Ali v. FusionStorm, Inc., Case No. 17CV312165

Defendant FusionStorm, Inc. (“Defendant”) moves for summary judgment, or in the alternative, summary adjudication in its favor and against plaintiff Syed Nazim Ali (“Plaintiff”).

I. Factual Background

This is an action for fraud and promissory estoppel. According to the allegations of the operative First Amended Complaint (“FAC”), plaintiff Syed Nazim Ali (“Plaintiff”) is a cyber security consultant and defendant FusionStorm, Inc. (“Defendant” or “FusionStorm”) is a staffing company that matches professionals such as Plaintiff with companies in need of their services. (Complaint, ¶ 7.) In November 2015, Plaintiff and Defendant entered into a partially written and partially oral contract pursuant to which Plaintiff was to begin working with Gilead. (FAC, ¶ 8.) The contract provided that the term of employment was to be no less than 6 months, while Defendant represented that the term would be between 6 and 36 months. (Id.) Plaintiff was initially advised that he would start work on November 22, 2015, however, the date was moved several times and he ultimately did not begin working for Gilead until January 4, 2016. (Id., ¶ 12.) Plaintiff’s last day of work at Gilead was May 5, 2016; his employment lasted only four months. (Id., ¶ 13.)

Plaintiff alleges that Defendant knew that the job would lastly only 4 months when it told him it could last longer, and did so in order to convince him to accept the offer. (FAC, ¶ 14.) In reliance on the promise of 6 to 36 months of employment, Plaintiff passed up other employment opportunities and relocated from Southern California, incurring significant costs and losses as a result. (Id., ¶ 15.)

II. Procedural Background

On September 12, 2017, Plaintiff filed the FAC asserting the following causes of action: (1) intentional misrepresentation; (2) negligent misrepresentation; (3) breach of contract; (4) promissory estoppel; and (5) violation of Labor Code § 970. Defendant subsequently demurred to the FAC and each of the claims asserted therein on the ground of failure to state facts sufficient to constitute a cause of action. In December 2017, the Court sustained the demurrer as to the third and fifth causes of action without leave to amend and overruled it as to the remaining claims. On November 2, 2018, Defendant filed the instant motion for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes the motion.

III. Defendant’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Defendant maintains that it is entitled to summary judgment against Plaintiff because the only information available to it when it connected Plaintiff to the position with Gilead showed that the assignment was projected to last 6 months. Thus, it explains, there was no fraud or misrepresentation, and no basis to apply promissory estoppel.

1. Defendant’s Undisputed Material Facts

In support of its motion, Defendant submits the following version of events: FusionStorm is a company which, among other things, specializes in locating skilled IT professionals and connecting them with its clients to meet a wide range of needs. (Declaration of Jackie Foley in Support of MSJ/MSA (“Foley Decl.”), ¶ 3.) On November 3, 2015, FusionStorm Project Administrator Krystal Backhus (“Backhus”) wrote Plaintiff an email entitled “Subject: Job Opening: Symantec Control Compliance Engineer- 6 Months- Foster City, CA- Remote Optional” which advised him of said job opening and inquired if he was interested in discussing the opportunity with her. (Defendant’s Separate Statement of Undisputed Material Facts in Support of MSJ/MSA (“UMF”) No. 1; Declaration of Krystal Backhus in Support of MSJ/MSA (“Backhus Decl.”), ¶ 6.) In a follow-up phone call, Backhus introduced Plaintiff to Jackie Foley (“Foley”), FusionStorm’s Practice Manager, Staff Augmentation, and advised him that there was the potential for a long-term project with Gilead. (UMF No. 1.) Later that day, Foley sent an email to Scott Rossi (“Rossi”) of Gilead which included Plaintiff’s resume and explained that he could relocate and start work within a week. (UMF No. 2.)

