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126 S.Ct. 1195

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Page 1 546 U.S. 454, ]2~ S.Ct. 1195,97 Fair EmpI.Prac.Cas. (BNA) 641, 87 Empl. Prac. Dec. P 42,263,163 L.Ed.2d 1053,74 USLW .)458,74 USLW 3468, 06 CaL Daily Op. Servo 1490 2006 Daily Journal D A.R 2024 19 Fla L Weekly Fed, S 99 ,. . ,. ..

(Cite as: 546 U.S. 454, 126 S.Ct. 1195)

P

Ash v. Tyson Foods, Inc. U.5.,2006.

Supreme Court of the United States Anthony ASH et al.,

V.

TYSON FOODS, INC.

No. 05-379.

Feb. 21,2006.

Background; Two African-American employees brought Title VII and § 1981 racediscriminatinn against employer, arising from their non-promotion to shift manager positions. The United States District Court for the Northern District of Alabama granted employer's renewed motion for judgment as a matter of law, and alternatively granted employer's motion for a new trial. The United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part, 129 Fed.Appx. 529.

Holdings: On grant of petrtion for writ of certiorari, the United States Supreme Court held that

(1) evidence that plant manager sometimes had referred to employees as "boy" was potentially probative of discriminatory animus, whether or not accompanied by racial classification, and

(2) employees' claimed superior qualifications [or positions in question could potentially show that employer's proffered reasons for non-promotions were prctcxtua1.

Vacated and remanded. West Headnotes

[11 Civil Rights 78 1(=1421

78 Civil Rights

78III Federal Remedies in General

78k1416 Weight and Sufficiency of Evidence 78kl421 k. Employment Practices. Most Cited Cases

Civil Rights 78 <C=1548

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

78k1543 Weight and Sufficiency of Evidence

78k1548 k. Promotion or Transfer. Most Cited Cases

Evidence that plant manager sometimes had referred to African-American employees as "boy" was potentially probative of discriminatory animus, in employees' Title Vll and § 1981 race discrimination action against employer arising from manager's selection of white candidates over employees for promotions; term in question did not have to be accompanied by racial classification in order to be potentially probative of animus. 47 U.S.C.A. § 198 I; Civil Rights Act of ] 964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

12J Civil Rights 78 €=1137

78 Civil Rights

7811 Employment Practices

78k!137 k. Motive or Intent; Pretext. Most Cited Cases

In Title VII and § 1981 racediscrimination action against employer arising from non-promotions of African-American employees, employees' claimed superior qualifications for positions in question could potentially show that employer's proffered reasons for non-promotions were pretextual, even if disparity in qualifications did not "virtually jump off the page and slap [the court] in the face." 42

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Page 2 546 U.S. 454,126 S.Ct. 1195,97 Fair Empl.Prac.Cas. (BNA) 641,87 Empl. Prac. Dec. P 42,263, 163 L.Ed.2d 1053,74 USLW 3458, 74 USLW 3468,06 Cal. Daily Op. Servo 1490,2006 Daily Journal D.A.R. 2024,19 Fla. L. Weekly Fed. S 99

(Cite as: 546 U.S. 454, 126 S.Ct. 1195)

U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

**1196 PER CURIAM.

*455 Petitioners Anthony Ash and John Hithon were superintendents at a poultry plant owned and operated by respondent Tyson Foods, Inc. Petitioners, who are African-American, sought promotions to fill two open shift manager positions, but two white males were selected instead. Alleging that Tyson had discriminated on account of race, petitioners sued under Rev. Stat. § 1977, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 19M, 7& Sta1. 253, as amended, 42 U.S.c. § 2000eet seq.

A trial proceeded in the United States District Court for the Northern District of Alabama. At the close of the plaintiffs' evidence, Tyson moved for judgment as a matter of law, see fed. Rule Civ. Proc. 50(a). The District Court denied the motion, and the jury found for petitioners, awarding compensatory and punitive damages. The employer renewed its motion for judgment under Rule 50(b). The District Court granted the motion and, in the alternative, ordered a new trial as to both plaintiffs under Rule 50(c). App. to Pet. for Cert. 35a; see generally Unitherm Food Systems, inc. V. Swift-Eckrich, Inc., 546 U.S. ----, ---- - ----, 126 S.Ct. 980, 984-988, --- L.Ed.2d ---- (2006) (discussing Rule 50).

The United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part. 129 Fed.Appx. 529, 536 (C.A.ll 2005)(jJer curiam). As to Ash, the court affirmed the grant of the Rule 50(h) motion, deeming the trial evidence insufficient to show pretext (and thus insufficient to show unlawful discrimination) under the burden-shifting framework set forth in McDonnell Douglas Corp. V. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 129 Fed.Appx., at 533-534. As to Hithon, the court reversed the Rule 50(b) ruling, finding there was enough evidence to go to the jury. The court, however, affirmed the District Court's alternative remedy of a new trial under Rule 50(c), holding that the evidence

supported neither the decision to grant punttive damages nor the amount of the compensatory award, and thus that the *456 District Court did not abuse its discretion in ordering a ncw trial. Id., at 536.

The judgment of the Court of Appeals, and the trial court rulings it affirmed, may be correct in the final analysis. In the course of its opinion, however, the Court of Appeals erred in two respects, requinng that its judgment now be vacated and the case remanded for further consideration.

**1197 [1] First, there was evidence that Tyson's plant manager, who made the disputed hiring decisions, had referred on some occasions to each of the petitioners as "boy." Petitioners argued this was evidence of discriminatory animus. The Court of Appeals disagreed, holding that "[w]hile the use of 'boy' when modified by a racial classification like 'black' or 'white' is evidence of discriminatory intent, the use of 'boy' alone is not evidence of discrimination," id., at 533 (citation omitted). Although it is true the disputed word win not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court's decision is erroneous.

[2] Second, the Court of Appeals erred in articulating the standard for determining whether the asserted nondiscriminatory reasons for Tyson's hiring decisions were pretextual, Petitioners had introduced evidence that their qualifications were superior to those or the tW[J successful applicants. (Part of the employer's defense was that the plant with the openings had performance problems and petitioners already worked there in a supervisory capacity.) The Court of Appeals, in finding petitioners' evidence insufficient, cited one of its earlier precedents and stated: "Pretext can be established through comparing qualifications only

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546 U.S. 454,126 S.Ct. 1195,97 Fair Empl.Prac.Cas. (BNA) 641, 87 Empl. Prae. Dec. P 42,263, 163 L.Ed.2d 1053, 74 USLW 3458, 74 USLW 3468, 06 Cal. Daily Op. Servo 1490,2006 Daily Journal D.A.R. 2024, 19 Fla. L. Weekly Fed. S 99

(Cite as: 546 U.S. 454, 126 S.Ct. 1195)

when 'the disparity in qualifications is so apparent as virtually to jump off the page *457 and slap you in the face.' " Ibid. (quoting Cooper V. Southern Co., 390 F.3d 695,732 (C.A.1 I 2004)).

