Filed 10/17/19 Priast v. Genentech, Inc. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

FELIPE A. PRIAST,

Plaintiff and Appellant,

v.

GENENTECH, INC.,

Defendant and Respondent.

A153574

(San Mateo County

Super. Ct. No. 16CIV01095)

This is an appeal from final judgment after the trial court granted summary judgment in favor of defendant Genentech, Inc. and against plaintiff Felipe A. Priast in a case involving claims of whistleblower retaliation, breach of the covenant of good faith and fair dealing, and intentional interference with contractual relations. On appeal, plaintiff, proceeding in propria persona, challenges the trial court’s finding that no triable issues of material fact exist on this record with respect to any of his causes of action, as well as the trial court’s refusal to order punitive damages. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February of 2015, plaintiff, an independent contractor in the information technology (IT) industry, was contacted by Advanced Software Talent, LLC (AST), a staffing agency, about a potential project manager role at Genentech, Inc. (Genentech). Genentech, a large biotechnology corporation headquartered in South San Francisco, had a contract with PRO Unlimited, a contingent workforce management provider, to find qualified independent contractors for temporary positions. PRO Unlimited, in turn, had subcontracted with AST to meet the requirements of its contract with Genentech.

In early 2015, Genentech reached out to AST for assistance in hiring a program manager to handle the IT aspects of a program known internally as the Aggregate Spend (AGGS) Optimization program. This large, complex program was launched in early 2015 by Genentech’s IT department and its commercial compliance organization (CCO). Its purpose was to streamline the processing of data compiled by the CCO to meet Genentech’s obligations under federal law to report certain expenditures to healthcare professionals and organizations, including speaker fees, travel and gifts.

Kathleen Crook-O’Donnell, a Genentech manager, was the person in the IT department responsible for the AGGS Optimization program. In that role, Crook-O’Donnell worked with PRO Unlimited and AST to find a qualified independent contractor to manage this program. After Crook-O’Donnell had screened about 30 applicants, AST identified plaintiff as a possible candidate for the position, and on February 18 or 20, 2015, Crook-O’Donnell had an initial phone screening with plaintiff. During their conversation, Crook-O’Donnell explained to plaintiff the scope of the program and advised him that the “then-current[] estimate[]” for the program’s completion was about 18 months. Crook-O’Donnell determined plaintiff was a qualified candidate and, thus, contacted AST about next steps in the hiring process. Eventually, after plaintiff had met with Erin O’Neil in Genentech’s program management office and spoken a second time with Crook-O’Donnell, he was offered the assignment through AST.

On February 27, 2015, plaintiff signed a Contract Employee Services Agreement with AST, one provision of which stated: “The relationship established under this Agreement shall be that of at-will employment in which either Employee or ADVANCED may terminate the relationship, with or without cause, by giving notice consistent with time-frame specified . . . .” Plaintiff was thus hired as an AST employee and, while performing work for Genentech, received compensation and benefits through AST.

On March 9, 2015, plaintiff arrived on Genentech’s South San Francisco campus to begin work. Almost from the start, problems arose between plaintiff and members of the IT and CCO groups. In particular, about 10 days into plaintiff’s assignment, Crook-O’Donnell’s boss was contacted by the director of the CCO, who had some “ ‘preliminary concerns’ ” about plaintiff and asked whether anyone at CCO had interviewed him before he started. In addition, Crook-O’Donnell was surprised to hear plaintiff refer to members of the CCO, which was the IT group’s internal client for the AGGS Optimization program, as “ ‘the ladies of CCO’ ”—language she found unprofessional and belittling. Then, in April 2015, plaintiff clashed with another IT project manager at a meeting after this project manager began reporting on the status of the AGGS Optimization program. According to Crook-O’Donnell, plaintiff interrupted the meeting to reprimand this project manager for reporting on “ ‘his’ ” project. Afterward, two members of the CCO formally complained to Crook-O’Donnell that plaintiff was “aggressive and territorial, combative, and not collaborative. And the Associate Director of CCO asked [Crook-O’Donnell] to prevent him from leading future program meetings—one of his main duties as project manager.”