On November 5, 2015, Rossi held a telephone interview with Plaintiff. (UMF No. 3.) Rossi subsequently followed up with Foley, inquiring as to Plaintiff’s rate and stating that he wanted to conduct a follow up interview with him, to which Foley responded the following day. (UMF Nos. 4 and 5.) After a second interview was held on November 11, 2015, Rossi emailed Foley again to thank her for the interview with Plaintiff, expressed some concerns about his “recent hands-on technical experience,” but indicated that he would otherwise be a good fit for the team at a lower hourly rate than originally requested. (UMF No. 7.) Foley than contacted Plaintiff to negotiate his rate and followed up with Rossi to negotiate further. (UMF Nos. 9, 10.)

On November 17, 2015, Foley emailed Rossi to state that after internal discussions, FusionStorm decided that it would make an exception at a rate of $130 (the number identified by Gilead as its maximum offer) and asked when Gilead wanted Plaintiff to start. (UMF Nos. 12, 13.) Rossi responded that they could “shoot for 12/2 if that works for everyone” with the latest start date being December 7th, and asked Foley to inform Plaintiff that Gilead’s offices would be closed from December 25, 2015 to January 4, 2016. (UMF No. 14.) Foley emailed Plaintiff to update him and then contacted Rossi via email stating, “Please confirm both 6 months contract.” (UMF No. 16.) In response, Rossi wrote, “Yes, 6 months to start.” (UMF No. 17.) Rossi further confirmed the length of the job as 6 months in another email with Foley on November 30, 2015. (UMF No. 25.)

Numerous additional emails were exchanged between Foley and Plaintiff, and Foley and Rossi, between November 25th and December 10, 2015 regarding Plaintiff’s start date with Gilead. (UMF Nos. 19-51.) On December 1, 2015, Plaintiff asked Foley if it was possible to have a formal contract worked out that day and then, on the following day, advised her of his plan to leave southern California on December 7th in order to be in Foster City to start work on December 9th. (UMF Nos. 27, 29.) Plaintiff expressed concerns to Foley about having not yet executed the contract and requested that she advise him as soon as possible if there were any changes in his start date so that he could cancel the hotel reservations he had made. (UMF No. 29.) Foley advised Plaintiff that FusionStorm would make sure Plaintiff had everything he needed before he left on December 7th and then communicated Plaintiff’s plans to Rossi. (UMF No. 33.) Foley explained that she wanted to be notified of any issues so she could advise Plaintiff before he made any move. (UMF No. 33.) Rossi responded that he did not anticipate any issues but the worst case scenario was that there could be a delay of a few days because it was the end of the year. (UMF No. 34.)

Plaintiff emailed Foley on December 4, 2015, asking her to contact him to provide updates on the Gilead assignment and communicating his “concern about the project[’s] status.” (UMF No. 35.) Plaintiff further explained that in “good faith” he had made the necessary arrangements to relocate, including changing his son’s school, but did not yet have a written contract confirming the start date and other terms. (Id.) Plaintiff advised Foley that if he did not have a written agreement by 5pm, he was going to cancel all of his hotel reservations so as to avoid incurring large penalties. (Id.) Later than day, Foley communicated Plaintiff’s concerns to Rossi and advised Plaintiff of her efforts to get confirmation from Gilead as to his start date, explaining that she would contact him within the next few hours so that he knew how to plan going forward. (UMF Nos. 36, 37.) Rossi responded to Foley that day to state that Plaintiff’s assignment needed to be pushed back a week given his (Rossi’s) inability to receive a response from the necessary individuals at Gilead. (UMF No. 39.) Foley advised him that she would tell Plaintiff to move his plans/reservations to reflect a start date of December 16th. (UMF No. 40.) When Foley communicated this to Plaintiff, he told her that he would prefer to start work on January 4, 2016. (UMF No. 42.)

On December 4, 2015, Foley emailed Rossi to inquire as to whether it would be possible for Plaintiff to start after the holidays instead. (UMF No. 43.) Rossi replied that he realized starting before the holidays was difficult, but that the advantage was that all set up could be completed before so that they could “hit the ground running” in January. (UMF No. 44.) He advised that he would try to obtain a laptop in order to permit Plaintiff to start a few days before January. (Id.) Foley replied that should would let Plaintiff know that they were extending things for at least one week. (UMF No. 45.)