Under this Court's decisions, qualifications evidence may suffice, at [east in some circumstances, to show pretext. See Patterson V. Mcl.ean Credit Union, 491 U,S. 164, 187-188, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (indicating a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was prctcxtua1 by showing that she was in fad better qualified than the person chosen for the position"), superseded on other grounds hy 42 U.S.c. § 1981(b); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination"); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated ").

establish pretext where the plaintiffs qualifications are " 'clearly superior' " to those of the selected "'458 job applicant); Aka V. Washington Hospital Center, 156 F.3d 1284, 1294 (C.A.D.C.1998) (en bane) (concluding the factfinder may infer pretext if "a reasonable employer would have found the plaintiff to be significantly better qualified for the job"), and in this case the Court of Appeals qualified its statement by suggesting that superior qualifications may he probative of pretext when combined with other evidence, see 129 Fcd.Appx., at 533. This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today's decision, furthermore, should not be read to hold that petitioners' evidence necessarily showed pretext. The District Court concluded otherwise.

ft suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results,

The Court of Appeals should determine in the first instance whether the two aspects of its decision here determined to have been mistaken were essential to its holding. On these premises, certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered

The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications. Federal courts, including the Court of Appeals for the Eleventh Circuit in a decision it cited here, have articulated various other standards, see, e.g., Cooper, supra, at 732 (noting that " disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question" (internal quotation marks omittedj);

Raad v. Fairbanks North Star Borough School Dist.,

323 F.3d 1185, 1194 (C.A.9 2003) (holding that

qualiflcations'" 1198 evidence standing alone may

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U.S.,2006.

Ash v. Tyson Foods, Inc.

546 U.S. 454, 126 S.Ct. ( (95, 97 Fair Empl.Prac.Cas, (BNA) 641, 87 Empl, Prac. Dec. P 42,263, 163 L.Ed.2d 1053, 74 USLW 3458, 74 USLW 3468, 06 Cal. Daily Op. Servo 1490, 2006 Daily Journal D.A.R. 2024, 19 Fla. L. Weekly Fed. S 99

END OF DOCUMENT

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Westlaw.

Not Reported in F.Supp.2d

Not Reported in r.Supp.2d, 2005 WL 2206699 (N.D.Cal.) (Cite as: Not Reported in F.Supp.2d)

Letch v. Safeway Stores, Inc. N.D.CaL,20D5.

Only the Westlaw citation is currently available.

United States District Court,N.D. California.

Kelly L LETr:H, Plaintiff, v.

SAFEWA Y STORES, INC., et al., Defendants.

No. C-05-1781 MMC.

Sept. 12,2005.

Kelly L. Letch, Walnut Creek, CA, pro se.

Mark John Rogers, William f. Murphy, Dillingham & Murphy LLP, San Francisco, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; V ACA TING HEARING; REMANDING ACTION

CHESNEY, J.

(Docket No.3)

*1 Before the Court is the motion to dismiss filed May 2, 2005 by defendants Safeway Stores, Inc. Coo Safeway") and Robert Munz C"Munz"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure.FN1 Plaintiff Kelly L. Letch ("Letch") has filed opposition to the motion; defendants have filed a reply. Having considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision without oral argument, see Civil L.R. 7-1(b), V ACA TES the September 16, 2005 hearing, and, rules as follows.

FNI. At the parties' request, the hearing on the motion was continued several times.

BACKGROUND

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The following facts are taken from the allegations of the complaint and are presumed true for purposes of the instant motion to dismiss. On or about July 30, 2002, Letch was hired by Safeway. (See Cornpl. at A-S.) Defendant Munz is a Safcway store manager. (Seeid. at A-8,) Throughout her employment, Letch made complaints to management about various assertedly unsafe workplace practices and workplace safety violations, FN2 including complaints about (1) unsafe placement of knives in the sandwich bar; (2) placement of salads in such manner that they were contaminated with seafood drippings; (3) repeated failure of refrigeration in the deli cheese case; (4) the presence in the workplace of the deli manager's unsupervised young children in violation of company policy; and (5) extension cords left in walkpaths, uncovered and unsafe holes, and exposed electrical outlets. (Seeid)On or about January 21, 2004, defendants accused Letch of failing to pay for a pack of cigarettes and, thereafter, terminated her employment. (Seeid)

FN2. The allegations of the complaint arc not consistent as to whether these practices and violations occurred at Safcway's San Ramon or Walnut Creek store. Letch alleges that she was transferred to the San Ramon store in August 2003, (see Compl. at A-8), but elsewhere in the complaint, alleges she was employed at the Walnut Creek store from July 30, 2002 through February 6, 2001, (seeid. at A-6.)

Letch alleges that defendants knew their accusations were false at the time they were made, (seeid), and that she actually was terminated in retaliation for her complaints of unsafe workplace practices and workplace safety violations. (Seeid. at A-S-A-9.) As a result, Letch alleges, Safeway and Munz are liable for wrongfully terminating her employment in violation of public policy, as expressed in California Labor Code § 6310. (Seeid. )Letch

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Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2005 WL 2206699 (N.D.Cal.) (Cite as: Not Reported in F.Supp.2d)

further alleges Munz is liable for intentional interference with contractual relations as a result of his having made untrue allegations that Letch stole a pack of cigarettes, thereby disrupting her contractual employment relationship with Safeway. ( Seeid. at A-ll.)

Additionally, Letch brings a claim for negligence against Safeway based on (I) Safeway's alleged failure to "mitigate ". the threat to workers" posed by asbestos removal frum Safeway's Walnut Creek and/or San Ramon stores, thereby causing Letch and other employees to suffer sore throats, and (2) Safeway's "improper placement of the metal edging on the [self-service] cases," thereby causing Letch to sustain knee injuries in the course of loading meats and other items into such cases. (Seeid. at A-6.)

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relier."SeeCnnley v. Gibson, 355 US. 41, 45-46, 78 s.o. 99, 2 L.Ed.2d 80 (l957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Seellalistrert v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir.1990).

*2 Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any material beyond the pleadings. SeeHal Roach Studios, Inc. v. Richard Feiner And Co .. Inc .. 896 f.2d 1542, 1555 n. 19 (9th Cir.1990). Material that is properly submitted as part of the complaint, however, may be considered. Seeid. Documents whose contents arc alleged in the complaint, and whose authenticity no party questions, but which are not physically attached to the pleading, also may be considered. SeeBranch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). In addition, the Court may consider any document "the authenticity of which is not contested, and upon which the plaintiffs complaint necessarily relics," regardless of whether the document is referred to in the complaint. See

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Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998). Finally, the COUIt may consider matters that are subject to judicial notice. See Mack v. South Bay Beer Distributors, Inc .. 798 F.2d 1279 1282

(9thCir.1986). '

In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. SeeNL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. I 986). The Court may disregard factual allegations if such allegations are contradicted by the facts established by reference to exhibits attached to the complaint. SeeDurning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. SeeHolden v. Hagopian, 978 F.2d 1.1 15,1121 (9th Cir.1992).

