Unpublished Disposition, 930 F.2d 27 (9th Cir. 1991)

No. 90-55122.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,^*  District Judge.

MEMORANDUM^** 

Doty argues that summary judgment was improper because he presented triable issues of fact. Vickers does not deny any of Doty's factual allegations; Vickers merely disputes that the facts, as presented by Doty, amount to a contract as a matter of law. They do not.

The final Asset Purchase Agreement between Vickers and Donallco stated that "Vickers intends to hire each continuing employee on an 'at will' basis and will specifically notify each Continuing Employee that the employment arrangement may be terminated by either party at any time." SER 37. Doty admits that he read this agreement two or three times. Id. at 97, 98.

Thus, even if Vickers' actions reflected an intent to continue Doty's employment after the takeover, it is clear from the agreement that his employment would have been on an at-will basis only. Because his employment would have been at will at best, Doty has no cause of action for breach of an employment contract. See Foley v. Interactive Data Corp., 47 Cal. 3d 654, 665, 254 Cal. Rptr. 211, 765 P.2d 373 (1988); Patterson v. Philco Corp., 252 Cal. App. 2d 63, 67, 60 Cal. Rptr. 110 (1967).

Doty rightly concedes that his claims for bad faith denial of a contract and violation of the covenant of good faith and fair dealing presuppose an actionable contract. See Appellant's Opening Brief at 24, 26. Because there was no actionable contract, these claims fail.

Finally, Doty's claim for intentional infliction of emotional distress is meritless. To prevail, Doty must be able to show that Vicker's conduct was "outrageous." To be outrageous under California law, conduct "must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Davidson v. City of Westminster, 32 Cal. 3d 197, 209, 185 Cal. Rptr. 252, 649 P.2d 894 (1982). Vickers' conduct, as alleged by Doty, was not outrageous; no rational jury could conclude otherwise.

AFFIRMED.