Wood v. Loyola Marymount University

• Decision Date: 07 March 1990
• Docket Number: No. B,B
• Citation: 267 Cal.Rptr. 230,218 Cal.App.3d 661
• Parties: , 118 Lab.Cas. P 56,574, 58 Ed. Law Rep. 1215, 5 IER Cases 263 Marvin E. WOOD, Plaintiff and Appellant, v. LOYOLA MARYMOUNT UNIVERSITY et al., Defendants and Respondents. 040759.
• Court: California Court of Appeals Court of Appeals

Page 230

267 Cal.Rptr. 230

218 Cal.App.3d 661, 118 Lab.Cas. P 56,574,

58 Ed. Law Rep. 1215, 5 IER Cases 263

Marvin E. WOOD, Plaintiff and Appellant, v. LOYOLA MARYMOUNT UNIVERSITY et al., Defendants and Respondents.

No. B 040759.

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

March 7, 1990.

Review Denied May 23, 1990.

Daniel M. Graham, Torrance, for plaintiff and appellant.

Tyre, Kamins, Katz & Granof, Barton W. Robertson, Los Angeles, for defendants and respondents.

FUKUTO, Associate Justice.

Plaintiff, Marvin E. Wood, appeals from summary judgment entered in favor of defendants Loyola Marymount University (the University) and Robert Arias in Wood's wrongful termination action.

Wood contends that Foley v. Interactive Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 mandates the judgment be reversed. He argues that the evidence presented to the trial court establishes that the personnel policies and practices of the University, his longevity of service (15 years), communication by the University reflecting assurances of continued employment and the "totality of the circumstances," presented triable issues of material fact as to whether the University engaged in a course of conduct which created a reasonable expectation that Wood would not be terminated except for good cause, and as to whether he was discharged for good cause.

A summary judgment may be granted where it is shown that the "action has no merit or that there is no defense thereto." (Code Civ.Proc., § 437c, subd. (a).) The court must determine from the evidence presented that "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).)

In a contract action asserting breach of a covenant not to discharge except for good cause, the plaintiff has the burden of proof at trial to show the existence of an agreement, either express or implied, not to terminate except for good cause and that the employer lacked good cause for the discharge. (Foley v. Interactive Corp., supra, 47 Cal.3d at p. 698, fn. 38, 254 Cal.Rptr. 211, 765 P.2d 373.) However, at summary judgment the burden is on the moving defendant to "negative the matters which the resisting party would have to prove at the trial." (Segura v. Brundage (1979) 91 Cal.App.3d 19, 28-29, 153 Cal.Rptr. 777.)

It is undisputed that Wood began his employment with the University in the latter part of 1969, and was terminated on June 4, 1984. His only position during that time was that of head baseball coach. Each year Wood received a letter from the University notifying him that his employment was to be continued, that his salary had been increased, and that he would continue to be eligible for certain employee benefits. The University and Arias ¹ argue that these "annual appointment letters" confirm that Wood was not a "permanent" employee, but rather was hired on a year-to-year basis for a specified period of time, i.e., an academic year. As such, Wood's employment could be terminated at the end of any such period.

On May 25, 1971, Donald P. Merrifield, then president of the University, directed a memorandum to the University's "Managerial and Supervisory Staff," of which Wood was a member. The memorandum stated, "Last year, at about this time, you received your annual salary announcement in the form of a 'reappointment.' For not a few, this was confusing. Suddenly they found themselves on a year-to-year contract, after many years of continuing service to the University. [p] Actually, the appointment of administrative staff personnel ² is continuous from the time of the original appointment, subject, of course, to the continuing mutual satisfaction from the part of the University and the staff member with regard to performance, salary, professional opportunities, and working conditions. [p] Thus, this year, you are receiving the enclosed notice of annual salary for the period beginning September 1, 1971. The privileges and conditions of your positions are set forth in the staff guidelines handbook for Officers of Administration and Management and Supervisory Staff, subject to such changes as the University may make in the handbook from time to time." The memorandum states that Wood's employment would be continuous. At the very least, it raises a triable issue of material fact as to whether Wood was employed "year to year" as the University asserts, or whether, as Wood contends, his employment was "continuous," subject to "privileges and conditions ... [as] set forth in the staff guidelines handbook...."

