LESLIE E. KOBAYASHI, District Judge.
On May 19, 2015, Defendants Rick Banis, Don Carano, Fred Scarpello, John Mackall, and Representatives/Executors/Trustees of William Pennington (collectively, "Trustee Defendants"), Kent Green ("Green"), Racquel Bridgewater ("Bridgewater"), WNP Enterprises, Inc. ("WNP"), and Western Equities LLC ("Western," and all collectively, "Defendants") filed their Motion to Dismiss the Third Amended Complaint for Damages and Equitable Relief ("Motion to Dismiss"), and, on June 26, 2015, they filed their Motion for Summary Judgment. [Dkt. nos. 137, 148.]
Plaintiff Roni Du Preez ("Plaintiff") filed her memorandum in opposition to the Motion to Dismiss ("Dismissal Opposition") on June 1, 2015, and Defendants filed their reply ("Dismissal Reply") on July 13, 2015. [Dkt. nos. 143, 151.] Plaintiff filed a surreply ("Dismissal Surreply") on July 23, 2015. [Dkt. no. 152.]
Plaintiff filed her memorandum in opposition to the Motion for Summary Judgment ("Summary Judgment Opposition") on August 19, 2015, and Defendants filed their reply ("Summary Judgment Reply") on August 31, 2015. [Dkt. nos. 163, 176.] Plaintiff filed a surreply ("Summary Judgment Surreply") on September 9, 2015. [Dkt. no. 192.]
These matters came on for hearing on September 14, 2015.
In light of the Court's ruling on the Motion for Summary Judgment, Defendants' Motion to Dismiss is HEREBY DENIED AS MOOT.
The gravamen of this case is that Plaintiff seeks to enforce the promises that she alleges her former employer, William Pennington ("Pennington"), made to her before she accepted the position as the manager of his vacation home in Wailea, on the Island of Maui ("the Property") and during the course of her employment. The relevant procedural background of this case is set forth in this Court's January 30, 2015 order addressing Defendants' motion to dismiss a prior version of the complaint ("1/30/15 Order"). [Dkt. no. 74.
On March 2, 2015, Plaintiff filed her Second Amended Complaint for Damages and Equitable Relief ("Second Amended Complaint."). [Dkt. no. 92.] On April 27, 2015, the magistrate judge granted Plaintiff's motion for leave to file a third amended complaint, [dkt. no. 125,] and Plaintiff timely filed her Third Amended Complaint for Damages and Equitable Relief ("Third Amended Complaint") on May 5, 2015 [dkt. no. 130].
The Third Amended Complaint alleges the following claims against all Defendants, except where specified: breach of implied contract ("Count I"); wrongful termination ("Count II"); breach of the covenant of good faith and fair dealing ("Count III"); interference with prospective economic advantage against Green ("Count IV"); fraudulent misrepresentation ("Count V"); promissory estoppel ("Count VI"); and breach of oral contract ("Count VII"). Plaintiff prays for judgment in her favor as to all counts and the following relief: compensatory and/or consequential damages in the amount of $2,500 per month "for the duration of her life or reasonable date of retirement"; an award of "lost income and benefits for the remainder of her work life until reasonable retirement age"; an award of "an amount equivalent to the pension she would have received upon retirement"; $250,000 in damages for emotional distress; punitive or exemplary damages; reasonable attorneys' fees and costs; and any other appropriate relief. [Third Amended Complaint at pgs. 37-38.]
In the Motion to Dismiss, Defendants argue that this Court should dismiss all of Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6) because each one fails to state a claim upon which relief can be granted. To the extent that any of Plaintiff's claims survive dismissal, Defendants argue that this Court should dismiss them as to Bridgewater because the Third Amended Complaint does not allege sufficient facts to support Plaintiff's claims against her. In the Motion for Summary Judgment, Defendants argue that Plaintiff has not identified any genuine issue of material fact, and therefore they are entitled to judgment as a matter of law as to any claim that survives the Motion to Dismiss.
On September 10, 2015, Defendants filed their Request for Judicial Notice in Support of Motion for Summary Judgment ("Request"). [Dkt. no. 194.] Defendants ask this Court to take judicial notice of the following:
[Request at 2 (emphasis and second set of brackets in original).] The complaint in the state court case is attached to the Request as Exhibit 1.
This Court is required to grant the Request if it addresses facts that are subject to judicial notice and Defendants provided the "necessary information."
This Court, however, FINDS that the documents are not relevant to the issues currently before it. If Defendants contend that Plaintiff should be precluded from presenting certain evidence at trial because of her failure to provide requested discovery, Defendants must file the appropriate motion.
