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SUPPLEMENTAL MEMO OF POINTS AND AUTHORITIES CASE NO. : 34-2012-00118402

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SMITH PATTENSPENCER F. SMITH, ESQ. (SBN: 236587)DOW W. PATTEN, ESQ. (SBN:135931)353 Sacramento St., Suite 1120San Francisco, California 94111Telephone (415) 402-0084Facsimile (415) 520-0104

Attorney for PlaintiffHORTENSIA GRESHAM

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SACRAMENTO

HORTENSIA GRESHAM, an individual,

Plaintiff,

v.

CATHOLIC HEALTHCARE WEST, DIGNITY HEALTH as successor in interest to CATHOLIC HEALTHCARE WEST, and DOES 2-10,

Defendants.

_____________________________________

))))))))))))))))))))

CASE NO. : 34-2012-00118402

SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Date: August 25, 2014Time: 2:00 p.m.Dept.: 53

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OPPOSITION TO MOTION FOR SUMMARY JUDGMENT CV-13-04611-RSWL(JCX)

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES.......................................................................................................... ii

INTRODCUTION …..................................................................................................................... 1

I. BACKGROUND............................................................................................................... 1

II. LAW AND ARGUMENT ................................................................................................10

A. CLAIM FOR PROMISSORY ESTOPPEL................................................................ 11

B. BREACH OF CONTRACT....................................................................................... 15

C. GOOD FAITH AND FAIR DEALING..................................................................... 17

D. INTENTIONAL MISREPRESENTATION.............................................................. 18

E. NEGLIGENT MISTREPRESENTATION................................................................ 20

F. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY................. 22

G. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)................... 24

H. LABOR CODE SECTION 970................................................................................. 26

I. PUNITIVE DAMAGES............................................................................................ 27

III. CONCLUSION ..............................................................................................................27

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TABLE OF AUTHORITIES

Aguilar v. Atlantic Richfield Co.(2001) 25 Cal. 4th 826 [107 Cal. Rptr. 2d 841, 24 P.3d 493]........................................... 10

Anderson v. Liberty Lobby, Inc.(1986) 477 U.S. 242, [106 S. Ct. 2505, 91 L. Ed. 2d 202].............................................. 10

Armenta v. Osmose, Inc. (2006) 135 Cal. App. 4th 314 [37 Cal. Rptr. 3d 460] ...................................................... 23

Barrington v. A. H. Robbins Co. (1985) 39 Cal. 3d 146[216 Cal. Rptr. 405, 702 P.2d 563]................................................ 23

Blankenheim v. E. F. Hutton & Co.,(1990) 217 Cal. App. 3D 1463 [266 Cal. Rptr. 593]........................................................ 19

Brehm v. 21st Century Ins. Co.(2008) 166 Cal. App. 4th 1225 [83 Cal. Rptr. 3D 410].................................................... 17

Careau & Co. v. Sec. Pac. Bus. Credit, Inc.,(1990) 222 Cal. App. 3d 1371 [272 Cal. Rptr. 387]......................................................... 15

Christensen v. Superior Court(1991) 54 Cal. 3d 868 [2 Cal. Rptr. 2d 79, 820 P.2d 181]............................................... 25

City of Moorpark v. Super. Ct.(1998) 18 Cal. 4th 1143 [959 P.2d 752, 77 Cal. Rptr. 2d 445]......................................... 22

Davis v. Kiewit Pacific Co.(2013) 220 Cal. App.4th 358 [162 Cal. Rptr. 3d 805]...................................................... 10

Egan v. Mut. of Omaha Ins. Co., (1979) 24 Cal. 3d 809 [169 Cal. Rptr. 691, 620 P. 2d 141]............................................. 17

Fowler v. Varian Assocs., Inc.(1987) 196 Cal. App. 3d 34 [241 Cal. Rptr. 539].............................................................. 25

Freund v. Nycomed Amersham (9th Cir. 2003) 347 F. 3d 752 ........................................................................................... 22

Funk v. Sperry Corp. (9th Cir. 1988) 842 F. 2d 1129.......................................................................................... 26

Garcia v. World Savings, FSB(2010) 183 Cal. App.4th 1031 [107 Cal. Rptr. 3d 683].................................................... 11

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Green v. Ralee Engineering Co., (1998) 19 Cal. 4th 66 [960 P.2d 1046, 78 Cal. Rptr. 2d 16]....................................... 23, 24

Grouse v. Group Health Plan, Inc.,(Minn. 1981) 306 N.W. 2d 114 ...................................................................................... 13

Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal. 4th 305 [1 P.3d 63, 96 Cal. Rptr. 2d 747]................................................ 11

Kelly v. Methodist Hospital of Southern Cal. (2000) 22 Cal. 4th 1108 [95 Cal. Rptr. 2d 514. 997 P.2d 1169] ..................................... 23

Kersch v. Taber (1945) 67 Cal. App. 2d 499 [154 P. 2d 934]................................................................... 17

Lazar v. Superior Court(1996) 12 Cal.4th 631 [909 P.2d 981, 49 Cal. Rptr. 2d 377]........................................... 18

Leiter v. Handelsman(1954) 125 Cal. App. 2d 243 [270 P.2d 563]................................................................... 16

Love v. Fire Ins. Exch.,(1990) 221 Cal. App. 2d 1136 [271 Cal. Rptr. 246]......................................................... 17

Lyon v. Goss(1942) 19 Cal. 2d 659 [123 P.2d 11] .......................................................................... 16, 17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,(1986) 475 U.S. 574 [106 S. Ct. 1348, 89 L. Ed. 2d 538]............................................... 10

Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal. App. 4th 1175 [51 Cal. Rptr. 3d 144].................................................... 20

Outboard Marine Corp. v. Superior Court(Cal. App. 3D Dist. 1975) 52 Cal. App. 3d 30 [124 Cal. Rptr. 852].......................... 21, 26

Perez-Falcon v. Synagro West, LLC, (E.D. Cal. Dec. 23, 2011) 2011 U.S. Dist. LEXIS 148131............................................ 24

Platt Pacific Inc. v. Andelson (1993) 6 Cal. 4th 307 [862 P.2d 158, 24 Cal. Rptr. 2d 597] ............................................ 11

Potter v. Firestone Tire & Rubber Co.,(1993) 6 Cal. 4th 965 [25 Cal. Rptr. 2d 550, 863 P.2d 795]............................................ 25

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Sheppard v. Morgan Keegan & Co. (1990) 218 Cal. App. 3d 61 [266 Cal.Rptr. 784]............................................................ 17

Stevenson v. Superior Court (1997) 16 Cal. 4th 880 [66 Cal. Rptr. 2d 888, 941 P.2d 1157]....................................... 22

Snyder v. City Bond & Finance Co., (1930) 106 Cal. App. 745 [289 P. 859]........................................................................... 19

Tameny v. Atl. Richfield Co., (1980) 27 Cal. 3d 167 [Cal. Rptr. 839, 610 P.2d 1330]....................................... 22, 23, 24

Toscano v. Greene Music (2004) 124 Cal. App. 4th 685 [21 Cal. Rptr. 3d 732] ...........................................11, 12, 13

Tran v. Farmers Group, Inc. (2002) 104 Cal. App. 4th 1202 [128 Cal. Rptr. 2d 728] ..................................................10

US Ecology Inc. v. State of California (2005) 129 Cal. App. 4th 887 [28 Cal. Rptr. 3d 894]................................................. 11, 12

Wolf v. Walt Disney Pictures and Television(2008) 162 Cal. App. 4th 1107 [76 Cal. Rptr. 2d 585].................................................... 17

