Plaintiffs appeal from a judgment entered in defendant's favor following the granting of defendant's summary judgment motion on the basis that plaintiffs could not reasonably rely on defendant's alleged representations or alleged concealed facts which were contradicted by an unambiguous "without cause" termination provision in their employment agreements with defendant.
FACTUAL AND PROCEDURAL SYNOPSIS
A. The Written Agreements
Each of the six appellants is a corporation and a former independent sales representative for respondent's Home Appliance Division.
In 1987, appellants signed written agreements (1987 Agreements or New Jersey Agreements) which provided for termination without cause and were fully integrated.
By letter dated May 25, 1988, respondent sent appellants revised sales representative agreements (1988 Agreements) and requested that appellants sign and return the agreements prior to June 6, 1988. That letter stated:
Appellants each signed the 1988 Agreements, which became effective on June 1, 1988. The 1988 Agreements contained the following provisions:
"Either party may terminate this Agreement, without cause, at any time upon ninety (90) days' prior written notice to the other party; provided, however, that SFC may not exercise its right to terminate this Agreement, without cause, pursuant to this Article VI.B(1) prior to November 30, 1988."
"There are no understandings not contained in this Agreement, and this Agreement shall supersede and cancel all previous contracts, arrangements or understandings that may have existed or may exist between the parties. This Agreement may be amended only by a written instrument signed by a duly authorized representative of SFC and Sales Representative."
Five of the appellants were terminated effective May 1989, and the sixth was terminated effective May 1990.
B. The Complaint
On March 6, 1990, appellants filed a complaint containing seven causes of action, all relating to their termination. The complaint asserted causes of action for fraud, negligent misrepresentation, rescission, breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit, and interference with advantageous business relations. Appellants later filed a first amended complaint which added a prayer for attorney fees.
Appellants alleged that prior to December 1987, each appellant had served as an independent sales representative for respondent pursuant to an oral agreement, which could be terminated only for good cause, which was narrowly defined.
Appellants alleged that in November 1987, they were summoned to a meeting in New Jersey at which they were presented with the 1987 Agreements. At the meeting:
Appellants also alleged that they were told they would be terminated if they did not sign the agreements before they left the room, that respondent concealed from them its decision to replace them as sales representatives and that the purpose of the 1987 Agreements was to circumvent the good cause requirement of the oral agreements, and that they signed the 1987 Agreements.
Appellants alleged that they were unaware of the true facts when they signed the 1988 Agreements. It was further alleged that the 1989 and 1990 terminations were without good cause as defined in the oral agreements.
C. The Summary Judgment Motion
Respondent filed a motion for summary judgment on the basis that appellant had signed the 1987 and 1988 Agreements which unequivocally provided for termination without cause and were fully integrated. Respondent's separate statement of facts was supported by declarations and exhibits.
Appellants filed an opposition and responsive separate statement of facts. The majority of the evidence supporting appellant's disputed facts and additional material facts consisted of their responses to interrogatories, which were made on information and belief and not on personal knowledge, and their unverified complaint. The court sustained respondent's hearsay objections to the use of the interrogatories and the unverified complaint.
The court granted respondent's motion for summary judgment.
Subsequently, appellants' motions for reconsideration and a new trial were denied. Judgment was entered, and appellants filed a timely notice of appeal.
I. Standard of Review
II. Fraudulent Representations
Appellants state that the trial court granted summary judgment in respondent's favor based on a line of cases which holds that when promissory fraud is alleged, the parol evidence rule bars evidence of fraudulent promises which directly contradict promises contained in the written agreement. (Bank of America etc. Assn. v. Pendergrass (1935) 4 Cal.2d 258, 263 [48 P.2d 659]; West v. Henderson (1991) 227 Cal.App.3d 1578, 1583 [278 Cal.Rptr. 570].) Appellants contend that since they complained of a fraudulent concealment of material facts which resulted in their execution of written agreements with respondent, the court erred in holding that evidence of respondent's fraudulent concealment is barred by the parol evidence rule, and therefore the summary judgment must be reversed.
Appellants state that the only ground upon which respondent challenged their fraud claim was that appellant's evidence of fraud was barred by the
In its order, the court made the following relevant rulings:
"Plaintiffs' asserted causes of action for fraud and negligent misrepresentation ... cannot be established, since, as a matter of law, plaintiffs could not reasonably have relied upon alleged oral representations or alleged concealed facts which contradicted the unambiguous `without cause' termination provisions of the written Agreements. [Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799 [270 Cal.Rptr. 585].]