Around May 12, 2015, plaintiff learned that a colleague from the CCO could not attend a meeting he had scheduled. In response, plaintiff sent out an e-mail to the group canceling the meeting, stating that the cancellation was caused by the colleague’s nonattendance, and apologizing for the inconvenience. This e-mail deeply offended many on the CCO team, and the associate director of the CCO complained to Crook-O’Donnell. Crook-O’Donnell, in turn, warned plaintiff that members of the CCO were deeply offended by his e-mail, which plaintiff described as “ ‘the most stupid excuse for a complaint that I have heard in my life.’ ”

Over the next few weeks, Crook-O’Donnell continued to receive “regular and consistent feedback” from members of the IT and CCO groups that plaintiff’s conduct was “arrogant, offensive, and unprofessional.” Plaintiff acknowledged receiving feedback from Crook-O’Donnell “[a]lmost from the beginning” that implied to him “the reason . . . some [members of the CCO] didn’t like me was because I have a strong and cocky personality.” Crook-O’Donnell soon formed the opinion that, because of plaintiff’s inability to build relationships with his team, he “was never able to fully understand what specific part of the AGGS Optimization program anyone was working on or the goals of the program as a whole.”

These opinions were shared by Ramesh Dhanapal, the lead architect of the AGGS platform. Dhanapal, who talked to plaintiff almost every day during plaintiff’s tenure at Genentech, believed that plaintiff was an ineffective project manager who did not understand the AGGS Optimization program’s operation or objectives.

By late April or early May, Crook-O’Donnell began actively seeking a replacement for plaintiff, realizing that plaintiff could not remain as project manager. By chance, in mid-May, plaintiff discovered Crook-O’Donnell’s efforts to replace him after he was contacted by a recruiter seeking applicants for what he believed was his current project manager position at Genentech. By May 20, Crook-O’Donnell had identified plaintiff’s replacement.

On or about May 26, 2015, Crook-O’Donnell informed plaintiff that his Genentech assignment did not appear to be working, identifying his inability to work effectively with members of the CCO as a primary reason for this. A few weeks later, on June 9, 2015, Crook-O’Donnell told plaintiff that his replacement was starting the next day and asked that he stay for about two weeks to help transition the program to the new project manager. Plaintiff was not surprised by this information because, in his words, “ ‘the signals were already there.’ ” Crook-O’Donnell suggested that plaintiff might be an appropriate candidate for a smaller, less complex program, and later advised AST that she would recommend him for such a position at Genentech.

On June 16, 2015, plaintiff e-mailed an 11-page letter to the assistant of Cynthia Elkins, Genentech’s vice-president for IT, addressing two primary issues—his perceived maltreatment by “ ‘the ladies in the CCO group’ ” and a purported scheme by the AGGS group to “ ‘rip[] off’ ” Genentech by creating “ ‘false resources and false tasks’ ” that were being billed to the company. As to the first issue, plaintiff detailed several incidents of conflict between him and members of the CCO group before insisting that, notwithstanding these incidents, Crook-O’Donnell “doesn’t have the slightest professional argument to fire me other that [sic] the prejudices of the ladies in the CCO group, prejudices that I believe were real at the beginning of the project, but that later faded and, nevertheless, were leveraged and exaggerated by Mrs. Crook-O’Donnell for her own purposes.” As for the second issue, plaintiff admitted having “absolutely no proof” members of the AGGS group (including Dhanapal and Crook-O’Donnell) were ripping off Genentech, yet explained that he had seen this type of “fraudulent racket” before when working with other Indian contractors who, according to plaintiff, were taking financial advantage of their American clients with manufactured and inflated billing.

Plaintiff’s letter ended with a threat: If Genentech did not keep him “ON THE PAYROLL,” he would report “these illegal activities” to federal authorities and sue Genentech for “discrimination, fraud, racketeering and industrial espionage . . . .”

Karen Hall, an employee relations manager at Genentech, and Mike Castellano, a director of healthcare compliance, were called in to investigate the allegations in plaintiff’s June 16 letter. To that end, Hall and Castellano met with plaintiff for several hours on June 18, 2015, discussing his allegations at length. During this meeting, plaintiff acknowledged his June 16 letter was the first time he brought these issues to light, explaining that he had needed time to investigate them on his own. Thereafter, Hall and Castellano interviewed numerous individuals in the AGGS IT and CCO groups, including Crook-O’Donnell, her supervisor Raj Harapanahalli, Erin O’Neil, and Magda Cooley. Each individual denied that plaintiff had ever complained or expressed any concerns about unfair treatment or corporate wrongdoing, such as the improper use of offshore resources. On the other hand, Hall and Castellano received “consistent feedback that Mr. Priast was arrogant, offensive, and unprofessional.” At the conclusion of their investigation, Hall and Castellano were unable to substantiate or corroborate any of plaintiff’s concerns, a result they shared with plaintiff by memorandum dated August 28, 2015.