On December 8, 2015, Gilead sent Foley Work Order No. 120115 for Plaintiff. (UMF No. 46.) Two days later, Foley emailed Rossi to ask whether Gilead would be able to provide Plaintiff with a laptop prior to January 4th so she could notify of what his start date would be. (UMF No. 47.) Rossi explained that he was still working on getting Plaintiff a laptop to enable him to take care of some preliminary matters but that it was fine to tell him that he could expect to physically start in Foster City on January 4th. (UMF No. 50.) That same day, Foley emailed Bob Wunderlich (“Wunderlich”) at Juno Group (“Juno”), the entity that Plaintiff was being “passed through” by FusionStorm, and asked him to set up Plaintiff for the Gilead engagement. (UMF Nos. 53, 54.) FusionStorm contracted with Juno, who agreed to handle hiring paperwork, billing and collection issues related to Plaintiff’s assignment at Gilead. (UMF No. 54.) On December 11, 2015, FusionStorm and Juno executed a Statement of Work indicating:

1.3 Location of Work to be Performed: Foster City, CA
1.4 Duration of Project: 6 months
1.5 Start Date: To be determined based off of when consultant receives laptop

(UMF No. 56.)

Juno subsequently hired Plaintiff as an independent contractor on December 14, 2015. (UMF Nos. 57-59, 62.) Plaintiff relied on the agreement executed with Juno in deciding to relocate to Northern California and did not move or enter into any lease agreement until after December 28, 2018. (UMF No. 62.) The agreement was from January 4, 2014, at a rate of $94 per hour, for approximately “1000 hours with possible extension,” but “subject to [Juno’s] right of termination ….” (UMF No. 63.) The agreement also expressly provided that no travel, living or other costs of the contractor, Plaintiff, would be paid by Juno unless otherwise stipulated in the agreement. (UMF No. 64.) The agreement additionally contained a clause which provided that Plaintiff’s employment with Juno was at-will. (UMF Nos. 65, 66.)

On December 17, 2015, Rossi emailed Foley to explain that Gilead would have Plaintiff start on January 4th and that he would not be sent a laptop prior to that point. (UMF No. 67.) Foley passed on this information on to Plaintiff. (UMF No. 68.) On April 5, 2016, Gilead notified Foley that it intended to end Plaintiff’s assignment because his skill level did not meet Gilead’s needs. (UMF No. 69.) Plaintiff’s last day of work at Gilead was May 5, 2016. (UMF No. 70.) This action followed.

2. Intentional Misrepresentation (1st Cause of Action)

In the first cause of action for intentional misrepresentation, Plaintiff alleges that Defendant represented to him that his employment with Gilead would last at least six months when it knew that the job would in fact last only four months, and did so with the intent of making Plaintiff rely on the representation. (FAC, ¶¶ 18-24.) Plaintiff further alleges that Defendant knowingly misrepresented the start day of the employment as November 22, 2015, when it did not actually start until January 4, 2016. (Id., ¶¶ 19-20.)

The essential elements of a claim for intentional misrepresentation are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to induce reliance; (4) actual and justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) In moving for summary adjudication of this cause of action, Defendant primarily argues that (1) there is no liability for representations regarding future events, (2) it did not make any actionably false statements to Plaintiff and (3) it did not intend to mislead Plaintiff. Each of these arguments will be addressed in turn.

Defendant’s first argument regarding the viability of representations made regarding future events as the basis for a fraud claim was previously made by FusionStorm at the pleading stage and rejected by the Court, who explained in its order on Defendant’s demurrer to the FAC that:

While Defendant is generally correct that for a representation to give rise to a cause of action for fraud and deceit it must be a statement of fact rather than opinion, and statements as to future actions generally qualify as opinions (see Tarmann, supra), where a party makes a promise to do something without any intention of performing it, a claim for fraud may be maintained. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [stating that “[a] promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud”].) Courts have recognized actionable claims for fraud in circumstances where promises have been made by an employer to a prospective employee about the length of employment. (See, e.g., Lazar v. Superior Court (1996) 12 Cal.4th 631, 638-639; also see Finch v. Brenda Raceway Corp. (1994) 22 Cal.App.4th 547.)

