendant â€