In October 2015, plaintiff filed a charge with the Equal Employment Opportunity Commission alleging that Genentech discriminated against him on the basis of race, national origin and sex. His charge was dismissed within a few weeks.

In early 2016, plaintiff e-mailed a letter to Genentech with new allegations—that Genentech was committing a conspiracy and fraud against the federal government by “ ‘cooking’ . . . the data to be reported to the FDA . . . .” Plaintiff explained that he had recently realized Genentech’s crimes after reading a fall 2015 article about the Volkswagen emissions fraud case. He demanded that, to avoid litigation, Genentech settle these allegations with him for $750,000. Plaintiff also wrote letters to several federal agencies raising similar accusations.

On August 26, 2016, plaintiff filed a complaint asserting causes of action for wrongful termination in violation of Labor Code section 1102.5, breach of covenant, and interference with contract. He thereafter filed an amended complaint asserting the same three causes of action.

After discovery, which yielded over 19,000 pages of documents in addition to declarations and deposition testimony from multiple witnesses, Genentech moved for summary judgment or, alternatively, for summary adjudication. Plaintiff disputed few of the material facts set forth in Genentech’s summary judgment papers. In doing so, plaintiff conceded that he had made similar allegations of discrimination, retaliation and/or misuse of resources against at least six other companies that he had worked for in the past, and had been terminated from several previous assignments for behavior deemed “ ‘combative,’ ” “ ‘scary’ ” and “ ‘confrontational.’ ” Following a contested hearing, the trial court granted Genentech’s motion, finding: “Under the undisputed material facts, none of Plaintiff’s causes of action have merit.”

Plaintiff’s timely appeal followed.

DISCUSSION

Plaintiff challenges the trial court’s finding that no triable issues of material fact exist as to each of his three causes of action—whistleblower retaliation in violation of Labor Code section 1102.5, subdivisions (b) and (c), intentional interference with contractual relations, and breach of covenant. In addition, with respect to his first cause of action for whistleblower retaliation, plaintiff contends the trial court erroneously applied the prior version of section 1102.5, subdivision (b) rather than the version that became effective January 1, 2014. Lastly, he challenges the trial court’s refusal to award punitive damages. We address each issue in order below.

I. No Triable Issues of Fact.

A. Whistleblower Retaliation (§ 1102.5, subdivisions (b) and (c)).

Plaintiff raises two arguments in challenging the trial court’s finding that there are no triable issues of material fact with respect to his whistleblower retaliation claim. First, plaintiff contends the trial court committed legal error by applying the prior version of section 1102.5, subdivision (b), rather than the more recent version that became effective January 1, 2014. (Stats. 2013, ch. 732, § 6, No. 6B Deering’s Adv. Legis. Service, p. 787.) Second, plaintiff contends that, contrary to the trial court’s ruling, he produced sufficient evidence to demonstrate a prima facie case that his involvement in protected activities led to Genentech’s decision to terminate him.

Beginning our inquiry with the legal issue, both parties agree the current version of section 1102.5, subdivision (b), effective in 2014, should apply. This version provides: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” (§ 1102.5, subd. (b).)

The parties dispute on appeal whether the trial court correctly applied this version of section 1102.5, subdivision (b). Plaintiff insists the court instead applied the previous version of the statute, which is narrower in scope than the current version. Genentech, on the contrary, insists that while the trial court paraphrased the language of section 1102.5 in its written order, it nonetheless relied on the current version. We agree with Genentech.

The trial court’s order states: “Under subdivision (b) [of section 1102.5], an employer is prohibited from retaliating when it believes the employee disclosed or is going to disclose unlawful conduct to government or law enforcement.” As this order reflects, the trial court correctly understood that the statute no longer requires the employee to actually disclose information in order to state a case for whistleblower retaliation. (See Stats. 2003, ch. 484, § 2, p. 3518.) Rather, the statute prohibits retaliation where the employer either believes the employer has previously disclosed, or may in the future disclose, unlawful conduct. (§ 1102.5, subd. (b).) Accordingly, we conclude the trial court applied the correct version of section 1102.5, subdivision (b).

