Jeffrey v. Kleefeld CA6

Filed 5/7/13 Jeffrey v. Kleefeld CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FRANCIS JEFFREY et al., H036632
(Monterey County
Plaintiffs and Appellants, Super. Ct. No. M99891)

v.

CAROLYN MARY KLEEFELD et al.,

Defendants and Respondents.

Plaintiffs Francis Jeffrey and Janine Gonsenhauser challenge a judgment entered
on an order granting defendants‟ motion for summary judgment. Plaintiffs contend that
triable issues of fact precluded summary judgment. We conclude that the trial court erred
in summarily adjudicating the fraud cause of action but did not err in summarily
adjudicating the remaining causes of action.

I. Plaintiffs’ Allegations
In July 2009, plaintiffs filed an action against defendants Carolyn Mary Kleefeld,
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Atoms Mirror Atoms, Inc. (Atoms), and 10 Doe defendants. Their amended complaint

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Defendants‟ demurrer to the original complaint was sustained with leave to
amend. The amended complaint included a defamation cause of action against Kleefeld
and the Doe defendants alleging that they had defamed Jeffrey by referring to him as
alleged that “each Defendant . . . was, and is, sued as, the agent and employee of every
other Defendant[] . . . .”
Plaintiffs alleged that a “business venture” was “formed in June, 1987” to develop
Jeffrey‟s “computer programs and software designs . . . .” This “business venture” was
allegedly a “joint venture” of Jeffrey and Kleefeld, and the two of them “had an
understanding to share (50/50) profits and losses . . . .” From June 1987 to August 2008,
Kleefeld allegedly “repeatedly promised and committed to fund the marketing of
Jeffrey‟s patented technology to one or more companies.” “Jeffrey, in consideration for
such funding by Kleefeld, and as his end of the bargain, during such period promised to
provide, and did provide, patented computer programs and software designs . . . .”
“Three of the components of the business joint venture” were Elfnet, Inc., Alive Systems,
Inc., and Pankosmion, Inc. Jeffrey allegedly relied on Kleefeld‟s promises. He also
encouraged Kleefeld‟s art career and assisted her in managing her personal issues. By
1999, the “business venture” was allegedly “on the verge of financial success,” but
Kleefeld‟s financial support for the venture dwindled. As a result, Jeffrey‟s marketing
efforts failed, and his patents “f[ell] into the public domain.” By 2008, the venture‟s
value had been “destroyed.”
In September 2008, Kleefeld “caused Jeffrey to be hired” as an employee of
Atoms. Jeffrey entered into a written employment agreement with Atoms that was also
signed by Gonsenhauser. Barbara Simonich, the president of Atoms, signed the
agreement on behalf of Atoms. The employment agreement, which was attached to the
amended complaint, stated that Atoms “may terminate your employment at any time and
for any reason whatsoever, including no reasons, with or without cause.” It further stated
that this provision “super[s]edes all prior written and oral communication with you and

“delusional” and “unreliable.” Jeffrey does not challenge the superior court‟s summary
adjudication of the defamation cause of action, so we do not address it.

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can be modified only by written agreement signed by you and [Atoms]. In addition,
[Atoms] has the right to take any personnel action (e.g. change of status, relocation,
change of wages and benefits, etc.) at any time, for any reason, with our [sic] without
cause, with or without notice.” The agreement provided that Jeffrey would be paid
$8,500 per month plus a $35,000 “signing bonus.” Atoms would also “enroll you and all
of your „dependents‟ permitted under [Atoms‟s insurance] policies in [Atoms‟s]
medical/dental/vision plans available through [Atoms‟s] insurance programs. Your
enrollment and benefits shall be subject to all of the terms and conditions set forth in the
applicable insurance policies.” In return, Jeffrey was required to produce a monthly
“report” on an assigned topic, though the length and content of the report was left to his
“complete discretion.” He and Gonsenhauser agreed to “maintain Ms. Kleefeld‟s
privacy” and not to contact Kleefeld, communicate with her, or attempt to contact or
communicate with her “in any manner, at any time, for any reason, directly or indirectly,
except through [Simonich] or Thomas E. Mallet[t], legal counsel for [Atoms].” Jeffrey
and Gonsenhauser also agreed to “keep confidential” the “relationship underlying this
Agreement,” and the fact and nature of the agreement. Jeffrey and Gonsenhauser
understood the employment agreement to bind Atoms “to provide health insurance
benefits” to Gonsenhauser. However, no such benefits were forthcoming even after their
multiple “complaints” about the matter. In June 2009, Simonich, on behalf of Atoms,
terminated Jeffrey‟s employment at Kleefeld‟s behest.
Based on these facts, Jeffrey and Gonsenhauser alleged a host of causes of action.
Jeffrey alleged that Kleefeld was liable under the doctrine of promissory estoppel because
she had promised “to fund the marketing of Jeffrey‟s technology.” He alleged, as an
“[a]lternative,” that she breached a “joint venture contract” by failing to continue funding
the venture. Jeffrey asserted that “Kleefeld was paid consideration in the form of a one-
half interest in the joint venture and entitlement to one-half of any profits the joint
venture may ultimately make.” Jeffrey alleged that Atoms was liable for wrongful

