Binder v. Aetna Life Ins. Co.

• Decision Date: 14 October 1999
• Docket Number: No. B119881.,B119881.
• Citation: 89 Cal.Rptr.2d 540,75 Cal.App.4th 832
• Court: California Court of Appeals Court of Appeals
• Parties: Ian C. BINDER, Plaintiff and Appellant, v. AETNA LIFE INSURANCE COMPANY et al., Defendants and Respondents.

89 Cal.Rptr.2d 540

75 Cal.App.4th 832

Ian C. BINDER, Plaintiff and Appellant, v. AETNA LIFE INSURANCE COMPANY et al., Defendants and Respondents.

No. B119881.

Court of Appeal, Second District, Division 2.

October 14, 1999.

Certified for Partial Publication.^* Review Denied Feb. 16, 2000.

Berry & Perkins, James H. Berry, Jr. and W. Paul Baskett, Los Angeles, for Plaintiff and Appellant.

Morrison & Foerster, B. Scott Silverman and Michael S. Chamberlin, Los Angeles, for Defendants and Respondents.

ZEBROWSKI, J.

Plaintiff employee sued defendant employer for 1) breach of an implied-in-fact contract not to terminate except for "good cause," and 2) age discrimination. The trial court granted summary judgment for the defendant employer. The plaintiff employee appeals.

The evidence suggests a strong possibility, perhaps a strong likelihood, that a trier of fact would resolve the issues in favor of the defendant employer on the "good cause" termination issue. It is not so clear from the evidence presented, however, that a reasonable trier of fact would necessarily have to resolve the issues in favor of the defendant employer. To assist in further development of the issues, we authorized further briefing. Both sides presented skillfully prepared and helpful letter briefs. Although the issue is close, we conclude that the evidence did not conclusively establish that there were no triable issues of material fact regarding the meaning of the parties' implied agreement and whether what the plaintiff employee did amounted to "good cause" to terminate within that meaning. In the published portion of this opinion, we will therefore reverse the summary judgment on plaintiffs claim of breach of implied contract.

In the unpublished portion of this opinion, we will conclude that the defendant employer's summary judgment motion did not negate plaintiffs prima facie case of age discrimination. Hence we will also reverse the summary judgment on that claim.

I. Summary judgment standards. a. How the evidence must be viewed.

Since this appeal follows the granting of summary judgment, the evidence must be examined according to summary judgment standards. Examining evidence in light of summary judgment standards is far different from applying the substantial evidence test that often governs on appeal. In the judgment after trial context the evidence need only be sufficient to support the judgment for the winning party, even though the evidence might, in another reasonable mind, also have supported a judgment for the losing party. In the summary judgment context, by contrast, the evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment. Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.

In Part II, we summarize the evidence in light of the applicable summary judgment standards. In this section, we describe the principles of summary judgment law which dictate how we must view the evidence at this procedural juncture.

Although summary judgment might no longer be considered a "disfavored" procedure, (see, e.g., Henley, Action Guide, Making and Opposing a Summary Judgment Motion, p. 15 (Cont.Ed. Bar 1998); Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1999) § 10:278), the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed. "Because of the drastic nature of the summary judgment procedure, and the importance of safeguarding the adverse party's right to a trial, the moving party must make a strong showing. His affidavits are strictly construed .... [¶] On the other hand, the affidavits of the party opposing the motion are liberally construed." (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 218, p. 630.) "Reflecting the `cautious' judicial attitude about granting summary judgment ... the declarations and evidence offered in opposition to the motion must be liberally construed, while the moving party's evidence must be construed strictly, in determining a `triable issue' of fact.' (Weil & Brown, supra, § 10:309, p. 10-114.)

On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. (Cf., e.g., Weil & Brown, supra, § 10:270, p. 10-105 [citing cases].) Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. "Any doubts about the propriety of summary judgment ... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors." (Henley, supra.)

A defendant can qualify for summary judgment by showing that an element of plaintiffs cause of action cannot be established. (Code of Civ. Proc. § 437c, subd. (o)(2); see also, e.g., Weil & Brown, supra, § 10:240, p. 10-85.) In the instant case, plaintiff is suing for breach of contract. The elements of plaintiffs cause of action therefore include contract formation and breach. (See, e.g., Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 654-655, 51 Cal.Rptr.2d 907 [plaintiff seeking contract recovery must plead and prove contract formation and breach].) Defendant here could therefore qualify for summary judgment by demonstrating, on the basis of undisputed facts, either a lack of contract formation or a lack of breach.

In the context of a "good cause" contract which is only implied by conduct over a period of time, formation and breach cannot always be temporally and otherwise neatly distinguished. Issues of contract formation and contract breach consequently tend to meld together. If an employee is fired for a particular cause, the employer might argue that the parties never formed a contract agreeing not to terminate for that particular cause (thus attacking the contract formation element). Or the employer might argue that the parties' contract classifies the particular cause in question as "good cause" (thus attacking the breach element). Either argument, if factually supported, defeats the plaintiffs breach of contract claim.

Even though plaintiff bears the burden of proof at trial, a moving defendant bears the initial burden of showing the lack of any triable factual issue. (See, e.g., Pieper v. Commercial Underwriters Ins. Co. (1997) 59 Cal.App.4th 1008, 1015, 69 Cal.Rptr.2d 551 ["The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial."].) A responding plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden. (See, e.g., Weil & Brown, supra, § 10:249, 10:261.) Only after the moving defendant meets its initial burden does the burden shift to the plaintiff to demonstrate the existence of a triable issue. (See, e.g., Pieper, supra, at p. 1015, 69 Cal.Rptr.2d 551.) Hence, in a motion such as the one involved here, the court must initially determine whether the moving party has presented evidence establishing that the contractual terms claimed by plaintiff never came into existence, or in the alternative has presented evidence establishing that the contractual terms that did come into existence were never breached.

The trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. (See, e.g., Weil & Brown, supra, § 10:272.) Nor may the trial court grant summary judgment based on the court's evaluation of credibility. (See, e.g., Weil & Brown, supra, § 10:272.10 et seq. [citing cases].) Nor may the trial court grant summary judgment for a defendant based simply on its opinion that plaintiffs claims are "implausible," if a reasonable factfinder could find for plaintiff on the evidence presented. (But see, e.g., Weil & Brown, supra, § 10:260.10 et seq. [discussing and distinguishing substantive "implausibility" limitations on permissible inferences from circumstantial evidence in Federal antitrust law].)

The court must consider not only the bare evidence, but also the reasonable inferences deducible from the evidence (see, e.g., Weil & Brown, supra, § 10:302), and determine whether the evidence is sufficient to support a potential judgment in favor of the opposing party. (See, e.g., Weil & Brown, supra, § 10:260; Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 739, 60 Cal. Rptr.2d 710 ["Under the new method for establishing a prima facie entitlement to summary judgment, the moving party must demonstrate a negative, i.e., that there is no evidence to support an element of the opponent's case. This is akin to the burden of an appellant in proving there is no substantial evidence in support of a judgment."]; cf. Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 [applying Federal law; "... summary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party"].)

In view of these principles, we state the facts in Part II below in the manner in which the evidence would permit the facts to be decided most favorably to the plaintiff.

b. Whether "good cause" can be determined on a summary judgment motion.

Plaintiff contends that the existence or absence of good cause to terminate is inherently an issue of fact which cannot be decided on summary judgment. The cases, however, hold otherwise. As a general matter, "[l]ike other civil causes of action,...