Horn v. Cushman & Wakefield Western, Inc.

• Decision Date: 06 May 1999
• Docket Number: No. A079626,A079626
• Citation: 85 Cal.Rptr.2d 459,72 Cal.App.4th 798
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 4202, 1999 Daily Journal D.A.R. 5265 Stanford HORN, Plaintiff and Appellant, v. CUSHMAN & WAKEFIELD WESTERN, INC., Defendant and Respondent.

Page 459

85 Cal.Rptr.2d 459

72 Cal.App.4th 798, 99 Cal. Daily Op. Serv. 4202,

1999 Daily Journal D.A.R. 5265

Stanford HORN, Plaintiff and Appellant, v. CUSHMAN & WAKEFIELD WESTERN, INC., Defendant and Respondent.

No. A079626.

Court of Appeal, First District, Division 2, California.

May 6, 1999.

Review Denied July 28, 1999.

John A. McGuinn, McGuinn, Hillsman & Palefsky, San Francisco, for Plaintiff and Appellant.

Nancy E. Pritikin, Littler Mendelson, San Francisco, for Defendant and Respondent.

KLINE, P.J.

INTRODUCTION

Appellant Stanford Horn appeals from a judgment of the San Francisco Superior Court dismissing his action for age discrimination and breach of employment contract against respondent Cushman & Wakefield Western, Inc. (hereafter "C & W") following the court's grant of C & W's motion for summary judgment. Horn contends the court erred in granting summary judgment. He argues: (1) the trial court erred in weighing the evidence; (2) Horn produced sufficient evidence which would have allowed a jury to infer the reasons given by C & W for his discharge were pretextual; (3) the court erred in granting summary judgment on Horn's causes of action for breach of implied contract and breach of the covenant of good faith and fair dealing arising out of his termination. We shall affirm the judgment.

STATEMENT OF THE CASE

On February 13, 1996, Horn filed a complaint based upon his alleged wrongful termination from C & W. The complaint sought damages for age discrimination in employment; breach of implied contract to terminate only for good cause; and breach of the covenant of good faith and fair dealing. Following discovery in the case, C & W moved for summary judgment. On June 5, 1997, the trial court heard argument on the motion. At the conclusion of the hearing, the trial court adopted its tentative ruling in favor of C & W as to Horn's contract-based causes of action and dismissed those claims. The court took Horn's age discrimination claim under submission. On June 10, 1997, the trial court issued an order granting C & W's motion for summary judgment/summary adjudication, finding no evidence to suggest Horn's termination was motivated by age animus or that C & W's reason for terminating him was pretextual. On July 14, 1997, a formal order granting the motion was filed. A judgment dismissing the action was entered on August 7, 1997. A timely, albeit premature, notice of appeal was filed on July 29, 1997.

STATEMENT OF FACTS ¹

In June 1990 Horn was hired by C & W, a commercial real estate company, as Regional Communications Manager for the Western Region. Horn was then 55 years old. Before joining C & W, Horn had worked at Horn was hired by C & W's Regional President John Renard ² and Horn reported directly to Renard. During his employment with C & W, Horn's performance evaluations, all written by Renard, were positive. On three of the four evaluations (including the last two), Horn's work was evaluated as "exceeds expectations" which was defined as: "demonstrates definable above average performance in most areas of the job. Frequently exceeds and always meets the established objectives and standards of the job." However, those same evaluations suggested that Horn "be more creative and more assertive in his dealings," that greater effort be made to "involve him more as a problem solver in the advertising, communications and p.r. arena" as well as in "exclusive marketing projects," and that he "exhibit greater initiative through active participation in challenging assignments." Horn received numerous commendations for his work at C & W, including written commendations from Renard, the Chief Operating Officer, the San Francisco branch manager, local office managers and sales people, and others. The San Francisco Examiner described the manner in which Horn related to the press as "the most professional approach to real estate public relations in California." He had a very good working relationship with Renard.

Coldwell Banker for 21 years as Director of Public Relations and Corporate Communications. He had also previously worked for four and one-half years as Assistant Director of the Marketing Division at the San Francisco Examiner and then for six and one-half years as Advertising and Sales Promotion Manager at two San Francisco radio stations. He held a California real estate license and a Masters degree in journalism.

