Opinion
G045473
02-01-2012
ALEX BAAH, Plaintiff and Appellant, v. PACIFIC BELL TELEPHONE COMPANY, Defendant and Respondent.
Alex Baah, in pro. per., for Plaintiff and Appellant. Jennifer Z. Morris for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2009-00312935)
OPINION
Appeal from a judgment of the Superior Court of Orange County, James Di Cesare, Judge. Affirmed.
Alex Baah, in pro. per., for Plaintiff and Appellant.
Jennifer Z. Morris for Defendant and Respondent.
Plaintiff Alex Baah sued defendant Pacific Bell Telephone Company alleging several causes of action based on its termination of his employment with the company. He appeals from a judgment for defendant entered by the trial court after it sustained a demurrer to the verified third amended complaint without leave to amend and denied plaintiff's motions for reconsideration of that ruling. The trial court based its decision on the ground the amended complaint failed to allege facts sufficient to state causes of action. We conclude the terms of a severance agreement plaintiff signed shortly after his termination, which included a release of all claims against defendant, plus his admissions concerning the execution of that agreement in the amended complaint bar this action as a matter of law. Thus, we affirm the judgment on that basis.
FACTS AND PROCEDURAL BACKGROUND
In March 2004 plaintiff entered into a written at-will employment agreement with SBC Communications to work as an account executive. SBC Communications merged with AT&T in 2006 and plaintiff alleged he then "performed services for AT&T, AT&T California and SBC Communications." Plaintiff was terminated in February 2009 as part of what he described as a "massive layoff[] initiative . . . ." He initially named AT&T, AT&T California, and SBC Communications as defendants, but added defendant after the trial court took judicial notice of fictitious business name statements identifying defendant doing business as both SBC California and AT&T California and ruled "plaintiff was [defendant's] employee."
Although plaintiff twice amended the complaint in response to the trial court's rulings on defendant's demurrers, each version contained the same four causes of action primarily based on the same factual allegations. In the first count, plaintiff alleged defendant retaliated against him after he successfully challenged a 2005 denial of sales compensation during a departmental transfer and later successfully disputed a 2007 adverse performance evaluation based on the erroneous failure to credit him for sales made to an account. Plaintiff further alleged he "believe[d]" this "cause of action continued from 2005[] through 2009."
The second and third counts sought relief for negligent misrepresentation and intentional fraud. Plaintiff alleged his supervisor prepared a 2008 mid-year performance evaluation "tainted with misrepresentations" that included "understat[ing his] target sales results" and described his "overall performance as 'Does not Meet Goals,'" but then told him "everything looks good so [he] should not worry about it." Plaintiff relied on the supervisor's representation and, as a result, failed to review the evaluation until several months later when defendant announced it would be used in determining which employees would be subject to the company's layoff process.
The fourth count alleged wrongful termination in violation of public policy. Plaintiff claimed he lost his job when defendant failed to utilize the announced criteria to determine who would be terminated as part of the "massive layoff initiative . . . . " He alleged, "based on all the allegations set forth in [his] first . . ., second[,] and third causes of action . . ., it [was] clear that [he] was wrongfully terminated in violation of public policy." Plaintiff further asserted he belonged to "a protected class" due to his being an immigrant from the country of Ghana.
Defendant filed demurrers to the first, second, and third amended complaints. Each demurrer asserted plaintiff waived all of his claims by signing a general release and asked the court to take judicial notice of a March 2009 agreement he signed. The court granted the judicial notice request "but not as to the truth of any matters asserted . . . ." Further, since plaintiff did not mention the agreement in either the original or the first amended complaint, the court, in ruling on the demurrer to the latter pleading, declared "[t]he enforceability of the . . . release agreement is an issue of fact for a stage beyond demurrer."
In his verified second and third amended complaints, plaintiff admitted he received a copy of the general release in December 2008 when told he was going to be terminated. Initially, he signed the general release, but then timely revoked it. In March 2009, after plaintiff had been terminated, defendant sent him a second copy of the general release. This time he signed the general release and returned it to defendant.
But he alleged the general release was unenforceable on several grounds. First, while acknowledging he "is able to read," plaintiff claimed he needed the assistance of "supervisors and managers . . . on such matters," and his termination precluded him from seeking their help. Second, he admitted "consult[ing]" with "two [a]ttorneys prior to the execution of the agreement," but "since the information . . . [defendant] was doing business as AT&T, California . . . w[as] not available at that time . . ., the[] [a]ttorneys were unable to provide [him] with any definite advice as to the [g]eneral [r]elease . . . of [his] claims." Third, plaintiff alleged he "signed the [document] with [the] belief[] that he was receiving a [s]everance [p]ay [c]heck solely from the services . . . [he] provided for AT&T Corp[.]" and "'did not know' that the . . . [a]greement would have any binding effect on his employment agreement with SBC Communications. . . ."
After the court sustained defendant's demurrer as to each cause of action in the verified third amended complaint without leave to amend, plaintiff filed two motions for reconsideration. The court denied both of them.
