JEANNE DRAKE V. OPTION ONE MORTGAGE CORP., No. 11-56918 (9th Cir. 2014)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 18 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JEANNE DRAKE; CARLY WHITE DAVIS; DAWN ELMORE; ROGER STAGGS, individually and on behalf of all other persons similarly situated, Plaintiffs - Appellants, v. OPTION ONE MORTGAGE CORPORATION, a California corporation; SAND CANYON CORPORATION, a California corporation; H&R BLOCK, INC, a Missouri corporation, Defendants - Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 11-56918 D.C. No. 8:09-cv-01450-CJC-RNB MEMORANDUM* Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted March 5, 2014** Pasadena, California * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). Before: FERNANDEZ, GRABER, and MURGUIA, Circuit Judges. Jeanne Drake, Carly White Davis, Dawn Elmore and Roger Staggs (collectively Drake ) appeal from the district court s grant of summary judgment on their action for severance pay benefits against Option One Mortgage Corporation, Sand Canyon Corporation and H&R Block, Inc. (collectively Option One ). We affirm. In order to prevail, Drake was required to show that there was an implied-infact contract whose particular terms and conditions1 provided for severance pay benefits when Option One employees transferred to the same or comparable jobs in a new entity that purchased an ongoing business segment from Option One. We agree with the district court that Drake did not present evidence that could permit a reasonable jury [to] return a verdict 2 that under the totality of the circumstances 3 there was an implied-in-fact contract of that nature. The district 1 See Guz v. Bechtel Nat l, Inc., 24 Cal. 4th 317, 337, 8 P.3d 1089, 1101, 100 Cal. Rptr. 352, 365 66 (2000). 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). 3 Foley v. Interactive Data Corp., 47 Cal. 3d 654, 681, 765 P.2d 373, 388, 254 Cal. Rptr. 211, 226 (1988); see also Guz, 24 Cal. 4th at 335 37, 8 P.3d at 1100 01, 100 Cal. Rptr. at 364 66; Scott v. Pac. Gas & Elec. Co., 11 Cal. 4th 454, (continued...) 2 court did not err. Because, as the district court pointed out, Drake s other state law claims rely on the existence of an implied-in-fact contract claim, they fall with it. Similarly, because of the failure of the state law claims, we need not, and do not, take up the ERISA4 preemption issue,5 or the state law vesting issue.6 AFFIRMED. 3 (...continued) 463 64, 904 P.2d 834, 838 39, 46 Cal. Rptr. 2d 427, 431 32 (1995). 4 Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829 (codified in part at 29 U.S.C. ยงยง 1001 1461). 5 See Joseph Rosenbaum, M.D., Inc. v. Hartford Fire Ins. Co., 104 F.3d 258, 263 (9th Cir. 1996); Brooks v. Hilton Casinos Inc., 959 F.2d 757, 766 (9th Cir. 1992). 6 See, e.g., Lawson v. Lawson (In re Marriage of Lawson), 208 Cal. App. 3d 446, 450 52, 256 Cal. Rptr. 283, 285 87 (1986); Chapin v. Fairchild Camera & Instrument Corp., 31 Cal. App. 3d 192, 198 99, 107 Cal. Rptr. 111, 115 16 (1973). 3

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