Thus, Defendant’s first argument does not provide a basis upon which to grant its request for summary adjudication of the first cause of action.

Defendant next argues that it did not make any actionably false statements to Plaintiff regarding the specifics of the Gilead assignment, particularly with regard to its duration and start date. Generally, in order to be actionable, a misrepresentation must be an affirmation of fact. (Civ. Code, § 1710(1) [defining actionable deceit as “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true”]; Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 917.) Importantly, “the truth or falsity of the representations must and can only be determined as of the time when they were relied upon by the [plaintiff], and a misrepresentation of fact cannot be justified by an alleged belief wholly unwarranted by the facts.” (U.S Nat. Bank of Los Angeles v. Stiller (1931) 119 Cal.App. 442, 444.)

Defendant submits a plethora of evidence which establishes that at the time it represented to Plaintiff that the Gilead project was a six month commitment, it believed it to be so based on the information that it had received from Gilead itself. Foley specifically states in her declaration that she was directly informed by Gilead on November 3, 2015, that the company was seeking a Symantec Control Compliance Engineer for a position in Foster City lasting six months. (Foley Decl., ¶ 4.) She explains that at no time did anyone inform her that the job or project would last less than six months, and she had no reason to believe that to be the case. (Id.) She further declares that she made no promises to Plaintiff regarding when he would start working at Gilead or when he would stop working there. (Id.) Any information Foley provided to Plaintiff regarding the specifics of the Gilead project were provided directly from Gilead. (Id.) The emails submitted by Defendant between Foley and Rossi support her assertions that she simply passed on to Plaintiff information provided to her by Gilead.

Backhus echoes Foley’s statements, explaining in her own declaration that she was never informed by anyone that the position with Gilead would last less than six months, and she had no reason to suspect otherwise, having been told of the six month length by Foley, who obtained the information directly from Gilead. (Backhus Decl., ¶ 3.) Backhus similarly made no promises to Plaintiff as to when the project would begin or end, and simply operated as an intermediary between him and Gilead. Backhus states that on one of the occasions when she spoke with Plaintiff, who had initially expressed to her that he was not interested in the Gilead position if it was a six month contract but would be interested if it was a contract-to-hire position, she informed him that there was never a guarantee that the position would last longer than six months and never guaranteed to him that it would even last for that period of time. (Backhus Decl., ¶¶ 8-9.)

Further, the independent contractor agreement that Plaintiff signed with Juno in order to work for Gilead stated that the agreement was from January 4, 2016 for approximately “1000 hours with possible extension” (i.e., approximately six months based on a traditional 40 work week) but that it was subject to Juno’s right of termination “at any time prior to the completion of the term of [the] agreement ….” (UMF Nos. 63, 65.) Thus, not only did no one from FusionStorm communicate to Plaintiff that the project with Gilead would definitely last for six months while knowing to the contrary, but the express terms of the agreement with Juno advised him that the anticipated 1000 hour length of employment could be terminated before its completion.

In sum, Defendant presents sufficient evidence to establish that it did not make an actionable “misrepresentation” to Plaintiff regarding the length of his employment with Gilead or the start and end dates of that employment, i.e., a knowingly false statement of fact, and thus has met its initial burden on this claim by negating essential elements of the claim- a misrepresentation and actual knowledge of the falsity of the misrepresentation.

Defendant additionally meets its initial burden by submitting evidence which establishes that it had no intent to deceive Plaintiff in order to get him apply for and take the Gilead assignment. An intent to reduce reliance on a misrepresentation by the plaintiff is essential to establishing liability for an intentional misrepresentation. (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 93.) The absence of such an element defeats a fraud claim. (Textron Financial Corp. v. National Union Fire Ins. Co. of Pittsburgh (2004) 118 Cal.App.4th 1061, 1074.) Here, if Defendant (i.e., Backhus and Foley) was not aware that what it was saying to Plaintiff was false, it could not have possessed the intent to deceive him. As stated previously, Defendant’s evidence demonstrates that Backhus and Foley had no reason to believe that the information that they obtained from Gilead and communicated to Plaintiff regarding the length of assignment or start date was false. Consequently, Defendant has also negated the element of intent.

