Assignment Case

Topics: Contract, Employment, Employment law terms Pages: 7 (2494 words) Published: May 19, 2013
105 Cal.Rptr.2d 525 (2001)
88 Cal.App.4th 33
Charles STARZYNSKI, Plaintiff and Appellant,
v.
CAPITAL PUBLIC RADIO, INC., Defendant and Respondent.
No. C034165.
Court of Appeal, Third District.
March 29, 2001.
527*527 Biegler Ortiz & Chan, Robert P. Biegler, Sacramento, Jessee S. Ortiz III, for Plaintiff and Appellant. Meriam E. Hamilton, Lewis, D'Amato, Brisbois & Bisgaard, for Defendant and Respondent. 526*526 SIMS, Acting P.J.

Beginning in 1979, plaintiff Charles Starzynski was employed as program director for Sacramento radio stations KXPR and KXJZ, which are owned and operated by defendant Capital Public Radio, Inc. (CPR). Plaintiff was orally assured by his supervisor, Phil Corriveau, that plaintiffs employment could be terminated only for good cause. In December, 1991, plaintiff signed an "Employment At Will Contract And Acknowledgement Form," which expressly stated in part: "I understand and agree that my employment is AT WILL and that either KXPR/KXJZ or I may terminate the employment relationship at any time, with or without cause or advance notice. I understand further that only the Board of Directors, by affirmative action, has the authority to change or make any agreement contrary to this at-will employment relationship." Three days alter plaintiff signed the agreement, his supervisor, Corriveau, again advised plaintiff that, notwithstanding the agreement, plaintiffs employment would not be terminated as long as his performance was satisfactory. Plaintiff resigned from employment in January, 1998. He later filed a complaint against CPR alleging wrongful discharge on the theories that CPR violated an implied contract of employment, that CPR violated an implied covenant of good faith and fair dealing, and that plaintiff was constructively discharged when he resigned his employment because of intolerable working conditions. The trial court granted summary judgment in favor of CPR, from which plaintiff appeals.[1] We shall conclude that plaintiffs employment was at-will, that there was no implied contract between the parties, that plaintiff has no claim for breach of the implied covenant of good faith and fair dealing, and that the at-will nature of plaintiffs employment precludes plaintiffs claim for wrongful discharge based on constructive discharge on account of intolerable working conditions. We shall therefore affirm the judgment.

DISCUSSION
I. Standard Of Review
Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c).) "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established...." (Code Civ. Proc, 528*528 § 437c, subd. (o)(2); see also, Komano v. Rockwell Internal, Inc. (1996) 14 Cal.4th 479, 486-87, 59 Cal.Rptr.2d 20, 926 P.2d 1114.) Once the moving party defendant meets its burden, the burden shifts to the plaintiff to show a triable issue of material fact exists. (Code Civ. Proc, § 437c, subd. (o)(2).) On appeal, the reviewing court exercises its independent judgment, deciding whether undisputed facts have been established that negate the opposing party's claim or state a complete defense. (Romano, supra, at pp. 486-487, 59 Cal. Rptr.2d 20, 926 P.2d 1114; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741, 41 Cal. Rptr.2d 719.) II. Breach Of Implied Contract

Plaintiff claims a triable issue of material fact exists with respect to his claim for breach of implied contract because, even though he signed the document acknowledging his employment was at-will, he received verbal assurances from his supervisor, Phil Corriveau, that his employment was secure as long as his performance remained satisfactory. We disagree. Labor Code section 2922 provides: "An employment, having no specified term, may...

Citations: ]" (Turner, supra, at p. 1252, 32 Cal.Rptr.2d 223, 876 P.2d 1022.)
Here, plaintiff has not shown that his constructive discharge violated any contractual right. As we have recounted, his employment was at-will. As such, his employment could be terminated "for any or no reason." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 350, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) His employer, CPR, was entitled to act "peremptorily, arbitrarily, or inconsistently." (Ibid.) The nature of plaintiffs at-will employment, authorizing termination for any reason, is incompatible with plaintiffs claim that his employer could not discharge him by subjecting him to intolerable working conditions. We therefore hold that an at-will employee has no contractual claim for wrongful discharge based on constructive discharge on account of intolerable working conditions.
Nor does plaintiff have a tort claim. Such a tort claim for wrongful discharge requires the employee to show that he or she has been terminated for a 531*531 reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision. (Turner, supra, 7 Cal.4th at p. 1252, 32 Cal.Rptr.2d 223, 876 P.2d 1022; Jennings v. Marralle (1994) 8 Cal.4th 121, 129-130, 32 Cal.Rptr.2d 275, 876 P.2d 1074.) Plaintiff has never asserted such a claim in this litigation.
Plaintiff fails to show any triable issue concerning constructive discharge.
We conclude plaintiff has failed to show any triable issues precluding summary judgment.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
MORRISON, J., and HULL, J., concur.
[1] Plaintiff purported to appeal from the order granting summary judgment, which is not an appealable order. (Modica v. Merin (1991) 234 Cal.App.3d 1072, 285 Cal.Rptr. 673.) We will construe plaintiff 's notice of appeal as an appeal from the judgment which was entered and which appears in the record on appeal. (Rule 2(c), California Rules of Court.)
[2] At oral argument in this court, plaintiff 's counsel suggested for the first time a theory that plaintiff 's supervisor was acting as an agent for the Board when he said plaintiff would not be terminated from employment as long as his performance was satisfactory. Plaintiff failed to assert this theory earlier and cannot raise it for the first time at oral argument. (Bonshire v. Thompson (1997) 52 Cal. App.4th 803, 808, fn. 1, 60 Cal.Rptr.2d 716.)
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