Case Name: Ron Pascual v. Odyssey Healthcare, Inc., et al.
Case No.: 15CV289297

This is an employment dispute brought by Plaintiff Ron Pascual (“Plaintiff”) against his former employer(s), Defendants Odyssey Healthcare, GP, LLC, Gentiva Hospice Foundation and Kindred Health Services (“Defendants”). Currently before the Court is Defendants’ motion for summary judgment/adjudication of the only two remaining causes of action in the operative Second Amended Complaint (“SAC”), the first cause of action for breach of implied contract not to terminate but for good cause and the second cause of action for concealment.

The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The opposing party may be bound by admissions made in deposition testimony or responses to discovery. “[I]n opposing a summary judgment motion, a plaintiff may not create a disputed issue of fact by contradicting his or her deposition testimony with an affidavit or declaration.” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 177.) “Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ‘conclude there is no substantial evidence of the existence of a triable issue of fact.’”) (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are invalid and denied.

Defendants’ Motion for Summary Judgment is GRANTED as follows.

First Cause of Action (Breach of Implied Contract Not to Terminate but For Good Cause)
Even if it is assumed for purposes of argument that the running of the statute of limitations for this cause of action was equitably tolled until the administrative proceedings Plaintiff participated in concluded, Defendants have established that they are entitled to judgment on this claim.

As the Court has noted in prior orders in this case Plaintiff has alleged an implied contract not to terminate but for good cause, not an oral contract. “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code §1621, emphasis added.) An implied contract is not an oral contract. Those cases that have found an implied in fact promise not to discharge but for good cause have done so where a plaintiff has alleged and proved a course of conduct, including oral representations, supporting such a finding. (See Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 675-676; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 337; Stillwell v. Salvation Army (2008) 167 Cal.App.4th 360, 380.) “‘There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.’ The express term is controlling even if it is not contained in an integrated employment contract. Thus, the … at-will agreement precluded the existence of an implied contract requiring good cause for termination.” (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38; See also Halvorsen v. Aramark Uniform Servs. (1998) 65 Cal.App.4th 1383, 1388 [“factors supporting a finding of an implied-in-fact employment agreement are irrelevant when, as here, there is an express agreement.”])
Generally, “It is . . . solely a judicial function to interpret a written instrument unless the interpretation turns on the credibility of extrinsic evidence.” (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 724.) “The analysis of ambiguity is not necessarily limited to the words of the contract. Trial courts are required to receive provisionally any proffered extrinsic evidence that is relevant to show whether the contractual language is reasonably susceptible to a particular meaning. . . . If the court determines there is no ambiguity—that is, the language is reasonably susceptible to only one interpretation—then the judicial inquiry into meaning is finished and the clear and explicit meaning governs.” (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 390, internal citations omitted.)

The documentary evidence submitted by Defendants establishes that Plaintiff’s employment with Defendants was expressly at-will, and that no contrary implied-by-conduct contract existed.

Defendants have established that when he was hired on March 11, 2011 (see UMF 2, undisputed by Plaintiff as to date) Plaintiff signed a series of documents. He signed an “Acknowledgement of Understanding” stating that he “received, read and understood the Odyssey HealthCare/VistaCare Employee Handbook.” The “Acknowledgement” (submitted as exhibit D to the declaration of Defense Counsel Benjamin Emmert) among other things states that the employee is “aware that my receipt of this handbook does not imply a contract of or right to employment for any particular length of time from Odyssey HealthCare.”

The Employee Handbook itself (which is titled “Employee Resource Guide,” portions of which are submitted as exhibit E to the Emmert declaration) states in pertinent part on page 40 under the heading “Employment At-Will” that “all employees of Odyssey HealthCare are employees at will and, as such, are free to resign with or without reason and with or without advance notice. Similarly, Odyssey HealthCare may terminate the employment of any employee at any time with or without reason, and with or without advance notice. . . . No officer, director, supervisor or employee of Odyssey HealthCare, other than the SVP & Divisional CEO, is authorized to (i) promise, agree to, or enter into any contract of employment with, or make a contractual commitment or guarantee of permanent or continuing employment to, any employee. If an employee believes for any reason that (i) he/she cannot freely resign from employment from Odyssey HealthCare; or (ii) Odyssey HealthCare may not, because of some written or oral statement, representation, or promise made to the employee, terminate his/her employment without reason or advance notice, he/she should immediately inform the SVP & Divisional CEO who will investigate the matter and clarify the parties’ relationship. Failure to provide such notice constitutes an employee’s acknowledgement of and agreement to employment on the terms and conditions stated in this manual and any other employment policies of Odyssey HealthCare.” The “Guide” also contains a “Performance Evaluations” section (Exhibit E, at pg. 67) which includes the following language: “3. No Modification of At-Will Employment Status. The performance evaluation policy and system is not intended to be understood as in any way modifying or superseding the Company’s policy of employment at-will, nor the employee’s agreement regarding the at-will status of the employee’s employment and compensation.”

