Wilkerson v. Wells Fargo Bank

• Decision Date: 07 August 1989
• Citation: 261 Cal.Rptr. 185,212 Cal.App.3d 1217
• Court: California Court of Appeals Court of Appeals
• Parties: , 115 Lab.Cas. P 56,259, 4 IER Cases 1057, 4 IER Cases 1217, 5 IER Cases 672 H. William WILKERSON, Plaintiff and Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, Defendant and Respondent. Civ. B037184.

Page 185

261 Cal.Rptr. 185

212 Cal.App.3d 1217, 115 Lab.Cas. P 56,259, 4 IER Cases 1057,

4 IER Cases 1217, 5 IER Cases 672

H. William WILKERSON, Plaintiff and Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, Defendant and Respondent.

Civ. B037184.

Court of Appeal, Second District, Division 3, California.

Aug. 7, 1989.

As Modified Aug. 28, 1989.

Review Denied Dec. 7, 1989.

Kerry M. Kinney, Calabasas, for plaintiff and appellant

Brobeck, Phleger & Harrison, John J. Wasilczyk, Earle Miller and Leslie R. Brown, Los Angeles, for defendant and respondent.

KLEIN, Presiding Justice.

Plaintiff and appellant H. William Wilkerson (Wilkerson) appeals from a judgment following a grant of summary judgment in favor of his former employer, defendant and respondent Wells Fargo Bank, National Association (Wells Fargo or the Bank).

The at-will provisions set forth in the Bank's employee handbook and its Service and Operations Manual (SOM) do not establish Wilkerson's employment was at-will as a matter of law, in the face of contrary evidence that Bank policy was to terminate only for good cause.

The Bank's alleged good faith belief it had good cause does not dispose of Wilkerson's claims.

Triable issues of material fact exist as to whether (1) there was an implied-in-fact contract to terminate only for good cause and (2) whether Wilkerson's discharge was consistent with Bank policies and supported by good cause. The judgment therefore is reversed in part and affirmed in part.

FACTUAL & PROCEDURAL BACKGROUND

On December 9, 1982, a collection letter from an attorney, addressed to Wilkerson, was received at the Bank's Santa Monica branch. The letter stated Wilkerson had been a guest at the Colonial Inn in La Jolla on the night of September 22, 1982, and Wilkerson had assured the hotel manager that one John Valardi "would have the necessary funds deposited into his account with [the] bank to pay his bill." The collection letter held Wilkerson, as the registered guest, personally liable for the $95.40 balance. Wilkerson conceded Valardi was a Bank customer and that he, Wilkerson, had attended a play in La Jolla on the night of September 22, 1982, and had been investigating the possibility of Valardi's company securing a loan. The Bank's Code of Corporate Responsibility and Ethics prohibited employees from accepting gifts from customers or potential customers of greater than "nominal value (generally no more than $50.00)."

Wells Fargo thereafter undertook an investigation and learned of another irregularity involving Wilkerson and another bank customer, Sandra Turner (Turner).

In early September 1982, Turner came into the Santa Monica branch and advised Wilkerson she wished to deposit several checks which would cure her overdraft situation at the time and also enable her to pay Wilkerson $300 which she owed him in connection with a personal educational loan. Wilson accepted two checks from Turner in the amount of $150 each and negotiated them.

The following day, September 11, 1982, Wilkerson approved a $77.23 overdraft on Turner's account, which overdraft had been caused by the two $150 checks and bank fees. Bank policy prohibits employees from personally benefiting from transactions or making a loan to themselves.

According to Wilkerson's declaration, at the time he approved the $77.23 overdraft, he did not believe the overdraft was caused by the checks paid to him, and he did not understand that approval of the overdraft was in essence an unsecured loan to himself. Wilkerson characterized the Turner incident as an unintentional violation of Bank policy which did not constitute good cause for termination.

According to the Bank, however, approving a particular overdraft for one's own benefit is a nonperformance related issue; only performance-related deficiencies would first result in a written warning. The SOM provided that certain grounds, including dishonesty and violation of the Code of Corporate Responsibility and Ethics, constitute grounds for immediate termination without warning. The On October 15, 1987, Wilkerson filed a second amended complaint alleging wrongful discharge by Wells Fargo, setting forth 10 causes of action, four of which are in issue on appeal and summarized below.

Bank considered the Turner transactions to be a reportable irregularity and reported Wilkerson's actions to the FBI and the Regional Administrator of National Banks. The Turner matter was the Bank's stated justification for terminating Wilkerson on January 6, 1983.