216 Sutter Bay Associates v. County of Shutter (1997) 58 Cal. App. 4Th 860 [68 Cal. Rptr. 2d 492]....................................................... 10

STATUTES, REGULATIONS, AND RULES

Code Civ. Proc., § 437c............................................................................................................... 10

Civ. Code § 1572, subd. 2............................................................................................................ 20

Civ. Code § 1657.......................................................................................................................... 16

Civ. Code § 1710, subd. 2............................................................................................................ 20

Civ. Code § 3294, subd. (a).......................................................................................................... 27

CACI No. 303.............................................................................................................................. 15

1 SUPPLEMENTAL MEMO OF POINTS AND AUTHORITIES CASE NO. : 34-2012-00118402

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Plaintiff, HORTENSIA GRESHAM, by and through her counsel of record herein,

submits the following Supplemental Memorandum of Points and Authorities in Opposition to

Defendant's Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

Defendant, Catholic Healthcare West moved for summary judgment on Plaintiff's claims for 1)

promissory estoppel, 2) breach of contract, 3) breach of the implied covenant of good faith and

fair dealing, 4) intentional misrepresentation, 5) negligent misrepresentation, 6) negligence, 7)

wrongful termination in violation of public policy, 8) intentional infliction of emotional distress,

9) violation of Labor Code Section 970 and 10) punitive damages. This Supplemental briefing

became necessary because Defendant refuse to produce a Person Most Knowledgeable (“PMK”)

for deposition pursuant to CCP §2025.230 prior to moving for summary judgment. This

Supplemental Memorandum details material issues of fact related to Plaintiff's reasonable, and

ultimately detrimental, reliance on Defendant's offer of employment to Plaintiff.

Plaintiff concedes that her cause of action for negligence should be dismissed. For the

reasons stated below, Defendant's motion for summary judgment must be denied as to the

remainder of Plaintiff's claims.

I. BACKGROUND

Plaintiff, Hortensia Gresham ("Gresham") graduated from Southwest High School in

Atlanta, Georgia in 1980. (Declaration of Dow W. Patten (“Patten Decl.”), Exh. “A”, Gresham

Depo., 20:10-16.) After high school, Plaintiff attended Georgia State University for about two

years then transferred to Perimeter North College in Dunwoody, Georgia where she earned an

Associates Degree in medical laboratory technology (Id. at 20:17-21:14; Declaration of Plaintiff,

Hortensia Gresham, (Gresham Decl.), Exh. “A”, DEF00041.) In 1995 Plaintiff earned a Bachelor

of Science degree in Nursing from Clayton State College in Morrow, Georgia. (Patten Decl.,

Exh. “A”, Gresham Depo., 21:18-22:1; Gresham Decl., Exh. “A”, DEF00041.) In 2004, Plaintiff


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earned a second Associates Degree in computer information systems from Henry Ford

Community College Dearborn, Michigan. (Ibid.) In 2006 Plaintiff earned a Master's degree from

Walsh College in Troy, Michigan in business information technology with a minor in information

security. (Patten Decl., Exh. “A”, Gresham Depo., 22:12-23:4; Gresham Decl., Exh. “A”,

DEF00041.)

Throughout her career, Plaintiff has held increasingly higher roles within the health care

industry. Prior to 2011, Plaintiff worked as a Senior Lead Analyst in Information and Technology

for the Hurley Medical Center in Flint, Michigan. (Gresham Decl., Exh. “A”, DEF00041.) She

also worked as a nurse at the Henry Ford Hospital. (Ibid.)

In 2011, Gresham posted her resume on Careerbuilder.com. (Patten Decl., Exh. “A”,

Gresham Depo., 42:24-43:11.) In 2011, Toni Price (“Price”), Defendant's Contract Recruiter,

found Gresham's resume posted on a job board and contacted her about a recently vacant Clinical

Nurse Informaticist position at Methodist Hospital in Sacramento, California. (Patten Decl.,

Exh. “B”, Price Depo. 33:6-24; Patten Decl Exh “E” Kennedy Depo. 18:21-19:8.) When Price

emailed Gresham about the vacant position she attached a copy of the position description which

stated in relevant part: “[a] Bachelor's Degree in a clinical area is required. RN required, A BSN

a plus. A Masters degree is preferred. Minimum of one year experience in information

technology and two years experience with a hospital leadership role.” (Gresham Decl., Exh.

“B”, PL 000001.) Gresham met or exceeded all of these requirements. (Gresham Decl., ¶ 5.)

On April 19, 2011, Gresham participated in a telephone interview with the Clinical

Informaticist at Mercy General Hospital, Andrea Plon (“Plon”), regarding the vacant Clinical

Nurse Informaticist position. (Gresham Decl., ¶ 7.) After the interview, Plon informed Price that

she spoke to Plaintiff, “liked” Plaintiff, and thought Plaintiff “would be a good candidate to


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interview.” (Patten Decl., Exh. “U”, DEF 000060.) Plon also emphasized to Price that Plaintiff

was “willing to relocate to Sacramento.” (Ibid.)

After the initial telephone interview, Plaintiff was interviewed on April 28, 2011, via

video by Plon, as well as Defendant's CFO Bonnie Jenkins, IT Site Director Randy Young,

Physician David Pai, and Clinical Informaticist Terri Wilson. (Patten Decl., Exh. “K”, PL 00002;

Patten Decl., Exh. “B”, Price Depo. 38:9-21.) Following the successful telephone and video

interviews, Defendant sent a finalized employment offer to Plaintiff's home in Farmington Hills,

Michigan on May 5, 2011.1 Plaintiff subsequently signed and returned the offer. (Patten Decl.,

Exh. “L”, PL 00003.) The offer provided that Methodist Hospital would employ Plaintiff in the

position of Clinical Nurse Informaticist in its Elk Grove, CA location where she would report

directly to CFO Bonnie Jenkins. In addition to listing compensation, bonuses, and other benefits,

the employment agreement stated that “should you leave employment with Methodist Hospital

within two years of your date of hire you will be required to pay back a pro-rated portion of the

[relocation] reimbursement.” (Patten Decl., Exh. “M”, PL 00004.) The start date for Plaintiff's

employment was originally set for June 20, 2011. (Patten Decl., Exh. “B”, Price Depo. 48:21-

22.)

On May 11, 2011, Price wrote to Plaintiff and stated “just wanted to remind you to apply

for your California RN License.” (Gresham Decl., Exh. “D”, PL 000040.) On May 12, 2011,

Plaintiff responded to Price and stated:

Michigan is not a compact state like California.2 I have heard from friends that it takes months (4-5) before they were able to get a a license. Is this going to be a problem for me to start working? I went back and looked at the job description and it didn't require that I have a California nursing license – it just said RN required. I plan applying for my nursing

1 On this same day Price also sent an email to Plaintiff stating, “[c]ongratulations on your new position with Methodist Hospital.” (Patten Decl., Exh. “F”, DEF 000024)

2 Vice President, Chief Nursing Officer of Methodist Hospital Martina Evans-Harrison testified that a compact state is a state that can verify the license without having to got through a process, and the person is automatically granted a license. (Patten Decl., Exh. “D”, Evans-Harrison Depo 40:9-17)


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license in California, but I didn't know that I needed it before I started thejob, Will this be a problem? If so, we may need to talk.

(Gresham Decl., Exh. “E”, PL 000039; Patten Decl., Exh. “A”, Gresham Depo., 85:20-86:11,

emphasis added.) Price responded as follows:

As stated in my email there will be no problem for us. They will issueyou a temporary California license which will enable you to start yournew position with Methodist. You will receive your permanent licensein a few months. I would recommend contacting the California Boardof Registered Nurse to confirm the process. You can apply now or whenyou come to California.

