Filed 9/3/13 Garcia v. Service Corp. International CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


MATEO RUELAS GARCIA,                                                 B237964

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC430926)
         v.

SERVICE CORPORATION
INTERNATIONAL et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Elizabeth Allen White, Judge. Affirmed.


         Steinbrecher & Span, Robert S. Span for Plaintiff and Appellant.


         Gurnee & Daniels, Steven H. Gurnee, Toby M. Magarian; Gilbert Kelly Crowley
& Jennett, Arthur J. McKeon III, Vanessa Hubert for Defendants and Respondents.
                  ___________________________________________________
       Cemetery worker Mateo Ruelas Garcia was terminated from his employment after
damaging an existing gravesite with a backhoe, then covering up the damage instead of
reporting it to his supervisor, as required by company policy. He made two claims
against his employer for wrongful termination in violation of public policies protecting
whistleblowers, which were rejected by a jury; however, the jury found an implied
covenant not to terminate except for good cause, and a breach of the implied covenant of
good faith and fair dealing.
       The trial court granted judgment notwithstanding the verdict (JNOV) for the
defendants. The ruling is correct. The company handbook describes employees as “at-
will,” and plaintiff testified at trial to his understanding that he could be terminated at any
time and for any reason. There is no evidence that plaintiff received individual promises
that he would be terminated only for good cause, and mere longevity of employment does
not establish a right to remain on the job indefinitely. We affirm.
                                           FACTS
       Plaintiff Mateo Ruelas Garcia worked 28 years at Eden Memorial Park (Eden), a
mortuary/cemetery owned by defendant Service Corporation International (SCI) and its
subsidiaries.1 Plaintiff, who has three years of primary schooling, started out by caring
for the lawn and cleaning tombstones, then graduated to setting up tents and greenery for
graveside services and driving a tractor. By the mid-1990‟s, plaintiff had responsibility
for digging graves with a backhoe.
       Plaintiff and his coworkers prepared five to 10 graves per day. Plaintiff excavated
“thousands” of graves. Two former Eden managers described plaintiff as a trusted
employee who received regular merit pay raises. He became an assistant supervisor in
2006; in that position, he no longer operated a backhoe.
       Plaintiff acknowledged receipt of his employer‟s handbook, and agreed to obey
the company‟s “Code of Conduct.” The company handbook states that employees are “at


1      Codefendants SCI California Funeral Services, Inc. (SCI California) and
California Cemetery and Funeral Services, LLC (CCFS) fall under SCI‟s umbrella.


                                              2
will” and may be terminated at any time, with or without notice, and with or without
cause. Plaintiff testified that he knew his employment was “at will” and could end at any
time, with or without cause. The Code of Conduct is posted in English and Spanish in
the grounds crew offices.
       Plaintiff‟s supervisors regularly conducted meetings to discuss company policies
and employee responsibilities. Plaintiff attended these meetings. Employees were told
that if something went wrong or broke while preparing a grave, or if a casket, urn or
remains were found, they must stop work and report it to management.
       Plaintiff‟s personnel file shows that he was disciplined multiple times for violating
company policy. In 2000, he was disciplined for a “wrongful burial,” i.e., digging a
grave and causing an interment at a site that the deceased‟s family did not own. Plaintiff
was warned in writing that any future wrongful burials could result in a suspension or
termination. It is a serious offense. In 2004, plaintiff received a written warning for
failing to cover graves properly. In April 2007, plaintiff was warned about setting grave
markers incorrectly.
       In June 2007, plaintiff again caused a “wrongful burial” and was warned in writing
that “[a]ny further problems of this nature . . . not in alignment with company values or
goals will result in further disciplinary actions including up to termination.” Plaintiff
blamed another employee for leading the mourners and the coffin to the wrong gravesite.
Plaintiff was required to take a remedial interment course as a result of the wrongful
burial. On October 10, 2007, plaintiff was demoted from his position as assistant
superintendent. Plaintiff was upset and embarrassed to be demoted in front of fellow
employees.
       During his years of preparing graves at Eden, plaintiff testified that he saw a
coworker damage gravesites “many times,” either deliberately or accidentally,
occasionally causing pieces of coffins and even bones to fall out of gravesites. Workers
would try to fix the damage, but sometimes human remains were scooped up by a tractor
and taken to a cemetery dump. Plaintiff claimed that the general manager was aware of
these incidents, and plaintiff‟s supervisor directed plaintiff to break nearby gravesites to

