Boseovski v. McCloud Healthcare Clinic, Inc.

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 CHRISTOPHER BOSEOVSKI, No. 2:16-CV-2491-DMC 12 Plaintiff, 13 v. ORDER 14 McCLOUD HEALTHCARE CLINIC, INC., [15] Defendant. [17] 18 Plaintiff, who is proceeding with retained counsel, brings this civil action. 19 Pursuant to the written consent of all parties, this case is before the undersigned as the presiding 20 judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636 (c). Pending 21 before the court is defendant’s motion for summary adjudication (ECF No. 51). [22] 23 I. BACKGROUND 24 A. Factual Allegations 25 This action proceeds on the original unverified complaint. Plaintiff claims that 26 Merritt Hawkins (apparently a placement firm and not a defendant to this action) posted a job 27 opening for a dentist with defendant which offered student loan forgiveness, a base salary of 28 $195,000 per year, a signing bonus, a relocation stipend, three weeks of vacation, a four-and1 one-half-day work week, and other “great benefits.” According to plaintiff, after correspondence 2 with Merritt Hawkins, he began speaking directly with defendant’s Chief Executive Officer, 3 Michael Schaub. Plaintiff states that he rejected the first offer of employment, but agreed to a 4 four-year employment contract after being “assured by Mr. Schaub that the Clinic was not a 5 high-volume practice. . . .” Plaintiff alleges that the contract contains the following provisions: 6 ¶ V(C)(2) The term of employment will be four years. 7 ¶ VI(C)(3) Defendant may immediately terminate employment by providing two weeks notice, and defendant reserves the right 8 to terminate employment immediately for just cause. 9 ¶ IV(A) D Defendant would schedule a minimum average of 8-10 visits per day barring unforeseen circumstances. [10] 11 On April 10, 2016, plaintiff signed various employment documents with 12 defendant which, according to plaintiff, had hidden among them “boilerplate language 13 converting his promised four-year employment agreement to an at-will. . . .” In May 2016 14 plaintiff closed his practice and relocated from Santa Rosa to McCloud. 15 Plaintiff next alleges that, shortly after commencing his employment with 16 defendant, he began to notice “various issues regarding the work environment” he found 17 “unsafe, unlawful, and in need of correction.” Specifically, plaintiff outlines the following four 18 areas of concern: 19 1. The office manager was unable to properly train and exhibits a hostile attitude. [20] 2. Two employees with patient responsibilities appeared to be drinking 21 alcohol while on duty. 22 3. Defendant’s practice of billing Denti-Cal was unlawful. 23 4. Patient volume (22-25 patients per day) exceeded the terms of plaintiff’s contract. [24] 25 Plaintiff states that he brought these issues to defendant’s attention in May and 26 June 2016 and that, shortly thereafter, defendant “began a campaign to manufacture reasons to 27 terminate Plaintiff’s employment.” According to plaintiff: “These efforts to prematurely end the 28 contract following Plaintiff’s reports of unlawful and unsafe working conditions included 1 willfully intercepting through an electronic device his oral communications with the dental staff 2 at the Clinic’s facility to find reasons to terminate his employment.” More specifically, plaintiff 3 alleges as follows in the complaint: 4 ¶ 15. The Clinic knowingly and intentionally directed and was aware of the use of an electronic device to record discussions that Plaintiff had with 5 third parties (e.g., coworkers and patients). 6 ¶ 16. The Clinic intercepted oral communications between Plaintiff and third parties as part of its campaign to prematurely terminate his 7 employment. In fact, in or about June 2016, Michael Schaub admitted to Plaintiff that he had authorized the surreptitious interception of Plaintiff’s 8 oral communications by electronic means at the Clinic’s facility. 9 ¶ 17. Plaintiff is informed and believes that the Clinic intercepted numerous additional oral communications between Plaintiff and third parties 10 without authorization or consent from any party to the communication. 11 Plaintiff states that his employment was terminated on July 11, 2016. According 12 to plaintiff, he was told by defendant his employment was at-will, he had engaged in misuse of 13 prescription software, and had a poor “chair-side manner.” Plaintiff alleges that defendant failed 14 to conduct any type of investigation prior to terminating his employment. 