In his first cause of action for wrongful discharge, Wilkerson plead in substance: On June 1, 1979, pursuant to an oral contract, he was hired by Wells Fargo for the position of loan officer. Under said contract, which was modified by certain policies, practices and assurances, the employment was to continue so long as Wilkerson performed satisfactorily, and discharge would be only for good cause proven in accordance with the Bank's policies and practices. Wilkerson's expectation of continued employment was based on, inter alia, exemplary performance reviews, success in developing and maintaining customer relations, and his elevations to assistant manager and then deposit team leader at the Bank's Santa Monica branch. Despite Wilkerson's satisfactory performance, during the period between December 8, 1982 and January 6, 1983, he was removed from the Santa Monica branch without good cause, denied the opportunity to be heard in the course of the ensuing investigation, and finally discharged without good cause on January 6, 1983.

In the fourth cause of action for breach of the implied covenant of good faith and fair dealing, Wilkerson alleged the Bank's conduct was in bad faith and for the purpose of depriving him of his rights and benefits under the employment relationship.

The fifth cause of action alleged wrongful discharge in violation of California public policy ensuring the privacy of its residents. Wilkerson plead the Bank violated said policy by failing to safeguard information regarding his termination.

The tenth cause of action alleged the Bank acted with fraud, oppression, malice and conscious disregard of Wilkerson's rights and sought punitive damages.

The Bank answered the complaint, denied the allegations, and asserted, inter alia, Wilkerson's employment was terminable at-will and in any event, he was terminated for cause.

On April 14, 1989, Wells Fargo filed a motion for summary judgment or summary adjudication of issues, supported by declarations of its officers and by a separate statement of undisputed material facts. The Bank maintained Wilkerson's employment was at-will and, in the alternative, were the trial court to determine Wilkerson was not employed at-will, the undisputed facts established Wilkerson was terminated for misconduct.

Wilkerson opposed Wells Fargo's motion, contending the Bank's stated reason for terminating him was pretextual. Wilkerson maintained in reality his termination was a ratification by the Bank of the racial prejudice of Robert Sanford (Sanford), manager of the Bank's Santa Monica branch. Wilkerson's opposition papers were supported by his own declaration, a declaration of former Bank executive vice president John H. Griffith (Griffith), and a responsive separate statement of undisputed material facts.

The matter was argued May 12, 1988. The trial court found there existed no triable issues of fact and Wells Fargo was entitled to judgment as a matter of law. Judgment was entered July 11, 1988, and Wilkerson appealed.

CONTENTIONS

Wilkerson contends (1) the grant of summary judgment as to the first, fourth, fifth and tenth causes of action was error because material issues of fact exist with respect to his wrongful discharge claims; and (2) the trial court improperly excluded portions of Griffith's declaration. ¹

DISCUSSION

1. Standard of appellate review.

Summary judgment is appropriate only if no material fact issue exists or where the record establishes as a matter of law that a cause of action asserted against a party cannot prevail. (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 446, 213 Cal.Rptr. 314.)

A motion for summary judgment is addressed to the sound discretion of the trial court. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589, 177 Cal.Rptr. 268.) However, because the determination of the trial court is one of law based upon the papers submitted, the reviewing court must make its own independent determination of their construction and effect. (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 496, 86 Cal.Rptr. 744.)

2. Triable issue as to whether Wilkerson's employment was at-will.

Both the Bank's employee handbook and the voluminous SOM provided that employment with the Bank was for no specified term or length and could be terminated with or without cause by either party.

In resisting summary judgment, Wilkerson offered the deposition testimony of two Bank officers, Cha Sanders and Ronald Schneider, and the declaration of Griffith, a former executive vice president of the Bank, each of whom stated the Bank had a policy to terminate employees only for good cause.

Based thereon, Wilkerson contends a triable issue exists as to whether the Bank's unwritten policy to discharge only for good cause gave rise to an implied-in-fact promise notwithstanding the at-will provisions contained in the SOM and employee handbook. ²

a. General principles.

Labor Code section 2922 provides in relevant part: "An employment, having no specified term, may be terminated at the will of either party on notice to the other."

The statute creates a presumption which may be superseded by a contract, express or implied, limiting the employer's right to discharge the employee. (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 665, 254 Cal.Rptr. 211, 765 P.2d 373.) In the employment context, factors apart from consideration and express terms may be used to ascertain...