Turning now to plaintiff’s main argument that his section 1102.5 claim should survive summary judgment, we begin with the standard of review. A motion for summary judgment shall be granted if all the evidentiary papers submitted and independently reviewed by this court show there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67 (Morgan).) Accordingly, a defendant “may move for summary judgment in an action or proceeding if it is contended that the action has no merit,” including, for example, when the defendant contends the plaintiff cannot establish one of the essential elements of the action. (Code Civ. Proc., § 437c, subds. (a), (o)(1).) On appeal, we “accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805; see also Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

Further, to prevail on his cause of action under section 1102.5, subdivision (b) (disclosure of information) or subdivision (c) (refusal to participate), plaintiff was required to first establish a prima facie case of retaliation. Only then would the burden shift to Genentech to provide a legitimate, nonretaliatory explanation for its acts. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043 (Yanowitz); Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138 (Mokler).) This burden shifting never occurred here, however, because the trial court agreed with Genentech that plaintiff failed to establish a prima facie case. On appeal, we therefore must consider whether, on this record, plaintiff has successfully demonstrated that (1) he engaged in a protected activity, (2) Genentech subjected him to an adverse employment action, and (3) there is a causal link between the two. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384 (Patten).) The absence of any of these three elements defeats plaintiff’s prima facie case and requires us to affirm the trial court’s finding of no triable issue of material fact with respect to this cause of action. (Ibid.)

We focus here, like the trial court, on the third element of his prima facie showing —the requisite causal link. Assuming an adverse employment action occurred, “ ‘[t]he retaliatory motive is “proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” [Citation.] “The causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’ ” [Citation.]’ [Citation.] ‘Essential to a causal link[, however,] is evidence that the employer was aware that the plaintiff had engaged in the protected activity.’ [Citations.]” (Morgan, supra, 88 Cal.App.4th at pp. 69–70.)

Here, plaintiff contends Genentech’s retaliatory motive was established by statements in his declaration that he engaged in protected activities that included his opposition to certain decisions or strategies pursued by individuals involved in the AGGS Optimization program, as well as his refusal to participate in certain project tasks, which, he contends, led Genentech to terminate him out of fear that he would report its illegalities. For example, plaintiff’s declaration states: “While working at Genentech, Inc., I discovered and opposed multiple illegalities that were taking place inside the Aggregate Spend platform and I also refused to participate, to the extent I could, in the illegalities I was witnessing. Because of that, Genentech terminated my 18-month contract almost 15 months short, causing me great injury and professional harm. I also believe that Genentech, Inc., terminated my employment abruptly because it feared I would report these illegalities to a Government regulatory agency . . . .”

Plaintiff also attested that “I believe that Genentech, Inc., believed I’d discovered these illegalities,” and that “Mr. Dhanapal and Ms. Crook-O’Donnell came to the conclusion that I was about to discover Genentech’s gigantic ‘deception operation’ and conspiracy to defraud the United States Treasury through its main healthcare programs, Medicare and Medicaid, and, in association with others at Genentech, they orchestrated my termination to block me from fully discovering what was really happening.”

Lastly, plaintiff attested that “I believe that as a result of my opposition and refusal to perform activities contravening the laws of California and Federal laws, I was terminated on June 18, 2015, nearly 15 months short of the date represented by Genentech when hired.”

As Genentech notes, however, the trial court sustained its objections to all but one of the above-mentioned statements from plaintiff’s declaration (all but the last one) because the statements improperly assigned a belief or understanding to Genentech or its employees. Plaintiff has not challenged these evidentiary rulings on appeal. Nor could he. (E.g., Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874 [declaration must be based on the declarant’s personal knowledge and must set forth admissible evidence as to which the declarant is competent to testify].) Accordingly, the statements from above referencing the subjective beliefs, motivations or understandings of Genentech, Crook-O’Donnell and Dhanapal do not constitute evidence before this court for purposes of our review. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108, fn. 5 [where plaintiff fails to challenge the trial court’s evidentiary rulings as erroneous on appeal, “we predicate our analysis of the summary judgment ruling on the evidence admitted in the trial court and disregard [plaintiff’s] references to evidence to which objections were sustained”].)