With Defendant having met its initial burden on the first cause of action for intentional misrepresentation, the burden shifts to Plaintiff to demonstrate the existence of a triable issue of material fact.

At the outset, it must be noted that Plaintiff’s opposing papers suffer from a potentially fatal procedural flaw. Plaintiff has not filed an opposing separate statement responding to each of the material facts Defendant contends are undisputed as required by Code of Civil Procedure section 437c, subdivision (b)(3). “Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 115 [disapproved on other grounds in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42.) When a moving party makes the required prima facie showing, as Defendant has here on the first cause of action, the opposing party’s failure to comply with the requirement of Code of Civil Procedure section 437c, subdivision (b)(3), may, in the court’s discretion, constitute a sufficient ground for granting the motion. (Code Civ. Proc., § 437c, subd. (b)(3); see Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 568.) This is because a separate statement is “not merely a technical requirement, [but] … is an indispensable part of the summary judgment or adjudication process. Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for … summary judgment to determine quickly and efficiently whether material facts are disputed.” (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 415-416 [internal quotations and citations omitted].) Thus, without even reaching the substance of Plaintiff’s opposing memorandum and evidence, and with Defendant having reached its initial burden on the intentional misrepresentation claim, the Court has a basis upon which to grant summary adjudication on the first cause of action in Defendant’s favor.

Even if the Court was inclined to overlook Plaintiff’s failure and consider the substance of his opposition papers, he fails to demonstrate the existence of a triable issue of material fact with respect to the elements of this claim which have successfully been negated by Defendant as part of its prima facie showing. In addressing his first cause of action for intentional misrepresentation, Plaintiff cites the wrong standard for his claim, Labor Code section 970, seemingly in an effort to get around the fact that Defendant’s demurrer to a claim under this code section was previously sustained without leave to amend on statute of limitations grounds. Plaintiff maintains that he possesses evidence of intentional misrepresentations on Defendant’s part, but offers nothing to counter Defendant’s showing that it did not have knowledge of the falsity of any of the representations that it made to him regarding the length of his employment with Gilead or the start/end dates of that employment. Plaintiff appears to be relying heavily on his own subjective beliefs with regard to Defendant’s conduct and intentions, but a plaintiff’s “suspicions of improper motives … primarily based on conjecture and speculation” are insufficient to raise a triable issue of fact. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.)

Neither the contents of Plaintiff’s declaration, nor the exhibits attached thereto, raise triable issues of material fact. In fact, Plaintiff’s declaration is deficient as it is not signed under penalty of perjury under the laws of the State of California as required by Code of Civil Procedure section 2015.5. A declaration that fails in this regard is of “no evidentiary value.” (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.) Consequently, none of the materials attached to the declaration are properly authenticated. (Evid. Code, § 1400.)

At the conclusion of his opposing memorandum, Plaintiff requests that if the Court is inclined to grant summary judgment/adjudication, the Court give him leave to amend his pleading. But Plaintiff does not articulate how amendment would save his claim, which does not suffer from any obvious pleading issues, and his perfunctory request appears designed solely to avoid summary judgment/adjudication. The Court will not provide Plaintiff with leave to amend his claim merely to avoid defeat on this motion. Given his failure to raise a triable issue of material fact, Defendant’s request for summary adjudication of the first cause of action is GRANTED.

3. Negligent Misrepresentation (2nd Cause of Action)

The allegations upon which Plaintiff’s second cause of action for negligent misrepresentation are predicated are nearly identical to the first cause of action, barring the assertion that Defendant had no reasonable grounds to believe its representations to Plaintiff that the job at Gilead would last for a period of not less than six months and would start on November 22, 2015. (FAC, ¶ 29.)

