Unpublished Disposition, 865 F.2d 265 (9th Cir. 1987)

MEMORANDUM^* 

Appellant Patricia A. Trujillo appeals the district court's grant of summary judgment in favor of Manuel F. Rothberg on Trujillo's third cause of action for fraud and deceit. Trujillo alleged that she was induced by Rothberg to leave her job at First Interstate Bank and go to work for Empire National Bank upon Rothberg's fraudulent representation that her employment by Empire would be long term. We have jurisdiction under 18 U.S.C. § 1291 and we affirm.

FACTS

Empire Bank was organized pursuant to the National Bank Act, 12 U.S.C. § 21 et seq., in September, 1984. Under section 24 of the National Bank Act, Empire had the power to elect or appoint directors, and by its board of directors to appoint a president, vice-president and other officers. The National Bank Act also gave Empire the power to dismiss any officers at pleasure, and appoint others to fill their places. Sometime during the early part of 1985, Trujillo expressed an interest in working for Empire. At that time, Trujillo was an assistant vice-president and manager in the international department at First Interstate Bank, and had been employed there for the past eighteen years. On April 10, 1985, Empire Bank's board of directors unanimously approved the hiring of Trujillo as a vice-president of Empire. Trujillo commenced her duties as a vice-president and officer of Empire on May 28, 1985. She was fired four months later.

Trujillo filed suit in California superior court on April 29, 1986. In July 1987, the Comptroller of the Currency declared Empire Bank to be insolvent and terminated its power and existence as a national banking association. By order dated August 25, 1987, the state court substituted the FDIC in the place of Empire as a defendant. On that same day, the case was removed from state court to the district court. The defendants moved for, and the district court granted, summary judgment. This appeal followed.

ANALYSIS

We review de novo the district court's grant of a motion for summary judgment. Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985). We will affirm "only if the record, read in the light most favorable to the nonmoving party, establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id.

We first address Trujillo's attack on the manner in which the district court granted summary judgment. The district court's order granting summary judgment stated that "Trujillo has failed to present sufficient facts which can support her third cause of action." In her opening brief, Trujillo argues that:

This statement of the District Court establishes the erroneous basis for granting summary judgment on Trujillo's fraud and deceit action, because it indicates a violation by the District Court of its function at the summary judgment stage, which is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial, ..."

Trujillo argues that the summary judgment should be reversed on this ground alone.

The district court did not violate its function at the summary judgment stage. The Supreme Court has held:

Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under Celotex Corp., Trujillo bears the burden of presenting sufficient facts which can support her third cause of action. She has failed to do so.

Viewing the record in the light most favorable to Trujillo, she presented evidence that Rothberg knew that under the National Bank Act, Empire could terminate an employee at any time notwithstanding a provision in an employment contract to the contrary; that Rothberg did not tell Trujillo about this provision of the National Bank Act; that he affirmatively represented to her that if she left First Interstate and came to work for Empire she would have long term employment by Empire; that Trujillo was ignorant of the provision of the National Bank Act which permitted her termination at the pleasure of Empire; that she believed Rothberg's representations to be true, and in reliance thereon she quit her job at First Interstate and became employed by Empire; and that she suffered damages when her employment by Empire was subsequently terminated.

Taking all of these facts into consideration, and regarding all of them as having been established, there is no evidence in the record from which an inference could be drawn that at the time he made his representations to Trujillo, Rothberg did not believe Trujillo would have a long term employment relationship with Empire. Empire was a new bank. It was little more than six months old at the time Rothberg made his representations. Trujillo was hired as a vice president to head up the bank's international department. The bank did not succeed, and in an attempt to reduce expenses in advance of being taken over by the FDIC, the bank terminated Trujillo.

It was indeed unfortunate that the bank failed. Perhaps Trujillo would not have left First Interstate if she had known that regardless of what assurances Rothberg gave her, the National Bank Act authorized Empire to terminate her employment at any time. But it is not Rothberg's fault that Trujillo did not know the relevant provisions of the National Bank Act. There is no evidence that Rothberg concealed the law from Trujillo. Moreover, there is nothing inconsistent about an employment relationship with a bank being subject to the termination provisions of the National Bank Act, even though the parties originally contemplated that the employment relationship would be of lengthy duration.

Trujillo bases her claim of fraud and deceit on California Civil Code Secs. 1709 and 1710. Section 1709 provides: "One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." California Civil Code Sec. 1710 specifies four kinds of deceit within the meaning of section 1709:

A deceit, within the meaning of [section 1709], is either:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

3. 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; or

4. A promise, made without any intention of performing it.

Cal.Civ.Code Sec. 1710.

Trujillo failed to present facts to support her claim for fraud or deceit under Cal.Civ.Code Sec. 1710. She further failed to present facts to support a claim for common law fraud based upon her allegation that Rothberg fraudulently misrepresented to her, or concealed from her, a material fact. The record is devoid of any evidence of fraudulent concealment. And Trujillo presented no facts from which an inference could be drawn that Rothberg's representations were untrue when made. See Bondi v. Jewels by Edwar, Ltd., 267 Cal. App. 3d 672, 677, 73 Cal. Rptr. 494 (1968). Thus, there is no evidence of fraud. An essential element of Trujillo's case is missing, and summary judgment was properly granted.

AFFIRMED.