Plaintiff has requested leave to file a surreply in opposition to the Motion to Dismiss. [Dismissal Surreply at 2.] Local Rule 7.4 states that, other than the memorandum in opposition and the reply, "[n]o further or supplemental briefing shall be submitted without leave of court." Insofar as this Order denies the Motion to Dismiss as moot, this Court also DENIES AS MOOT Plaintiff's request for leave to file the Dismissal Surreply.
In the Summary Judgment Surreply, Plaintiff argues that this Court should not consider Defendants' argument in the Summary Judgment Reply that: "Any reasonable person would have understood [the alleged promise] to be intended to suggest, at most, that Mr. Pennington treats people well, and would be a good boss for so long as good services were provided." [Summary Judgment Surreply at ¶ 8 (quoting Summary Judgment Reply at 3-4).] Plaintiff contends that Defendants improperly raised this argument for the first time in the Summary Judgment Reply. [
This Court now turns to the merits of Defendants' Motion for Summary Judgment.
Plaintiff worked as a personal assistant for the prior owner of the Property, John Cavanaugh ("Cavanaugh"), from approximately October 2002 until he sold the Property to Pennington in January 2005. [Pltf.'s Decl. in Opp. to Defs.' Motion for Summary Judgment ("Pltf.'s Decl."), filed 8/19/15 (dkt. no. 166), at ¶¶ 6, 11, 58.
On or around January 19, 2005, Plaintiff interviewed with Pennington for the position of property manager for the Property. [
At the interview, Plaintiff and Pennington discussed, inter alia, the job responsibilities, required hours, and compensation. The terms of the position included:
—working exclusively for Pennington;
—working full-time and being on call twenty-four hours a day, seven days a week, including holidays, when Pennington was staying at the Property;
—working more than forty hours per week when Pennington was staying at the residence and reducing her hours accordingly during weeks when he was not there;
—complying with a schedule set by the Head Housekeeper, Terri Langel, who Plaintiff would report to, and who would train Plaintiff and provide her with more detailed instructions.
[
After Pennington informed Plaintiff of the job requirements, he stated that she would be paid $2,500 per month. Plaintiff did not accept the offer at that time. Pennington asked Plaintiff if she had any questions. [
[
Plaintiff believed Pennington's statement and that he had the financial ability to honor it. From her prior employment with Cavanaugh, Plaintiff knew that Pennington purchased the Property for $9.2 million in cash and that Pennington "agreed to purchase the furniture and cars that were in the [Property] via handshake." [
According to Plaintiff, during her employment, Pennington reaffirmed his promise of lifetime compensation:
[
Plaintiff was employed at the Property for over seven years. [Defs.' Concise Statement of Facts in Supp. of Motion for Summary Judgment ("Defs.' CSOF"), filed 6/26/15 (dkt. no. 149), at ¶ 25; Pltf.'s Separate Concise Statement of Facts in Opp. to Motion for Summary Judgment ("Pltf.'s CSOF"), filed 8/19/15 (dkt. no. 165), at ¶ 25 (stating that Defendants' paragraph 25 is undisputed).
According to Plaintiff, Defendants had Pennington declared incompetent around August 2008, and they took control of his affairs. Defendants conducted an evaluation of Plaintiff, which included a background check. Scarpello's law firm, Scarpello & Huss, Ltd., conducted the background check. Plaintiff cites a letter regarding the background check as evidence that she was an employee, not an independent contractor. [
Pennington died in May 2011. [Defs.' CSOF at ¶ 25; Pltf.'s CSOF at ¶ 25.] Plaintiff's employment was terminated when Western sold the Property in March 2012. [Pltf.'s Decl. at ¶ 62, Exh. 21 (collection of documents regarding the sale of the Property).] After her termination, Plaintiff sent two letters to the Trustee Defendants reminding them of the terms of her employment with Pennington, but they did not respond. [
Defendants do not concede that Pennington made the statement: "Stick with me and I will take care of you for life." However, in considering a motion for summary judgment, "[a]ll evidence and inferences must be construed in the light most favorable to the nonmoving party."
Counts I, III, VI, and VII are contract-based claims, and this Court will first address Defendants' argument that the statement "Stick with me and I will take care of you for life" is too indefinite to be enforceable in the context of contract claims. This district court has stated:
Plaintiff has conceded that her belief that Pennington promised her lifetime compensation was based on the
Although the purported promise of lifetime compensation in some form was "essential" to Plaintiff in that she would not have accepted the position without it, it was a "detail[ that was] not essential to the proposal and [did] not change its terms or purpose."
