Filed 5/2/22 Oomrigar v. TIBCO Software CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Santa Clara County, Thang Nguyen Barrett, Judge. Affirmed. Request for judicial notice granted.

Andre, Morris & Buttery and Gordon E. Bosserman for Plaintiff and Appellant.

Morgan, Lewis & Bockius, Melinda S. Riechert and Claire M. Lesikar for Defendants and Respondents.

Jonathan Oomrigar appeals from a final judgment following the trial court’s order sustaining a demurrer without leave to amend. In this employment dispute, Oomrigar asserts the evidence established he could only be terminated for cause. He also claims the court abused its discretion by denying him leave to amend his complaint. We find no error and affirm.

FACTS

I. Background Facts

In May 2015, TIBCO Software Singapore Pte. Ltd., a subsidiary of TIBCO Software, Inc. (collectively referred to as TIBCO), offered Oomrigar a position as vice president, enterprise solutions group Asia, based in Singapore. TIBCO sent Oomrigar a formal offer via e-mail. The attachments to the e-mail included an offer letter (Letter of Appointment), relocation letter (Letter of Understanding), long-term incentive program letter and schedule, and nondisclosure agreement.

On May 22, 2015, Oomrigar countersigned the Letter of Appointment and Letter of Understanding. The Letter of Understanding discussed the relocation services, terms of the relocation, and conditions for TIBCO to move Oomrigar and his wife from the United States to Singapore. Among the relevant provisions was a section titled “Termination Agreement.” It stated Oomrigar would have to repay TIBCO for the cost of relocation to Singapore if he were to voluntarily terminate his employment within one year of his transfer from the United States. It further provided TIBCO would pay the repatriation costs if it were to terminate Oomrigar’s employment within two years of his transfer from the United States to Singapore, other than for specified reasons.

The Letter of Appointment set forth Oomrigar’s title, job location, compensation, benefits, and terms and conditions of employment. Among its terms, clause 2 of the Letter of Appointment provided Oomrigar’s employment would be subject to satisfactory completion of a three-month probationary period, during which time either Oomrigar or TIBCO could “terminate the employment by giving to the other one week’s notice.”

Clauses 13.1 and 13.2 of the Letter of Appointment addressed termination. Clause 13.1 stated the following: “After the probationary period referred to in Clause 2 above and subject to Clause 13.2 below, this Agreement may be terminated by you or by [TIBCO] upon giving one (1) months’ written notice or by paying one (1) months’ salary in lieu of notice.” Under clause 13.2, TIBCO retained the right to terminate Oomrigar’s employment “immediately upon written notice . . . in any of the following cases . . . .” The “cases” warranting immediate termination upon written notice included circumstances such as serious or persistent misconduct, neglect or refusal to attend to the duties of the position, and incapacity or inability to perform duties for six months or more. The Letter of Appointment also contained an integration clause that stated the agreement (together with the nondisclosure agreement) constituted the full and complete agreement between Oomrigar and TIBCO. It also provided the agreement would be governed by Singapore law.[1]

TIBCO terminated Oomrigar almost one year after his hire. TIBCO notified him of his termination on April 11, 2016, and the termination was effective one month later, on May 11, 2016.

II. Procedural Facts

This appeal involves two separate, but factually related, lawsuits. The original action concerned various wrongful termination causes of action, among others. The second action (present action) asserted contract-based causes of action and is the subject of this appeal.

A. Original Action

Oomrigar filed his original complaint in San Francisco Superior Court, containing 11 causes of action: (1) declaratory relief; (2) rescission; (3) reformation; (4) fraud; (5) promissory fraud; (6) concealment; (7) negligent misrepresentation; (8) religious discrimination; (9) wrongful termination in violation of public policy; (10) deceit; and (11) negligent misrepresentation (original action). (Oomrigar v. Tibco Software, Inc., et al. (Oct. 8, 2021, H047361) [nonpub. opn.] (Oomrigar I).) In May 2017, the parties stipulated to transfer the original action to the Santa Clara Superior Court. (Ibid.)