"The alleged oral representations and concealed facts upon which plaintiffs rely are expressly and/or impliedly contradicted by the unambiguous `without cause' provision of the written agreements.
"As a separate and independent reason for granting summary judgment, the Court finds that each Additional Material Fact relied upon by plaintiffs which is based on plaintiffs' own interrogatory responses is inadmissible because those responses are verified only upon information and belief. Also, plaintiffs' reliance on the facts alleged in the First Amended Complaint is based on inadmissible evidence. However, even if the Court considered such evidence offered by plaintiffs as though such evidence was presented in an admissible form, such evidence does not create any triable issue of any material fact for the reasons set forth above."
In the first amended complaint, appellants alleged that:
"Plaintiffs were informed by Sanyo's Senior Vice President, Patricia Rienzi, among others, that the New Jersey Agreements had been developed for use by Sanyo's other divisions, but that plaintiffs were being asked to sign only for the purpose of uniformity, and the New Jersey Agreements would have no effect on plaintiffs' division. Plaintiffs were further informed that the agreements `did not mean anything,' did not change the terms of their relationship with Sanyo, were just part of the reorganization process involved in the merger, and that the execution of the New Jersey Agreements was a mere `formality' and was `just pro forma,' and that Sanyo's appliance division would not `go direct' (meaning the independent sales representatives would not be replaced by an in-house sales staff) as long as the independent sales representatives continued to perform."
In Slivinsky v. Watkins-Johnson Co., supra, 221 Cal.App.3d 799, 807, the court concluded that an employee's reliance on an employer's oral promise of continuing employment was not justified because the representation contradicted the parties' integrated employment agreement which provided that employment was at will. Respondent's representation that it would not go direct as long as appellants continued to perform is analogous to a promise of continuing employment and is likewise contradicted by the provision in the integrated agreements that termination could be without cause.
III. Fraudulent Concealment
"[D]efendants had adopted a plan to eliminate the independent sales representatives such as plaintiffs, but only in the more profitable sales territories.... Further, defendants intended to replace plaintiffs with an in-house sales organization, and the New Jersey Agreements were adopted and presented to plaintiffs as part of this plan.... The New Jersey Agreements were an artifice employed for the sole purpose of circumventing the good cause requirement of the Oral Agreements"; "Defendants concealed from plaintiffs ... the fact that defendants intended to replace plaintiffs as sales representatives and the real purpose of the New Jersey Agreements"; and they were unaware of the true facts when they signed the 1988 Agreements.
The court granted summary judgment on the basis that appellant could not reasonably rely on the alleged oral representations or on the alleged concealed facts.
Appellants' allegations that respondent represented to appellants that signing the written agreements was merely a formality and that it would not "go direct" even though respondent had already decided to terminate appellants fall into the categories discussed in Warner. At the time of the signing of the 1988 Agreements, respondent was still concealing its decision to terminate appellants.
IV. Breach of Contract
Respondent contends that no evidence was properly before the court giving rise to a triable issue as to any fraud committed by it. In this case, the burden was on respondent to introduce evidence that it did not conceal facts. A word of caution is necessary since appellants claim that even if they had to produce evidence, there was sufficient evidence to raise a triable issue in interrogatory responses which were mirrored by sworn testimony in depositions lodged in the trial court.
Appellants argue that section 437c, subdivision (b) permits the use of answers to interrogatories to create a triable issue of fact. While that is generally true, appellants ignore the court's ruling that the interrogatories cited by appellants were inadmissible because the answers were based on information and belief, not personal knowledge. Furthermore, although we need not address the issue, we have serious doubts that in demonstrating the existence of a triable issue of fact to the appellate court, a party can cite to deposition testimony not specifically referenced in the summary judgment motion itself, especially in a case such as this one in which the lodged depositions consisted of over 1,500 pages.
The judgment is reversed. Appellants to recover costs on appeal.
Lillie, P.J., and Johnson, J., concurred.
As to the court's rulings and determinations on the other causes of action which are not challenged in appellants' opening brief, they are deemed abandoned or waived and are not subject to review. (Humes v. MarGil Venture, Inc. (1985) 174 Cal.App.3d 486, 493 [220 Cal.Rptr. 186].)