(Gresham Decl., Exh. “F”, PL 000038, emphasis added.)

Plaintiff immediately began the process to obtain her California RN license. She

immediately requested her transcripts to be sent to the California Board of Registered Nursing.

(Gresham Decl., ¶ 14, Exh. “G”, DEF00011.) Plaintiff immediately submitted a verification form

request to have her license verification sent to the California Board of Registered Nursing. (Ibid.)

On May 17, 2011, Plaintiff informed Defendant that according to the Michigan webpage, this

process alone could take anywhere from 20-30 days. (Ibid.). Plaintiff also gathered all of the

necessary paperwork for her scheduled Live Scan appointment. (Gresham Decl., ¶ 15.) Plaintiff

informed Defendant that she understood it would take 1-2 months to verify her fingerprints.

(Gresham Decl., ¶ 14, Exh. “G”, DEF00011)

On May 19, 2011, Plaintiff's start date was changed to July 11, 2011 to accommodate

Plaintiff’s daughter's completion of her sophomore year of high school. (Gresham Decl., Exh.

“H”, DEF000049.) Plaintiff and Price discussed Plaintiff having to break her lease, and the

additional time required in breaking the lease and finding replacement housing in Sacramento.

(Patten Decl., Exh. “A”, Gresham Depo., 66:21- 68:14.) On May 30, 2011, Plaintiff traveled to

Defendant's Sacramento location to complete her health screening, take a drug test, and a TB

test, and submit her licensure application to the California Board of Registered Nursing. (Patten

Decl., Exh. “A”, Gresham Depo., 73:7-19, 96:15-97:6; Patten Decl., Exhs. “O-Q”, PL 00043-


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00045, Gresham Dec., ¶¶ 18-20.) Plaintiff also had her fingerprints taken through Livescan.

(Gresham Decl., ¶ 18.) During this trip, Plaintiff also commenced her search for a new home

and Price recommended neighborhoods and schools in the Sacramento Area. (Patten Decl., Exh.

“B”, Price Depo. 66:12-19, Gresham Decl., ¶ 20.)

While in California in May of 2011, Plaintiff was informed that her job had changed to

Director of Health Informatics position in the Care Connect Department reporting to CFO

Bonnie Jenkins on June 1, 2011. (Patten Decl., Exh. “A”, Gresham Depo., 103:13-22; Patten

Decl., Exh. “N”, PL 000022.) In addition to listing compensation, bonuses, and other benefits,

the employment agreement stated that “should you leave employment with Methodist Hospital

within two years of your date of hire you will be required to pay back a pro-rated portion of the

[relocation] reimbursement.” Price testified that she was informed that the position would be

upgraded but she didn't know why. (Patten Decl., Exh. “B”, Price Depo. 63:11-21.)

On June 6, 2011, Plaintiff wrote to Price and thanked her for all of her advice and help

with Plaintiff's procurement of living arrangements in California. (Gresham Decl., Exh. “I”,

DEF000028.) Plaintiff also informed Price that she would be arriving in California on July 7,

2011 and would need to break her current lease in Michigan two months early to meet the July 8,

2011 start date. (Ibid.) On June 13, 2011, Gresham wrote to Price to inform her that she

finalized all of her living arrangements in California and that the California Nursing board had

all of the necessary paperwork and that she was just waiting for confirmation. (Gresham Decl.,

Exh. “K”, DEF 000029.) Gresham requested a job description at the time but there was no job

description in existence. (Patten Decl., Exh. “B”, Price Depo. 65:13-20.)

On June 24, 2011, Price wrote to Gresham and stated that her contract ended with the

hospital and Price would no longer be working with the hospital. (Gresham Decl., Exh. “L”, PL

000085; Patten Decl., Exh. “B”, Price Depo. 72:21-73:10) Price at this time congratulated


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Gresham on her “new position with Methodist Hospital.” (Ibid.) Gresham testified that Price

called her to wish her luck after the June 24, 2011 e-mail and informed Gresham that her new

point of contact would be Elizabeth Tattersall (“Tattersall”). (Patten Decl., Exh. “A”, Gresham

Depo., 143:1-14.) Price testified that when she left Catholic Healthcare West she believed the

Plaintiff's offer of employment was finalized. (Patten Decl., Exh. “B”, Price Depo. 47:13-18.)

Plaintiff testified that when she presented for her first day of work on July 8, 2011,

Tattersall requested Plaintiff's nursing license and her driver's license, at which point Plaintiff

informed Tattersall that California had not recognized her Michigan nursing license yet. (Patten

Decl., Exh. “A”, Gresham Depo., 147:19-24.) Tattersall informed Plaintiff that because she had

yet to receive her California recognition of her RN license and because the “position requires

one” Plaintiff would not be able to start work. (Patten Decl., Exh. “I”, DEF 000052; Patten

Decl., Exh. “A”, Gresham Depo., 148:1-7.) Plaintiff testified that she was “floored” as this was

the first time that she learned that Defendant was making a California nursing license a pre-

condition to commencing her work in informatics. (Id. at 71:18-72:13.)

On July 8, 2011 Ms. Tattersall wrote an email to Chief Nursing Officer Martina Evans-

Harrison and stated in relevant part: “[Plaintiff] spoke with the board and they said to look for it

the first week of August. This is farther out than we had hoped but I told her I would continue to

check the website. I anticipate she may return to MI so she can continue to work in the

meantime, unless there is any alternatives we can come up with.” (Patten Decl., Exh. “I”, DEF

000052). On July 14, 2011, Plaintiff informed Tattersall that “[u]nfortunately, the nursing board

is swamped and we may need to wait another 4-6 weeks. The time frame is what they told me.”

(Gresham Decl., Exh. “M”, DEF 000043.) That is exactly how long the Board took to approve

Plaintiff's Michigan license.


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Tattersall testified she did not understand what the holdup was and did not look into what

the items were that were causing the holdup. (Patten Decl., Exh. “C”, Tattersall Depo., 52:12-

22.) Gresham testified that on approximately July 18, 2011, she had a telephone conversation

with Ms. Tattersall in which Tattersall informed her that she needed to pay back all of her

moving expenses. (Patten Decl., Exh. “A”, Gresham Depo., 154:6-21, 155:3-156:15.)

On July 20, 2011, Gresham sent an email to Director of Talent Strategy, Lori Burt and

stated in relevant part:

I recently accepted the Director of Health Informatics position in the Care Connect department. I cannot start my position untilI receive my California nursing license, but I have not receivedthe job requirements or job description for my new position....Lastly, with this new position is it imperative that I have a Californianursing license before starting, or is it that I have the degrees and anursing background.

(Gresham Decl., Exh. “N”, DEF000044.) On July 24, 2011, after receiving no response from

Ms. Burt, Plaintiff followed up with Tattersall and again asked for the job description for the

Director position. (Gresham Decl., Exh. “N”, DEF 000044.) On July 26, 2011, Tattersall

provided the job description for the Director of Informatics position and stated that it was her

understanding that “the qualifications did not change and it was simply a reorganization of the

job title and salary.” (Gresham Decl., Exh. “O”, PL 000105.) On July 26, 2011, Gresham wrote

to Tattersall and thanked her for the job description and requested how long the position would

be open to her. Gresham testified that she asked the question of “how long will this position be

open to me” because at that time she still had not received her license and the new job

description stated that she needed a California nursing license. (Patten Decl., Exh. “A”, Gresham

Depo., 167:7-17.) Tattersall nor anyone else at Dignity Health ever responded to this question.