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termination in violation of public policy because he had been terminated for inquiring
about Atoms‟s failure to provide health benefits to Gonsenhauser. He alleged that Atoms
was liable for breach of the employment agreement due to its failure to provide health
benefits to Gonsenhauser and its termination of Jeffrey‟s employment. Jeffrey alleged
that Kleefeld and the Doe defendants were liable for intentional interference with
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prospective economic relations because they caused Atoms to terminate him.
Gonsenhauser alleged that Atoms was liable to her as a third party beneficiary for its
breach of Jeffrey‟s employment agreement. Jeffrey and Gonsenhauser together alleged
that Atoms was liable for fraud in the inducement for falsely representing that
Gonsenhauser would receive health benefits if she and Jeffrey signed the employment
agreement.

II. Procedural Background
In April 2010, Kleefeld and Atoms filed a motion for summary judgment. This
motion was originally scheduled to be heard on June 25, 2010. At a case management
conference shortly after the filing of the summary judgment motion, plaintiffs
complained that they “may need more time for discovery.” With the hearing on the
motion more than two months off at that point, the court told them “you‟ve got a
sufficient amount of time between now and then to complete discovery. And if you have
difficulty, you can raise that through appropriate motions relating to the summary
judgment.” Plaintiffs continued to complain about discovery, and defendants‟ attorney
noted that “a continuance of the summary judgment motion” was “not before this court”

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He also alleged a separate cause of action against only the Doe defendants
asserting that they had interfered with his economic relationship with Kleefeld.
However, that cause of action is not at issue here because only Kleefeld and Atoms
obtained summary judgment.

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at this hearing. The court reiterated that plaintiffs would need to file a motion if they
required a continuance.
Plaintiffs subsequently sought a continuance of the scheduled June 25, 2010
hearing on the summary judgment motion to August 17, 2010. Defendants opposed the
request. The summary judgment hearing was continued to July 2010. At the July 2010
hearing, the court noted that defendants‟ separate statement was poorly organized and
failed to comply with California Rules of Court, rule 3.1350. Although the court noted
that it could deny the motion on that ground, it was not inclined to do so. Nevertheless,
the court‟s tentative ruling was to deny the motion because the court thought that there
might be a triable issue on the promissory estoppel cause of action. Defendants asked the
court to allow them time to refile their motion in a proper form. Plaintiffs expressly
agreed on the record to the refiling of the motion on the condition that the trial date be put
off. Defendants agreed to put off the trial date. The court then set a schedule for
rebriefing of the motion, and the hearing on the rebriefed motion was scheduled for late
October 2010. Subsequently, at plaintiffs‟ request, the hearing was continued to
December 2010.
Plaintiffs filed voluminous opposition to the motion, and they also filed written
objections to the evidence supporting defendants‟ motion. The evidentiary objections did
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not identify any legal objections to the admissibility of that evidence.
At the December 3, 2010 hearing on the summary judgment motion, the court
expressly overruled plaintiffs‟ objections to defendants‟ evidence. The court granted
defendants‟ motion and stated its findings orally on the record. On December 17, 2010,
the court entered an “ORDER GRANTING DEFENDANTS‟ MOTION FOR

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One of their objections was that defendants‟ separate statement failed to comply
with California Rules of Court, rule 3.1350. Defendants‟ original separate statement was
indeed out of compliance, but plaintiffs agreed that defendants could submit new
pleadings. Defendants‟ final separate statement substantially complied with the rule.