DISCUSSION
1. Standard of Review
"[T]o deny the party his right to a trial, there must be an obvious failure of the pleadings to state a cause of action . . . ." (Terry Trading Corp. v. Barsky (1930) 210 Cal. 428, 438.) Thus, "[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
"'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
"On appeal from a judgment after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment on whether the complaint states a cause of action as a matter of law. [Citation.]" (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508-1509.)
2. The General Release and Waiver
Each demurrer challenged plaintiff's right to recover based on his execution of the general release. The trial court took judicial notice of the general release, but rejected defendant's argument as to the first amended complaint because this defense presented factual issues more appropriately dealt with at a later stage in the litigation. However, in his verified second and third amended complaints, plaintiff acknowledged he read the general release and signed it after consulting with two attorneys.
On appeal, defendant again argues plaintiff "released all of his claims" by executing the general release. Plaintiff disagrees, claiming he "established facts which . . . showed that the release was (1) ambiguous[,] (2) misinformed . . . [,] (3) . . . unconscionable[,] (4) . . . violates public policy[, and] (5) [his] . . . supervisors failed to inform [him] regarding it[]s terms and how it would affect [his] rights . . . ." Given the general release's clear and explicit terms, plus plaintiff's admissions in the verified third amended complaint that he signed the agreement after both reading it and consulting with lawyers, the question of whether it bars the claims asserted in this action presents solely a legal issue that may be decided at this time. In addition, we agree defendant's reliance on the general release has merit.
a. Background
As mentioned, after plaintiff's termination defendant sent him a second copy of a document entitled "General Release and Waiver AT&T Inc. Severance Pay Plan (California)." (Bold and some capitalization omitted.) The document stated it was "entered into by" plaintiff, defendant, and "an employee welfare benefit plan" named "the AT&T Inc. Severance Pay Plan." (Underlining omitted.) The agreement acknowledged plaintiff had been "designated for [a] company-initiated involuntary termination of employment" and set forth the plan benefits he would be entitled to receive if he signed and returned it.
Part IV of the agreement is entitled "General Release and Waiver of Claims." (Bold and underlining, plus some capitalization omitted.) As relevant to this case, it declared as follows: "I elect to receive the Plan benefits specified . . . and understand that the Plan benefits are being paid in consideration for terminating my employment with [defendant] and my release and waiver of claims as set forth below. [¶] I also understand . . . I have been advised to consult with an attorney before signing this General Release and Waiver . . . . [¶] I understand that there are various local, state and federal laws that govern any employment relationship with [defendant] and/or prohibit discrimination on the basis of . . . color, race, . . . national origin . . . or any other basis prohibited by state or local law. Such laws include, but are not limited to . . . the California Fair Employment and Housing Act. By signing this General Release and Waiver, I intend to give up any rights I may have under these or any other laws with respect to my employment and to the termination of my employment with [defendant].
In exchange for the Plan benefits . . ., I hereby release the Plan, AT&T Inc., and [defendant] and their current and former parents, subsidiaries, affiliates, successors or assigns . . . (Released Parties) from any claims, liabilities, demands or causes of action, whether for discrimination, breach of contract, or any other claim, including but not limited to claims under . . . the California Fair Employment and House [sic] Act, that I may have or claim to have had as of or prior to the date of this General Release and Waiver against any Released Parties based on my employment with the Companies or the termination of that employment . . . ."
The agreement further stated plaintiff "acknowledge[d]" he had "read and underst[oo]d" Civil Code section 1542, which excludes unknown claims from a general release, and that he "expressly waive[d the statute's] protection . . . and release[d] the Released Parties from any [such] claims . . . ." Finally, the general release contained an integration clause stating it "set forth the entire agreement between [plaintiff] and the Companies concerning termination of my employment. . . ." Printed in bold just above plaintiff's signature appears the statement: "I hereby acknowledge by my signature that I have carefully read and fully understand all of the provisions of this document. I have been encouraged to consider this document carefully and to seek legal and financial advice before signing it."
b. Analysis
"An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration." (Civ. Code, § 1541.) This principle applies to bar an action arising from the termination of an employee where the former employee signs a written release in return for the former employer's payment of severance benefits. (Perez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 958-959; Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366-1369.)
Skrbina is factually analogous to the present case. There the plaintiff, an employee terminated as part of a general reduction in force, signed a written release in return for severance benefits that contained the following language: "'In consideration of the . . . severance benefits and other consideration provided me . . ., I hereby completely release and forever discharge [the defendant] and any affiliated and parent companies . . . from any claims, rights, demands, actions, [or] obligations, . . ., known or unknown, which I may now have, have ever had, or may in the future have . . . regarding my employment, benefits, and separation . . . including any and all claims under state or federal employment laws and regulations.'" (Skrbina v. Fleming Companies, supra, 45 Cal.App.4th at pp. 1359-1360.) In affirming a summary judgment for the defendant, the Court of Appeal ruled "'Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are clear, explicit and comprehensible in each of their essential details."' . . . [Citation.]" (Id. at p. 1368.)