As to Count I, the issue is whether, having formed a contract regarding Plaintiff's services as the manager of the Property, Plaintiff and Pennington ever worked out the details of the purported promise of lifetime compensation. Pennington's statement — "Stick with me and I will take care of you for life" — occurred in the context of other statements that he made, including: "This is for the long term"; and "With me, you will not have to worry about your future." [Pltf.'s Decl. at ¶¶ 37-38.] Further, during Plaintiff's employment, Pennington reiterated, "don't do anything to get fired and I will take care of you for life." [
The Hawai`i Supreme Court has stated:
This Court acknowledges that it is a close question whether Pennington's and Plaintiff's actions gave rise to an implied or presumed obligation that Plaintiff would receive lifetime compensation. However, issues of Plaintiff's credibility are a critical component of that determination, and this Court cannot rule on credibility issues on a motion for summary judgment.
Viewing the record in the light most favorable to Plaintiff, this Court FINDS that she has responded to Defendants' Motion for Summary Judgment with sufficient evidence in support of her implied contract claim.
This Court therefore DENIES Defendants' Motion for Summary Judgment as to Count I.
Defendants have argued that Counts I and VII are duplicative and that Plaintiff cannot proceed on both claims. However, Fed. R. Civ. P. 8(d)(2) allows a plaintiff to plead "2 or more statements of a claim . . . alternatively or hypothetically, either in a single count or . . . in separate ones."
"Under Hawai`i law, an oral contract must contain the following elements in order for it to be enforceable: (1) an offer, (2) an acceptance, and (3) consideration."
This Court therefore FINDS that Plaintiff has failed to respond to Defendants' Motion for Summary Judgment with sufficient evidence to support her claim for breach of oral contract. Thus, she has failed to establish a genuine issue of material fact as to that claim, and Defendants are entitled to judgment as a matter of law.
As this Court noted in the 1/30/15 Order, "[u]nder Hawai`i law, `every contract contains an implied covenant of good faith and fair dealing that neither party will do anything that will deprive the other of the benefits of the agreement.'" 2015 WL 415890, at *9 (quoting
This district court, however, has observed that the Hawai`i courts have never held that a cause of action for breach of the covenant of good faith and fair dealing exists in every type of contract and with every type of breach. This district court has stated:
Thus, in the instant case, in order to survive summary judgment on Count III, Plaintiff must present sufficient evidence to raise a genuine issue of material fact as to Defendants' conduct beyond the alleged breach of implied contract. In responding to Defendants' Motion for Summary Judgment, Plaintiff cannot rely on the allegations of the Third Amended Complaint, and she "must set forth specific facts showing that there is a genuine issue for trial."
This Court therefore FINDS that Plaintiff has failed to establish a genuine issue of material fact as to her claim for breach of the covenant of good faith and fair dealing, and it CONCLUDES that Defendants are entitled to judgment as a matter of law. This Court GRANTS Defendants' Motion for Summary Judgment as to Count III.
In the 1/30/15 Order, this Court described the elements of a promissory estoppel claim under Hawai`i law. 2015 WL 415890, at *12. For similar reasons as those set forth regarding Plaintiff's breach of implied contract claim,
As to the third element, whether Plaintiff in fact relied upon the promise, Plaintiff has submitted evidence that:
—she would not have taken the position without the promise of lifetime compensation because the wages and benefits associated with the position were below what she had earned working for Cavanaugh; [Pltf.'s Decl. at ¶¶ 47-49;]
—during her employment at the Property, she forwent any type of raise or benefits because of the promise of lifetime compensation; [
—she forwent working with three businesses that she owned with her husband at the time she accepted the position, and she forwent starting a new business in 2008; [Pltf.'s Decl. at ¶¶ 59-60;] and
—she was forced to hire a manager to work with the three businesses [
Plaintiff argues that she and her husband paid Becker more than Plaintiff received working at the Property. [Pltf.'s CSOF at ¶ 52.]