(Patten Decl., Exh. “A”, Gresham Depo., 167:18-24.) In fact, no one at Dignity Health ever told

Plaintiff that the position would only be open for a certain period of time. (Id. at 167:25-168:10.)


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Tattersall testified that she did not put a definitive date on how long the position would

be open to Plaintiff because she did not know how long the position would be open. (Patten

Decl., Exh. “C”, Tattersall Depo., 105:2-23.) On July 29, 2011, Plaintiff provided Tattersall with

an update regarding the processing of her nursing license. (Gresham Decl., Exh. “Q”, DEF

000018.) Tattersall replied by stating “Thank you for the update. I will connect with Anita3 and

Martina4 on Monday so we can work through the next steps.” (Patten Decl., Exh. “A”, Gresham

Depo.,173:7-15.) Plaintiff testified that she did not recall Ms. Tattersall contacting her after

sending that e-mail to tell her the next steps. (Id., at 173:16-20.)

On or about August 18, 2011, Vice President of Human Resources, Anita Kennedy told

Ms. Tattersall that she wanted to rescind Ms. Gresham's job offer. (Patten Decl., Exh. “C”,

Tattersall Depo., 31:4-7.) Kennedy testified that the decision to rescind occurred in July 2011.

(Patten Decl., Exh. “E”, Kennedy Depo., 14:17-15:3.) Ms. Evans-Harrison testified that she did

not discuss with Ms. Tattersall or Ms. Kennedy alternatives to rescinding the offer of

employment. (Patten Decl., Exh. “D”, Evans-Harrison Depo 44:21-45:1.) Evans-Harrison

testified that at the time of this discussion, Ms. Kennedy, Ms. Tattersall and Ms. Evans-Harrison

were all aware that Plaintiff had already moved from Michigan to California. (Patten Decl., Exh.

“D”, Evans-Harrison Depo 31:7-12.) Ms. Evans-Harrison testified that the offer of employment

made to Plaintiff was rescinded because Plaintiff could not obtain her nursing license (Id. at

21:19-23.) Ms. Evans-Harrison admitted that she never informed Plaintiff that there was a

deadline by which California must recognize Plaintiff's Michigan nursing license. (Id. at 44:8-

12.) Kennedy testified that she made the decision to rescind because Gresham was unable to

provide a valid California nursing license, and amidst reorganization, Defendant “needed to

3 Anita Kennedy, Methodist Hospital Vice President of Human Resources.

4 Martina Evans-Harrison, Chief Nursing Officer.


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really move on” after waiting two months for Gresham to obtain her temporary license. (Patten

Decl., Exh. “E”, Kennedy Depo at 13:1-17; 45:16-46:14; 47:4-6, 12-16.) Defendant did not fill

the position for more than six more months.

It is undisputed that no one at Methodist Hospital communicated to Ms. Gresham that

August 18, 2011 was a deadline for her to get her license. (Patten Decl., Exh. “C”, Tattersall

43:16-20; 56:10-19.) Price testified that Tattersall never contacted her for her input prior to

Tattersall rescinding the offer of employment. (Patten Decl., Exh. “B”, Price Depo. 49:20-50:1.)

Two weeks after Tattersall rescinded the offer of employment, Gresham received her California

nursing license. (Patten Decl., Exh. “A”, Gresham Depo., 176:18-25; Patten Decl., Exh. “B”,

Price Depo. 67:3-6.) In fact, Plaintiff received her license within the four to five month

timeframe she had informed Ms. Price of prior to moving to California, and within the 4-6 week

estimate that Plaintiff obtained from the Board on July 14, 2011. Kennedy testified that time was

of the essence in filling the position out of concern regarding the current Informaticist's

workload. (Patten Decl., Exh. “E”, Kennedy Depo., 22:8-22; 29:17-21; 41:20-22.) Despite this

concern Methodist Hospital would wait nearly six (6) months to fill the position. (Patten Decl.,

Exh. “E”, Kennedy Depo., 52:7-16.)

After the filing of the lawsuit Price spoke to Tattersall for the first time since she left the

hospital in June of 2011. (Patten Decl., Exh. “B”, Price Depo. 61:9-11.) Price testified that

Tattersall informed her that the offer was rescinded because Gresham could not obtain a

temporary or permanent license within a reasonable amount of time. (Id. at 57:17-19.)5 Price

testified that she was unaware of a time frame specified for Gresham to obtain her license and

Price testified she never spoke to Gresham about a specific time frame. (Id. at 27:9-28:19.)

5 According to Defendant's counsel, Catherine Frontczak and Jovita Ford were hired into Director of Nursing and/or Director of Health Informatics roles between 2009 and 2013 and did not have California nursing licenses at the time of their hire. (Patten Decl., ¶35 Exh. “X”, May 13, 2014 correspondence)


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Plaintiff has suffered severe financial and emotional damages as a result of Defendant

promise of employment, which resulted in Plaintiff uprooting her family and moving across the

country to Sacramento, CA where she knew no one. Plaintiff's daughter finished high school at a

new school and Plaintiff depleted her savings in an effort to survive without a job.

II. LAW AND ARGUMENT

When deciding a motion for summary adjudication, the Court must determine whether

the moving party, met its initial burden of affirmatively showing that the claim has no merit.

(Code Civ. Proc., § 437c, subd. (f)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826;

Davis v. Kiewit Pacific Co. (2013) 220 Cal. App.4th 358, 364.) The moving party meets this

burden for each of the targeted causes of action if it presents evidence that one or more elements

can not be established or that there was a complete defense to those claims. (Code Civ. Proc. §

437c, subd. (n); 216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal. App. 4th 860, 875-

876; Tran v. Farmers Group, Inc. (2002) 104 Cal. App. 4th 1202, 1215-16.) If the moving papers

establish a prima facie showing justifying adjudication, the burden shifts to the plaintiff "to show

that a triable issue of one or more material facts exists as to that cause of action or a defense

thereto." (Code Civ. Proc., § 437c, subd. (o)(2).)

In determining a motion for summary judgment, all reasonable inferences from the

evidence must be drawn in favor of the nonmoving party. (Anderson v. Liberty Lobby, Inc. (1986)

477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2D 202.) A genuine issue exists if "the evidence is

such that a reasonable jury could return a verdict for the nonmoving party," and material facts are

those "that might affect the outcome of the suit under the governing law." (Id. at p. 258.)

However, no genuine issue of fact exists "[w]here the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party." (Matsushita Elec. Indus. Co. v. Zenith

Radio Corp. (1986) 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2D 538.)


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A. CLAIM FOR PROMISSORY ESTOPPEL

“Promissory estoppel was developed to do rough justice when a party lacking contractual

protection relied on another's promise to its detriment.” (Kajima/Ray Wilson v. Los Angeles

County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 315.) "The elements of a

promissory estoppel claim are '(1) a promise clear and unambiguous in its terms; (2) reliance by

the party to whom the promise is made; (3) [the] reliance must be both reasonable and

foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.'" (US

Ecology, Inc. v. State of California (2005) 129 Cal. App. 4th 887, 901 (US Ecology).) Although

equitable in nature, promissory estoppel is akin to a cause of action based on contract except that

the consideration needed to form an enforceable contract is provided by detrimental reliance.

(Toscano v. Greene Music (2004) 124 Cal. App. 4th 685, 692-693.) Thus, courts "have

characterized promissory estoppel claims as being basically the same as contract actions, but

only missing the consideration element . . . ." (US Ecology, supra, 129 Cal. App. 4th at p. 903.)