15 B. Legal Claims 16 Plaintiff asserts seven legal theories in his complaint as follows: 17 First Claim Violation of federal wiretapping statutes, 18 U.S.C. §§ 2511 and 2520. [18] Second Claim Violation of California Labor Code § 970. [19] Third Claim Fraud. [20] Fourth Claim Negligent misrepresentation. [21] Fifth Claim Breach of Contract. [22] Sixth Claim Wrongful Termination. [23] Seventh Claim Defamation. [24] 25 / / / 26 / / / 27 / / / 28 / / / 1 C. Procedural History 2 Defendant sought dismissal of plaintiff’s sole federal claim – alleged violations of [3] 18 U.S.C. §§ 2511 and 2520 – by way of a motion to dismiss filed on November 5, 2016. The 4 court denied the motion in an order issued on June 23, 2017, reasoning that plaintiff’s factual 5 allegations were sufficient to state a plausible claim for violation of the federal wiretapping 6 statutes at issue. Defendant filed its answer on July 25, 2017, and thereafter the matter was 7 scheduled. The pre-trial conference is currently set for December 17, 2019, and a jury trial is set 8 to commence on February 10, 2020. [9] 10 II. THE PARTIES’ EVIDENCE 11 A. Defendant’s Evidence 12 According to defendant, the following facts are not in dispute: 13 Facts related to Plaintiff’s First Claim 14 1. McCloud Healthcare Clinic, Inc. (Clinic), is a non-profit community health center. [15] 2. Since its inception, the Clinic has never admitted patients for a 2416 hour or longer stay. 17 3. On January 18, 2016, plaintiff signed a written employment agreement. [18] 4. The Clinic signed the employment agreement on January 25, 2016. [19] 5. The employment agreement was for a term of four years, but the 20 agreement could be terminated earlier by either party for several reasons. [21] 6. The employment agreement was the final contract that applied to 22 plaintiff’s employment. 23 7. Plaintiff began working for the Clinic on May 2, 2016. 24 8. Plaintiff’s normal work schedule was Monday through Thursday for 10 hours each day. [25] 9. Plaintiff was terminated on July 11, 2016, due to, among other 26 things, several incidents of inappropriate behavior and complaints from staff and patients. [27] 10. The Dental Department staff held regular weekly meetings during 28 plaintiff’s employment. 1 11. At one such meeting in early June 2016, Angela Rubin recorded the dental staff meeting on her cell phone. [2] 12. Ms. Rubin had been hired in May 2016 as a receptionist. [3] 13. Prior to the meeting she recorded, Ms. Rubin had become aware that 4 some important changes involving procedures and protocols in the Dental Department were going to be discussed at the meeting. [5] 14. No one directed Ms. Rubin to record the meeting. [6] 15. Plaintiff attended the June 2016 staff meeting, as did Ms. Rubin, 7 and dental assistant Mary Frances Fletcher. 8 16. Ms. Rubin and Ms. Fletcher were present during the entire meeting. 9 17. During the recorded meeting, no private information was communicated. [10] 18. The basis of plaintiff’s wiretap claim is the audio recording of the 11 June 2016 staff meeting made by Ms. Rubin. 12 Facts Relating to Plaintiff’s Second, Third, and Fourth Claims 13 1. The written employment agreement contains an integration clause. 14 2. The employment agreement does not promise plaintiff student loan forgiveness or that his practice would not be “high volume.” [15] Facts Relating to Plaintiff’s Fifth Claim [16] 1. The agreement referred to by plaintiff in his complaint is the written 17 employment agreement signed by plaintiff on January 18, 2016. 18 Facts Relating to Plaintiff’s Sixth Claim 19 1. The Clinic has never organized, maintained, and/or operated any facility to which persons or patients are admitted for a 24-hour stay 20 or longer. 21 In support of its statement of facts not in dispute, defendant submits the 22 declaration of James Proffitt, the Clinic’s Chief Financial Officer during the times of plaintiff’s 23 employment, and currently the Clinic’s Chief Executive Officer. Defendant also states the 24 declaration of Ms. Rubin supports its motion, but no such declaration was filed with 25 defendant’s moving papers. Finally, defendant’s motion is supported by the declaration of 26 defendant’s counsel, Mark Vegh, Esq., and exhibits attached thereto consisting of portions of 27 the transcripts of the depositions of plaintiff and Michael Schaub. 28 / / / 1 Regarding the declaration of Ms. Rubin referenced in defendant’s moving 2 papers, it appears defendant may have intended to reference portions of Ms. Rubin’s 3 deposition. With its reply, defendant submits a supplemental statement of undisputed facts 4 referencing Ms. Rubin’s deposition. Defendant also submits Mr. Vegh’s supplemental 5 declaration with portions of the transcript of Ms. Rubin’s deposition attached. Plaintiff objects 6 to the late submission of this evidence. 7 Regarding the depositions transcripts referenced in defendant’s briefs, only 8 excerpts of which have been filed, the court notes that defendant has not provided the court 9 will complete copies of the referenced deposition transcripts, as required under Eastern District 10 of California Local Rules 260(e) and 133(j). 