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SUMMARY JUDGMENT . . . AND JUDGMENT.” The written order and judgment
also stated the court‟s findings on each cause of action.
On December 27, 2010, plaintiffs filed a motion for reconsideration of the court‟s
ruling on the summary judgment motion. They submitted additional declarations in
support of this motion. All of these declarations were from individuals who had
previously submitted declarations in support of plaintiffs‟ opposition. Plaintiffs
thereafter timely filed a notice of appeal from the trial court‟s judgment.

III. Discussion
A. Standard of Review
“Appellate review of a ruling on a summary judgment or summary adjudication
motion is de novo.” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195,
210.) When the defendant moves for summary judgment, the defendant bears both the
initial burden of production and the burden of persuasion. The “initial burden of
production [requires the defendant] to make a prima facie showing of the nonexistence of
any triable issue of material fact; if he carries his burden of production, he causes a shift,
and the opposing party is then subjected to a burden of production of his own to make a
prima facie showing of the existence of a triable issue of material fact.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “A prima facie showing is
one that is sufficient to support the position of the party in question.” (Aguilar, at
p. 851.) The burden of persuasion requires the defendant to show that there are no triable
issues of material fact and that the defendant is entitled to judgment as a matter of law.
(Aguilar, at p. 850.)

B. Defendants’ Evidence
Kleefeld and Atoms identified the following facts as undisputed facts in their
separate statement and presented evidence in support of them.

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 Jeffrey “owned and controlled” Pankosmion, Elfnet, and Alive Systems. Kleefeld
gave $100,000 to Alive Systems in 1990 and made a series of 17 loans to Elfnet between
1991 and 2000. Her loans to Elfnet totaled $4,569,500. Jeffrey was the president of
Elfnet. The loans to Elfnet were interest bearing loans that could be converted to stock
ownership. Kleefeld sought, as a “condition of the loans” to Elfnet that Jeffrey give her
half of any income derived from his technology. None of the loans was ever repaid. In
2000, Kleefeld informed Jeffrey that she would be making no further loans to Elfnet.
Kleefeld did not enter into any joint venture contract with Jeffrey. She gave Jeffrey
$100,000 in 2005 because he was destitute, and she felt sorry for him. Kleefeld never
gave Jeffrey any additional funds after 2005.
Kleefeld was the sole shareholder of Atoms, and she had the sole power to make
employment decisions for Atoms. It was her decision to hire Jeffrey and to terminate
him. She decided to have Atoms hire Jeffrey because she wanted to help him and also to
“be assured that he and Ms. Gosenhauser [sic] would not harass me again” as they had
previously. In order to serve this purpose, the employment agreement prohibited Jeffrey
and Gonsenhauser from communicating with her. However, once Jeffrey became
employed by Atoms, Kleefeld began “receiving bills from both my accountant
[Simonich] and my attorney [Mallett] evidencing ongoing contact with Mr. Jeffrey.”
“These bills indicated to me that my attempted charity to Jeffrey through his employment
was ineffective, he was dissatisfied with the situation, and had no gratitude.” She
concluded that “it was not in anyone‟s interest to continue this situation,” so, “[p]ursuant
to my instructions, Atoms, Inc. terminated” Jeffrey‟s employment. Kleefeld was
unaware, prior to the termination of Jeffrey‟s employment, that Jeffrey had complained
about Atoms‟s failure to provide health benefits for Gonsenhauser during his
employment.
Mallett is legal counsel to both Kleefeld and Atoms. When he presented
Kleefeld‟s offer of employment to Jeffrey, Jeffrey said that the salary was “insufficient”