DISCUSSION

The instant complaint was filed February 7, 20D5 in Contra Costa County Superior Court, and removed to federal court on April 29, 200:'; on the ground that Letch's claim for wrongful termination in violation of public policy, in part, and her claim for intentional interference with contractual relations, in its entirety, are preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 [J.S.c. § 185.

Defendants now move to dismiss, in part, Lerch's claim for wrongfultermination in violation of public policy to the extent such claim is asserted against Safeway, and to dismiss in its entirety Letch's wrongfultermination claim as asserted against Munz. Defendants also move to dismiss Letch's claim for intentional interference with contract, which is asserted only against Munz, and her negligence claim, which is asserted on ly against Safeway.

A. WrongfulTermination in Violation of Public Policy

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Defendants argue that Letch's claim for wrongful

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Not Reported in F.Supp.2d

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termination in violation of public policy is preempted by § 30] of the LMRA, to the extent such claim is based on retaliation for Letch's having reported a violation of Safeway's policies,FN3 and, accordingly, must be dismissed as time-barred. Defendants do not seek dismissal of Letch's claim for wrongfultermlnation in violation of pub lie policy to the extent such claim is based on retaliation for reporting "violations of the California Labor Code that provide for the regulation of occupational safety and health."(See Motion at 8 n. 3 (citing Paige v. Kaiser, 826 F.2d 857, 863 (9th Cir.1987).) FN4

FN3. The only allegation in Letch's complaint that refers to a violation of Safeway's internal policies is the following paragraph:

[1]n early January 2004 LETCH complained to the store manager, Robert Munz, of the dangerous conditions created by the deli manager bringing her young children into the workplace and keeping them there for extended periods of time, occasionally requmng SAFEW A Y employees to monitor them. The practice of bringing children and unsupervised non-employees into the workplace violated company policy.

(See Compl. at A-8)

FN4. In Paige, the Ninth Circuit held a plaintiff's claim for wrongfllltcrmination in violation of public policy, based on California Labor Code provisions prohibiting the discharge of employees who complain to their employer about unsafe working conditions, is not preempted by § 301. Seei'aige, 826 F.3d at 862-863.

"'3 Section 301 of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the

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citizenship of the parties.

29 U.S.C. § 185(a). The Supreme Court has held that any state law claim "alleging a violation of a provision of a labor contract must be brouzht under § 301 and be resolved by reference to fed:ral law." Seerlllls-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 85 L.EJ.2d 206 (1985) (citing Teamsters v, Lucas Flour Co., 369 U.S. 95, 103,82 S.Ct. 571, 7 L.Ed.2d 593 (1962)).

LMKA preemption of state law actions is desizned to foster "uniform, certain adjudication of disputes over the meaning of collective-bargaining agreements."SeeLingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410-11, 108 S.Ct. 1877, 100 L.Fd.2d 410 (198g)."ln order to preserve this uniformity, even suits based on torts, rather than on breach of collective bargaining agreements, are governed by federal law if their evaluation is ' inextricably Intertwined with consideration of the terms of [a] labor contract." , ld. (quoting Allis Chalmers, 471 U.S. at 213)); seealso Caterpillar Inc. v. Williams. 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ("Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims substantially dependent on analysis of a collective-bargaining agreement") (internal quotation and citation omitted).

On the other hand, § 30] does not "preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract."See Allis-Chalmers, 471 U.S. at 212. In {,ingle, for example, a union employee asserted a cause of action under Illinois law for "retaliatory discharge for filing a worker's compensation claim. "Seel.ingle, 486 u.s. at 406. Under Illinois law, the plaintiff was required to show that he was discharged or threatened with discharge. and that "the employer's motive in discharging or threatening to discharge him was to deter him from exerciaing hia rights under the [Workers' Compensation] Act or to interfere with his exercise of those rights. "Seeid. at 407 (internal quotation and citation omitted). The Supreme Court held such cause of action was not preempted by § 301 because the elements of the cause of action raised "purely factual questions"

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about "the conduct of the employee and the conduct and motivation of the employer" and "[njeither of the elements requirejd] a court to interpret any term of a collective-bargaining agreement." Seeid.

In sum, "[i]f the plaintiffs claim cannot be resolved without interpreting the applicable CI3A, ... it is preempted."SeeCramer v. Consolidated Freightways Inc., 255 f..3d 683, 691 (9th Cir.2001) (en bancj.vAltematively, if the claim may be litigated without reference to the rights and duties established in a eBA-as, for example, in Lingle, where the plaintiff was able to litigate her retaliation suit under state law without reference to the CBA-it is not preempted." ld

*4 In the instant case, as noted, Letch alleges she was terminated from her employment in retaliation for complaining about workplace safety issues that allegedly also violated Safeway's internal policies and, in particular, the presence in the workplace of the deli manager's unsupervised young children, and that, consequently, defendants are liable for wrongful termination in violation of public policy as set forth in California Labor Code § 6310. (See CompL at A-8-A-9.) In order to prevail on a claim for wrongful termination in violation of public policy, Leteh must show that Safcway terminated her employment in violation of a policy that is "(1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision," see Turner v. Anheuser-Busch, Inc., 7 Ca1.4th 1238, 1256,32 Cal.Rptr.2d 223,876 P,2d 1022 (1994), or in an administrative regulation, see Green v. Ralee Engineering Co., 19 Ca14th 66, 80, 78 Ca1.Rptr.2d 16, 960 P.2d 1046 (1998) (holding public policy can he expressed in an administrative regulation); seealsoBAJI 10.06 (identifying elements of cause of action for wrnngfultermination in violation of public policy as (1) contract of employment between plaintiff and defendant; (?) defendant's termination of plaintiff's employment in violation of public policy; and (3) plaintifrs damages).

Defendants argue that in order to determine the merits of Letch's claim, the Court will be required to interpret the collective bargaining agreement to determine (I) whether the presence of children in the workplace violated Safeway's policies; (2)

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whether Letch's termination was improper under the collective bargaining agreement, and (3) whether Safeway had just cause under the collective bargaining agreement to terminate Lerch's employment. The issue, however, is not whether Letch's termination violated the collective bargaining agreement, but whether it violated California public policy. As with the retaliation claim at issue in Lingle, Letch's claim for wrongful termination in violation of public policy docs not require interpretation of any term of a collective bargaining agreement. Seel.ingle, 4R6 I LS. at 4 [3 (noting "a state tri bunal cou Id resolve either a discriminatory or retaliatory discharge claim without interpreting the 'just cause' language of a collective bargaining agreement"); Paige, 826 F.2d at 862-63 (finding claim for wrongfultcrmination in violatiun of public policy based on California Labor Code provision prohibiting discharge of employees who complain of unsafe working conditions not preempted); seeaisoiIook v. Lindsay Olive Growers, 911 f.2d 233, 237-38 (9th Cir.1990) (holding claim for wrongful termination in violation of public policy against employment discrimination on the basis of religion not preempted); Jackson v. Southern California Gas Co, 881 F.2d 638 (9th CiL1989) (finding claim for wrongfultcrmination in violation of public policy against race discrimination not preempted); cj Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L,Ed.2d 20J (1994) (adopting Lingle standard to resolves claims uf pmt'.mpllUlI under Railway Labor Act and finding state law claim for wrongfultcrmlnatlon in violation of public policy not preempted).