11 B. Plaintiff’s Evidence 12 In opposition to defendant’s motion, plaintiff submits the declaration of Barbara 13 Figlia, a dental assistant at the Clinic during the time of plaintiff’s employment, who provides 14 information regarding the recording made by Ms. Rubin. Also provided in opposition is the 15 declaration of plaintiff’s counsel, Benjamin L. Kennedy, Esq., and exhibits attached thereto. 16 In particular, plaintiff provides portions of the deposition of Caleb Ott. See 17 ECF No. 53-3, Exhibit 2. Mr. Ott testified that, in addition to the Rubin recording, he was 18 aware of “a recording brought forward by Debbie Fletcher,” a registered dental assistant. See [19] id. at 64 . [20] 21 III. STANDARD FOR SUMMARY ADJUDICATION 22 The Federal Rules of Civil Procedure provide for summary judgment or summary 23 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 24 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 25 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 26 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 27 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 28 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 1 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 2 moving party 3 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 5 genuine issue of material fact. [6] Id. at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 7 If the moving party meets its initial responsibility, the burden then shifts to the 8 opposing party to establish that a genuine issue as to any material fact actually does exist. See 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 10 establish the existence of this factual dispute, the opposing party may not rely upon the 11 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 12 form of affidavits, and/or admissible discovery material, in support of its contention that the 13 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 14 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 15 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 17 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433 , 1436 19 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 20 simply show that there is some metaphysical doubt as to the material facts. . . . Where the 21 record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 22 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is 23 sufficient that “the claimed factual dispute be shown to require a trier of fact to resolve the 24 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631 . 25 In resolving the summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 27 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, [28] 477 U.S. at 255 , and all reasonable inferences that may be drawn from the facts placed before the 1 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587 . 2 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 3 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 4 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 , 902 (9th Cir. 5 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 6 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 7 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 8 imposed.” Anderson, 477 U.S. at 251 . [9] 10 IV. DISCUSSION 11 In its motion for summary adjudication, defendant seeks judgment as a matter of 12 law on plaintiff’s first, second, third, fourth, and fifth claims. Defendant also argues that 13 judgment as a matter of law in its favor is appropriate on “that part of Plaintiff’s sixth claim 14 that alleges and seeks damages for wrongful termination in violation of public policy set forth 15 in California Health & Safety Code Section 1287.5.” Defendant does not seek a ruling as to 16 plaintiff’s seventh claim for defamation.1 17 A. First Claim 18 Plaintiff’s wiretap claim is premised on 18 U.S.C. §§ 2511 and 2520. Under 18 19 U.S.C. § 2511 (1)(a), criminal liability is imposed on any person who “intentionally intercepts, 20 endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any 21 wire, oral, or electronic communication.” Under 18 U.S.C. § 2520 (a), as amended in 1986, any 22 person whose communications are intercepted in violation of § 2511 may bring a civil action 23 / / / 24 / / / 25 / / / 26 / / / [27] 1 Plaintiff has abandoned the seventh claim for relief. See ECF No. 57 (parties’ 28 joint pre-trial statement). 1 against the “person or entity” which engaged in that violation.2 Private individuals who are 2 parties to the communications in question are generally exempt from liability. See 18 U.S.C. 3 § 2511(2)(d). 