"To be enforceable, a promise need only be '"definite enough that a court can determine

the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a

rational basis for the assessment of damages."' . . . It is only where '"a supposed 'contract' does

not provide a basis for determining what obligations the parties have agreed to, and hence does

not make possible a determination of whether those agreed obligations have been breached,

[that] there is no contract."'" (Garcia v. World Savings, FSB (2010) 183 Cal. App. 4th 1031,

1045, citation omitted.) “Generally, the determination of … estoppel is a question of fact,.”

(Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319 [24 Cal. Rptr. 2d 597, 862 P.2d 158].)

Because promissory estoppel is equitable in nature, courts are given wide discretion in its

application. (US Ecology, supra, 129 Cal. App. 4th at p. 905; Toscano, supra, 124 Cal. App. 4th

at pp. 692-693.)


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California courts have noted that the doctrine of promissory estoppel is applicable in

situations where a prospective employee relinquishes employment and changes his position in

reliance on an employer's offer of employment. In Sheppard v. Morgan Keegan & Co. (1990)

218 Cal. App. 3d 61 (Sheppard), for example, the Court of Appeal considered the claim of a

California stockbroker who was offered employment at a brokerage firm headquartered in

Memphis, Tennessee. Approximately two weeks after the stockbroker accepted the employment

offer, and before he started working, the stockbroker was informed that his position with the firm

was terminated. In the intervening two weeks the stockbroker had resigned from his previous

position in California, made two trips to Memphis, and leased an apartment in Memphis. (Id. at

pp. 64-65.) The Court of Appeal reversed the trial court's grant of summary judgment in favor of

the prospective employer, noting that the employer's conduct was governed by the doctrine of

promissory estoppel. (Id. at p. 68.) The logic and reasoning of the Court's ruling in Sheppard

should preclude summary adjudication of Plaintiff's promissory estoppel claim in the instant

action.

In Toscano, supra, the court considered a claim for promissory estoppel under the

following facts: Toscano was employed at Fields Pianos in Santa Ana. He was unhappy in his

job, and therefore contacted the president of Greene Music in San Diego. During the course of

several conversations in June and July 2001, Greene offered Toscano a sales management

position to commence on September 1, 2001. On August 1, 2001, Toscano resigned from Fields

in reliance on Greene's promise of employment. In mid-August, Greene withdrew the

employment offer. (Toscano, supra, 124 Cal.App.4th at pp. 689-690.) Toscano later found lesser

paying jobs, but sued Greene for breach of contract; breach of the implied covenant of good faith

and fair dealing; promissory estoppel; and interference with prospective economic advantage. (Id

at 690.) Only his claim for promissory estoppel survived summary adjudication and proceeded


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to a bench trial. The court ruled in Toscano's favor, awarding him $536,833. (Ibid.) The logic and

reasoning of the Court's ruling in Toscano should preclude summary adjudication of Plaintiff's

promissory estoppel claim in the instant action.

In a factually similar and persuasive out-of-state case, the court in Grouse v. Group

Health Plan, Inc., (Minn. 1981) 306 N.W.2d 114, found a defendant-employer's decision to

rescind plaintiff's employment offer unjust under the doctrine of promissory estoppel. There, the

plaintiff resigned from his job and turned down another offer after he had accepted defendant's

offer. (Id. at p. 115.) The defendant had a company hiring requirement which included a

favorable written reference. (Ibid.) After defendant was unable to obtain a favorable reference

for plaintiff, defendant hired another individual and rescinded plaintiff’s offer. (Ibid.) The logic

and reasoning of the Court's ruling in Grouse should be instructive for the Court in denying

summary adjudication of Plaintiff's promissory estoppel claim in the instant action.

Here the Plaintiff has alleged (1) that the Defendant made a clear and definite promise

that it was giving the Plaintiff a highly paid Director position at Methodist Hospital, (Second

Amended Complaint “SAC” ¶¶ 11, 17, 46; Patten Decl., Exh. “A”, Gresham Depo., 103:13-22;

Patten Decl., Exh. “N”, PL 000022.), (2) that the Defendant expected that Plaintiff would quit

her job and obtain a residence in California in reliance on this promise and actually encouraged

her to do so, (SAC, ¶ 46); (3) that Plaintiff did so in reasonable reliance on Defendant's promise,

(SAC, ¶ 49), and (4) that, as a result, she has suffered definite and substantial losses in the form

of continued unemployment and lost wages, expenses associated with moving and obtaining a

residence in California, and emotional damages.(SAC ¶¶ 54-58; Patten Decl., Exh. “A”,

Gresham Depo., 103:13-22.)

Plaintiff's reliance on Defendant's statements and conduct in moving to California was

reasonable. Plaintiff relocated across the country, based on the assurances of Price concerning


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relocation, breaking her current lease, the tax deductibility of her lease penalties, deposits for

moving Plaintiff's vehicle, and quitting her employment in Michigan. (Gresham Decl., Exh. “I”,

DEF 000028; Gresham Decl., Exh. “K”, DEF 000029; Gresham Decl., ¶ 20; Patten Decl, Exh.

“A” Gresham Depo. 141:3-142:18.) Defendant argues that it was unreasonable for Plaintiff to

move without at least receiving confirmation that she would obtain a California nursing license.

Whether or not Plaintiff's reliance was reasonable and foreseeable is a question of fact for the

jury to decide, and on these facts, judgment as a matter of law is not appropriate.

Plaintiff was never told that a California nursing license was required to start the position

until after she had quit her employment, uprooted her family, and moved to California.

(Declaration of Plaintiff ¶26; Patten Decl, Exh. “A” Gresham Depo. 147:21-149:19.) The

evidence clearly shows that Plaintiff was unaware that California recognition of her Michigan

license would be required before she could start performing informatics duties. On May 12,

2011, Plaintiff sent an email to Toni Price wherein she stated “I didn't know that I needed [a

California nursing license] before I started the job.” (Gresham Decl., Exh “D” PL000040).

Plaintiff stated that it could take her 4-5 months to obtain a license. (Ibid.) Toni Price then

assured Plaintiff that “there will be no problem for us” and that she could apply now or when she

moved to California. (Gresham Decl., Exh “E” PL000039.) Price's further stated “you can apply

now or when you come to California.” (Gresham Decl., Exh “F”, PL000038.)

On July 20, 2011, Plaintiff sent an email to Lori Burt wherein she asked “is it imperative

that I have a California nursing license before starting, or is it that I have the degrees and a

nursing background.” (Gresham Decl., Exh. “N”, DEF 000044.) The evidence overwhelmingly

shows that no one communicated to Plaintiff that a California nursing license was required for

her to start her employment.


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The reasonableness of Plaintiff's reliance is further demonstrated by other Dignity Health

employees who started positions without a license in place. According to the declaration

submitted in response to Plaintiff's PMK categories, 840 people have been hired as directors by

Defendant and started work without a California Nursing license from January 1, 2009 and

December 31, 2013, including two Chief Nursing Officers. (Patten Decl. Exh. “ AA”,

Declaration of Lori Burt) A reasonable jury could find Plaintiff's reliance upon Defendant's

assurances that she could obtain a license when she moved to California was reasonable.6

Based on the foregoing Plaintiff has submitted sufficient evidence related to each element

of this claim, to defeat Defendant's motion for summary adjudication of this claim.

B. BREACH OF CONTRACT

Plaintiff's first cause of action is for breach of employment contract of a specified term.

Plaintiff alleges that Defendant made an offer of employment, that Plaintiff accepted that offer,

and that Defendant breached a contract by refusing to allow Plaintiff to begin employment.

(“SAC” ¶¶ 35-37.)