In 1994, C & W undertook a company-wide reorganization by changing from a branch-office concept to a market-area concept. The change was designed to provide a seamless point of contact for the company's clients and was intended to make C & W more user friendly and responsive to its clients' needs. As of January 1994, although still reporting directly to Renard, Horn also began reporting indirectly to Barbara Van Allen, the newly-hired National Communications Director for C & W, who was stationed in New York. As a result of the reorganization, ten to twelve members of C & W's management team were terminated. In October 1994 Horn prepared a news release regarding the reorganization, which was approved by Renard and by C & W's East coast offices. After Horn circulated the news release to the press, a local business newspaper ran a story about C & W's reorganization, using phrases such as "blood flows in the hallways at Cushman and Wakefield" and "heads are axed." Horn saw the story early that evening. He sent a copy of it to Van Allen by overnight courier, so that it would arrive by 9:00 a.m. the next morning. Before it reached her, Van Allen heard about the story from one of her bosses. When Horn arrived at work the next morning, he received a call from Van Allen, who told him that before 9 a.m. someone asked her about the story, and she was very embarrassed because she had not seen it. When Horn explained he had sent the story to her by overnight mail, Van Allen replied, "[t]his is 1994, haven't you ever heard of a fax before?"

Consistent with the goals of the reorganization, Renard decided to restructure the Regional Communications Manager position by changing the position's focus from internal communications to external communications and public relations. Renard considered Horn for the restructured position, but concluded that Horn's skills and abilities were not the most suitable for the position. Renard believed that Horn was more of a "technician" than a " salesman." According Van Allen and Renard discussed Horn's performance on three to ten different occasions within the sixty to ninety days before Horn was terminated. Van Allen and Renard discussed with what she termed Horn's "lack of urgency" and "lack of a strategic focus" and "lack of sensitivity to the marketplace" and to the "client-driven nature of Cushman and Wakefield" that the company was moving toward.

                to Renard, "Stan did a job which met expectations, sometimes exceeded expectations, but we had a different vision going forward, and we were looking for somebody who was really going to stand out in that particular area, and Stan very candidly never stood out as an outstanding marketing individual."   Renard had in mind someone with stronger sales and marketing skills who could effectively work with brokers and market the company.  He did not ask Horn about his experience in marketing and sales
                

Renard sought Van Allen's input on the restructuring of the position and Horn's termination, but he made the decision himself. Van Allen concurred.

On December 5, 1994, Renard informed Horn he was terminated, effective January 31, 1995. Referring to a memo prepared by the human resources department, Renard told Horn that his termination was a result of the changes that were occurring in the company and that the functions of the Regional Communication Manager's position were being reorganized. Horn reacted by stating to Renard, "It's been a good five-year run." Horn was then 59 years old. Renard was 56 years old at the time he made the decision to terminate Horn.

After Horn was terminated, C & W sought to fill the restructured position. Approximately ten individuals were interviewed for the job. On August 1, 1995, 38-year-old Gary Marsh was hired for the position of Regional Communications Manager. Marsh had two years' recent experience as a reporter covering, among other things, real estate news and had nearly seven years' experience in sales and marketing.

DISCUSSION

I. Age Discrimination

A. The law.

Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment bears the initial burden of proving the "cause of action has no merit" by showing that one or more elements of plaintiff's cause of action cannot be established or there is a complete defense. (Code Civ. Proc., § 437c, subds. (a), (o)(2); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213, 51 Cal.Rptr.2d 642; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1730-1731, 35 Cal.Rptr.2d 181.) Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. (Ibid.)

"This court reviews de novo the trial court's decision to grant summary judgment and we are not bound by the trial court's stated reasons or rationales. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951 ....)" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001, 67 Cal.Rptr.2d 483 (Hersant ).) 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. (Ibid.) However, to defeat the motion for summary judgment, the plaintiff must show ' "specific facts," ' and cannot rely upon the allegations of the pleadings. (Ibid.; Snyder v. United States Fidelity & Guarantee Co. (1997) 60 Cal.App.4th 561, 565, 70...