4 According to defendant, plaintiff’s wiretap claim fails as a matter of law because: 5 (1) plaintiff cannot show that defendant “intercepted” his communications; (2) if he could, 6 plaintiff still cannot prevail because he cannot show that his communications were recorded for a 7 criminal or tortious purpose; (3) a separate defense exists because Ms. Rubin consented to her 8 own recording of the meeting; and (4) plaintiff had no expectation of privacy during the recorded 9 meeting. 10 1. Intercept by Defendant 11 Citing Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000), defendant argues: 12 . . . [I]t is irrelevant whether the Clinic ‘knowingly and intentionally directed’ or ‘was aware of the use of’ a cell phone to record 13 Plaintiff’s discussions at a staff meeting. Plaintiff must show credible evidence that the defendant Clinic ‘intercepted’ Plaintiff’s 14 communications under conditions giving rise to liability under the Wiretap Act. [15] ECF No. 51-1, pg. 9. [16] 17 Defendant cites no in-circuit authorities in support of its contention. 18 In essence, defendant renews the argument the court rejected in the context of its 19 motion to dismiss that, as a matter law, it is not among the class of defendants allowed under 18 20 U.S.C. § 2520 (a) because it did not directly intercept plaintiff’s communications. According to 21 defendant, liability cannot extend to it even if it procured others to intercept plaintiff’s 22 communications because the “or procures another person” language was removed from 23 § 2520(a). Defendant reasons that only conduct by it, the Clinic, as opposed to any person acting [24] 2 Prior to 1986, the statute read: “Any person whose wire or oral communication is 25 intercepted, disclosed, or used in violation of this chapter (1) shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, 26 disclose, or use such communications, and (2) be entitled to recover from any such person [damages, attorney’s fees, and costs].” See 18 U.S.C. § 2520 (1970) (emphasis added); see also 27 Oceanic Cablevision, Inc. v. M.D. Elecs., 771 F. Supp. 1019, 1027 (D. Neb. 1991) (recognizing elimination of the “or procures another person” language from § 2520(a) pursuant to the 1986 28 amendment). 1 on behalf of the Clinic, may be held liable under the Wiretap Act. 2 The court does not agree. In Peavy, the Fifth Circuit concluded that the plain 3 language of § 2520(a), as amended in 1986, narrowed the class of possible defendants under 4 § 2520(a) in the way defendant here suggests. See 221 F.3d 158 . Specifically, the court held 5 that procurement of another to intercept no longer gives rise to a violation of the underlying 6 criminal statute, § 2511(1)(a). See id. The Fifth Circuit did not, however, consider the other 7 change made to § 2520(a) in 1986, specifically addition of language allowing recovery from the 8 “person or entity” which engaged in the violation of § 2511(1)(a). 9 Prior to 1986, § 2520(a) essentially mirrored the language of the underlying 10 criminal statute, providing recovery against a person who intercepts or procures another to 11 intercept. See 18 U.S.C. § 2520 (a) (1970). After 1986, § 2520(a) allowed for recovery against 12 the “person or entity” which engaged in the violation of § 2511(1)(a). See 18 U.S.C. § 2520 (a) 13 (1986). The underlying criminal statute – § 2511(1)(a) – which was not amended in 1986 to 14 delete the “or procures another person” language – continues to specify that one who procures 15 another is in violation of the criminal statute, a point which the Fifth Circuit in Peavy recognized 16 but did not discuss. It is this court’s view that the deletion of the procurement language in 17 § 2520(a) is of no moment given that the language remains in the underlying criminal statute and 18 the simultaneous amendment of § 2520(a) to provide for recovery against the “person or entity” 19 which violated of § 2511(1)(a). Given that procurement can still give rise to a violation under 20 § 2511(1)(a), and given that an entity may be civilly liable under § 2520(a) for that violation, 21 defendant in this case may be held civilly liable if it violated the underlying criminal statute by 22 way of procurement. 23 Defendant has not cited any in-circuit authority, and the court is aware of none, 24 which adopts the Fifth Circuit’s opinion that the 1986 amendments to § 2520(a) limit the 25 possible class of defendants in a civil action arising from violation of § 2511(1)(a). Finally, the 26 court observes that other district courts have questioned the Fifth Circuit’s holding in Peavy. In 27 / / / 28 / / / 1 Lonegan v. Hasty, 436 F. Supp. 2d 419 (E.D.N.Y 2006), the court stated: 2 . . .[T]he more natural reading of the amended statute shows no intent on the part of Congress to eliminate the private right of action for 3 procurement violations. In relevant part, the amended statute provides that “any person whose wire, oral, or electronic communication is intercepted 4 . . . in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation. . . .” 