TIBCO moved for summary judgment on all claims. (Oomrigar I, supra, H047361.) The trial court granted summary adjudication as to Oomrigar’s religious discrimination and wrongful termination claims. (Ibid.) The court determined triable issue of fact existed as to the alleged fraudulent misrepresentation, false promises, and concealment claims. (Ibid.) Following a June 2019 trial on those claims, the jury awarded Oomrigar a total of $358,000.00 in compensatory damages. (Ibid.) “In a series of special verdicts, the jury found that respondents (1) did not make false representations of fact and (2) did not make promises with no intent to keep them, but (3) intentionally deceived Oomrigar by concealing material facts from him.” (Ibid.) Both parties appealed from that verdict, and the Court of Appeal affirmed the judgment. (Ibid.)

B. Present Action

In March 2019, Oomrigar moved to amend his complaint in the original action to assert contract-based causes of action. (Oomrigar I, supra, H047361.) The court denied the motion. (Ibid.) As a result, Oomrigar filed the complaint in the present action. (Ibid.) He brought two causes of action against TIBCO, breach of contract and breach of the covenant of good faith and fair dealing related to the same contract. In each, Oomrigar alleged his employment was terminated without cause in violation of the Letter of Appointment.

TIBCO demurred to the complaint, which the trial court sustained with leave to amend. Oomrigar filed a first amended complaint (FAC), containing causes of action for (1) breach of contract, and (2) breach of the covenant of good faith. TIBCO again demurred. The court sustained the demurrer without leave to amend and entered judgment.

In reaching its decision, the trial court determined, “as was alleged in the original Complaint, the May 22, 2015 Letter of Appointment (now submitted as exhibit B to the FAC) was the contract governing [Oomrigar]’s employment with [TIBCO].” The court determined the Letter of Appointment was “not ambiguous and therefore no contrary interpretation of its terms by [Oomrigar] is accepted as true on demurrer.” It further held clause 13.1 of the Letter of Appointment unambiguously stated Oomrigar’s employment could be terminated by giving one month’s notice or by paying one month’s salary in lieu of notice. The court noted Oomrigar admitted he received adequate notice, because his April 11, 2016, termination did not become effective until more than 30 days later, on May 11, 2016. The court also recognized the Letter of Appointment contained an unambiguous integration clause, which made clear that the terms of the Letter of Appointment control over other documents attached to the FAC. Accordingly, Oomrigar’s subjective understanding of the terms of his employment was irrelevant to the correct interpretation of the contract language.

As for Oomrigar’s argument TIBCO’s demurrer was barred by

the collateral estoppel effect of the judgment in Oomrigar I, the court disagreed. It reasoned, “[Oomrigar] has not established that at any point in that action a finding or determination was made by the Court or the jury that [TIBCO] breached a written term of the employment contract or that the termination provisions of the written employment contract—meaning the May 22, 2015 Letter of Appointment—were ambiguous.” The court granted TIBCO’s request for judicial notice “to the limited extent that the Court will take notice of [Oomrigar’s] factual admission in ¶ 22 of [the Oomrigar I complaint] that ‘he was fired without cause on or about April 11, 2016, to be effective on May 11, 2016,’ meaning [Oomrigar] received the one month notice required by [clause] 13.1 of the written employment contract (exhibit B to the FAC).”

The court denied Oomrigar’s request for leave to amend. It explained, “the opposition fails to indicate how [Oomrigar] would amend or how that amendment would cure the identified defect—that the alleged breach ([Oomrigar’s] termination without cause) was expressly authorized by the terms of the written employment agreement.”

DISCUSSION

Oomrigar challenges the trial court’s order sustaining the demurrer without leave to amend. We find no error and affirm the judgment of dismissal.

I. Underlying Law and Standard of Review

“Our review of the trial court’s ruling sustaining the general demurrer is de novo. We independently evaluate the complaint, construing it liberally, giving it a reasonable interpretation, reading it as a whole, and viewing its parts in context. [Citation.]” (Burns v. Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486.) “[W]e accept the truth of material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 346.) “If the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits.” (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) We review the trial court’s failure to grant leave to amend for abuse of discretion. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).)