To prove a contract claim, Plaintiff must show that: (1) Plaintiff and Defendant entered a

contract; (2) Plaintiff performed or her nonperformance was excused; (3) all conditions required

for Defendant's performance occurred or were excused; (4) Defendant breached the contract; and

(5) Plaintiff suffered damages. (Judicial Council of California Civil Jury Instructions ("CACI")

No. 303; Careau & Co. V. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1388, 272

Cal. Rptr. 387.)

6 Furthermore, Plaintiff took action after she was told that she would need a California nursing license. She requested her transcripts to be sent to the California Board of Registered Nursing. (Gresham Decl., ¶14). Plaintiff submitted a verification form request to have her license verification sent to the California Board of Registered Nursing. (Ibid.) On May 17, 2011, Plaintiff informed Defendant that according to the Michigan webpage, this process alone could take anywhere from 20-30 days. (Gresham Decl., Exh. “G”). Plaintiff also gathered all of the necessary paperwork for her scheduled Live Scan appointment when she traveled to Sacramento. (Gresham Decl., ¶15) Plaintiff informed Defendant it would take 1-2 months to verify her fingerprints. (Ibid). Despite its knowledge that, assuming everything went correctly, it could take through the end of July for Plaintiff to obtain her California nursing license, Defendant continued to represent to Plaintiff that she could start work on July 7.


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Defendant argues that Plaintiff's breach on contract claim fails because “Plaintiff cannot

prove she performed under the employment contract.” (Memorandum, 7:23-25)(emphasis

added) Defendant argues that “by the time the Methodist Hospital Vice President of Human

Resources, Anita Kennedy, decided in August 2011 that the Hospital could no longer keep the

position open for Plaintiff, it had been over three months since Plaintiff accepted the initial job

offer.” (Memorandum, 7:9-12.) However, it is undisputed that both employment contracts

contained no reference to a time limit to obtain the license, and required Plaintiff to repay

thousands of dollars in moving expenses if she terminated the contract before two years.

(Gresham Decl, Exh. “C”.) It is undisputed that in May 2011, prior to moving to California,

Plaintiff wrote to Price and let her know that Michigan is not a compact state like California and

that it could take four to five months to get a license. (Gresham Decl., Exh. “E”, PL 000039;

Patten Decl., Exh. “A”, Gresham Depo., 85:20-86:1.) It is undisputed that Price responded that

“there will be no problem for us” and Plaintiff can apply when she came to California. (Gresham

Decl., Exh. “F”, PL000038.) It is undisputed that Plaintiff in fact obtained her California

Nursing license within the four to five months time frame which was approved by Price.

(Gresham Decl., ¶33.) Furthermore, Defendant negotiated a provision in both contracts that

Plaintiff would be penalized financially if she did not work for the hospital for at least two years.

(Gresham Decl., Exh. “C”.)

California law explicitly provides: "[i]f no time is specified for the performance of an act

required to be performed, a reasonable time is allowed." (Civ. Code, § 1657) Furthermore, the

question of what constitutes a reasonable time is always a fact question. ( Lyon v. Goss, (1942)

19 Cal.2d 659, 673 [123 P.2d 11]; Leiter v. Handelsman (1954) 125 Cal.App.2d 243, 251 [270

P.2d 563].) In determining what period of time would be reasonable, the situation of the parties,

the nature of the transaction, and the facts of the particular case should all be considered. (Lyon


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v. Goss, supra, 19 Cal.2d at p. 673; Kersch v. Taber, (1945) 67 Cal.App.2d 499, 506 [154 P.2d

934].)

Therefore, since the only issue regarding the breach of contract claim, the reasonableness

of the time it took Plaintiff to acquire her California Nursing license, is a question of fact for the

trier of fact, summary judgment must be denied.

C. GOOD FAITH AND FAIR DEALING

California law recognizes that "every contract contains an implied covenant of good faith

and fair dealing that neither party will do anything which will injure the right of the other to

receive the benefits of the agreement." (Wolf v. Walt Disney Pictures and Television (2008) 162

Cal.App.4th 1107, 1120, 76 Cal. Rptr. 3d 585.) Breach of an express contractual provision is not

a necessary prerequisite to a claim for breach of the implied covenant. (Brehm v. 21st Century

Ins. Co. (2008) 166 Cal. App. 4th 1225, 1235-36, 83 Cal. Rptr. 3d 410.) Rather, "the covenant is

implied as a supplement to the express contractual covenants, to prevent a contracting party from

engaging in conduct which (while not technically transgressing the express covenants) frustrates

the other party's rights to the benefits of the contract." (Love v. Fire Ins. Exch. (1990) 221

Cal.App.3d 1136, 1153, 271 Cal. Rptr. 246.) "The precise nature and extent of the duty imposed

will depend on the contractual purposes." (Egan v. Mut. of Omaha Ins. Co. (1979) 24 Cal.3d 809,

818, 169 Cal. Rptr. 691, 620 P.2d 141.)

Even where an employment contract does not require good cause to terminate, “implicit

in such an employment agreement, and certainly implicit within the implied covenant of good

faith and fair dealing, is the understanding that an employer cannot expect a new employee to

sever his former employment and move across the country only to be terminated before the ink

dries on his new lease, or before he has had a chance to demonstrate his ability to satisfy the

requirements of the job.” (Sheppard v. Morgan Keegan & Co., supra, 218 Cal. App. 3d at p. 67.)


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Based on this legal framework and the facts in the instant action, the Court must find that

Plaintiff has presented sufficient evidence to allow a reasonable trier of fact to find that

Defendant is liable for breach of the implied covenant of good faith and fair dealing. It is

undisputed that Plaintiff had two written employment contracts with Defendant, according to

which, provided that Plaintiff would be responsible for financial penalties if she did not work for

Defendant for at least two years. Therefore, Defendant had a duty to execute the agreement's

purposes in good faith.

Plaintiff can established through reliable admissible evidence that Defendant breached

this agreement by rescinding the offers of employment without ever telling Plaintiff there was a

date certain necessary for her to obtain her California Nursing license, in an effort to frustrate her

right to the benefits of the agreement. Plaintiff can also establish that a nursing license was not a

requirement for her position, despite Defendant's later assertions to the contrary. A reasonable

juror could find that such conduct could violate the implied covenant of good faith and fair

dealing even if it does not violate the literal terms of valid contracts, as it could frustrate

Plaintiff's rights to the benefits for which she contracted. The exact nature and scope of this duty

is a factual inquiry and is based on the purposes of the contract, the express terms of the

contracts, and the reasonable expectations of all parties. Accordingly, summary judgment must

be denied.

D. INTENTIONAL MISREPRESENTATION

An intentional misrepresentation claim requires proof of “(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.”

[Citations.]" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud may be proved by

circumstantial evidence. “An intention not to perform a promise may be a matter of inference


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from the facts proven, and subsequent conduct may be sufficient to show that there was no

intention of performing at the time of the promise.” (Snyder v. City Bond & Finance Co., (Cal.

App. 1930) 106 Cal. App. 745, 748.) Whether Plaintiff was justified in relying upon the

misrepresentations is generally a question of fact for the jury. (Blankenheim v. E. F. Hutton &

Co., (Cal. App. 6th Dist. 1990) 217 Cal. App. 3D 1463, 1475.)