18 U.S.C. § 2520 5 (2005). Pursuant to Section 2511(1)(a), the class of persons whose communications are intercepted in violation of the Wiretap Act includes 6 those persons whose communications are intercepted by someone who was procured to do so by a third party. In such case, both the person who 7 actually intercepted the communications and the person who procured the interception have violated the Act, and the victim is authorized to sue any 8 person or entity who engaged in that violation. [9] Id. at 427-78 . 10 In another case, DirecTV, Inc. v. Barrett, 311 F. Supp. 2d 1143 (D. Kan. 2004), the court 11 concluded that “[t]he fact that Plaintiff also alleges that Defendants ‘procured other persons to 12 intercept’ Plaintiff’s signals [under § 2511(1)(a)] does not invalidate Count Two [under § 13 2520(a)].” Id. at 1146. 14 2. Purpose of Recording 15 Under 18 U.S.C. § 2511 (1)(d), a person who is a party to a recorded conversation 16 is not liable unless he or she makes the recording for some criminal or tortious purpose. Under 17 § 2511(2)(d), a party to the communication is anyone who is present when the communication is 18 uttered. From these provisions, defendant concludes: “Here, Ms. Rubin recorded the meeting 19 because, as a new hire, she wanted to ensure she understood the procedural changes about to be 20 implemented in the department [DSUF 14]. No evidence exists of any purpose to commit a 21 criminal or tortious act.” 22 Defendant’s argument is misplaced. Whether Ms. Rubin has a defense or not is 23 irrelevant, as she is not a party to this action. Similarly, whether the “criminal or tortious 24 purpose” exception applies such that Ms. Rubin would lose her defense under § 2511(1)(d) is 25 irrelevant. 26 / / / 27 / / / 28 / / / 1 3. Consent to Recording 2 Without citation to in-circuit authority, defendant contends a separate and 3 complete defense exists where at least one party to the recorded communication consents to its 4 interception. According to defendant: “Here, no other person directed Angela Rubin to record 5 the meeting [DSUF 15]. She clearly did so on her own volition, and thus consented to her own 6 recording of the meeting.” 7 Defendant’s argument is unpersuasive. First, defendant references Ms. Rubin’s 8 declaration which has not been filed. Second, to the extent defendant relies on the late-filed 9 portions of Ms. Rubin’s deposition transcript, defendant has failed to provide the full transcript 10 as required under the local rules. Third, even if Ms. Rubin consented to the recording, nothing in 11 defendant’s argument supports a conclusion that Ms. Rubin consented to interception of her 12 recording by the Clinic. Finally, as indicated above, defendant’s argument is silent as to other 13 recordings not made by Ms. Rubin, for example the recording made by Debbie Fletcher 14 referenced in the Ott deposition testimony provided by plaintiff in opposition to defendant’s 15 motion. 16 4. Expectation of Privacy 17 Again, citing only the out-of-circuit authority of Bianco v. American 18 Broadcasting Companies, Inc., 470 F. Supp. 182 (N.D. Ill. 1979), defendant contends it cannot 19 be liable because plaintiff had no expectation of privacy in the staff meeting recorded by Ms. 20 Rubin. Bianco does not support defendant’s position. In Bianco, the court observed: 21 We note that the federal statute required only that plaintiffs show that they had no expectation that their communications were being intercepted 22 through the use of electronic devices. Thus, we believe that that may be some circumstances where a person does not have an expectation of total 23 privacy, but still would be protected by the statute because he was not aware of the specific nature of another’s invasion of his privacy. [24] Id. at 185 (emphasis in original). [25] 26 Such is the case here. Even assuming plaintiff did not have an expectation of privacy in the 27 contents of the recording made by Ms. Rubin or others, plaintiff was clearly not aware of the 28 Clinic’s interception of his communications. Defendant does not cite, and the court is not aware 1 of any, in-circuit authority supporting defendant’s position. Again, there remains a triable issue 2 of material fact, and no summary adjudication is appropriate here. 3 B. Second, Third, and Fourth Claims 4 In his second, third, and fourth claims, plaintiff alleges misrepresentation with 5 respect to the employment agreement. The third and fourth claims are based on common law 6 fraud and negligent misrepresentation. The second claim is based on an alleged violation of 7 California Labor Code § 970. Section 970 prohibits false representation in the context of 8 employment agreements and is essentially an anti-fraud provision, resting on the tort of deceit. 