In each of the foregoing cases the trial court dismissed the action after granting the defendant's motion for summary judgment. This case involves a judgment entered after the trial court sustained a demurrer to an amended complaint without leave to amend. Nonetheless, for two reasons a similar result applies here.
First, as noted, the trial court took judicial notice of the general release, although with the proviso "not as to the truth of any matters asserted. . . ." But "'judicial notice of matters upon demurrer will be dispositive . . . in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.' [Citation.]" (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 375.) "We may therefore take judicial notice of an agreement where 'there is and can be no factual dispute concerning the contents of the agreement[]. [Citation.]' [Citation.]" (Trinity Park, L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1026-1027.) The general release expressly declared the parties were plaintiff, defendant, and AT&T's employee welfare benefit plan and, in it, plaintiff waived his right to pursue any claim he had or might have against defendant or its successors and the welfare benefit plan.
Second, in his verified second and third amended complaints, the latter of which is the operative pleading at issue in this appeal, plaintiff admitted he received the general release, could read it, did so, and, before signing the agreement, consulted with two attorneys. "Judicial admissions may be made in a pleading . . . . [Citations.] Facts established by pleadings as judicial admissions '"are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her." [Citations.] "'[A] pleader cannot blow hot and cold as to the facts positively stated.'" [Citation.]' [Citation.]" (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.)
Plaintiff's claim the general release is ambiguous lacks merit. Ambiguity in a contract exists if the agreement is susceptible to more than one reasonable interpretation. (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37-40; Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) In Skrbina, the plaintiff argued the agreement he signed was ambiguous concerning its application to FEHA. (Skrbina v. Fleming Companies, supra, 45 Cal.App.4th at p. 1368.) Citing the agreement's release of claims under state and federal employment laws and regulations, the appellate court rejected this contention. "On its face, this language could not be plainer. . . ." (Id. at p. 1369.)
Here, the general release plaintiff executed is equally clear in its meaning and scope. Plaintiff agreed to give up "any claims, liabilities, demands or causes of action, whether for discrimination, breach of contract, or any other claim, including but not limited to claims under . . . the California Fair Employment and House [sic] Act, that I may have or claim to have had as of or prior to the date of this General Release and Waiver against any Released Parties based on my employment with the Companies or the termination of that employment . . . ." He also released all unknown claims covered by Civil Code section 1542.
Nor can plaintiff escape the terms of the general release by relying on his unstated understanding of its scope. Since "'[i]t is the outward expression of the agreement, rather than a party's unexpressed intention, which the court will enforce[,]'" any "'[e]vidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language.' [Citation.]" (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1159.) Plaintiff's assertion the attorneys with whom he consulted could not properly advise him concerning its terms is merely a contention or conclusion of fact or law to which we need not give any credence. In light of the general release's language and the verified third amended complaint's admissions, plaintiff's conclusory assertion he was misinformed lacks merit.
As for the general release purportedly being an unconscionable agreement, that "doctrine has '"both a 'procedural' and a 'substantive' element," the former focusing on "'oppression'" or "'surprise'" due to unequal bargaining power, the latter on "'overly harsh'" or "'one-sided'" results.' [Citation.]" (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071.) We rejected a similar claim in Perez in upholding the enforceability of an employee's severance agreement. (Perez v. Uline, Inc., supra, 157 Cal.App.4th at p. 960.) Plaintiff cites to nothing in the record supporting his assertion of unconscionability. There is no suggestion of surprise. Plaintiff admitted receiving a copy of the general release before his termination, which he signed but then revoked. He also acknowledges defendant sent him a second copy of the agreement after he left defendant's employ and signed it after consulting with two lawyers. Finally, plaintiff does not to cite to anything in the agreement making it one-sided or overly harsh.
Plaintiff's public policy violation claim ignores the decisions in Skrbina and Perez, both of which held employee severance agreements containing a clear and explicit release of claims are, in the absence of a specific statute, generally enforceable. Plaintiff fails to support his argument with any contrary legal authority.
Finally, plaintiff's claim he was unable to discuss the general release with his supervisors and defendant's human resources department is unavailing. Plaintiff admitted he could read the agreement and that he consulted with two attorneys before signing it. "'"The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding . . . ." [Citation.]' . . . [Citation.]" (Winet v. Price (1992) 4 Cal.App.4th 1159, 1168-1169.) The ability to consult with independent counsel more than made up for the alleged lack of communication with defendant's agents.
Therefore, we conclude the terms of the general release plaintiff admitted signing after consultation with counsel are enforceable and bar all of the causes of action asserted in the verified third amended complaint.
While the trial court did not rely on the general release to support dismissal of plaintiff's action, if its decision is "'right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; see Davie v. Board of Regents, University of California (1924) 66 Cal.App. 693, 702 ["If the complaint is insufficient upon any ground properly specified in the demurrer the order must be sustained though the lower court may have deemed it sufficient in that respect and may in its order have declared it defective only in some particular"].) As a result, we need not reach the merits of plaintiff's claims concerning each cause of action or the denial of his motions for reconsideration.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.