"'5 To the extent defendants may be arguing that no public policy is implicated by plaintiff's claim of retaliation for complaints about an internal policy, such argument goes to the merits of such claim, not 10 its preemption. Although the Ninth Circuit, in Jackson, observed in dicta that a claim for wrongful discharge is preempted by § 301 "if it is not based on any genuine state public policy."SeeJackson, 881F.2d at 643-44 (citing Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 1002 (9th Cir.1987), that statement no longer reflects the current state of the law. As noted, Jackson relied on Young. Young, in turn, relied on DBSuto v. Yellow Freight Systems,

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820 F.2d 1134, 1437-38 (9th Cir.1987).SeeYoung, 830 F.2d at 1002. In DeSoto, the Ninth Circuit held the plaintiffs claim for wrongful termination in violation of public policy was preempted by § 301 because the plaintiff was mistaken about the law and California public policy was not, in fact, implicated by his terminatiun. SeeDeSoto, 820 F.2d at 1438. The Supreme Court, however, vacated the Ninth Circuit's opinion in DeSoto, and remanded for further consideration in light of Lingle.SeeDeSolo v. Yellow Freight Systems, Inc., 486 U.S. 1050, 1050, 108 S.Ct. 2813,100 L.Ed.2d 914 (1988). The Ninth Circuit thereafter reconsidered its earlier ruling and held the claim for wrongful termination in violation of public policy at issue in DeSoto was not preempted by § 30 I. SeeDeSoto v. Yellow Freight Systems, Inc., 861 F.7d 516, 516 (9th Cir.1988). Thus, Letch's claim is not preempted by § 301 even if she is mistaken that she was acting in defense of California public policy by raising her complaints about the presence of children in the workplace.

Moreover, California public policy does, in fact, bar retaliation Ior good faith complaints about workplace safety issues. Here, plaintiff alleges that the "unsafe" practices about which she complained to defendant included the "dangerous condition" created by the presence of children in the workplace, (see Compl. at A-8), and that her termination in retaliation for such complaint .. violated [California] Labor Code section 6310," (see td. at A-9).Section 6310 provides, in relevant part: " Any employee who is discharged ... because the employee has made a bona fide oral or written complaint to '" his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment, '" shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. "&eCal. Lab.Code § 631O(b)."The public policy behind § 6310 is not merely to aid the reporting of actual safety violations."Freund v. Nycomed Amersham, 347 F.3d 752, 759 (9th Cir.2003)."As long as the employee makes the health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of other workplace safety statutes or regulations."Id.;seeals(lCahe,~uela

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v. Browning-Ferris Industries of California. inc., 68 Cal.App.4th 101, 109, 80 Cal.Rptr.2d 60 (1998) (holding § 6310 protects an employee "against discharge for a good faith complaint about working conditions he believes to be unsafe"). The Ninth Circuit has expressly held that a claim for wrongful termination in violation of public policy may be based on a violation of § 6310. Seet-reund, 347 F.3d at 758.

*6 Accordingly, defendants' motion to dismiss Letch's cause of action for wrongfuItermination in violation of public policy, as preempted by § 301, will be DENlED.

B. WrongfulTermination in Violation of Public Policy-as asserted against Munz

Defendants correctly argue that Letch cannot assert a cause of action against Munz for wrongful termination in violation of public policy, whether or not it is preempted in part by ~ 30 I, because only Safeway, not Munz, was her employer. As a California Court of Appeal has observed, the tort of wrongfultermination in violation of public policy is based on "the duty arising frnrn the employment relationship" and there is no case law to "suggest that this tort imposes a duty of any kind of anyone other than the cmploycr."SeeWeinbaum v Goldfarb, Whitman & Cohen, 46 Ca1.App.4th 1310, 1315, 54 Cal.Rptr.2d 462 (1996) (holding third party cannot be held liable for conspiring with employer to wrongfully discharge employee); see alsoJacobs v. Universal Development Corp., 53 CaI.App.4th 692, 704, 62 Cal.Rplr.2d 446 (1997) (" Only an employer can be liable for tortious discharge, and fellow employees cannot be held accountable for tortious discharge on a conspiracy theory. ")

Accordingly, defendants' motion to dismiss Lerch's cause of action against Munz for wrongful termination in violation of public policy will be GRANTED.

C. Intentional Interference with Contractual Relations

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Not Reported in F.Supp.2d, 2005 WL 2206699 (N.D.CaL) (Cite as: Not Reported in F.Sllpp.2d)

Defendants move to dismiss Letch's claim against Munz for intentional interference with contractual relations, on the ground that a supervisor cannot be held liable for intentional interference with an employee's employment with their mutual employer. Defendants are correct. See, e. g., Shoemaker v. Myers, 52 CaL3d 1, 24, 276 Cal. Rptr. 303, 801 P.2d 1054 (I990) (noting "corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing a breach of the corporation's contract"); seealsollalvorsen v. Aramark Uniform Services, 65 Cal.AppAth 1383, 1386, 1396, 77 Cal.Rptr.2d 383 (1998) (holding manager has "absolute privilege against liability" for intentionally interfering with employment relationship by wrongfully inducing employer to terminate employee).

Accordingly, defendants' motion to dismiss Letch's cause of action against Munz for intentional interference with contractual relations will be GRANTED.FN5

FN5. In light of the above ruling dismissing the claim against Munz for intentional interference with contractual relations, the Court does not reach defendants' additional argument that the claim should be dismissed as preempted by § 301. See,e.g.,Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1062-63 (9th

Cir.1989) (declining to decide, in

reviewing order granting summary

judgment, whether state law cause of action was preempted by § 301 where cause of action was inadequately pleaded and where plaintiff failed to submit evidence sufficient to raise triable issue).

D. Remand

The only basis alleged by defendants for federal jurisdiction over the instant action is § 301 preemption. (See Notice of Removal at ,. 5.) There is no allegation of diversity jurisdiction. As a result of the above rulings, no claim preempted by § 301 is before the Court.

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As there is no reason for this Court to retain supplemental jurisdiction over the remaining state law claims, the Court does not reach defendants' arguments as to dismissal of the remaining claim for negligence, and will REMAND the action to state court, pursuant to 28 U.S.c. § 1367(c)(3).