Defendant has precluded Plaintiff from obtaining evidence necessary to determine if

Defendant intentionally misrepresented that the Clinical Nurse Informaticist and Director of

Health Informatics required a California Nursing license. Plaintiff contends Defendant made

intentional misrepresentations when (a) it advertised on careerbuilder.com, (b) when Defendant's

agents informed Plaintiff that it would not be a problem for Plaintiff to start in her position

despite the 4-5 month delay that others had experienced in having out-of-state licenses approved;

and (c) that Plaintiff's old DUI would not be a problem. Furthermore, Defendant never

communicated a deadline to Plaintiff by which she must receive California recognition of her

Michigan nursing license, nor that such recognition was a prerequisite to her starting her job and

receiving compensation for her services. After almost a year of delay, Defendant produced a

person most knowledgeable declaration which stated that 840 persons hired into Director

positions from January 1, 2009 to December 31, 2013 did not have a California Nursing License,

including two Chief Nursing Officers who began employment prior to having the out-of-state

licenses recognized in California. (Patten Decl., Exh. “AA” Declaration of Lori Burt ¶¶ 3-4.)7

As detailed above, on July 26, 2011, Gresham wrote to Tattersall and thanked her for the

job description and requested how long the position would be open to her. Plaintiff testified that

7 Plaintiff objects to the declaration of Lori Burt. The declaration is not based on personal knowledge as she states that “a Dignity Health employee” ran “a report using the LAWSON system to determine the names of all persons hired into Director positions.” (Patten Decl., Exh. “AA”, Declaration of Lori Burt ¶ 3-4.) Despite assurances that this declaration would be produced by the end of June, the Declaration was produced on July 14, 2014. (Patten Decl., ¶39). Plaintiff was unable to serve follow up discovery due to the late production of this declaration. Defendant further used the court's continuance to its advantage by waiting until August 6, 2014 to produce a substitute declaration for another PMK category related to California nursing license requirements. (Patten Decl., ¶¶ 42, Exh. DD.)


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in her July 26, 2011 e-mail, she asked the question of “how long will this position be open to

me” because at that time she still had not received approval of her license and the new job

description stated that she needed a California nursing license. (Patten Decl., Exh. “A”, Gresham

Depo., 167:7-17.) Tattersall nor anyone else at Dignity Health ever responded to this question.

(Id. at 167:18-24.) In fact, no one at Dignity Health ever told Plaintiff that the position would

only be open for a certain period of time. (Id. at 167:25-168:10.)

These facts create an inference that Defendant had intentionally misrepresented the

necessary qualifications for the position to preclude Plaintiff from beginning her employment

prior to getting a California Nursing license.

E. NEGLIGENT MISREPRESENTATION

Negligent misrepresentation is a type of deceit. However, while intentional

misrepresentation requires an intent to deceive, a negligent misrepresentation "encompasses

'[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for

believing it to be true' (Civ. Code, § 1710, subd. 2), or '[t]he positive assertion, in a manner not

warranted by the information of the person making it, of that which is not true, though he

believes it to be true' (Civ. Code, § 1572, subd. 2)." (Oakland Raiders v. Oakland-Alameda

County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1184.)

Defendant argues that it is “irrelevant if Plaintiff thinks a California nursing license was

not needed for the position” and that the court “should not engage in this type of second

guessing.” However, what Plaintiff was told concerning the California nursing license is directly

relevant to her claims. As the evidence demonstrates, Plaintiff was not aware that a California

nursing license was needed to start her position. Assuming, arguendo, that Plaintiff's position

required a California nursing license to begin her job8, Defendant should have made that clear.

8 According to Defendant's counsel, Catherine Frontczak and Jovita Ford were hired into Director of Nursing and/or Director of Health Informatics roles between 2009 and 2013 and did not have California nursing licenses at the time of their hire. (Patten Decl., ¶ 35 Exh. “X”, May 13, 2014 Correspondence.)


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Furthermore, Plaintiff should have been told that she had to obtain her license before August 18,

2011. Plaintiff originally told Pride that it could take her 4-5 months to obtain her license, to

which Pride responded that it would “not be a problem.” (Gresham Decl., ¶ 11, Exh. “E”, PL

000039.) “Fraud or deceit may consist of the suppression of a fact by one who is bound to

disclose it or who gives information of other facts which are likely to mislead for want of

communication of that fact.” (Outboard Marine Corp. v. Superior Court, (Cal. App. 3d Dist.

1975) 52 Cal. App. 3d 30, 37.) Here, not only did Defendant fail to inform Plaintiff that a

California nursing license was required for her position, but Plaintiff was affirmatively mislead

that “there would be no problem” and that she could apply for her license “now or when you

come to California.” (Gresham Decl., ¶ 12, Exh. “F”, PL 000038.)

Defendant has precluded Plaintiff from obtaining evidence necessary to determine if

Defendant had "reasonable ground" for believing its "assertion," that the Director of Health

Informatics and Informaticist positions required a California Nursing license and that the delay

of 4-5 months “would not be a problem” for Dignity Health. Plaintiff contends Defendant made

negligent representations in May and June, 2011. Furthermore, Plaintiff was never told there

was as deadline to receive her California Nursing license and she was not informed that a

California Nursing license was a prerequisite to her starting her job and receiving compensation

for her services.

As forth in the Declaration of Dow W. Patten in Opposition, after almost a year of delay,

Defendant has yet to fully provide discovery as to categories of information related to whether

the position required a California license to start in the position, (Patten Decl., ¶¶33-42), whether

other employees have been allowed to commence employment without California approval of

out-of-state licenses (Patten Decl., ¶¶ 28-42, Exhs. W-DD), whether Dignity Health has been

fined for having an Informaticist start without a California license, and whether the position was


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ever filled or even exists. (Ibid.) As such, pursuant to Cal. Code. Civ. P. 437c(h), summary

judgment is inappropriate.

As detailed above, on July 26, 2011, Gresham wrote to Tattersall and thanked her for the

job description and requested how long the position would be open to her. Plaintiff testified that

in her July 26, 2011 e-mail, she asked the question of “how long will this position be open to

me” because at that time she still had not received her license and the new job description stated

that she needed a California nursing license. (Patten Decl., Exh. “A”, Gresham Depo., 167:7-17.)

Tattersall nor anyone else at Dignity Health ever responded to this question. (Id. at 167:18-24.)

In fact, no one at Dignity Health ever told Plaintiff that the position would only be open for a

certain period of time. (Id. at 167:25-168:10.)

These facts create an inference that Defendant had "no reasonable ground" for precluding

Plaintiff from beginning her employment prior to getting a California Nursing license.

F. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

Wrongful termination in violation of public policy is a California common law cause of

action providing that "when an employer's discharge of an employee violates fundamental

principles of public policy, the discharged employee may maintain a tort action and recover

damages traditionally available in such actions." (Tameny v. Atl. Richfield Co., (1980) 27 Cal. 3D

167, 170, 164 Cal. Rptr. 839, 610 P.2d 1330; see also, Freund v. Nycomed Amersham, (9th Cir.

2003) 347 F.3d 752, 758.)9 A common law wrongful termination in violation of public policy is

not subject to the exhaustion requirement. (Stevenson v. Superior Court, (1997) 16 Cal. 4th 880,

905, 66 Cal. Rptr. 2d 888, 941 P.2d 1157.) “Tameny claims permit wrongful termination

damages when a termination is undertaken in violation of a fundamental, substantial and well-

9 The public policy implicated must be "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental." Freund, supra, 347 F.3d at 758 (quoting City of Moorpark v. Super. Ct., (1998)18 Cal. 4th 1143, 1159).


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established public policy of state law grounded in a statute or constitutional provision.” (Kelly v.

Methodist Hospital of Southern Cal., (2000) 22 Cal.4th 1108, 1112, 95 Cal.Rptr.2d 514.)

California Labor Code violations are routinely held sufficient articulation of strong public policy.

(See e.g., Armenta v. Osmose, Inc., (2006) 135 Cal.App.4th 314, 324, 37 Cal.Rptr.3d 460.)

As set forth below in section “H”, Defendant terminated Plaintiff in violation of

California Labor Code section 970. Citation to specific statutes need not be required in a

wrongful termination action to survive a defense motion for summary judgment. (See, Green v.