The University and Arias contend that the memorandum from Merrifield indicates that Wood's employment was "expressly at-will." They rely on the language contained within the memorandum: "[T]he appointment of administrative staff personnel is continuous from the time of the original appointment, subject, of course, to the continuing mutual satisfaction from the part of the University and [Wood] with regard to performance, salary, professional opportunities, and working conditions." (Emphasis added.) The University views this language as an express contractual term which provides that Wood could be discharged with or without cause, and argues that since an express agreement exists showing Wood's employment to be at will, Wood can only prevail by showing a change in this express term. According to the University and Arias, Wood's claim that the University, by its own conduct and personnel policies, had agreed Wood would not be terminated without good cause would not suffice to show a change in the express term because "[t]here cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results." (Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal.App.3d 467, 482, 199 Cal.Rptr. 613.)

The highlighted language in the Merrifield memorandum does not necessarily make Wood's employment expressly at will. The memorandum goes on to provide that Wood's employment was governed by policy statements set forth in the University's written guidelines handbook. The policies referred to provide that employees such as Wood would not be discharged pursuant to an "arbitrary process," but rather would be dismissed pursuant to established procedures. The memorandum, when read in conjunction with the University's written policies, is consistent with a promise not to terminate except for good cause. To accept the University's argument, the effect of President Merrifield's memorandum would diminish the employment security of even a year-to-year contract that some administrative staff personnel feared resulted from "annual appointment letters." It is arguable that Merrifield's memorandum was intended to ease the concern of those who "found themselves on a year-to-year contract, after many years of continuing service to the University," and that Merrifield intended to expand the employment security of administrative staff personnel beyond year to year to continuous, subject to the personnel policies and practices of the University. Here also, there is a triable issue of fact.

Section 2922 establishes a presumption of at-will employment where, as here, the parties have made no express oral or written agreement specifying the length of employment or the grounds for termination. (Foley v. Interactive Data Corp., supra, 47 Cal.3d at p. 677, 254 Cal.Rptr. 211, 765 P.2d 373.) However, "[t]his presumption may be superseded by [an implied-in-fact] contract ... limiting the employer's right to discharge the employee. [Citations.]" (Id. at p. 665, 254 Cal.Rptr. 211, 765 P.2d 373.) Wood alleges within his complaint the existence of such a contract, claiming that the University engaged in a course of conduct which created a reasonable expectation that he would not be terminated except for good cause. Wood alleges the existence of factors traditionally used to show the existence of such an implied-in-fact contract term, including " 'the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.' [Citations.]" (Id. at p. 680, 254 Cal.Rptr. 211, 765 P.2d 373.)

The University and Arias, describing the policies and procedures promulgated by the University as "vague," contend that Wood "leaves totally to the imagination how a generalized reference to fairness ... in a supervisory guidebook followed by the tautological statement that termination is a last resort somehow creates an implied contract to terminate only for cause." In so arguing the University and Arias imply that Wood had the burden of proving the existence of the implied-in-fact agreement alleged within his complaint. Such is not the case. The burden was on the University and Arias to prove that an implied-in-fact agreement to only terminate Wood for good cause did not exist.

Wood produced evidence to show that prior to his termination he had been employed for a 15-year period, rather than as a year-to-year employee, and had received repeated oral assurances of job security, meritorious job evaluations, consistent salary increases and bonuses during the term of his employment. More importantly, the University's published policies provide that administrative employees such as Wood would be dismissed only as a "last resort," and that dismissal would not be an "arbitrary process," but rather would be accomplished pursuant to established mandatory procedures which "have been developed to assure fair and equitable treatment to all employees." ³ The University personnel policy manual sets forth the procedures for progressive corrective action whenever an employee fails to meet required standards of performance or conduct. The manual first calls for a private informal talk by the supervisor with the employee if an...