CONCLUSION

F or the reasons set forth above,

*7 1. Defendants' motion to dismiss Letch's claim for wrongful termination in violation of public policy as preempted by § 30 I of the LMRA is hereby DENIED.

2. Defendants' motion to dismiss Lerch's claim for wrongful termination in violation of public policy, as asserted against Munz, is hereby GRANTED.

3. Defendants' motion to dismiss Letch's claim for intentional interference with contractual relations, as asserted against Munz, is hereby GRANTED.

4. The Court declines to retain supplemental jurisdiction over the remainder of Letch's claims, and hereby REMANDS the action to the California Superior Court for the County of Contra Costa.

The Clerk shall close the file.

IT IS SO ORDERED.

N.D.Cal.,2005.

Letch v. Safeway Stores, Inc.

Not Reported in F.Supp.2d, 2005 WL 2206699 (N.D.Cal.)

END OF DOCUMENT

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I'""

In re Estate of McGowan Cal.App. 2 Dist.,2007.

Only the Westlaw citation is currently available. California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.

Court of Appeal, Second District, Division 2, California.

ESTATE OF Barbara McGOWAN, Deceased.

Helen K. McGowan Houston, Petitioner and Appellant,

v.

Jan McEveety, Contestant and Respondent.

No. B194062.

(Los Angeles County Super. Ct. No. BP087496).

Sept. 27, 2007.

APPEA J, from a judgment of the Superior Court of Los Angeles County. Coleman A. Swart, Judge. Affirmed.

Helen K. McGowan Houston, in pro. per., for Petitioner and Appellant.

Carol A. Churchill for Contestant and Respondent 'l'ODD,J.

*J This is an appeal from a judgment following a four-day court trial in a case involving a decedent's will. It appears that appellant Helen K. McGowan Houston was seeking to have the will of her stepmother probated. Respondent Jan McEvcety, the decedent's natural daughter, opposed probate contending that the will was procured by the undue influence of appellant and appellant's father. After considering the evidence, the trial court ordered the will revoked, finding that the will was procured by the strongest case of undueinfluence the court had ever seen and that the testimony of appellant was u: quite flawed."

Appellant has appealed and contends there was insufficient evidence to support the judgment and that the trial court incorrectly applied statutory law.

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Because we find that appellant has failed to meet her burden on appeal of providing both an adequate appellate brief and an adequate record from which we can properly review her claims of error, we affirm the judgment.

Appellant's Burden on Appeal

" 'A judgment or order of the lower court IS presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " ( Denham v. Superior Court (1970) 2 Cal .3d 557, 564.) Thus, the appellant must make a challenge. In so doing, the appellant must raise claims of reversible error or other defect, and "present argument and authority on each point made." ( County of Sacramento v. Lackner (1979) 97 Ca1.App.3d 576, 591; accord, In re Marriage 0/ Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) "[E[ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal." (Berger l!. Godden (1985) 163 Cal.App.3d 1113, 1119.) In addition, "a party challenging a judgment has the burden of showing reversible error by an adequate record." ( Ballard v. Uribe (19&6) 41 Cal.3d 564, 574.) " Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]. [Citation.]" (Hernandez v California Hospital Medical Center (2000) 78 Cal.AppAth 498, 502.) Appellant has failed to meet her burden on appeal in both regards.

Inadequate Brief

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A. Factual Background

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California Rules of Court, rule 8.204{a)(2)(A) (formerly rule 14) provides that an appellant's opening brief must state, among other things, the nature of the action and the relief sought in the trial court. An appellant's brief must also "[pjrovide a summary of the significant facts limited to matters in the record. "(Cal. Rules of Court, rule 8.204(a)(2)(C).) Moreover, appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it " , "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived." [Citations.], " (Nwosu v. Uba (2004) 122 Cal .App.4th 1229, 1246.)

*2 Although appellant's opening brief contains a section entitled "Background," nowhere in this section or elsewhere in the brief arc the facts of this case set forth. Indeed, appellant does not even identify her relationship with the decedent or respondent, tell us anything about the decedent or the circumstances surrounding the drafting of the will, set forth the terms of the will or discuss any of the factors bearing on the issue of undueinfluence. To the extent appellant attempts to discuss or reference factual issues, her statements arc rambling and incoherent. In short, it is impossible to tell from appellant's brief what happened in this case either factually or procedurally. Because appellant has failed to provide us with any reasonable understanding of this case, we have no basis for addressing appellant's claims of error.

B. Legal Argument

California Rules of Court, rule 8204(a)(1 )(8) provides that each point in an appellate brief must be supported by argument and, if possible, by citation of authority. Appellant's opening brief contains pages of citations to legal authorities. But appellant fails to apply the law to the facts of this case in any coherent manner. Her arguments-to the extent she makes them instead of just endlessly quoting from strings of cases and statutes-are unintelligible.t'When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing

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court is unnccessary"(Landry v. Berryessa Union School Dist. (1995) 39 Cal.AppAth 691, 699-700.) Accordingly, as a consequence of appellant's failure to properly present her arguments on appeal, we deem her contentions to be forfeited, and do not address them. (Evans v. Centers tone Development Co. (2005) 134 Cal.AppAth 151. 165.)

Inadequate Record

Appellant has presented a two-volume appendix consisting of 399 pages and had respondent submit additional assorted trial exhibits designated by appellant. Respondent claims that more than 300 pages of appellant's appendix "were not part of the trial court record."We note that some of the documents to which respondent objects appear to be pleadings that were filed in the trial court below. But the remaining documents in the appendix are not presented in any logical order and we cannot tell where some documents end and others begin. Appellant's appendices are of no assistance in this regard. For example, the first document listed in what purports to be appellant's "chronological" index does not appear until page 334 of the appendix and is an order filed in another case. Not only are we unable La determine which documents were, in fact, pari of the record below, we cannot discern the relevance of certain documents. "As a general rule, documents not before the trial court cannot be included as a part of the record on appeal. "(Doers v. Golden Gate Bridge etc. Dist, (1979) 23 Ca1.1d 1 ~O, 1 R4, fn. 1.) "An Appendix must not contain documents or portions of documents tiled in superior court that are unnecessary for proper consideration of the issues."(Cal. Rules of Court, rule: 8.1?4(h)(7).) Respondent also claims that the: record contains incomplete exhibits, though we have no way of knowing for which exhibits this may be the case. Respondent asserts that the record submitted by appellant "is so incomplete as to be misleading and worthless to the reviewing court."In essence, we arc utterly confused by the record, which appears to be a jumbled mass ufdocuments.

*3 Moreover, the trial in this case TOok place over four days. Rut appellant only requested the reporter's transcripts for the last two days of trial.

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Thus, for half of the trial we have no idea what happened, who testified and what they said or what exhibits were admitted into evidence. "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.Yo put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]' (Estate oj Fain (1999) 75 Cal.AppAth 973,992.)

