Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 922 F.2d 845 (9th Cir. 1991)

Payton LONON, Jr., Plaintiff-Appellant,v.PROCTOR & GAMBLE MANUFACTURING COMPANY, James R. Payne,Defendants-Appellees.

Nos. 89-56015, 90-55196 and 90-55556.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1990.Decided Jan. 7, 1991.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


Payton Lonon Jr., a former employee of Proctor & Gamble ("P & G"), appeals the district court's orders granting summary judgment in favor of P & G on his first and second amended complaints. He contends that his claims are neither preempted by section 301 nor barred by his failure to pursue the grievance and arbitration procedures under the Collective Bargaining Agreement ("CBA"). He also appeals the district court's order imposing sanctions against him for filing "frivolous" claims and for failing to oppose P & G's motion for summary judgment on his second amended complaint.

We affirm the district court's orders granting summary judgment on Lonon's first and second amended complaints. But we reverse the award of sanctions against Lonon.

This court reviews de novo a grant of summary judgment. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990); State Farm Fire & Casualty. Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). "Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir. 1989). We review an award of sanctions for an abuse of discretion. Cooter & Gell v. Hartmax Corp., 110 S. Ct. 2447, 2461 (1990); "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell, 110 S. Ct. at 2461.

First Amended Complaint

Lonon argues that his claims for breach of contract, wrongful discharge and breach of covenant of good faith and fair dealing are not preempted by Section 301 of the Labor Management Relations Act because they require an interpretation of a "Guarantee of Employment" independent of the CBA. But each of these claims hinge on whether he was terminated without cause. The Guarantee does not provide that P & G may terminate an employee only for cause, but specifically reserves P & G's right to discharge an employee at any time. Rather, protection against termination without good cause is explicitly provided only in the CBA. Thus, Lonon's claims require an interpretation of the CBA and are preempted by Section 301. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988).

Because Lonon's claims are preempted by Section 301, Lonon should have pursued the grievance and arbitration procedures set forth in the CBA. Thus, the district court correctly granted P & G's summary judgment motion because Lonon failed to comply with CBA procedures.

The district court also correctly granted summary judgment on Lonon's claim for wrongful discharge in violation of public policy. Lonon did not state in his complaint the public policy P & G allegedly violated. Because Lonon did not specify the policy violated, the district court properly granted summary judgment against Lonon on this claim. See Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1063 (9th Cir. 1989) (affirming summary judgment in favor of the employer on the employees' claim for wrongful discharge in violation of public policy in part because the employees did not specify the stated public policy in their pleadings). We therefore need not decide whether this claim is also preempted by Section 301.

Second Amended Complaint

By failing to oppose P & G's motion for summary judgment motion on his second amended complaint, Lonon effectively consented to the granting of summary judgment on that complaint. See Central District of California Local Rules 7.6 and 7.9. Lonon therefore waived his right to appeal the district court's order granting summary judgment. See Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983) (appellant failed to preserve for appeal the issue whether attorney's fees were reasonable because it failed to adequately object after the district court awarded attorney fees).


The district court abused its discretion by imposing Rule 11 sanctions against Lonon for filing "frivolous" fraud and handicap discrimination claims in his second amended complaint. These claims are not frivolous. The law is not well settled regarding either Section 301 preemption or exhaustion of remedies under FEHA. Lonon could make a good faith argument that his fraud claim is not preempted by Section 301. He could reasonably believe that the letter signed by P & G's Long Beach plant manager provided a basis for a fraud claim independent of the CBA and as such is not preempted by Section 301. Moreover, at the time he filed his second amended complaint, authority existed to support Lonon's argument that he was not required to exhaust his administrative remedies on his handicap discrimination claim before filing suit. See Rojo v. Kliger, 209 Cal. App. 3d 10, 257 Cal. Rptr. 158, 170, review granted, 260 Cal. Rptr. 266, 775 P.2d 1035 (1989) (noting that the FEHA may not require a plaintiff to file a charge with the DFEH before filing suit).

The district court also abused its discretion by imposing sanctions against Lonon under Central District of California Local Rules 7.6 and 27.1 for failing to file an opposition to P & G's motion for summary judgment. Under Local Rule 7.9, the court could, and did, determine that Lonon consented to the granting of summary judgment by not filing a response to the motion. But a failure to file a response to a motion for summary judgment does not subject the party who filed the motion to any additional expense. To impose an additional sanction of attorneys' fees against Lonon in this case is entirely unwarranted.

AFFIRMED in part and REVERSED in part.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3