Plaintiff also signed a “Memorandum of Employee’s Agreement” on March 11, 2011 (submitted by Defendants as exhibit F to the Emmert Declaration). It states in pertinent part that: “In consideration of my employment by Odyssey HealthCare, Inc., or any affiliate thereof (collectively Odyssey), I acknowledge and agree to the following: . . . 6. My obligations and Odyssey’s rights contained in this Memorandum of Employee Agreement does not bind either party to any specific period of employment. 7. It is understood that this Memorandum of Employee’s Agreement does not bind either party to any specific period of employment.” Defendants have also established that in his deposition testimony (excerpts of which are submitted as exhibit A to the Emmert declaration) Plaintiff confirmed that he had received and signed all of these documents. In his verified discovery responses (particularly his responses to requests for admission 8-10 submitted as exhibit L to the Emmert declaration) Plaintiff also confirmed his receipt and signing of these documents.

This evidence (particularly exhibits D-F which the Court finds to be unambiguous in establishing that the only employment offered to Plaintiff by Defendants was at will employment) as well as Plaintiff’s deposition testimony submitted as exhibit A to the Emmert declaration (admitting he received and signed the documents and that no one told him he had an employment contract for a specific term, meaning the statutory presumption of at will employment stated in California Labor Code §2922 applies) is more than enough to meet Defendants’ initial burden and establish that the employment relationship between Plaintiff and Defendants (regardless of any claimed confusion as to which exact entity was Plaintiff’s employer) was always at will and this had been expressly acknowledged by Plaintiff from the beginning of the employment relationship through his signature on documents clearly stating as much. Defendants’ evidence, particularly Plaintiff’s signed acknowledgement that he had read and understood the “Employee Resource Guide” expressly stating in part that no one “other than the SVP & Divisional CEO” could alter the expressly at will employment relationship also establishes that any alleged oral representations by “hiring manager” Anita Tubig (see SAC at ¶¶ 32-37) could not reasonably lead Plaintiff to believe that any “implied” contract had replaced the at will employment contract whose existence he had acknowledged in writing. The existence of an at will employment agreement precludes any finding of an implied contract to only terminate for good cause.

When the burden shifts to Plaintiff he is unable to raise any triable issues of material fact. Plaintiff’s statement in his opposing declaration (at ¶ 19) that he had a subjective belief that “Memorandum of “Agreement” he signed was only meant to provide protection for confidential information and trade secrets does not raise any triable issue as to the existence of an implied-by-conduct employment contract. Nor does his statement (at ¶¶ 21-26) that he understood based on statements made by Anita Tubig while they reviewed the “Guide” that he could not be terminated without a disciplinary process. The Court notes that a complete copy of Defendants’ employee handbook (the “Employee Resource Guide”) was included with exhibit J to the Emmert declaration (the requests for admission Plaintiff responded to). The “discipline and discharge” section of the “Guide” clearly states (see paragraphs 2.2 and 3.4) that if warranted an employee may be immediately terminated without any discipline procedures. In short the disciplinary process described in the “Guide” cannot be reasonably interpreted as altering the at will nature of the employment.

The declaration submitted by Plaintiff’s counsel Karen Larson states that it was “[e]xecuted this 18 of December 2018 at Marco Island, Florida under penalty of perjury.” This does not comply with CCP § 2015.5. “Out-of-state declarations that do not state they were made ‘under penalty of perjury under the laws of the State of California’ (Code Civ. Proc., § 2015.5) are not deemed sufficiently reliable to be admitted into evidence.” (Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 604, citing Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610-611 [a declaration executed out-of-state submitted in opposition to summary judgment motion, was invalid where it did not state it was made “under the laws of the State of California.”] See also ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217 [citing Kulshrestha and stating that a “declaration in opposition to the motion to quash was not signed under penalty of perjury under the laws of the State of California as required by section 2015.5. It therefore had no evidentiary value and we shall not consider it in our review of the jurisdictional issue.”])

Second Cause of Action (Concealment)

Again, even if it is assumed for purpose of argument that triable issues of material fact remain as to whether the second cause of action is time-barred, Defendants have still established that they are entitled

The elements of a cause of action for fraud based on concealment are: (1) the defendant had a duty to disclose the concealed or suppressed fact to the plaintiff; (2) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; and (3) the plaintiff was damaged as a result. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1198.) “A failure to disclose a fact can constitute actionable fraud or deceit in four circumstances: (1) when the defendant is the plaintiff’s fiduciary; (2) when the defendant has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations that are misleading because some other material fact has not been disclosed.” (Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255.) “To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 745.) The employer-employee relationship is not one of the relationships that give rise to a fiduciary duty as a matter of law. “Employment-type relationships are not fiduciary relationships.” (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency §3.) Where no fiduciary relationship exists between the parties silence alone is insufficient to support a cause of action for fraudulent concealment. (Crayton v. Superior Court (1985) 165 Cal.App.3d 443, 451 [“mere silence is not concealment unless a preexisting duty to disclose exists”].)

Plaintiff is bound by the SAC on summary judgment. The SAC expressly alleges in the second cause of action at ¶ 169 that Defendants “as a result of the express agreement not to terminate [Plaintiff] without good cause and due process and implied agreement not to terminate [Plaintiff] based on false evidence, had a duty not to fabricate evidence and not to conceal exculpatory evidence.” As noted above in the discussion of the first cause of action, Defendants have established through admissible evidence that there was no such implied agreement not to terminate without good cause, much less an express agreement not to do so. Therefore the only basis for the required duty to disclose that is alleged in the SAC disappears.