II. Demurrer to FAC

The trial court sustained TIBCO’s demurrer to Oomrigar’s FAC because clause 13.1 does not require cause to terminate Oomrigar’s employment. We agree with the court’s determination.

Clause 13.1 of Oomrigar’s Letter of Appointment expressly provides, “this Agreement may be terminated by [Oomrigar] or by the Company upon giving one (1) months’ written notice or by paying one (1) months’ salary in lieu of notice.” That is precisely what happened—TIBCO gave Oomrigar a one month notice and salary. Unlike clause 13.2, which provided for a termination without notice for cause, cause was not required for a termination under clause 13.1 on one month’s notice.

Oomrigar contends the phrase “subject to clause 13.2” in clause 13.1 somehow renders clause 13.1 ambiguous. It does not. The plain language of these two

provisions, taken together, confirms clause 13.1 provided for termination without cause on one month’s notice, but was “subject to” the termination for cause without notice provision contained in clause 13.2. This unambiguously confirms clause 13.1 deals with termination without cause, and clause 13.2 deals with termination for cause.

TIBCO terminated Oomrigar on one month’s notice—which he concedes. Under the express terms of the Letter of Appointment, he cannot state a cause of action for either breach of contract or breach of the implied covenant of good faith and fair dealing. To require cause for a termination under clause 13.1 would require a rewriting of the express language of the Letter of Appointment and would be inconsistent with the language of clause 13.2, which provided that no notice was required if there was cause for the termination.

Oomrigar argues at length that the Letter of Appointment did not state he was an “at will” employee. While it is true the phrase “at will” does not appear in the Letter of Appointment, its absence is irrelevant. The Letter of Appointment permitted termination by either side upon one month’s notice, unless there was “cause” to terminate employment, as defined in clause 13.2. Thus, the absence of the words “at will” does not signify employment could not be terminated on one month’s notice, without cause. Additionally, we note the employment agreement between the parties, which Oomrigar signed in June 2015, did define the relationship as “at will.”

Additionally, Oomrigar states, incorrectly, the trial court decided he was “‘at will.’” But the order sustaining the demurrer does not mention the phrase “at will.” Rather, the court held “the employment agreement expressly provides that [Oomrigar] could be terminated without cause provided he received adequate notice (which he admitted he did) . . . .”

Finally, Oomrigar asserts he believed, based on statements made to him before he signed the contract, that he could only be terminated for cause. However, the trial court correctly held the agreement was not ambiguous. As such, any statements about the need for cause are inconsistent with the contract’s unambiguous language and are barred by the parol evidence rule given the integration clause in the contract. (Bionghi v. Metropolitan Water Dist. (1999) 70 Cal.App.4th 1358, 1369.) Because the extrinsic evidence was irrelevant to the interpretation of the contract, given its unambiguous terms, it was properly excluded by the parol evidence rule.^[2]

The Letter of Appointment permitted TIBCO to terminate Oomrigar’s employment on one month’s notice and salary without cause, which it provided. Based upon this unambiguous contractual language, the trial court properly determined Oomrigar’s breach of contract cause of action could not survive the demurrer. Accordingly, Oomrigar’s cause of action for breach of the covenant of good faith and fair dealing fails for the same reasons the breach of contract cause of action fails. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 349-350 [covenant “cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement”].)

Finally, we note Oomrigar I involved a separate lawsuit against TIBCO for fraud-based claims. The case was tried to a jury and decided on appeal. Much of Oomrigar’s opening brief reiterates the facts of his fraud causes of action in Oomrigar I, which relates to what occurred before Oomrigar was hired and before he signed the Letter of Appointment. Those facts are irrelevant to determining whether the Letter of Appointment Oomrigar signed was unambiguous as to the right to terminate employment without cause. Because it was unambiguous and integrated, what was said before Oomrigar was hired, or after he was terminated, is irrelevant.

