FILED
NOT FOR PUBLICATION MAR 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONNA LOUIS, No. 09-56840
Plaintiff - Appellant, D.C. No. 2:09-cv-00242-VBF-CW
v.
MEMORANDUM *
NAILTIQUES COSMETIC
CORPORATION and DIANE
HAMMOND,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted March 7, 2011
Pasadena, California
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Donna Louis appeals from the District Court’s grant of summary judgment
in favor of Nailtiques Cosmetic Corporation and Diane Hammond (“Defendants”).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review a district court’s grant of summary judgment de novo. Lovell v.
Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Construing all of the facts in
Louis’s favor, we conclude that Louis failed to raise a genuine issue of material
fact as to any of her claims. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.
1998).
With respect to her breach of contract claim, under California law, the
presumption is that employment is at-will, Cal. Lab. Code § 2922; Foley v.
Interactive Data Corp., 254 Cal. Rptr. 211, 223 (1988), and the burden is on the
employee to prove otherwise. Eisenberg v. Alameda Newspapers, Inc., 88 Cal.
Rptr. 2d 802, 824 (Ct. App. 1999). Here, there is no evidence that the parties
reached an oral or implied agreement to a three-year employment contract allowing
termination only “for cause.” In fact, the evidence demonstrates that the parties
did not enter into a written contract because they disagreed about certain material
terms in the proposed contract, including a clause permitting termination of Louis
without cause. All of the factors set out in Foley, 254 Cal. Rptr. at 225, weigh
against finding an implied contract. “Where the undisputed facts negate the
existence of the breach of the contract claimed, summary judgment is proper.”
Guz v. Bechtel Nat. Inc., 100 Cal. Rptr. 2d 352, 366 (2000) (citations omitted).
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Because “a claim for breach of an implied good faith covenant depends upon
the existence of a valid contract,” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1078
(9th Cir. 1999) (citing Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 272 Cal. Rptr.
387, 397 (Ct. App. 1990)), judgment was properly granted on this claim.
Louis’s common count and quantum meruit claims are preempted by
California’s Uniform Trade Secrets Act, Cal. Civ. Code § 3426.7. See K.C.
Multimedia, Inc. v. Bank of Am. Tech. & Ops., Inc., 90 Cal. Rptr. 3d 247, 258 (Ct.
App. 2009). To the extent that Louis now argues that her salary did not adequately
reflect the value of the work that she performed, “there is no equitable basis for an
implied-in-law promise to pay reasonable value when the parties have an actual
agreement covering compensation.” Hedging Concepts, Inc. v. First Alliance
Mortgage Co., 49 Cal. Rptr. 2d 191, 197 (Ct. App. 1996). Thus, because Louis
agreed to work for a straight $170,000 annual salary, there is no basis for implying
a different compensation amount.
Louis failed to present evidence that the Defendants’ conduct constituted
actionable fraud. That Defendants did not promise to employ Louis for a three-
year term is reflected in Louis’s own emails, and Hammond’s allegedly fraudulent
promises about Louis’s future success were merely expressions of opinion, not
representations as to facts. “Promises too vague to be enforced will not support a
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fraud claim any more than they will one in contract.” Rochlis v. Walt Disney Co.,
23 Cal. Rptr. 2d 793, 801 (Ct. App. 1993). Nor did Louis present any evidence
that Hammond’s purported statement that Nailtiques would be worth $100 million
in three years was made as a “positive affirmation of fact.” Hobart v. Hobart
Estate Co., 26 Cal. 2d 412, 431 (1945). A statement about future value is
ordinarily classified as “a speculative observation and a mere statement of opinion,
and as such, does not constitute a basis for a complaint of fraud.” Everts v.
Matteson, 21 Cal. 2d 437, 451 (1942). Similarly, Hammond’s alleged statement
that she “did not believe [her daughter] would return to work at Nailtiques after
childbirth, or that, if she did, it would be anywhere near [her] former capacity,”
was a non-actionable statement of opinion. See, e.g., Neu-Visions Sports, Inc. v.