We also reject the statements in plaintiff’s declaration regarding his personal opinions or beliefs that he was terminated because of his “opposition and refusal to perform activities contravening the laws of California and Federal laws . . . .” Plaintiff’s opinions and personal beliefs are wholly speculative, and the law is quite clear: “ ‘ “Speculation . . . is not evidence” that can be utilized in opposing a motion for summary judgment.’ [Citation.] Speculation also differs from a reasonable inference. ‘When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.’ [Citation.]” (Advent, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA (2016) 6 Cal.App.5th 443, 459.)

Moreover, speculation and conjecture aside, plaintiff disregards the undisputed evidence demonstrating that the individuals he worked with at Genentech did not understand him to be opposing any particular business decision or policy or refusing to undertake any particular task because he believed it to be unlawful. For example, plaintiff attested that, in several meetings with Dhanapal and others, he “questioned and opposed many of the technical and other team-related decisions that Mr. Dhanapal took with respect to the ‘Aggregate Spend Optimization’ project” because he concluded the project was “just a façade” created by Dhanapal, Crook-O’Donnell and others “[to deceive] Genentech’s top IT Management, and profit from an illegal racket of fake resources located overseas . . . .” Plaintiff further attested that, between late March and mid-May 2015, he questioned and opposed Dhanapal and Crook-O’Donnell in various instances, or refused to engage in certain tasks, that related to the following issues: (1) the long duration of the data process in the AGGS platform (which he believed was unexplainable); (2) the existence of the offshore team involved in the program that was located in India (which he doubted and protested by refusing to enter the team’s data into the project’s budgeting tool); (3) the business decision to “de-normaliz[e]” data in the AGGS database (which he disagreed with); (4) the “logic” of the business rules being used to filter or standardize data records (which he opined were designed to avoid reporting certain spending records); (5) the project objectives (which he found absurd and refused to enter into the program’s charter documents); and (6) the amount of work Dhanapal intended to deliver for the project (which he found to be artificially low).

However, with respect to each of these issues, plaintiff’s actions or communications to individuals at Genentech reflect his opposition to technical or business aspects of the AGGS Optimization program, not to alleged legal violations or unlawful conduct. While plaintiff insists he believed violations were occurring or were likely to occur, there is no actual evidence in the record that he communicated to anyone at Genentech that his opposition to these technical or business aspects of the program, or his refusal to participate in any aspect of the program, stemmed from his concerns about their illegality. (See Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 852–853 (Mize-Kurzman) [distinguishing between “the disclosure of policies that plaintiff believed to be unwise, wasteful, gross misconduct or the like . . . and the disclosure of policies that plaintiff reasonably believed violated federal or state statutes, rules, or regulations”]; Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1257 [“The tort of wrongful discharge is not a vehicle for enforcement of an employer’s internal policies or the provisions of its agreements with others”].)

In particular, plaintiff’s declaration nowhere states that he told Dhanapal, Crook-O’Donnell or anyone else at Genentech while he was project manager that he was concerned individuals involved in the AGGS Optimization program were engaged in illegal activity (as opposed to being concerned these individuals were making questionable or foolish technical decisions). “[I]t is not the motive of the asserted whistleblower, but the nature of the communication that determines whether it is covered [as a protected act under section 1102.5].” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 852.) And here, the nature of plaintiff’s communications did not reflect any reasonable belief on his behalf that Genentech was violating a state or federal statute, rule or regulation, as section 1102.5 requires. (Cf. McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 471 [prima facie case of whistleblower retaliation demonstrated where “McVeigh did not merely refer the employees he suspected of tag inflation fraud to his superiors for personnel action within Recology. He took his reports to law enforcement, and they were reports of illegal conduct not just ‘internal . . . personnel matters’ ”].) As the trial court correctly noted, questioning and entertaining suspicions do not rise to the level of protective activity for purposes of a whistleblower retaliation claim. (Yanowitz, supra, 36 Cal.4th at p. 1047.)