                                              3
allow room for a new burial. Plaintiff testified that he was just following orders when he
participated in gravesite desecrations.
       On cross-examination, plaintiff acknowledged that Eden‟s general manager
always told him to be careful and respectful, and not to harm the deceased. Plaintiff
knows that this is company policy. If something went wrong, he was taught to report it to
Eden‟s management. He is familiar with the “important” company policy of treating the
body of the deceased “reverently,” and realizes that management wanted to know if a
burial container was broken so that families could be contacted and appropriate repairs
made. He also knew that he could be fired for violating company policies.
       SCI California conducts “interment verification” training sessions for its
employees. During a session on October 18, 2007, when plaintiff was not present, the
managing director of SCI California learned from some Eden employees that they were
instructed by Eden supervisors to break concrete vaults or caskets of adjoining graves to
make room for new interments.2 Eden managers threatened to axe employees who did
not make new graves fit, even if doing so damaged surrounding gravesites. When
employees obeyed this mandate, on occasion the vault surrounding the casket, the casket,
and human remains were discarded. The interment crew camouflaged damaged
gravesites with artificial grass during funeral services.
       A training session for a different set of interment crew members was held on
October 19, 2007, which plaintiff attended. The complained-of conduct discussed one
day earlier was not raised in an open session. In private meetings with the managing
director of SCI California, some Eden employees raised the same concerns about
gravesite disturbances and intimidation by Eden‟s management.
       In response to employee disclosures, SCI sent a lawyer to Los Angeles to
interview Eden‟s groundsmen and management. One of the groundsmen recalled that in
2002, he, plaintiff and another worker found a skull when they were excavating a new


2     The purpose of the vault is to “keep the integrity of the ground above in the
cemetery throughout” as graves settle into the earth over time.


                                              4
grave above an existing site; they took the skull, put it in the dirt trailer and took it to a
“spoils” site where excess dirt from new gravesites was dumped. Plaintiff was operating
the backhoe. When interviewed a second time and asked about his coworker‟s claim
about the skull, plaintiff confirmed the incident, though he did not reveal it in an earlier
solo interview. None of the employees reported the incident to Eden management.
Plaintiff‟s former supervisor was stunned at the revelation: when he asked plaintiff why
he did not report the skull, plaintiff looked at the ground and did not respond.3 The
employees‟ actions and their failure to report the incident violated company policy.
Eden‟s managers and grounds superintendent denied instructing employees to damage
graves or disturb remains.
       On December 12, 2007, SCI California terminated the employment of Eden‟s
general manager as a result of the misconduct disclosed during the October 2007 training
sessions and the follow-up investigation. On December 20, 2007, the recently fired
general manager notified the state Department of Consumer Affairs (DCA) that Eden
misused endowment funds and engaged in other wrongdoing. A DCA investigation
concluded that five graves were disturbed and unprofessional conduct occurred. The
DCA investigator was told by plaintiff‟s coworker on the interment crew that plaintiff
was the gravedigger who broke the most vaults.
       SCI has a nonretaliation policy for employees who disclose wrongdoing.
Interment crew members were informed that they would not be disciplined for revealing
information about burial problems. They were directed by SCI California not to obey
any future instructions to break adjacent gravesites while preparing a new grave, because
it violates written company policy to treat the deceased “with dignity and respect.”
       All groundsmen were told that henceforth, they must not damage prior interments
to make way for new ones. Disturbing or mishandling human remains or breaking burial
containers is considered a violation of company policy forbidding “indecent, immoral,