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even though Mallett explained that “he really had no duties under the employment
agreement.” Mallett also explained that Gonsenhauser‟s signature on the agreement was
required because Kleefeld wanted assurance that Gonsenhauser would not contact or
harass her in the future.
Simonich is president of Atoms and Kleefeld‟s personal accountant. Before
Jeffrey and Gonsenhauser signed the employment agreement, Simonich told them that
“Gonsenhauser would be covered if she qualified as a dependent under the coverage in
effect at Atoms, Inc.” Atoms‟s health insurance was provided by Anthem Blue Cross.
Jeffrey filled out and signed an Anthem Blue Cross application for health benefits. On
the application, he identified Gonsenhauser as his dependent and his domestic partner.
The form explicitly defined “[e]ligible dependent” as “lawful spouse or domestic partner”
and sought the date of the “Domestic Partnership Declaration.” Jeffrey did not enter such
a date. Gonsenhauser is not Jeffrey‟s spouse, and she has never been or made any effort
to become Jeffrey‟s domestic partner. Atoms submitted Jeffrey‟s application to Anthem
Blue Cross, but Anthem Blue Cross informed Atoms it required the domestic partner
registration number “in order to extend coverage to her.” On October 28, 2008, Atoms
sent a letter to Jeffrey notifying him that Anthem Blue Cross required the domestic
partner registration number and requesting that he provide this information to Anthem
Blue Cross. Atoms‟s letter stated that “[w]ithout this information she is not going to be
considered for this insurance plan.” Because Jeffrey did not provide the requisite
information, Atoms was unable to provide health insurance coverage to Gonsenhauser.
During Jeffrey‟s employment by Atoms, he repeatedly contacted Simonich.
Jeffrey also contacted Mallett about the health benefits issue. Simonich did not
communicate to Kleefeld the contents of Jeffrey‟s communications. Kleefeld learned
only that Jeffrey was “costing me money” by “constantly” contacting Simonich and
Mallett. At Kleefeld‟s instructions, Simonich terminated Jeffrey‟s employment.

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 C. Plaintiffs’ Response
Plaintiffs admitted that many of defendants‟ material facts were undisputed, but
they challenged some of them. They did not dispute that the funds Kleefeld had given to
Elfnet were loans that were convertible to stock, that no more loans had been made after
2000, and that these loans had not been repaid. Plaintiffs did not dispute that Kleefeld
was the sole shareholder of Atoms and that Jeffrey was hired and terminated by Atoms at
her instigation. They did not dispute that they had read and signed the employment
agreement with Atoms. They did not dispute that Anthem Blue Cross required a
domestic partner registration number in order to extend health benefits coverage to
Gonsenhauser, and that Gonsenhauser had never taken any steps to register as Jeffrey‟s
domestic partner. Nor did they dispute that Jeffrey had complained to Simonich.
They disputed whether Kleefeld had the sole power to make employment
decisions for Atoms, but cited no evidence to the contrary. They also disputed whether
Kleefeld had knowledge of Jeffrey‟s communications with Mallett and Simonich, but
they produced no evidence that she did and merely claimed that she had “constructive
knowledge.” Although they admitted that Gonsenhauser was not Jeffrey‟s registered
domestic partner, they disputed the meaning of the terms “dependent” and “domestic
partner.” Plaintiffs disputed whether the employment agreement was integrated and
whether Jeffrey‟s employment was “at will.” They also contended there was a dispute
about the terms of the employment agreement regarding health benefits. Finally,
plaintiffs claimed that Jeffrey had responded to the October 28, 2008 letter by speaking to
Simonich and Mallett on the telephone.

D. Miscellaneous Issues
Plaintiffs‟ appellate briefing individually challenges the superior court‟s rulings on
each cause of action. At various points in their briefs, plaintiffs make other general
complaints, which they do not clearly delineate as separate contentions.

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 They complain that defendants‟ pleadings in the superior court did not comply
with California Rules of Court, rule 3.1350 and Code of Civil Procedure section 437c and
fault the superior court for failing to rule individually on each of their evidentiary
objections. Plaintiffs also suggest that the superior court erred in allowing defendants to
rebrief their motion. Since the lack of rule compliance was cured by the rebriefing to
which plaintiffs explicitly agreed, the rebriefing substantially complied with the statute,
and the purported evidentiary objections lacked merit, these contentions are unavailing.
Plaintiffs seem to complain that defendants did not fully comply with their
discovery requests, but we can find no motion to compel or ruling thereon in the appellate
record. Therefore, this contention was not preserved for appellate review.
Plaintiffs also suggest that the superior court did not make adequate findings in its
order granting summary judgment. Both at the hearing and in its written order, the
superior court made specific findings regarding each cause of action. These findings
were adequate. There are intimations in plaintiffs‟ briefs that the superior court should
have granted a “new trial” motion. The record does not appear to contain any ruling on a
new trial motion or on plaintiffs‟ postjudgment reconsideration motion, so there is no
ruling for us to review.
Furthermore, “[t]o the extent [appellant] perfunctorily asserts other claims,
without development and, indeed, without a clear indication that they are intended to be
discrete contentions, they are not properly made, and are rejected on that basis.” (People
v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.) Because plaintiffs‟ general complaints are
not clearly delineated as separate contentions and are not developed, they are not properly
made, and we deem them forfeited. We proceed to consider plaintiffs‟ challenges to the
superior court‟s rulings on their causes of action.