In sum, the party seeking to challenge an order on appeal has the burden to provide an adequate record to assess error. (Maria P. v .. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Where, as here, the party fails to furnish an adequate record of the challenged proceedings, her claim on appeal must be resolved against her. (Rancho Santa Fe Assn. v, Dolan-King (2004) 115 CaLAppAth 28, 46.)

Motion for Sanctions

Appellant brings a motion for sanctions under California Rules of Court, rule 8.276(e)(2). This section provides that "[i]f a party moves to dismiss the appeal, with or without a sanctions motion, and the motion to dismiss is not granted, the party may move for sanctions within 1 0 days after the appellant's reply brief is due."Appellant misinterprets the statute. This section permits a party who moved to dismiss the appeal the right to seek sanctions, not the other way round. Here, respondent moved to dismiss appellant's appeal. Thus, respondent would be entitled to seek sanctions under this section, not appellant Accordingly, appellant's motion for sanctions is denied.

DISPOSITION

The judgment is affirmed. Respondent to recover her costs on appeal.

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We concur: BOREN, P.J., and ASHMANN -GERST, r.

CaLApp.2 Dist.,2007.

In re Estate of McGowan

Not Reported in Cal.Rptr.3d, 2007 WL 2793116 (CaLApp.2 Dist.)

END OF DOCUMENT

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TAMMY CABRAL, Plaintiff and Appellant, v . MARY L. SOARES, Individually and as Executor, etc., et al., Defendants and Respondents.

Cal.App. I Uist.,2007.

TAMMY CABRAL, Plaintiff and Appellant, v,

MARY L. SOARES, Individually and as Executor, etc., et al., Defendants and Respondents.

A114703

Filed 12/13/07

Counsel for plaintiff and appellant: Stephen G. Opperwall

Counsel for defendant and respondent: Law Offices of Edward E. Martins, A Prof. Corp. Valarie 1. Follett Edward E. Martins A1l4703

Siggins, 1.

Plaintiff Tammy Cabral appeals from an adverse judgment entered after the trial court sustained without leave to amend a demurrer addressed to her original complaint. Plaintiff alleges that her former husband James E. Cabral is substantially delinquent in payments of spousal and child support. To prevent her from enforcing these obligations plaintiff alleges that James and his sister Mary L. Soares induced their mother to change her will to leave to Mary the one-third of her estate that she had previously designated to go to James, with the understanding that Mary would subsequently "get that money to" him. The mother, Edwina Cabral, has now died and her estate includes real property with an estimated fair market value in excess of $500,000. We conclude that the trial court correctly sustained a general demurrer to the complaint which seeks to reach one-third of the value of the estate, but that it erred in refusing to grant leave to amend to correctly plead a cause of action under which plaintiff ultimately may be entitled to prevail.

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Background

Plaintiff's complaint alleges that as of November 2005 Jaines was delinquent in paying court-ordered spousal and child support in the approximate amount of $134,000, and that since 1998 he has "on several occasions been found in contempt" for the failure to pay his support obligations. The complaint alleges that James has taken various steps to avoid enforcement of the support obligations, including "not having a regular job with wages ... and working in a way that he would be paid in a manner that prevented plaintiff from enforcing the support obligations." The complaint continues, " Until shortly before her death, the will of Edwina Cabral provided that her three children would each receive a one-third interest in her estate," which included the family home in Newark, California with a free and clear market value in excess of $500,000, so that James "would have received enough money to pay the past due support obligations in full." "Defendants Mary Soares and James E. Cabral realized that the one-third interest of James E. Cabral would end up getting used to pay the past due support owed to plaintiff. In order tn prevent that from happening, those defendants conspired and agreed to have the will modified shortly before Edwina Cabral died. The modification was to have the one-third interest of James E. Cabral instead get paid to Mary Soares so that she would end up with a two thirds interest.

[1J The intent of this arrangement ". was that Mary Soares would take the one-third interest of James E. Cabral. that Mary Soares would then hold that money, and that Mary Soares would then later get that money to James E. Cabral in a manner to prevent plaintiff from receiving it for the past due support obligations."

The complaint further alleges that Edwina's will was so modified on May 10, 2005 (with a bequest to James of "the paltry sum of $1,000"), that Edwina died less than two months later, that the will was filed with the probate court in July 2005, and that

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Mary is the executor under the will. FNl Paragraph 22, the final introductory paragraph of the complaint, reads in full as follows: "The last minute change in the will of Edwina Cabral very shortly before her death was probably done at a time when Edwina Cabral was not aware of what she was doing, was not mentally competent, was subject to undueinfluence by Mary Soares and James E. Cabral, and was not the true expression of her intent since she had always previously expressed that she wanted to leave her estate to her three children in equal shares of one-third each. The change was therefore not really a knowing and intelligent change by Edwina Cabral, but was a manipulation by Mary Soares and James E, Cabral. Alternatively, if Edwina Cabral was aware of what was being done, then she also was doing it for the purpose of defrauding plaintiff and of manufacturing a charade to have the money go to James E. Cabral through Mary Soares in a way that was designed to keep plaintiff from being paid what the court ordered James E. Cabral to pay lor support."

I, The complaint names as defendants Mary L. Soares, individually; Mary T" Soares, as the executor of the estate of Edwina M. Cabral; Mary L. Soares, as the trustee of the "Cabral Family Revocable Trust," lames E. Cabral, and the third sibling, Joseph A. Cabral.

The complaint contains five causes of action, the first alleging that "[tjhe last minute change to the will of Edwina Cabral" was a fraudulent transfer within the meaning of the Uniform Fraudulent Transfer Act (Civ.Code, § .1419 et seq.). The second cause of action alleges that the family horne "should be held in a constructive trust for plaintiff's benefit up until and to the extent required to pay the past due support obligations in full" and the third cause of action alleges that the property "should be held in a resulting trust." The fourth cause of action seeks declaratory relief as to the rights and liabilities of the parties. "including the rights of plaintiff to be paid from the one-third interest that James E. Cabral has in the estate and the property. [ ,] Plaintiff contends that she is entitled to enforce

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the support obligations against the property and other assets of the estate." Thc purported fifth cause of action is entitled "conspiracy" and alleges damages "in an amount that equals the amounts owed to her by defendant James E, Cabral, as well as attorneys' fees and costs incurred herein." The prayer seeks compensatory damages, "a judicial determination James E. Cabral have a one-third interest in the estate of Edwina Cabral and that plaintiff be allowed to execute against those assets to the extent needed to be paid in full for support ohligations, both past, present, and future," and other relief.

The trial court sustained defendants' demurrer to this complaint without leave to amend, with the following explanation: "This court lacks jurisdiction of plaintiffs claims. Plaintiffs claim for declaratory relief seeks to contest the validity of the second will and must be brought in the probate court as a will contest. Code of Civil Procedure § 1060. Plaintiff's other claims are dependent upon her claim that the second will should he set aside. Plaintiff cites no authority allowing her to avoid the requirements for a will contest by phrasing her claims as tort claims. Cf. Harootcnian v. Harootenian (1951) 38 Ca1.2d 242. 248-250,"

Plaintiff moved for reconsideration of this order, arguing that the court had incorrectly accepted defendants' rnischaracterization of her claim as arising out of a will, whereas the claim in fact is based upon an agreement between James and Mary to hinder and defraud creditors and thus supports a fraudulent conveyance cause of action, The court's tentative ruling was to grant the motion and to grant leave to amend the complaint "to state a claim, if possible, based on an alleged agreement between defendant James Cabral and any heir of Edwina M. Cabral to secretly transfer assets received from decedent's estate to de fendant .r am es Cabral." After argLlmen t, however, the court denied the motion for reconsideration on the ground that there were no new or different facts to support the application under Code of Civil Procedure section 1008, subdivision (a). The court acknowledged its authority 10 hear H motion for reconsideration on its own motion, but declined to do so with this explanation: "The court remains convinced that

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plaintiff cannot proceed directly against Mary Soares based on decedent's decision to exclude James Cabral from her will, And, the court is not persuaded that a viable claim can be made against Mary Soares and James Cabral based on an alleged agreement between them unless and until James receives some distribution of assets, in which case the family court assignment order appears to provide an adequate remedy."

The assignment order to which the court referred is an order entered in the family law department in the proceedings giving rise to the support orders against James. The court assigned to plaintiff "until such time as the judgment herein is fully satisfied or this order i.~ amended''''[a]ll rights to payment that [James] has from any third party" including "any right to payment that [James] may have now or in the future from Mary Soares or from Joseph Cabral or from any other source that relates to the will of Edwina Cabral, the estate of Edwina Cabral, and/or any assets or funds from the will and/or estate of Edwina Cabral."

Plaintiff has timely appealed from the subsequent judgment dismissing the action. FN2

2. Plaintiff flied a notice of appeal on June 28, 2006, shortly after the court denied the motion for reconsideration, although judgment was not entered until October 27, 2006. We elect to treat the "notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered j udgment, as filed immediately after entry of judgment." ( Cal. Rules of Court, rule 8.104(e)(2).)

Discussion

The trial court correctly sustained 'he demurrer insofar as plaintiff challenges the validity of Edwina's will or the administration other estate.

Plaintiff repeats on appeal her argument that the trial court mischaracterized her complaint as a will contest, asserting "this case is based on the agreement between James Cabral and Mary Soares,"

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not "on the will of Edwina Cabral." In so arguing, plaintiff Implicitly acknowledges that challenges to the validity of Edwina's will or to the administration of her estate must be brought in the probate proceedings. (Prob.Code, § 7050; Howard v. Bennett (1942) 53 Cal.App.2d 546.) A dispute concerning the meaning or validity of the provisions of II will cannot be resolved by declaratory judgment. (Code Civ. Proc., § 1060 [declaratory relief action may be brought by "[ajny person interested under a written instrument, excluding a will or a trust"]; Howard v, Bennett, supra, 53 Cal.App.2d 546.)

Despite plaintiffs protestations, her complaint is essentially directed to the validity of the will. Paragraph 22 makes alternative factual allegations, the first being that Edwina "probably" was not mentally competent when she modified her will and did so as the result of the unduclnfluence of James and Mary. The complaint goes on to allege, among other things, that the assets of the estate should be held in a constructive or resulting trust "for plaintiffs benefit," that a controversy exists " between the parties hereto about the property, the will, the estate, and the rights and liabilities of the parties, including the rights of plaintiff to be paid from the one-third interest that James E. Cabral has in the estate and the property," and the prayer seeks "a judicial determination," contrary to the terms of the will, that "James E. Cabral ha] s] a one-third interest in the estate of Edwina Cabral" against which plaintiff may execute. The claim that the amended will should be disregarded because executed as the result of und uelnfluence can be maintained only in the probate proceedings. (Reed v, Hayward (1943) 23 CaL2d 336, 339; Bohn v. Smith (1967) 252 Cal.App.Zd 678, 682 .)

To the extent that the complaint relies on the alternative allegation that Edwina knowingly participated in a scheme to defraud James' creditors by changing her will as she did, the complaint is equally defective, So interpreted, the complaint still seeks to effect a distribution of the estate in contravention of the terms of the amended will, Moreover, assuming the truth of the pleaded facts, there was no fraudulent conveyance as alleged in the first cause of action White his mother still

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lived, James had no right to any of her property. His mother was under no obligation to leave any of it to him, and she was under no obligation to plaintiff. Thus, the home and other property that Edwina owned while she was living was not the" property of a debtor" within the meaning of Civil Code section 3439.01, subdivision (a), and Edwina's decision to leave none of it to James was not a fraudulent transfer within the meaning of Civil Code section 3439.04. Edwina was entitled to remove James as a devisee under her will if she did not wish to leave him property that plaintiff would be able to recover. She also had the right to increase her bequest to Mary. (See Mehrtash v. Mehrtash (2001) 91 Cal.AppAth 75.) FN3

3. The situation is entirely different from that in Estate of Myers (2006) 139 Cal.AppAth 4~4, a case cited during oral argument. That case involved a proper claim for fraudulent conveyance, where the decedent mother had been the debtor and had allegedly conveyed her property to her son-in-law in an attempt to defraud her creditors.

The trial court erred in denying leave to amend to properly allege a constructive trust

Only rarely should a demurrer to an initial complaint be sustained withuut leave tu amend. ( Adkins v. San Francisco (1935) 8 Cal.App.2d 620, 621-622.) The denial of leave to amend is appropriate only when it conclusively appears that there is no possibility of alleging facts under which recovery can be obtained "A demurrer should not he sustained without leave to amend if the complaint, liberally construed, can state a cause of fiction under any theory or if there is a reasonable possibility the defect can be cured by amendment." (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.AppAth 1028, 1037.) Here, plaintiff may well be able to allege a right to impose a constructive trust on one-half of what Mary receives under Edwina's win, that is, upon the one-third of Edwina's estate received by Mary that allegedly was intended for James.

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Plaintiffs potential right to recover under such a theory involves a two-step analysis. The +irst question is whether James is entitled to assert a constructive trust upon the one-third interest in the estate that Edwina allegedly intended for him that, under the terms of the amended will, goes to Mary. Although inartfully pleaded, the complaint appears to allege that Mary agreed that if Edwina changed her will to leave Mary the one-third beneficial interest then designated for James, Mary would hold the property for James and "later get that money" to him. What is significant in this allegation is not the fact stressed by plaintiff in the trial court and in her appellate briefs, that James and Mary allegedly were parties to such an agreement, but that Mary and Edwina so agreed and that Edwina allegedly changed her will in reliance on that agreement.