Soren, 103 Cal. Rptr. 2d 159, 162 (Ct. App. 2000) (“The law is quite clear that
expressions of opinion are not generally treated as representations of fact, and thus
are not grounds for a misrepresentation cause of action.”); Carlson v. Brickman,
110 Cal. App. 2d 237, 247 (Ct. App. 1952) (“[T]he general rule is that an
expression of opinion or belief, if nothing more, and if so understood and intended,
is not a representation of fact, and although false, does not amount to actual fraud.
Ordinarily a person has no right to rely upon such statements, and if he does so
rely, he cannot treat them as fraudulent . . . .”).
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Even if we were to construe Hammond’s opinions as factual assertions
because of Hammond’s superior knowledge of the inner-workings of Nailtiques,
see Pacesetter Homes, Inc. v. Brodkin, 85 Cal. Rptr. 39, 42 (Ct. App. 1970)
(“Exceptional circumstances resulting in expressions of opinion being treated as
misrepresentations have been found where . . . the expression of opinion is made
by a party ‘possessing superior knowledge.’”) (citations omitted), Louis’s claim
would fail because she did not adduce any evidence of actual reliance. See Mirkin
v. Wasserman, 23 Cal. Rptr. 2d 101, 103 (1993) (“It is settled that a plaintiff to
state a cause of action for deceit based on a misrepresentation, must plead that he
or she actually relied on the misrepresentation.”). Nor did she present any
evidence of fraudulent intent on Hammond’s part. See Tenzer v. Superscope, Inc.,
216 Cal. Rptr. 130, 137 (Cal. 1985) (en banc) (“[S]omething more than
nonperformance is required to prove the defendant’s intent not to perform his
promise . . . [I]f plaintiff adduces no further evidence of fraudulent intent than
proof of nonperformance of an oral promise, he will never reach a jury.”) (citations
omitted). And contrary to Louis’s argument on appeal, her counsel did not make
an oral motion to amend the fraud pleadings during the summary judgment
hearing, so the district court did not abuse its discretion in not granting leave to
amend. See Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir.
5
1991), abrogated on other grounds by Cramer v. Consol. Freightways, Inc., 255
F.3d 683 (9th Cir. 2001).
Louis’s claim that she was wrongfully terminated in violation of public
policy in retaliation for her threats to report the Defendants’ alleged fraudulent
conduct fails because there is no evidence that Louis threatened to report fraud. In
addition, under California law employer fraud cannot serve as the basis of a
wrongful termination claim because it does not implicate a substantial public
policy. Hunter v. Up-Right, Inc., 26 Cal. Rptr. 2d 8, 15 (1993) (“At root, fraud and
deceit affect only the individual interests of the employer and employee. A claim
of fraud or deceit is essentially a private dispute seeking a monetary remedy, not an
action to vindicate a broader public interest.”).
Louis has not raised an issue of genuine material fact that the Defendants
engaged in the type of “outrageous conduct” that would support an intentional
infliction of emotional distress claim. See Cole v. Fair Oaks Fire Prot. Dist., 233
Cal. Rptr. 308, 312 n.7 (1987). Nor has she raised an issue of genuine material fact
with respect to the Defendants’ alleged violation of California Business and
Professions Code § 17200. Section 17200, which prohibits unfair or unlawful
business practices, is not to be used as “an all-purpose substitute for a tort or
6
contract action.” Cortez v. Purolator Air Filtration Prod. Co., 96 Cal. Rptr. 2d
518, 525 (2000).
Louis’s remaining arguments, that the district court erred (1) in providing
her with only 21 days notice of the motion for summary judgment, and (2) in not
ruling on Louis’s Ex Parte Application for further information on Nailtiques’
finances, lack merit. The local rules allow the district court to shorten the notice
period for motions, and the exclusion of further evidence of Nailtiques’ finances
was not prejudicial to Louis’s claims.
AFFIRMED.
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