On the other hand, Genentech offered numerous declarations from individuals involved in the AGGS Optimization program who denied plaintiff communicated any reasonable suspicion that Genentech was involved in illegal activity. First, Crook-O’Donnell, the individual who decided to terminate plaintiff, attested that plaintiff never communicated to her that he opposed any of Dhanapal’s decisions or recommendations, nor did he complain to her about any particular aspect of the AGGS Optimization program or advise her that “anyone at Genentech was engaged in any improper or illegal activity.” Crook-O’Donnell also attested that she was “not aware of any complaints by Mr. Priast whatsoever until I was contacted by Karen Hall in Genentech’s Employee Relations department in the course of her investigation into what I later learned . . . his allegations were. By that time, I had already found and engaged Mr. Priast’s replacement and communicated to Mr. Priast that his work on the program was over, and his replacement had already started.”

Likewise, Karen Hall attested that she and her colleague interviewed numerous individuals in the AGGS IT and CCO groups during their investigation into plaintiff’s allegations in his posttermination June 16, 2015 letter, including Crook-O’Donnell, her supervisor Raj Harapanahalli, Erin O’Neil, and Magda Cooley. According to Hall, “I asked each person I interviewed whether Mr. Priast ever complained to them or expressed any concerns about unfair treatment, any corporate wrongdoing such as the purported improper use of offshore resources, or otherwise. Not one person I interviewed was aware of any complaints or concerns by Mr. Priast.”

Dhanapal, in turn, attested that, while he and plaintiff talked nearly every day while plaintiff worked at Genentech, “I do not recall ever having any discussions with Mr. Priast where he opposed any of the decisions I made or recommended with respect to the Aggregate Spend Optimization program. Nor do I recall Mr. Priast ever complaining to me . . . about anything related to the program . . . , or that anyone at Genentech was engaged in any improper or illegal activity.”

While plaintiff suggests these witnesses were either not forthcoming or not truthful, he presents no actual evidence to refute their statements. As such, he has not demonstrated a disputed issue of fact regarding whether these individuals were aware that he was engaging in protected activity under section 1102.5. (See Kase v. Metalclad Insulation Corp. (2016) 6 Cal.App.5th 623, 646 [a party cannot avoid summary judgment by “ ‘ “ ‘asserting facts based on mere speculation and conjecture’ ” ’ ”].) As our First District colleagues explained in a case where, as here, “all of the actual decision makers” responsible for the adverse employment action affirmatively stated in their declarations that they were not aware of the plaintiff’s grievances or past complaints of retaliation—it is not enough for a plaintiff to respond to the defendant’s declarations with testimony regarding his or her personal beliefs about the decision maker’s thinking or motivation, as such a response “sheds no light on the information in the hands of the decision makers at issue here.” (Morgan, supra, 88 Cal.App.4th at p. 73.) Rather, in “the absence of evidence that the individuals who denied appellant employment were aware of his past filing of a grievance, the causal link necessary for a claim of retaliation cannot be established.” (Ibid.; see also Yanowitz, supra, 36 Cal.4th at p. 1047 [“[‘Employees often do not speak with the clarity or precision of lawyers. At the same time, however, employers need not approach every employee’s comment as a riddle, puzzling over the possibility that it contains a cloaked complaint of [unlawful conduct]’]; [citation]”].)

Finally, we hasten to add that the undisputed record in this case demonstrates that it was not until after plaintiff received notice of his termination from Crook-O’Donnell that he “initiated” his whistleblowing efforts by e-mailing the June 16, 2015 letter to Lisa Fink that identified certain unlawful acts—mainly, discrimination against him by the CCO group and “ ‘ripping off Genentech’ ” by members of the IT and CCO groups (of which he had “absolutely no proof”). And it was not until much later (early 2016) that plaintiff claims he “discovered” Genentech was committing fraud against the federal government (as opposed to certain Genentech employees committing fraud against the company) after reading an article about the wholly unrelated Volkswagen emissions fraud case. Undoubtedly, plaintiff’s assertions regarding events and discoveries occurring after his termination cannot create a disputed issue of fact linking Genentech’s decision to terminate him to his participation in any protected whistleblowing activity.

Accordingly, for the reasons stated, we affirm the trial court’s finding that plaintiff has failed to establish a prima facie case of whistleblower retaliation under section 1102.5, subdivision (b) or (c).

B. Intentional Interference with Contractual Relations.

Plaintiff further contends the trial court erred in finding no triable issue of fact with respect to his cause of action for intentional interference with a contractual relationship. Specifically, plaintiff contends that Genentech’s decision to terminate his assignment interfered with the employment contract he had with AST, a third party recruiting firm. The relevant undisputed facts are as follows.