3    During his deposition, the supervisor recalled that plaintiff said, “I couldn‟t go to
management.”


                                                5
unprofessional or abusive conduct.” If a gravesite will not fit in a space, employees
cannot use part of another space or damage or remove any part of a container to make
room: when confronted with this problem, employees must stop work and notify the
general manager. Further, problems must never be concealed. The repercussion for
violating this company policy is termination. SCI provides employees with a special toll-
free telephone number to report any improprieties at its cemeteries.
       On December 14, 2007, plaintiff received and signed a disciplinary memorandum
stating that “During the course of our recent investigation, you admitted concealing a
serious burial problem from management,” referring to gravesite disturbances. When
plaintiff received the December disciplinary memorandum, the general manager told
plaintiff it was absolutely necessary to report broken burial containers. By his own
admission, plaintiff then knew he could be fired for failing to report a broken container.
       On January 27, 2008, plaintiff broke an existing grave container while digging a
new grave. Plaintiff expressly acknowledged at trial that he broke the container with a
backhoe. Plaintiff did not report it because he wanted to go to lunch. Two of plaintiff‟s
colleagues immediately reported the damage to management.
       Plaintiff concealed the damaged container with sand and dirt. Upon learning of
the problem, a supervisor instructed plaintiff to remove the new vault: he observed the
damage plaintiff had caused to the adjoining gravesite, as well as plaintiff‟s attempt to
hide the damage. The concrete container was broken, not scratched, and had to be
replaced after the deceased‟s family was notified. When asked why he failed to report
the damaged grave to management, plaintiff replied, “I took care of it.”
       Plaintiff testified that the damage to the container seemed insignificant to him,
compared to the “much worse” damage he had seen in the past. When plaintiff‟s
coworkers told plaintiff that they should stop and report the damage, plaintiff declined
because he “felt since it wasn‟t that much, let it be, let‟s continue with the work.”
Plaintiff admits to concealing the damage.
       Based on this incident of concealing damage to a gravesite, SCI California
terminated plaintiff from his employment on February 8, 2008. Defendants were unable

                                              6
to produce the termination memo, but a supervisor explained that plaintiff was fired “for
not reporting immediately a broken vault after we had a meeting to explain how we are
going to do this, and actually gave him a written disciplinary memo after that meeting to
make it crystal clear that we report these things.” The supervisor denied that plaintiff was
fired in retaliation for filing a complaint or participating in an investigation.
       When he picked up his final paycheck, plaintiff told Eden‟s superintendent, Pedro
Gonzalez, that “he had messed it up, and he apologized for what he had done.” Gonzalez
testified that he, personally, always reported damaged containers to the general manager.
       In May 2008, several months after his termination, plaintiff was contacted by the
DCA. He confirmed that grave disturbances occurred at Eden. He declined to meet a
state investigator at the cemetery to show where disturbances occurred, saying “he didn‟t
remember exactly where they were and there was really no need to meet with him out
there.” Plaintiff specifically recalled that a skull was removed from a grave and that one
of the former managers instructed him to break existing vaults two or three times during
plaintiff‟s years at Eden. Plaintiff told the state investigator that he was terminated “for
an incorrect burial and a marker being placed in the wrong location.” After being
interviewed by the DCA, plaintiff went on television and claimed that the breaking of
burial plots was a common practice during the last 10 years that he worked at Eden. He
never made such a claim when he spoke to the DCA investigator.
       Eden‟s current general manager testified that in the fall of 2009, there were five
instances in which outer burial containers were damaged during the excavation of new
graves. In those instances, the interment crew stopped work and notified the general
manager who, in turn, tried to locate and contact the families of the deceased. The
damage was then repaired. No interment crew members covered up damage instead of
stopping and alerting management. Eden does not charge families to repair or replace
damaged containers.
                                PROCEDURAL HISTORY
       In January 2010, plaintiff filed suit for wrongful termination; retaliatory
termination in violation of state statute; breach of the implied covenant of good faith and

                                               7
fair dealing; and defamation. In a special verdict, a jury found against plaintiff on his
claims of wrongful discharge in violation of public policy and his defamation claim. It
also found that there is an implied-in-fact contract not to terminate except for good cause,
and that defendants breached the implied covenant of good faith and fair dealing. The
jury awarded plaintiff $137,689 against CCFS and $19,015 against SCI.
       Defendants objected that the trial court failed to instruct the jury that it could not
find the existence of an implied contract to terminate for cause if there is an express at-
will agreement, though defendants had requested such an instruction. Also, the court
improperly modified the standard instruction for finding an implied contract not to
terminate. There was no basis for the jury finding SCI liable for a breach of the implied
covenant of good faith and fair dealing. The court overruled defendants‟ objections and
entered judgment for plaintiff against CCFS and SCI.
       SCI California moved to vacate the judgment and enter a new judgment in its
favor, on the grounds that the judgment is not consistent with the special verdict. SCI
and CCFS moved for JNOV or a new trial. On October 20, 2011, the trial court granted
JNOV, found the motion for new trial to be moot, and entered judgment in favor of
defendants. Plaintiff appealed on December 14, 2011.
                                       DISCUSSION
1. Standard of Review
       When reviewing a JNOV, an appellate court determines “whether it appears from
the record, viewed most favorably to the party securing the verdict, that any substantial
evidence supports the verdict. „“„If there is any substantial evidence, or reasonable
inferences to be drawn therefrom in support of the verdict, the motion should be
denied.‟”‟ [Citations omitted.] In general, “„[t]he purpose of a motion for judgment
notwithstanding the verdict is not to afford a review of the jury‟s deliberation but to
prevent a miscarriage of justice in those cases where the verdict rendered is without
foundation.‟”” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)
       If the issues on a JNOV present solely a question of law—the interpretation and
application of a statute to undisputed facts—review is de novo. (Trujillo v. North County

                                              8
Transit Dist., supra, 63 Cal.App.3d at p. 284.) Further, the correctness and consistency
of a special verdict must be analyzed as a matter of law and reviewed de novo. (Id. at p.
285; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358.) “A court
reviewing a special verdict does not infer findings in favor of the prevailing party
[citation], and there is no presumption in favor of upholding a special verdict when the
inconsistency is between two questions in a special verdict.” (Zagami, Inc. v. James A.
Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092; Orthopedic Systems, Inc. v. Schlein
(2011) 202 Cal.App.4th 529, 542.)
2. Existence of Implied Contract to Terminate for Good Cause
       a. Jury Instructions and Jury Findings
       In a special verdict, the jury found that plaintiff (1) was not wrongfully discharged
in violation of public policy against retaliatory terminations and (2) was not wrongfully
discharged in violation of Labor Code section 1102.5 (prohibiting retaliatory firing). The
jury also found that “there was an implied in fact contract not to terminate except for
good cause.”
       The jury instructions relating to its finding in favor of plaintiff state that “An
employment relationship is not at will if the employee proves that the parties by word or
conduct agreed that the employee would be discharged only for good cause. Plaintiff
Mateo Garcia claims that Defendant CCFS breached their employment contract. To
establish this claim, Plaintiff Mateo Garcia must prove all of the following: One, that
plaintiff and Defendant CCFS entered into an employment relationship; Two, that
Defendant CCFS promised, by words or conduct, to discharge plaintiff only for good
cause; Three, that plaintiff substantially performed his job duties; Four, that Defendant
CCFS discharged plaintiff without good cause, and; Five, that Plaintiff Mateo Garcia was
harmed by the discharge.”
       The instructions list bases for finding a promise by CCFS to discharge an
employee only for good cause, such as CCFS personnel policies or practices, but noting
that “length of service, raises, and promotions by themselves are not enough” to imply a



                                               9
promise to discharge only for good cause.4 “Good cause exists [when] an employer‟s
decision to discharge an employee is made in good faith and based on a fair and honest
reason. Good cause does not exist if the employer‟s reasons for the discharge are trivial,
arbitrary, inconsistent with usual practices, unrelated to business needs or goals, or if the
stated reasons conceal the employer‟s true reasons. In deciding whether defendant had
good cause to discharge Plaintiff Mateo Garcia, you must balance CCFS‟s interest in
operating the business efficiently and profitably against the interest of Plaintiff Mateo
Garcia in maintaining employment.”
       b. Plaintiff’s Testimony Prevented a Finding of an Implied Promise to Terminate
for Good Cause
       An employment having no specified term may be terminated at the will of either
party. (Lab. Code, § 2922; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 678.)
When employment is at will, the employer‟s “motive and lack of care”—including its
“bad faith”—are generally irrelevant. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 351 (Guz).) An at-will employer may even “act peremptorily, arbitrarily, or
inconsistently, without providing specific protections such as prior warning, fair
procedures, objective evaluation, or preferential reassignment.” (Id. at p. 350.)
       Plaintiff has the burden of rebutting the statutory presumption that his employment
is at will. (Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1489.) The
existence of an implied promise to discharge for cause is generally a question of fact for
the jury; however, if the facts are undisputed and permit only one conclusion, the issue
may be resolved as a matter of law. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74
Cal.App.4th 1359, 1386-1387.)
       An at-will provision in an express written agreement or acknowledgement, signed
by the employee, cannot be overcome by proof of an implied contrary understanding.


4      The instruction the court gave (as modified and proposed by plaintiff, over the
objections of defendants), omits one critical element: “Whether [defendant] said or did
anything to assure [plaintiff] of continued employment.” (CACI No. 2403.)


                                             10
(Faigin v. Signature Group Holdings, Inc. (2012) 211 Cal.App.4th 726, 739; Guz, supra,
24 Cal.4th at p. 340, fn. 10.) “Cases in California and elsewhere have held that at-will
provisions in personnel handbooks, manuals, or memoranda do not bar, or necessarily
overcome, other evidence of the employer‟s contrary intent.” (Guz, at p. 339.) The
Supreme Court agrees that “disclaimer language in an employee handbook or policy does
not necessarily mean an employee is employed at will.” (Id. at p. 340.) It added, “Of
course, the more clear, prominent, complete, consistent, and all-encompassing the
disclaimer language set forth in handbooks, policy manuals, and memoranda
disseminated to employees, the greater the likelihood that workers could not form any
reasonable contrary understanding” that they are not at-will. (Id. at p. 340, fn. 11.)
       The Supreme Court in Guz cited with approval cases holding that “long duration
of service, regular promotions, favorable performance reviews, praise from supervisors,
and salary increases do not, without more, imply an employer‟s contractual intent to
relinquish its at-will rights.” (Guz, supra, 24 Cal.4th at p. 341.) The court wrote, “We
agree that an employee‟s mere passage of time in the employer‟s service, even where
marked with tangible indicia that the employer approves the employee‟s work, cannot
alone form an implied-in-fact contract that the employee is no longer at will.” (Id. at pp.
341-342.) Rather, “the issue is whether the employer‟s words or conduct, on which an
employee reasonably relied, gave rise to that specific understanding” that seniority and
longevity of employment created rights against termination at will. (Id. at p. 342.)
       In this instance, plaintiff signed acknowledgements (in English and in his native
language Spanish) in 2004 and 2005, upon receiving his employee handbook. Printed
material above plaintiff‟s signature addresses his employment status.5 Plaintiff does not