Ralee Engineering Co., (1998) 19 Cal. 4th 66.) The Green Court held that a plaintiff can

adequately identify the statutes and regulations supporting his public policy claim in his

opposition to defendant's summary judgment motion." (Id. at 83, fn. 7.) Here, Plaintiff identified

“engaged in unlawful employment practices prohibited by the statutes of the state, and in

contravention of clear public policies.” (SAC ¶ 70.) The gravamen of violations of California

Labor Code section 970 is in the misrepresentation element, which Plaintiff incorporated by

reference into her Tameny cause of action. (SAC ¶68, incorporating specific misrepresentation

factual pleading in SAC ¶¶ 46-50; 55-58.)

Plaintiff's allegations are sufficient to give Defendant fair notice of the claim and the

facts on which it rests under the pleading requirements of CCP §425.10. In 1985, The California

Supreme Court explicitly stated, "Any rule that penalizes a plaintiff for the mere form in which

the pleadings are cast is inherently unfair and deserves to be discarded. (Barrington v. A.H.

Robbins Co. (1985) 39 Cal.App.3d 146, 157, 216 Cal.Rptr. 405, 412 (emphasis added).)

The analysis in Green v. Ralee Engineering Co., supra, is instructive on this issue. In

Green, a quality control inspector for an aircraft parts manufacturer who was terminated after he

informed his employer he believed it was shipping parts that were defective under federal safety

regulations brought an action against the employer for retaliatory discharge in violation of the


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broad public policy favoring aviation safety. (Green, supra, 19 Cal.4th at pp. 70-73, 80-84.) The

trial court granted summary judgment in favor of the defendant. (Id. at p. 74.) The Second

District of the California Court of Appeal reversed, and the California Supreme Court affirmed

the Second District. (Id. at pp. 71-72.)10

“While Green did not address 'the precise time at which a plaintiff must identify the

particular statutes forming the basis of a Tameny claim', the language of the court suggests that a

Tameny plaintiff need not do so within the complaint or in discovery so long as the specific

constitutional or statutory provisions embodying the applicable fundamental public policy bases

for the claim are raised in opposition to a motion for summary judgment. (See Perez-Falcon v.

Synagro West, LLC, (E.D. Cal. Dec. 23, 2011) 2011 U.S. Dist. LEXIS 148131, at pp. *12-13,

citing, Green, supra, at p. 33 fn. 7.)

Accordingly, the Court should deny Defendant's motion for summary judgment as to

Plaintiff's wrongful termination claim.

G. IIED

In order to state a claim for intentional infliction of emotional distress, a plaintiff must

plead: (1) that the defendant engaged in outrageous conduct; (2) that the defendant engaged in

such conduct with the intention of causing plaintiff to suffer emotional distress; (3) that the

10 On appeal, the defendant argued that the Second District erred in reversing summary judgment because the plaintiff "failed to identify a specific statute supporting his wrongful termination claim until he filed his opposition to defendant's motion [for summary judgment]," and even then, "did not identify the statutes on which he relied, instead citing to the entire Federal Aviation Act and the Code of Federal Regulations without explaining their application to his case." (Id. at p. 83.) The defendant contended that the Second District "should have required the plaintiff to specify his claim's statutory basis in his original complaint, or, at the very least, in his responses to discovery," and that, "without a specific statute or constitutional provision upon which to base his claim, plaintiff's case was deficient as a matter of law[.]" (Ibid.) The Green court held that reversal was proper: "After engaging in independent research, the Court of Appeal identified the regulations on which plaintiff now relies and requested supplemental briefing on whether those regulations could form the basis for plaintiff's public policy claim . . . . The court considered defendant's claim that plaintiff failed to produce the appropriate statutes or regulations to support his action at the summary judgment stage, but concluded that plaintiff had adequately identified several relevant FAA regulations as part of his opposition to summary judgment. Thus, the Court of Appeal properly held that plaintiff had met his burden to provide the specific statutes and regulations on which he based his claim." (Id. at 83-84.)


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plaintiff suffered severe emotional distress; and (4) that the plaintiff's emotional distress was

actually and proximately caused by the defendant's conduct. (Potter v. Firestone Tire & Rubber

Co. (Cal. 1993) 6 Cal. 4th 965, 1001, 25 Cal. Rptr. 2d 550, 863 P.2d 795.) To qualify as

outrageous, conduct "must be so extreme as to exceed all bounds of that usually tolerated in a

civilized community." (Christensen v. Superior Court, (1991) 54 Cal. 3d 868, 903, 2 Cal. Rptr.

2d 79, 820 P.2d 181.) As a matter of law, normal personnel actions such as terminating an

employee, even without good cause, do not constitute the type of sufficiently extreme and

outrageous conduct necessary to support a claim for intentional infliction of emotional distress.

(Fowler v. Varian Assocs., Inc. (Cal. Ct. App. 1987)196 Cal. App. 3d 34, 44, 241 Cal. Rptr. 539.)

Plaintiff contends Defendant violated Labor Code section 970 because Defendant made

misrepresentations regarding California Nursing license requirements related to Plaintiff's offer

of employment.

Defendant engaged in outrageous conduct when it withdrew Plaintiff's offer of

employment after she had broken her lease in Michigan, uprooted her family, and moved across

country with no ongoing paycheck. The evidence also shows that the Director of Health

Informatics position was illusory, that Defendant only has one Director of Health Informatics

(Patten Decl., ¶¶ 34-36), despite the fact that it claimed that all Mercy Network hospitals

reclassified the informaticist position to Director. (Patten Decl., Exh. “E”, Kennedy Depo.,

53:22-56:13.)

Conduct is sufficiently egregious when, as here, the conduct is criminal in nature (Cal.

Lab. Cod Section 970). It is uncontroverted that Defendants willfully prevented Plaintiff from

commencing work in the position, that Defendant created a position and never filled it, and

eliminated the position thereafter, and that Plaintiff suffered severe emotional distress from


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having moved herself and her daughter across country, to be left without a source of income and

immense economic liabilities.

H. LABOR CODE SECTION 970

Labor Code section 970 prohibits an employer from using knowingly false

representations about the type of work or the terms and conditions of employment to induce a

worker to move within or outside California in order to take a job. Labor Code section 972

provides for a civil action and the recovery of double damages resulting from such

misrepresentations.

Plaintiff contends Defendant violated Labor Code section 970 because Defendant made

false statements about the nature of the work, and when Plaintiff would start receiving wages in

an effort to get Plaintiff to move to California. Based upon these false statements Plaintiff moved

to California from Michigan.

Labor Code section 970 "does not utilize contractual doctrine. Rather, it rests on [the] tort

of deceit and the scienter requirement. . . . In California, 'fraud is established when a

misrepresentation is knowingly made with the intent to reduce reliance, and justifiable reliance

results, causing plaintiff damages.' [Citation.]" (Funk v. Sperry Corp. (9th Cir. 1988) 842 F.2d

1129, 1133.) “Suppression of a fact” can form the basis of a misrepresentation. (Outboard

Marine Corp. v. Superior Court, supra, 52 Cal. App. 3d at p. 37.)

Here, as detailed above, Plaintiff was never informed by anyone at Dignity Health that

there was a time in which she needed to obtain her California nursing license nor that it was a

term and condition upon which her start date was contingent. (Patten Decl, Exh. “A”, Gresham

167:7-168:18.) Furthermore, there were no deadlines specified in any employment contract nor

in any of the various versions of the job description provided to Plaintiff from Defendant.

Defendant made the representations about the need for a California nursing license with the

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