Unpublished Disposition, 930 F.2d 27 (9th Cir. 1991)

No. 90-55212.

United States Court of Appeals, Ninth Circuit.

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

MEMORANDUM^*** 

Guerra appeals the district court's grant of summary judgment for defendant, CIA. Mexicana de Aviacion S.A.

Under California law, only acts which "affect [ ] a duty which inures to the benefit of the public at large rather than to a particular employer or employee" can constitute public policy violations. Foley v. Interactive Data Corp., 47 Cal. 3d 654, 669 (1988); see id. at 670-71 (because duty to disclose only benefited employer, public policy not implicated). Firing plaintiff to cover up the ineptitude of company officials--as plaintiff alleges was done--may affect both Mexicana and Guerra but it does not affect the public at large. Similarly, Mexicana's alleged interrogation of Guerra and its alleged offer to purge Guerra's file have little to do with anyone other than the parties to the dispute.¹  The district court did not err in concluding that plaintiff had failed to come forward with evidence of a public policy violation.

Employment for an unspecified term is presumed to be at will. Cal.Lab.Code Sec. 2922. Although an employee may rebut that presumption by proving the existence of an implied-in-fact contract with termination for good cause, Guerra has failed to do so. His service was not long enough that one could infer such a contract from longevity of employment. See Hentzel v. Singer Co., 138 Cal. App. 3d 290, 293, 304 (1982) (complaint that alleged plaintiff had been employed five years and performed all his duties in an exemplary fashion found to be insufficient); Newman v. Insurance Co. of the West, 156 Cal. App. 3d 440, 445 (1984) (two years insufficient). Nor does he point to any assurances offered by Mexicana. See Hillsman v. Sutter Community Hosps., 153 Cal. App. 3d 743, 750 (1984) (that employer looked forward to a "long, pleasant, and mutually satisfactory relationship" insufficient). His only evidence is that Mexicana had a policy of granting a hearing before dismissing union employees. See CR 40, Exh. J, at 71. But Guerra admits he is not a union employee. ER 144. The policy therefore did not apply to him.

Guerra contends that Ruiz, a Mexicana finance manager, testified at his deposition that the policy applied to non-union employees. But Ruiz said that he didn't know if the policy applied to non-union employees; after that, he added, "no. Though they should." SER 12, at 241. Thus, contrary to Guerra's assertion, Ruiz denied that the policy applied to non-union employees; his personal belief that the policies ought to apply is irrelevant. Accordingly, the district court did not err in granting summary judgment on this claim as well. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986) (where non-moving party with burden of proof at trial fails to come forward with evidence sufficient to convince a reasonable juror he should prevail, summary judgment is appropriate).² 

C. Breach of Covenant of Good Faith and Fair Dealing

Because Guerra has failed to come forward with sufficient evidence to support the existence of an implied-in-fact employment contract with termination for good cause, his action for breach of the covenant of good faith and fair dealing must fail. If there is no enforceable right to continued employment, there can be no bad faith termination of the employment. See Luck v. Southern Pac. Transp. Co., 218 Cal. App. 3d 1, 12-14 (breach of covenant no longer actionable in tort and not actionable in contract unless jury finds existence of a contract with termination for good cause), cert. denied, 111 S. Ct. 344 (1990).

To prevail on claims of infliction of emotional distress, plaintiff must demonstrate that the defendant's intentional or negligent conduct actually and proximately caused severe emotional suffering. Agarwal v. Johnson, 25 Cal. 3d 932, 946 (1979) (intentional infliction of emotional distress); Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 930 (1980) (negligent infliction of emotional distress). This Guerra has not demonstrated. Nothing in the record suggests Guerra suffered extreme emotional disturbance; all the evidence is to the contrary. ER 189 (Guerra has neither contacted a doctor nor taken any medication as a result of the alleged distress).

Guerra insists that because the district court refused to dismiss his emotional distress claims under Fed. R. Civ. P. 12(b) (6), it was precluded from granting summary judgment on them under Fed. R. Civ. P. 56. He argues that he was entitled to rest on his pleadings and could not be "forced by the [s]ummary [j]udgment [motion] to prove his case prematurely." Appellant's Opening Brief at 13. Guerra is wrong. Mexicana fulfilled its burden of showing the absence of a genuine issue of material fact by pointing to Guerra's lack of proof of severe distress. See Celotex, 477 U.S. at 322-23 (defendant fulfilled burden of showing absence of genuine issue by pointing out plaintiff's inability to prove defendant caused the harm). At that point, Guerra was required to come forward with evidence that he, in fact, had suffered severe distress. See Walker v. Hoffman, 583 F.2d 1073, 1075 (9th Cir. 1978) (non-movant has affirmative duty to present evidence and may not keep his evidence secret until trial, as summary judgment is designed to smoke out the facts to determine if a trial is necessary), cert. denied, 439 U.S. 1127 (1979). Guerra's only response was that defendants' conduct was egregious enough to induce great emotional distress; he produced no evidence that emotional distress was actually induced. Because Guerra failed to come forward with evidence on an essential element of his claim, summary judgment was proper. Id.³ 

AFFIRMED.