Defendants contest Plaintiff's assertion that Pennington required her to work exclusively on the Property. They point to, inter alia, the fact that, while she was working there, she also "obtained her real estate license and remained an officer of several of her husband's companies." [Defs.' CSOF at ¶ 30.] Plaintiff admits these facts, but she asserts that she never used her real estate license, and that her roles in the businesses were limited. [Pltf.'s CSOF at ¶ 30; Pltf.'s Decl. at ¶ 60 & n.16 (stating that she was a part of the businesses "on paper" and, for example, the extent of her involvement in Ironwood Ranch during her employment with Pennington "was that in January 2011 [she] offered Defendant Kent Green and his family, who were coming to Maui on vacation, free horseback riding tours").] Defendants also argue that Plaintiff's list of "Rudy Payments 2009 and 2010" does not establish how much Plaintiff and her husband paid Becker because it is unclear which line items are salary related and which are other business expenses. Becker, however, states that he served as the manager for three of their businesses for six years, and he received "a monthly salary plus a percentage share of the profits." [Becker Aff. at 1.] He also confirms that Plaintiff "did not participate in the day to day business or have anything to do with" the three entities. [
Viewing the record in the light most favorable to Plaintiff, this Court finds that she has raised a genuine issue of material fact as to her reliance on the alleged promise of lifetime compensation, and the issue of whether that reliance was reasonable involves credibility determinations that this Court cannot make at the summary judgment stage. It is a much closer question whether Plaintiff's reliance was foreseeable. However, "[w]hen evaluating a motion for summary judgment, the court must `view the facts and
This Court therefore FINDS that there are genuine issues of material fact as to Plaintiff's promissory estoppel claim, and it CONCLUDES that Defendants are not entitled to judgment as a matter of law. Defendants' Motion for Summary Judgment is DENIED as to Count VI.
The 1/30/15 Order construed the wrongful termination claim in the First Amended Complaint as a claim pursuant to
Plaintiff's current wrongful termination claim does not allege a
Plaintiff's position is that Pennington's statements, including "Stick with me and I will take care of you for life," modified her at-will employment such that she could only be terminated for cause. Plaintiff does not dispute that her employment at the Property was terminated after the Property was sold in March 2012, following Pennington's death in May 2011. [Defs.' CSOF at ¶ 25; Pltf.'s CSOF at ¶ 25.] In fact, Plaintiff herself submitted evidence that she was recommended to the purchasers, but they did not need the services of a property manager because they planned to spend much more time at the Property than Pennington did. An email dated February 24, 2012 to Plaintiff from a "Richard" states, inter alia:
[Pltf.'s Decl., Exh. 21 at 2.
Thus, even assuming, arguendo, that Plaintiff was an at-will employee, and that Pennington modified her at-will employment such that she could only be terminated for cause, the undisputed evidence is that she was in fact terminated for cause — the sale of the Property. Plaintiff has pointed to evidence that her conversations with Pennington and his wife led her to believe that Mrs. Pennington would inherit the Property upon Pennington's death, and that she would continue to work for Mrs. Pennington. [Pltf.'s CSOF at ¶ 13 (some citations omitted) (citing Pltf.'s Depo. at 107:10-17).] Plaintiff has presented no evidence that, under the circumstances, her at-will employment was modified because of "a situation instinct with an obligation" that her employment after Pennington's death would be for any minimum period of time. There is no evidence that Plaintiff was assured that Mrs. Pennington would not sell the Property or that Plaintiff would somehow be guaranteed employment with anyone who purchased the Property after Pennington's death. In fact, Plaintiff did remain employed at the Property for almost a year after Pennington's death.
Thus, even viewing the record in the light most favorable to Plaintiff, this Court FINDS that there are no triable issues of fact and CONCLUDES that Defendants are entitled to judgment as a matter of law as to Plaintiff's wrongful termination claim. This Court GRANTS Defendants' Motion for Summary Judgment as to Count II.
Under Hawai`i law, a plaintiff must establish the following elements to prove a claim of "intentional interference with prospective business advantage":
The Third Amended Complaint only alleges Count IV against Green. [Third Amended Complaint at pg. 25.] However, Plaintiff has stated that she mislabeled the claim and intended to also assert Count IV against Bridgewater. [Dismissal Opp. at 16.] Even assuming, arguendo, that this Court construed Count IV as stating a claim against Green and Bridgewater, Plaintiff has failed to raise a triable issue of fact as to either Defendant. Plaintiff has not presented any evidence which establishes that either Green or Bridgewater engaged in other conduct beyond his or her alleged contribution to the breach of the implied agreement to provide Plaintiff with lifetime compensation.
Thus, even viewing the record in the light most favorable to Plaintiff, this Court FINDS that there are no triable issues of fact and CONCLUDES that Defendants are entitled to judgment as a matter of law as to Plaintiff's claim for wrongful interference with prospective economic advantage. This Court GRANTS Defendants' Motion for Summary Judgment as to Count IV.