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 E. Promissory Estoppel
The superior court found that Jeffrey‟s promissory estoppel cause of action lacked
merit because “the undisputed facts establish consideration was given.” “[A] plaintiff
cannot state a claim for promissory estoppel when the promise was given in return for
proper consideration. The claim instead must be pleaded as one for breach of the
bargained-for contract.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th
256, 275.) “Any benefit conferred, or agreed to be conferred, upon the promisor, by any
other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or
agreed to be suffered, by such person, other than such as he is at the time of consent
lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a
promise.” (Civ. Code, § 1605.)
Although defendants sought summary adjudication of this cause of action on the
ground that “consideration was given,” defendants‟ separate statement did not clearly
address the lack of consideration issue. However, this inadequacy is immaterial because,
as defendants pointed out in their pleadings below, the verified amended complaint itself
alleged that consideration was given, and Jeffrey admitted at his deposition that the
alleged promise was made in exchange for consideration. Jeffrey alleged in his verified
amended complaint that Kleefeld had promised in 1987 to fund the development of his
“patented technology,” and that “Jeffrey, in consideration for such funding by Kleefeld,
and as his end of the bargain, . . . promised to provide, and did provide, patented
computer programs and software designs . . . .” (Italics added.) Thus, Jeffrey‟s verified
pleading took the position that Kleefeld‟s promise was given in exchange for his
provision of the patented technology. Where a summary judgment motion essentially
challenges the sufficiency of the allegations to state a cause of action and does not require
the consideration of evidence, the motion may be treated as a motion for judgment on the
pleadings and leave to amend granted if appropriate. (Taylor v. Lockheed Martin Corp.
(2000) 78 Cal.App.4th 472, 479) Here, this cause of action was subject to judgment on

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the pleadings on the ground that it failed to state a cause of action. And it was
inconceivable that Jeffrey could have amended the verified complaint because he testified
at his deposition that “what [Kleefeld] was getting back for the promise” she made in
1987 was that “she was to get . . . approximately 50 percent ownership” of the
technology. Since Jeffrey was bound by these admissions, he could not establish that
Kleefeld‟s alleged 1987 funding promise was made without consideration. It follows that
her alleged promise could not form the basis for a promissory estoppel cause of action.

F. Breach of Joint Venture Contract
The superior court found that Jeffrey‟s breach of joint venture contract cause of
action could not succeed because “the undisputed facts establish that no joint venture was
created” since “[t]he written agreements were loans,” and Kleefeld had “no intent” to
“enter into a joint venture.” It was undisputed that each and every one of Kleefeld‟s
loans to Elfnet was documented in a writing, signed by Jeffrey, specifying that the funds
were an interest bearing loan that could be converted to stock ownership. This explicit
characterization of the funds Kleefeld provided precluded any inference that the funds
were provided pursuant to an unwritten joint venture agreement. Kleefeld also explicitly
denied that she had ever entered into a joint venture contract with Jeffrey. Jeffrey did not
respond with any evidence to support his allegation that he and Kleefeld had entered into
a joint venture contract. Defendants were therefore entitled to summary adjudication of
this cause of action.

G. Wrongful Termination in Violation of Public Policy
The superior court found that this cause of action lacked merit because “there was
no violation of public policy.” Jeffrey claimed that the “public policy” was related to
Gonsenhauser‟s allegedly promised but undelivered health benefits. He maintains that he
was terminated because he complained about this breach. However, defendants produced

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undisputed evidence that Kleefeld was unaware of the nature of his complaints and
instigated his termination because his communications with her accountant and attorney
were costing her money. Jeffrey produced no evidence to the contrary. He merely
claimed that Kleefeld had “constructive knowledge.” Yet her actual lack of knowledge
precluded any connection between the nature of Jeffrey‟s complaints and her decision to
terminate him. The superior court did not err in summarily adjudicating this cause of
action.