III. Denial of Leave to Amend

Oomrigar asserts the trial court abused its discretion by denying him leave to amend his complaint. Oomrigar argues the denial of his request to amend

should be reversed because TIBCO “‘failed to pay Oomrigar what was due him under his compensation agreement with TIBCO irrespective of whether he could be terminated without cause . . . probably in the area of $135,000.’” (Underscore omitted.) In his opposition to TIBCO’s demurrer, Oomrigar argued these payments were “certain commissions for fiscal year 2016.” He cited generally to exhibit Nos. B through D of the FAC. None of these exhibits demonstrate Oomrigar’s eligibility to receive commission payments post-termination.

Furthermore, Oomrigar failed to show how he would amend his complaint to survive a third demurrer to assert a claim to the purported future earnings. A plaintiff against whom a demurrer is sustained is entitled to leave to amend the defective complaint if he can “‘prov[e] a reasonable possibility that the defect can be cured by amendment.’ [Citations.]” (Schaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.) “The onus is on the plaintiff to articulate the ‘specifi[c] ways’ to cure the identified defect, and absent such an articulation, a trial or appellate court may grant leave to amend ‘only if a potentially effective amendment [is] both apparent and consistent with the plaintiff’s theory of the case.’ [Citation.]” (Ibid.)

Oomrigar bears the burden of demonstrating how the complaint could be amended to state a cause of action. (Schifando, supra, 31 Cal.4th at p. 1081.) Because Oomrigar provided no indication on how he would amend his complaint to survive a third demurrer, the trial court did not abuse its discretion by denying leave to amend.

IV. Request for Judicial Notice and Collateral Estoppel

Oomrigar requests we take judicial notice of the unpublished opinion in Oomrigar I. We grant his request pursuant to Evidence Code section 452 and California Rules of Court, rule 8.252.

While we take judicial notice of the unpublished opinion in Oomrigar I, it does not help Oomrigar’s argument. Oomrigar asserts, based on the Court of Appeal’s decision in Oomrigar I, TIBCO is collaterally estopped from arguing the Letter of Appointment is unambiguous. This argument fails, however, because Oomrigar I does not address contractual interpretation of the Letter of Appointment.

“Collateral estoppel precludes parties from litigating an issue previously determined in another cause of action between them or their privities. [Citations.] As a prerequisite for asserting this doctrine, it must be shown that the issue was, in fact, litigated and decided in the prior action. [Citations.]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1156.) “‘[A] party will be collaterally estopped from relitigating an issue only if (1) the issue decided in a prior adjudication is identical with that presented in the action in question; and (2) there was a final judgment on the merits; and (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication.’ [Citation.]” (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 149.)

The issue decided in Oomrigar I was not identical to that presented in this case. Oomrigar I concerned whether he was defrauded into taking his job at TIBCO. By contrast, this case concerns a purely contractual issue as to whether TIBCO breached the Letter of Appointment by terminating Oomrigar’s employment without cause on one month’s notice. The issues in the prior fraud case were not identical to the issue in the breach of contract case. The decision in Oomrigar I focused on whether Oomrigar’s fraud claim could proceed, not whether the contract was ambiguous. TIBCO is not estopped from asserting the contract was unambiguous.

DISPOSITION

The judgment is affirmed. Appellant’s motion for judicial notice is granted. Respondents shall recover their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Although the choice of law provision in the Letter of Appointment specifies Singapore law, both sides have not enforced that provision because they rely exclusively on California law in their briefing. In any event, it appears that “‘Singapore’s contract law principles closely follow those of Great Britain and the United States.’” (Hrothgar Investments, Limited v. Houser (N.D. Cal., Aug. 18, 2015, No. 15-CV-01116-JCS) 2015 WL 5853634, at *5.) Accordingly, the application of California law to this dispute is proper.

[2] Oomrigar argues that the trial court failed to consider the parol evidence alleged in the complaint before determining that the language was unambiguous, as required by Pacific Gas and Electric Co. v. G.W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 37. Any error in failing to determine whether “the offered evidence [was] relevant to prove a meaning to which the language of the instrument is reasonably susceptible” is harmless. (Id.). This is because our review of the evidence alleged in the complaint, as is appropriate on appeal from a sustained demurrer, does not show that the language could reasonably be interpreted in the manner Oomrigar suggests. (George v. Automobile Club of Southern California (2011) 201 Cal. App. 4th 1112, 1122.)