As mentioned, in 2015, plaintiff signed a contract with AST that provided in relevant part: “The relationship established under this Agreement shall be that of at-will employment in which either Employee or ADVANCED may terminate the relationship, with or without cause, by giving notice consistent with time-frame specified . . . .” Shortly thereafter, plaintiff was assigned to work as project manager at Genentech’s South San Francisco campus through PRO Unlimited, a contingent workforce management provider that had contracted with Genentech. According to Crook-O’Donnell, the person who offered this assignment to plaintiff through AST, the expectation was that plaintiff would project manage the AGGS Optimization program. Throughout this project, plaintiff was not employed by Genentech, but by AST. With Genentech, plaintiff signed an agreement called “Engagement Overview Contingent Workers on Assignment at Genentech” that expressly provided that plaintiff was an “ ‘independent contractor’ ” “ ‘subcontracted through Advanced Software Talent, as an employee of’ ” AST.

On June 9, 2015, Crook-O’Donnell gave notice to plaintiff that his Genentech assignment was ending and that his replacement had been chosen. On June 22, 2015, plaintiff’s relationship with Genentech officially ended. According to her declaration, Crook-O’Donnell made this decision as a result of plaintiff’s “offensive and unprofessional communication style,” which had alienated members of the AGGS Optimization program’s client group, CCO, as well as his apparent inability to adequately understand the project. Nonetheless, Crook-O’Donnell communicated to plaintiff and AST that Genentech would consider him for another assignment with a less complicated project. Although plaintiff was never offered another Genentech assignment, he continued to communicate on and off with AST about other employment opportunities until his relationship with AST “ ‘sour[ed]’ ” and, finally, ended in November 2015—several months after his termination from Genentech.

Based on this record, the trial court found no triable issue of fact with respect to: (1) Genentech’s alleged knowledge of plaintiff’s AST contract, (2) Genentech’s alleged intent to disrupt this contract, or (3) any actual disruption of this contract by Genentech. Accordingly, the trial court granted Genentech’s motion as to this cause of action.

The trial court’s ruling was correct under the circumstances. Plaintiff’s cause of action for intentional disruption of contractual relations required evidence of each of the following: (1) a valid contract between plaintiff and AST; (2) Genentech’s knowledge of this contract; (3) Genentech’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) Yet, here, there is no admissible evidence that Genentech knowingly or intentionally interfered with plaintiff’s contract with AST, or that Genentech caused any actual breach or disruption of plaintiff and AST’s contractual relationship. “ ‘ “To be subject to liability [for inducing a breach of contract], the actor must have knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract.” ’ [Citations.]” (Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 783 (Jenni Rivera).) It is undisputed in this case that, when deciding to terminate plaintiff’s assignment, Crook-O’Donnell informed AST that she would recommend him for another assignment at Genentech if it were less complex than the AGGS Optimization program—an action that supported rather than disrupted his contract with AST. It is also undisputed that plaintiff’s contract with AST continued several months after Crook-O’Donnell terminated him, and that it eventually ended in November 2015. As plaintiff himself explained, his relationship with AST ceased to be civil after he had “a couple of bad exchanges” with AST’s president.

These undisputed facts render impossible on this record any finding of a causal link between Genentech and the termination of plaintiff and AST’s contractual relationship. Simply put, because plaintiff and AST’s contractual relationship continued for a significant period of time wholly independent of any action taken by Genentech, there is no causation for purposes of plaintiff’s cause of action for intentional disruption of contractual relations. (See Jenni Rivera, supra, 36 Cal.App.5th at p. 792 [“causation exists where the plaintiff can show the contract would have been performed in the absence of the defendant’s alleged inducements. ([Citations]; see also 5 Witkin, Summary of Cal. Law (11th ed. 2018) Torts, § 850, p. 1156 [‘[i]t must be alleged and proved that the defendant’s act caused the breach, i.e., that otherwise the contract would have been performed’]”].)

In so concluding, we note plaintiff’s argument on appeal that the evidence sufficed to demonstrate “the intentionality of [Genentech’s] act of terminating [him] . . . .” Clearly, his argument misses the mark. For his contract interference claim, plaintiff was required to establish a prima facie case that Genentech intentionally interfered with his contract with AST, not his agreement with Genentech. As plaintiff’s complaint asserts: “Defendant deliberately ruptured the contractual relationship between Plaintiff and the employment agency, Advanced Software Talent LLC.”