H. Breach of Employment Contract
The superior court found that this cause of action lacked merit because Jeffrey
“was an at will employee who could be terminated at any time for any reason.” The
written employment agreement, which was fully integrated, explicitly stated that Jeffrey‟s
employment was at will. Although he claims there were oral representations to the
contrary, parol evidence is not admissible to alter the provisions of an unambiguous fully
integrated writing. (Haggard v. Kimberly Quality Care, Inc. (1995) 39 Cal.App.4th 508,
519-520.) The employment agreement‟s “at will” provisions were not reasonably
susceptible of Jeffrey‟s proposed construction that his employment was “to continue in
perpetuity.” Hence, the superior court did not err in summarily adjudicating this cause of
action.

I. Interference
The court found that this cause of action lacked merit because Kleefeld was acting
as Atoms‟s agent and therefore could not be liable for interference. “The tort duty not to
interfere with the contract falls only on strangers—interlopers who have no legitimate
interest in the scope or course of the contract‟s performance.” (Applied Equipment Corp.
v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.) Plaintiffs claim that Kleefeld was
not Atoms‟s agent, but they alleged as much in their verified complaint. Furthermore,

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they produced no evidence disputing that Kleefeld was the sole shareholder in Atoms and
that she exercised full control over Atoms‟s employment decisions. There was no error.

J. Third Party Beneficiary Breach of Contract
The court found that this cause of action lacked merit because there was no breach
of contract. Gonsenhauser claims that the employment agreement was ambiguous with
respect to the provision of health benefits. The employment agreement stated that health
benefits would be provided to “ „dependents‟ permitted under [Atoms’s insurance]
policies” and “subject to all of the terms and conditions set forth in the applicable
insurance policies.” (Italics added.) It was undisputed that the terms of Atoms‟s health
insurance policy did not cover Gonsenhauser unless she was Jeffrey‟s spouse or
registered domestic partner. She admitted that she was not. Thus, the contract was not
violated when she received no health benefits. Again, parol evidence was inadmissible to
contradict the unambiguous terms of the integrated written contract.

K. Fraud
The trial court found that the fraud cause of action lacked merit because “there is
no triable issue of fact that a misrepresentation was made.” Jeffrey and Gonsenhauser
claim that there is a triable issue of fact because they produced evidence that Simonich
told them that Gonsenhauser would receive health benefits as a result of the employment
contract.
“ „The elements of fraud, which give rise to the tort action for deceit, are (a)
misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of
falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance;
and (e) resulting damage.‟ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Atoms produced evidence that Simonich told Jeffrey and Gonsenhauser that, if
they signed the employment agreement, “Gonsenhauser would be covered if she qualified

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as a dependent under the coverage then in effect at Atoms, Inc.” (Italics added.) The
undisputed facts established that Gonsenhauser did not qualify as a dependent under
Atoms‟s insurance policy. However, Jeffrey and Gonsenhauser submitted their
declarations in which they asserted that, before signing the agreement, they asked
Simonich if Gonsenhauser “would defin[i]tely receive the health care benefits.” They
declared that Simonich replied “Yes, you [Gonsenhauser] will receive them.” Hence,
there was a factual dispute about whether Simonich had made a misrepresentation.
Although Atoms claims on appeal that evidence of Simonich‟s alleged
misrepresentation was precluded by the parol evidence rule, the case upon which they
rely, Bank of America etc. Assn. v. Pendergrass (1935) 4 Cal.2d 258, was recently
overruled by the California Supreme Court. (Riverisland Cold Storage, Inc. v. Fresno-
Madera Production Credit Assn. (2013) 55 Cal.4th 169.) As Atoms did not seek
summary adjudication of this cause of action on any other ground, we must conclude that
the trial court erred in summarily adjudicating it.

IV. Disposition
The judgment is reversed, and the matter is remanded with directions to vacate the
order granting summary judgment. The superior court is directed to enter a new order
granting summary adjudication as to all of the causes of action other than the fraud cause
of action and denying the motion as to the fraud cause of action. The parties shall bear
their own costs on appeal.

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 _______________________________
Mihara, J.

WE CONCUR:

_____________________________
Premo, Acting P. J.

_____________________________
Márquez, J.

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