The elements of a claim for negligent misrepresentation are the same as a cause of action for intentional misrepresentation, “except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true.” (Chapman v. Skype, Inc. (2013) 220 Cal.App.4th 217, 231.) Defendant maintains that it is entitled to summary adjudication of this cause of action for some of the same reasons as the first, namely, it did not make any actionable misrepresentations to Plaintiff given the information known to it at the time the alleged misrepresentations were made, and further, that it had no reason to believe that the representations it made to Plaintiff were false. As with the first cause of action, Defendant submits evidence which establishes the foregoing assertions, thereby negating required elements of Plaintiff’s claim. (See Backhus Decl., ¶ 3, 8-9; Foley Decl., ¶ 4; UMF Nos. 14, 16, 17, 20, 24, 25, 28, 33, 34, 36, 37, 39-44, 49, 50, 53, 54, 62, 63, 65, 66-68.) With Defendant therefore having met its initial burden, the burden shifts to Plaintiff to raise a triable issue of material fact.

In his opposition, Plaintiff repeats his unsupported allegation that Defendant knew that the job with Gilead was for less than six months, and otherwise offers nothing which raises a triable issue of material fact as to the second cause of action. Consequently, Defendant’s request for summary adjudication of the second cause of action for negligent misrepresentation is GRANTED.

4. Promissory Estoppel (3rd Cause of Action)

In his remaining cause of action for promissory estoppel, Plaintiff alleges that Defendant promised that the term of his contract with Gilead was to be no less than six months and that, in reasonable reliance on this promise, he suffered damages in the form of relocation costs and foregoing other employment opportunities. (FAC, ¶¶ 40-41, 43.)

“The elements of a claim for promissory estoppel are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (U.S. Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.) For the purposes of this cause of action, a “promise” is “an assurance that a person will or will not do something. (Grandadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 417.) Defendant contends, persuasively, that it never made any promises to Plaintiff regarding the length of his employment on the Gilead assignment and merely passed on information regarding the job opening that it obtained directly from Gilead. (Backhus Decl., ¶ 4; Foley Decl., ¶ 5.) Moreover, it explains that this claim must fail because Plaintiff actually negotiated and executed an enforceable contract with Juno, supported by consideration, for his assignment at Gilead (FAC, ¶ 8), rendering promissory estoppel inapplicable to the circumstances at bar. This assertion is well taken because, as the state Supreme Court has explained, given the significant differences between contract and promissory estoppel claims, such claims are not only distinct and alterative theories of recovery, but also mutually exclusive. (See, e.g. Healy v. Brewster (1963) 59 Cal.2d 455, 463.) “Where the promisee’s reliance was bargained for, the law of consideration applies; and it is only where the reliance was unbargained for that there is room for application of the doctrine of promissory estoppel.” (Id.) Per the evidence submitted by Defendant, Plaintiff’s negotiations through Defendant/Juno for the Gilead assignment resulted in a contract supported by consideration for a position that was projected to be a six month assignment but that could be terminated at-will. (UMF No. 62.)

In any event, even if there was an actionable promise, FusionStorm held up its end of things by successfully connecting Plaintiff with the job assignment at Gilead that was projected to last six months. It had no involvement with Plaintiff’s employment after that point, including Gilead’s decision to end the assignment after four months. (UMF No. 69; Foley Decl., ¶ 45.) Given the aforementioned showing, Defendant has met its initial burden on the remaining cause of action for promissory estoppel. Accordingly, the burden shifts to Plaintiff to raise a triable issue of material fact.

As with the preceding claims, Plaintiff fails to submit admissible evidence which establishes the existence of a triable issue of material fact. He does not address any of the arguments raised by Defendant, including the inapplicability of the doctrine of promissory estoppel given the agreement he executed with Juno for the assignment with Gilead, and proffers no evidence which demonstrates that Defendant made a clear and unambiguous promise that the assignment would last at least six months. Given this failure, Defendant’s request for summary adjudication of the third cause of action for promissory estoppel is GRANTED.

In accordance with the foregoing analysis, Defendant’s motion for summary judgment is GRANTED.

– oo0oo –

Calendar line 3

– oo0oo –