Accordingly, given the absence of admissible evidence supporting essential elements of plaintiff’s cause of action for intentional interference with contractual relations—including the absence of any evidence of an intentional act by Genentech designed to induce a breach or disruption of plaintiff’s contractual relationship with AST and of an actual breach in this relationship—we agree with the trial court that judgment as a matter of law in favor of Genentech on this cause was appropriate. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [defendant entitled to summary judgment upon demonstrating plaintiff has not established a prima facie case].)

C. Breach of Covenant.

Lastly, plaintiff contends the trial court erred in finding no triable issue of fact with respect to his cause of action for breach of covenant, which was premised on two claims: Genentech breached (1) the covenant of good faith and fair dealing by retaliating against him for threatening to blow the whistle on the company’s illegal activity and (2) an oral promise of an 18-month assignment as project manager for the AGGS Optimization program.

As for plaintiff’s first claim, we have already held that he has failed to make a prima facie showing on this record that Genentech retaliated against him for any whistleblowing activities or refusals to act. (Ante, pp. 7–17.) Rather, the undisputed evidence in the record established that Genentech terminated plaintiff’s assignment after fewer than four months because he was not effectively managing the AGGS Optimization program and could not communicate or get along with members of the CCO group, which was the project’s internal client. Accordingly, plaintiff’s retaliation claim based on the covenant of good faith and fair dealing fails for all the same reasons that we rejected his retaliation claim under section 1102.5. The trial court’s ruling on this issue thus stands.

As for plaintiff’s claim regarding an oral promise of giving him an 18-month assignment, we conclude the trial court’s ruling was again proper, as it is undisputed Genentech made no such promise and, moreover, the contract plaintiff signed with AST with respect to his Genentech assignment provided otherwise.

Specifically, plaintiff relies on his declaration, which states that Crook-O’Donnell informed him in his phone screening that the AGGS Optimization program “was an 18-month+ project,” and that James Landry of AST told him the same thing, having received this information from Crook-O’Donnell. In addition, plaintiff claims his promised 18-month term as project manager “mirrored” the provision in his AST contract, which stated, “The term of this Agreement shall be one year and shall be automatically extended to cover the duration of services to be rendered by Employee on behalf of the ADVANCED Client(s) . . . .” Both of these arguments fail.

In his deposition, plaintiff acknowledged understanding that Genentech could end his assignment in fewer than 18 months if Genentech was not satisfied with his performance. Additionally, the “at will” provision in plaintiff’s contract with AST made absolutely clear there was no promise his employment would last any particular length of time—“either Employee or ADVANCED may terminate the relationship, with or without cause, by giving notice . . . .”

Crook-O’Donnell told plaintiff nothing to the contrary. Rather, Crook-O’Donnell attested that, when explaining the scope of the AGGS Optimization program during his phone screening, she told plaintiff the “then-current[] estimate[]” for completion of this program was about 18 months, but she did not make any promise to him regarding the length of his assignment at Genentech. And shortly after plaintiff started at Genentech, Crook-O’Donnell directly warned him that the project had not yet been fully funded and discouraged him from entering into a long-term residential lease. Plaintiff admits that Crook-O’Donnell is the only person at Genentech with whom he discussed the project’s duration.

This undisputed evidence, we conclude, established that no one at Genentech guaranteed plaintiff a position for any particular duration; rather, plaintiff entered into a service agreement with AST that contained an “at will” provision, meaning he could be terminated by AST at any time. Contrary to plaintiff’s argument, the mere fact that the project was described to him as lasting about 18 months does not constitute a guarantee that plaintiff would work on the project for 18 months.

Accordingly, for the reasons stated, we affirm the trial court’s finding that plaintiff’s cause of action for breach of covenant has no merit.

II. No Right to Punitive Damages.

We quickly dispose of plaintiff’s last argument—that the trial court erred in dismissing his claim for punitive damages after concluding there were no triable issues of material fact as to any of his causes of action. Because Genentech is entitled to judgment as a matter of law on all of plaintiff’s causes of action, there is no basis for awarding him any damages, let alone punitive damages. (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1242.)

DISPOSITION

The judgment is affirmed.

 

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Wick, J.*

WE CONCUR:

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Siggins, P. J.

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Petrou, J.

A153574/Priast v. Genentech, Inc.