In the 1/30/15 Order, this Court described the elements of a fraudulent or intentional misrepresentation claim under Hawai`i law. 2015 WL 415890, at *10. Plaintiff bases her fraudulent misrepresentation claim on Pennington's statements, primarily the statement: "Stick with me and I will take care of you for life." She argues that "Defendants have failed to deny that Mr. Pennington made the statement at issue, and in fact admitted to the statement. Either Mr. Pennington was truthful when he made the statement, or made a false representation." [Summary Judgment Opp. at 41 (footnote omitted).] Plaintiff's position is that Pennington made the statements in his individual capacity and on behalf of WNP and Western. [
Even assuming, arguendo, that Plaintiff's fraudulent misrepresentation claim is properly pled,
Pennington's purported statements related to future events — how Plaintiff would be compensated in the event that Pennington died while she was working at the Property. In order to prevail on a fraudulent misrepresentation claim based on such statements about future events, Plaintiff must establish that Pennington made the statements without a present intent to fulfill the promise. Plaintiff has not presented any evidence that raises a triable issue of fact as to that subject. Insofar as Plaintiff's fraudulent misrepresentation claim against each Defendant is based upon Pennington's alleged promise, this Court FINDS that Plaintiff has failed to identify sufficient evidence to her claim, in its entirety. Thus, there is no triable issue of fact, and this Court CONCLUDES that Defendants are entitled to judgment as a matter of law as to Plaintiff's fraudulent misrepresentation claim. Defendants' Motion for Summary Judgment is GRANTED as to Count V.
In light of this Court's rulings, the only remaining claims are Count I — Plaintiff's breach of implied contract claim — and Count VI — Plaintiff's promissory estoppel claim. It is undisputed that Pennington hired Plaintiff, but she argues that he was acting both in his individual capacity and in his capacities with WNP and Western when he hired her. Plaintiff has submitted, inter alia, organizational documents for the two entities, [Summary Judgment Opp., Exh. 1 (documents regarding Western), Exh. 2 (documents regarding WNP),] as well as evidence that she was paid by checks from Western and WNP throughout her employment. [Pltf.'s Decl. at ¶ 55, Exh. 14 (sample checks).] This Court therefore FINDS that she has presented sufficient evidence to raise triable issues of fact as to her claims against the Trustee Defendants, Western, and WNP.
Plaintiff, however, has not presented any evidence that would support a breach of implied contract claim or a promissory estoppel claim against either Green or Bridgewater, individually. At most, they are relevant witnesses regarding Plaintiff's claims against the other Defendants. This Court FINDS that Plaintiff has failed to identify sufficient evidence to support her claims in Counts I and VI against Green and Bridgewater. Thus, there is no triable issue of fact, and this Court CONCLUDES that Green and Bridgewater are entitled to judgment as a matter of law. Defendants' Motion for Summary Judgment is GRANTED as to the portions of Counts I and VI against Green and Bridgewater.
In the Summary Judgment Opposition, Plaintiff asks this Court to award summary judgment in her favor pursuant to Fed. R. Civ. P. 56(f)(1) and Local Rule 56.1(i). The only remaining claims are Counts I and VI, and this Court has found that there are genuine issues of material fact as to those claims. This Court therefore cannot grant summary judgment in Plaintiff's favor as to those claims.
Further, in light of this Court's rulings regarding Defendants' Motion for Summary Judgment, this Court CONCLUDES that their Motion to Dismiss is moot.
On the basis of the foregoing, Defendants' Motion for Summary Judgment, filed June 26, 2015, is HEREBY GRANTED IN PART AND DENIED IN PART. Specifically, this Court: 1) GRANTS summary judgment in favor of Defendants as to Counts II, III, IV, V, and VII; 2) GRANTS summary judgment in favor of Defendants Kent Green and Rachel Bridgewater as to Counts I and VI; and 3) DENIES Defendants' Motion for Summary Judgment as to all other portions of Counts I and VI. There being no remaining claims against Green and Bridgewater, this Court DIRECTS the Clerk's Office to terminate them as parties.
In light of this Court's rulings on the Motion for Summary Judgment, Plaintiff's request for summary judgment pursuant to Fed. R. Civ. P. 56(f)(1) and Local Rule 56.1(i) is HEREBY DENIED, and Defendants' Motion to Dismiss the Third Amended Complaint for Damages and Equitable Relief, filed May 19, 2015, is HEREBY DENIED AS MOOT.
IT IS SO ORDERED.