9 See Funk v. Sperry Corporation, 842 F.2d 1129, 1133 (9th Cir. 1987). According to 10 defendants, the second, third, and fourth claims are all barred by California’s statute of frauds, 11 found at California Civil Code § 1624. 12 Under § 1624, certain contracts are invalid unless they are in writing. In 13 particular, an oral contract that by its terms cannot be completed within a year are 14 unenforceable. See Cal. Civil Code § 1624 (1). According to defendant, plaintiff’s claims are 15 based on an oral promise by the Clinic of an employment contract for a four-year term. 16 Defendant concludes that, because the contract at issue is not written and is for a term longer 17 than one year, it is unenforceable and cannot support plaintiff’s second, third, or fourth claims. 18 Defendant’s argument is deficient on this point. As defendant concedes, 19 plaintiff signed a written employment contract on January 18, 2016. Because this case 20 involves a written contact and not an oral contract, the statute of frauds does not bar plaintiff’s 21 contract-based claims. Moreover, the court notes that the parties agree that “[n]o 22 misrepresentation of fact, mistake, or other matters affect the validity of the contract.” ECF 23 No. 57 (parties’ joint pre-trial statement). 24 C. Fifth Claim 25 In his fifth claim, plaintiff alleges breach of the January 2016 employment 26 contract. The contract is provided to the court at Exhibit A to the declaration of Mark Vegh 27 filed in support of defendant’s motion. Article VI, paragraph C(2) of the contract provides that 28 the “agreement may be terminated by either party upon giving a 60-day written notice to the 1 other party.” According to defendant, the plain language of the contract bars any action for 2 breach of contract resulting from plaintiff’s alleged termination without cause because 3 plaintiff’s employment was at-will. 4 While the contract clearly contains an at-will termination provision, it also 5 contains termination-for-cause provisions, at Article VI, paragraphs C(3) and D. As defendant 6 states, it is undisputed that plaintiff was terminated on July 11, 2016, based on allegations of 7 inappropriate behavior and complaints from staff. Thus, plaintiff was terminated under the 8 for-cause provision and not the at-will provision. Defendant has not presented any evidence 9 that, in terminating plaintiff for cause, the Clinic did not violate the provisions of the for-cause 10 termination portions of the contract. Given that defendant has not presented evidence 11 regarding whether plaintiff’s for-cause termination violated the for-cause termination 12 provisions of the employment agreement, this issue is not currently before the court and 13 remains open for trial. 14 D. Sixth Claim 15 Plaintiff alleges he was terminated by the Clinic following his complaints of 16 unsafe working conditions and, as such, his termination was retaliatory and violated California 17 public policy. The claim is essentially a wrongful termination claim under state law. 18 According to plaintiff, the claim arises under, but not limited to, California Health & Safety 19 Code § 1278.5, California Business & Professions Code §§ 1680 and 1681, California Labor 20 Code §§ 970 and 1102.5, and various provisions of the California Code of Regulations. 21 Defendant argues that plaintiff’s claim cannot proceed under California Health 22 & Safety Code § 1278.5 because that provision only applies to health care facilities that admit 23 patients for longer than 24-hour periods, which the Clinic does not. This argument is 24 persuasive and plaintiff conceded the point at the hearing. See Sneddon v. ABF Freight 25 Systems, 489 F. Supp. 2d 1124 (S.D. Cal. 2007). Defendant has made no argument or 26 presented any evidence regarding the other legal bases of plaintiff’s sixth claim. Defendant’s 27 motion regarding the sixth claim is specifically limited to whether the claim can proceed under 28 California Health & Safety Code § 1278.5. The parties agree that it cannot. Plaintiff’s sixth 1 | claim remains to the extent it is not premised on violation of § 1278.5. [2] 3 V. CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Defendant’s motion for summary adjudication (ECF No. 51) is granted 6 || in part and denied in part; 7 2. Defendant’s motion is granted as to plaintiff's Sixth Claim to the extent 8 || that claim is premised on a violation of California Health & Safety Code § 1278.5, which is 9 || inapplicable to this action; and 10 3. Defendant’s motion is denied as to all other claims. [12] 13 || Dated: January 7, 2020 = IS GC DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE