Do v. County of Santa Clara CA6 ( 2024 )

Filed 1/5/24 Do v. County of Santa Clara CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
DAVID (ANH QUAN) DO, H051044
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 22CV397515)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
Plaintiff David (Anh Quan) Do was hired as a physician in 2013 by defendant
Santa Clara County, for whom plaintiff provided health care services at two county-run
methadone clinics for several years. Plaintiff sued the county in 2022, alleging causes of
action for breach of contract and fraud in the inducement. The operative second amended
complaint alleged the county breached the memorandum of understanding that constitutes
plaintiff’s employment contract by requiring him to work at more than one clinic. The
complaint also alleged plaintiff was fraudulently induced to work for the county on the
promise that he would work only at a single clinic. This appeal followed the trial court
sustaining the county’s demurrer to the operative complaint without leave to amend. We
will affirm the judgment of dismissal.
I. TRIAL COURT PROCEEDINGS
According to the operative second amended complaint, the county operates three
methadone clinics, the South County Clinic, Central Valley Clinic, and Alexian Health
Clinic. Plaintiff alleged the county offered him a full-time position at the South County
Clinic in 2013, which he accepted. At the county’s request, plaintiff also performed work
at the Central Valley Clinic beginning in 2013. When plaintiff informed the county in
November 2021 that he no longer wished to work at two clinics, the county responded
that he was required to work at both locations.
Plaintiff sued the county in May 2022, apparently for breach of contract. (We do
not find plaintiff’s initial or first amended complaints in the record on appeal, nor the
claim plaintiff states he presented to the county in February 2022.) The trial court
sustained the county’s demurrer to the first amended complaint with leave to amend.
Representing himself, plaintiff filed the operative second amended complaint in
October 2022, alleging three causes of action. The first cause of action alleged that in
November 2021 the county breached section 6.8 of the memorandum of understanding
that constitutes plaintiff’s employment contract by denying plaintiff’s “request to end
extra work” at the Central Valley Clinic. Section 6.8 of the memorandum of
understanding between the county and the Union of American Physicians and Dentists
states, in relevant part: “When an employee is assigned to work at a location different
from her/his regularly assigned work location, she/he shall be allowed to travel on
County time to that work location. Time allotted for travel shall be based on distance to
and from her/his regular work location or home and the temporary work location,
whichever is lesser.” The second cause of action alleged the county breached section 6.8
of the memorandum of understanding “sometime from July 2013 to 11/1/2021” by
converting plaintiff’s “full-time single position ... into 2 half-time codes.” The third
cause of action alleged breach of contract and fraud in the inducement. It alleged
plaintiff was fraudulently induced into accepting a contract for what he understood would
be a full-time position at a single clinic when the county’s actual intention was to “obtain
multiple clinic coverage on a permanent basis off the books.” The operative complaint
alleged the fraud occurred “in 2013 on [the] first day” plaintiff was hired, but plaintiff did
not discover the county’s intention until 2021 when his request to end work at multiple
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locations was denied. The operative complaint also alleged a later January 2022 accrual
date, when the county disclosed information demonstrating its practice of having
“physicians provide multiple clinic coverage on a permanent basis off the books since
2005.”
The county demurred, and the trial court granted the county’s request for judicial
notice of the memorandum of understanding between the county and the Union of
American Physicians and Dentists. By written order, the trial court sustained the
demurrer without leave to amend. The court ruled the breach of contract allegations
failed to state facts sufficient to support the first two causes of action because the
memorandum of understanding sections plaintiff cited “have nothing to do with his
claims regarding ‘extra work’ or splitting a full-time position into half-time positions.”
The court further ruled that plaintiff’s third cause of action asserted a new claim that was
beyond the scope of the leave to amend that had been granted.
II. DISCUSSION
We review de novo a judgment of dismissal based on a sustained demurrer.
(Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 790.)
We will reverse the dismissal if the allegations of the petition state a cause of action
under any legal theory. (Ibid.) We assume the truth of all facts alleged in the complaint
(id. at pp. 790–791), but we do not consider conclusory factual or legal allegations.
(B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 953.) “The
plaintiff has the burden of showing that the facts pleaded are sufficient to establish every
element of the cause of action and overcoming all of the legal grounds on which the trial
court sustained the demurrer.” (Martin v. Bridgeport Community Assn., Inc. (2009)
173 Cal.App.4th 1024, 1031.) “We will affirm if there is any ground on which the
demurrer can properly be sustained.” (Ibid.)
The operative complaint alleges that plaintiff and the county are bound by the
memorandum of understanding. Plaintiff does not dispute the accuracy of the terms of
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the memorandum of understanding, but rather the interpretation of those terms. We take
judicial notice of the memorandum of understanding as a document that was properly
noticed in the trial court (Evid. Code, § 459, subd. (a)), however we deny plaintiff’s
request for judicial notice of a civil grand jury report as irrelevant.