"[W]here A is induced to make a will in favor of B .. . by the oral promise or B to hold for C, the courts are nearly unanimous in England in decreeing that R must hold in trust for C, and the same is true as to the courts of the United States" (Bogert, Trusts and Trustees (2007) Constructive Trusts, § 499, fns. & italics om itted.) That unquestionably is the rule in California. "The general proposition is well settled that where a testator devises his property in reliance upon an agreement or understanding with the devisee that the latter will hold it in trust for, or convey it to, a third person, the devisee holds the property upon a constructive trust for the third person." (Sears v. Rule (l945) 27 CaL2d 1 J I, 139.)

In Estate of Sargavak (1953) 41 Cal.2d 314, 321, the court noted that certain extrinsic evidence " might indicate that there was an oral agreement between the testatrix and [two legatees under a codicil to the testatrix'S will] that they would hold the property received by them under the codicil for petitioners or some of them. Such an oral agreement could be proved by extrinsic evidence and a constructive trust would arise in favor of the beneficiaries, for 'Where a testator devises or bequeaths property to a person in reliance upon his agreement to hold the property in trust, the devisee or legatee holds the property upon a constructive trust for the person for whom he agreed to hold it.' " As the court pointed out in Sears v. Rule, supra, 27 CaL2d at pages 139-140, "The issues raised in

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such a situation are not within the jurisdiction of the probate court, and the will and the decree of distribution remain effective to give legal title to the devisee or legatee named, but the constructive trust is enforced in a separate proceeding in equity without attack on the probate proceedings." (See also Estate of Sargavak, supra, 41 Ca1.2d at p. 122; Weinstein v. Moers (1929) 207 Cal. 534, 541-542; Blair v, Mahon (1951) 104 Cal. A pp.Zd 44, 51.) Thus, the allegations in plaintiff's complaint suggest that Mary will receive one-third of Edwina's estate subject to a constructive trust tor the benefit of James.

The second step in the analysis is to determine whether plaintiff is entitled to enforce James's right to impose such a constructive trust. Several procedures exist by which a judgment creditor such as plaintiff may enforce a judgment against intangible or contingent rights that a debtor such as James may have. (See Code Civ. Proc., ~§ 708.180 , 708.?'10, 708:'; 1 0, 709.020; cf Evans v Paye (1995) 32 Cal.AppAth 265, 276-277.) Section 708.510, subdivision (a) or the Code of Civil Procedure provides that except as otherwise provided by law, "upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor .. . all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments." As indicated above, in the family court proceedings the court has in fact entered an order assigning to plaintiff any right James may have to payment from Mary that "relates to" Edwina's will or estate. In refusing to reconsider its order denying plaintiff leave to amend her complaint, the trial court suggested that no claim could be made against Mary and James" based on an alleged agreement between them unless and until James receives some distribution of assets, " in which case the trial court believed the assignment order would provide an adequate remedy. However, imposition of a constructive trust on a portion of the devise to Mary would not be based on an agreement between James and Mary but on an agreement between Mary and Edwina. More importantly, James may never-or at least, never within the foreseeable future-receive a distribution of assets from the estate (other than the

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"paltry" $1,000 bequest), If James declines to enforce a claim for imposition of a constructive trust, or if Mary disputes the validity of such a claim, plaintiffs rights will not be enforced despite the existence of the assignment order.

A so-called creditor's suit, authorized by Code of Civil Procedure section 708.210, is designed to address exactly such a situation. (Evans v. Faye, supra, 32 Cal.AppAth at pp. 27n-277.) Section 708.210 provides, "If a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor, the judgment creditor may hring an action against the third person to have the interest or debt applied to the satisfaction of the lUoney judgment." The comment of the Law Revision Currnnissiun with respect to amendments made to these provisions in 1982 observes that "[i]t is anticipated. .. that less expensive and less cumbersome enforcement procedures will be used in the normal case." (Cal. Law Revision Com. com, Deering's Ann.Code Civ. Proc, (1998 ed.} preceding S 708.21 a,p. 578; see also 2 Debt Collection Practice in California (Cant. Ed. Bar 2d ed.2006) § 11.1, p. 745.) In many situations the assignment entered in family court would he sufficient to enforce a creditor's rights. However, a creditor's suit may be necessary if there is a dispute concerning ownership of the property held by the third party-in this instance a dispute concerning the right to impose a constructive trust on one half the amounts distributed to Mary from Edwina's estate-or "where for some other reason the judgment creditor believes that the third person will no; cooperate." (Cal. Law Revision Com. corn, Deering's Ann.Code Civ, Proc., supra, preceding § 708.210, p. 578.) Given the allegations or the complaint in this case, it is entirely reasonable for plaintiff tll anucrpate that Mary may dispute the right to impose a constructive trust on any portion of the legacy from her mother, or may otherwise fail to cooperate in honoring the family court assignment. In all events, plaintiff's fight to maintain a creditor's suit is not dependent on establishing that other less

onerous procedures provide an inadequate remedy. FN4

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4. Moreover, there is nothing in Estate of Myers, supra, 139 CalAppAth 434, cited by Mary's attorney during oral argument, that suggests the contrary. That ease recognized the right of a creditor of a decedent under Probate Code section 850 to pursue the decedent's claim to property held in the name of another. The procedure authorized by Probate Code section 850 is comparable to a creditor's suit under Code of Civil Procedure section 708.210, and the decision provides support by analogy for the conclusion we reach here. (See Estate of Myers, supra, at pp. 440-442.)

The record does not disclose whether there have as yet been any distributions in the probate proceedings. If Mary has already received a distribution from the estate but has not delivered any portion to James, plaintiff unquestionably is entitled to maintain a creditor's suit to enforce whatever right James has to one-half of those funds. Mary may deny that she agreed to hold any portion of the legacy for James, and the action will provide the means for resolving that critical issue. If funds have not yet been distributed from the estate, Mary will not yet have received any property potentially subject to a constructive trust. In that event there may be an appropriate basis for declaratory relief, not with respect to plaintiffs right to an interest in Edwina's estate, as the original complaint alleges, but with respect to plaintiffs right to enforce a constructive trust against a portion of the funds that Mary is entitled to receive from the estate. If plaintiff were to show a basis for anticipating action by Mary that might frustrate plaintiffs ability to enforce a constructive trust, injunctive relief might be appropriate. We do not anticipate what new or revised allegations plaintiff may make to her complaint, and we of course intimate no views as to whether plaintiff can prove whatever allegations she does make. We are satisfied, however, that plaintiff is entitled to amend her complaint to attempt to state a claim on which relief may be granted.

Disposition

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The judgment is reversed, and the matter is remanded to the trial court with directions to grant plaintiff leave to file an amended complaint. The parties are to bear their respective costs on appeal. FN5

5. Defendants' motion for sanctions is denied.

Pollak, Acting P. 1.

We concur:

Homer, J. FN*

*. Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Cal.App. I Dist.,2007. Cabral v, Soares

--- Cal.Rptr.3d ----, 2007 WL 4340718 (Cal.App. 1 Dist.)

END OF DOCUMENT

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