A. NO CAUSE OF ACTION FOR BREACH OF CONTRACT
A breach of contract action contains the following elements: a contract; plaintiff’s
performance under the contract (or excuse for nonperformance); defendant’s breach; and
damages. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) The operative
complaint alleged that the county breached section 6.8 of the memorandum of
understanding in two ways: by denying his request to stop working at the Central Valley
Clinic, and by converting his full-time position into two “half-time codes.” The fatal
problem with plaintiff’s breach of contract causes of action is that he points to nothing in
the memorandum of understanding that can be construed as a promise that he would work
at only one clinic. Section 6.8, titled “Temporary Work Location,” expressly
contemplates work at multiple locations. As we have noted, it states: “When an
employee is assigned to work at a location different from her/his regularly assigned work
location, she/he shall be allowed to travel on County time to that work location. Time
allotted for travel shall be based on distance to and from her/his regular work location or
home and the temporary work location, whichever is lesser.” (Underscoring omitted.)
The operative complaint claims the “appropriate interpretation” of that section is that
plaintiff “agreed to work at ONE regularly assigned work location” and that work at a
second location is permissible only on a temporary basis. But section 6.8 does not define
or expressly limit the duration of temporary work, nor does it promise that physicians
will work at a single location. Because the county’s actions as identified in the operative
complaint do not breach any express promise contained in the memorandum of
understanding, the operative complaint fails to state facts sufficient to constitute a breach
of contract cause of action.
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The operative complaint also references section 6.1 of the memorandum of
understanding, which provides: “Employees in this bargaining unit are professional
employees and as such are paid a pre-determined salary each biweekly period irrespective
of the number of hours worked in a workweek. [⁋] Hours of work are defined as those
hours of the day or days of the week for which the employees are required to fulfill the
responsibilities of their professional positions.” That section describes the salaried nature
of plaintiff’s work and does not promise that physicians will work at a single location
only.
Because we conclude the operative complaint does not state a cause of action for
breach of contract, we do not reach the county’s arguments based on the statute of
limitations, the Government Claims Act (Gov. Code, § 810 et seq.), and the Meyers-
Milias-Brown Act (Gov. Code, § 3500 et seq.).
B. NO FRAUD IN THE INDUCEMENT CAUSE OF ACTION
“The elements of fraud are (a) a misrepresentation (false representation,
concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to
induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v.
Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Fraud in the inducement
occurs when a party to a contract is induced by fraud to enter the contract. (Rosenthal v.
Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415.) Fraud must be pleaded
with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 182.)
Here, the operative complaint alleged that fraud in the inducement “occurred in
2013 on [plaintiff’s] first day ... as [a] physician employee, based on infraction of
section 6.8.” It alleged a supervisor offered plaintiff “a full-time position at [South
County Clinic] in 2013” and also “asked Plaintiff in 2013 to provide extra work at
[Central Valley Clinic] on a temporary basis.” The operative complaint further alleged
plaintiff was “fraudulently induced to accept contract in 2013 with full-time position at
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[South County Clinic], along with a request for extra services at [Central Valley Clinic]
on temporary basis.”
The fraud cause of action is based on an alleged “infraction of section 6.8” of the
memorandum of understanding. But as we have discussed, section 6.8 does not define or
expressly limit the duration of temporary work, nor does it promise that physicians will
work at a single location. The operative complaint therefore does not plead justifiable
reliance on any written promise. Nor does it properly plead fraud based on any oral
promise, as it does not include details of the supervisor’s request regarding work at the
Central Valley Clinic. The operative complaint therefore does not state facts sufficient to
constitute a cause of action for fraud.
Because we will affirm the trial court’s decision for the foregoing reasons, we do
not reach the alternative arguments offered by the county regarding the scope and
timeliness of plaintiff’s allegations.
C. NO ABUSE OF DISCRETION SHOWN IN DENYING LEAVE TO AMEND
We review the denial of leave to amend for abuse of discretion. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 971.) Leave to amend should be granted where it is
reasonably possible an amendment would cure the defect that caused a demurrer to be
sustained. (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 145.) The
plaintiff bears the burden to show how a complaint can be amended to state a cause of
action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) As plaintiff does not address
the issue of further leave to amend in his appellate briefing, he has not demonstrated a
reasonable possibility that further amendment would cure the defects in the operative
complaint.
III. DISPOSITION
The judgment of dismissal is affirmed.
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______________________________________
Grover, Acting P. J.
WE CONCUR:
____________________________________
Lie, J.
____________________________________
Bromberg, J.
H051044
Do v. County of Santa Clara