5       “I, Mateo Ruelas, hereby acknowledge that I have received a copy of the
Company‟s Employee Handbook, which provides guidelines on the policies, procedures,
and programs affecting my employment. I understand that I am employed At-Will . . . . I
acknowledge that this handbook is neither a contract of employment nor a legal
document and that nothing in this handbook nor any past practice or procedure, written or
oral, creates an expressed or implied contract of employment. No promises or

                                             11
claim that he received individual promises or representations that his employer would
retain him except for good cause. (See Guz, supra, 24 Cal.4th at p. 341.) On the
contrary, plaintiff expressly testified at trial that he understood that the company has the
right to sever employment at any time, with or without cause. He was asked “So you
understood you could be fired at any time for any reason and that you could leave your
job at any time for any reason, correct?” His response was, “Yes, I knew it.”
       Plaintiff testified that company policy requires careful and respectful treatment of
the deceased and their gravesites. He realized that management wanted to be informed if
a burial container was broken so that families could be contacted and appropriate repairs
made. He testified that he knew he could be fired for violating company policies.
Plaintiff expressly acknowledged at trial that he broke a grave container with a backhoe
and did not report it to management. His rationale for concealing the damage instead of
reporting it was that the damage seemed insignificant to him because he had seen “much
worse” in the past. He told a DCA investigator in May 2008 that he was terminated for a
wrongful burial and incorrect placement of a grave marker, not in retaliation for reporting
illegal conduct at Eden, which is what the DCA was investigating.
       Plaintiff observes that the company handbook assures that he would not be
retaliated against for participating in an investigation or reporting violations of law or
public policy. By special verdict, the jury found that plaintiff was not fired in violation of
public policy, and was not fired in violation of Labor Code section 1102.5, i.e., in
retaliation for reporting misconduct at Eden and being a whistleblower. The jury
instructions for the rejected wrongful termination claims fully encompassed plaintiff‟s
contention that he was fired because he disclosed or threatened to disclose information
that he believes violated state or federal laws or regulations.
       Despite the jury‟s rejection of his public policy and statutory wrongful discharge
tort claims, plaintiff argues that JNOV was improperly granted because defendants


assurances, whether written or oral, which are contrary to or inconsistent with the
limitations set forth in this paragraph create any contract of employment.”


                                              12
breached an implied contract not to terminate him in retaliation for reporting wrongful
conduct. Employees have a statutory right to disclose information about employer
wrongdoing to government agencies under Labor Code 1102.5, without threat of
retaliation. There is no need to look for an implied contract not to retaliate against
whistleblowers when there is already an express law covering the subject and protecting
employees‟ rights in this area, as a matter of public policy.
       Plaintiff failed to convince the jury of the validity of his two retaliatory firing
claims. The jury clearly concluded that plaintiff was not fired for disclosing wrongful
practices at Eden that were orchestrated by his supervisors. The only issue presented by
the JNOV was whether plaintiff‟s employer made promises or representations that
plaintiff would only be fired for good cause. As previously discussed, plaintiff expressly
testified that he understood his employer could terminate him at any time, with or without
cause, negating the possibility of finding an implied agreement to the contrary.
       Even if, as plaintiff contends, a promise not to retaliate against “whistleblowers”
created an expectation of continued employment after poor management practices were
revealed, the evidence at trial does not support a finding that plaintiff was a
whistleblower. The company handbook states that “Associates are not subject to
retaliation for participating in protected activity, such as filing bona fide complaints,
participating in any investigation, or reporting any violations of law or Company policy.”
       The nonretaliation policy cannot be interpreted to protect employees who merely
confirm something that the employer already knows—that the employee himself violated
company rules—as opposed to independently reporting the wrongdoing of others. In
other words, the policy protects plaintiff‟s two colleagues who reported that plaintiff
broke an adjacent coffin container while excavating a new grave in January 2008, but it
does not protect plaintiff when his supervisor investigated the report, the broken
container was revealed, and plaintiff admitted that he concealed the damage. Though
plaintiff recalled “much worse” damage in the past, he also admitted that starting in
December 2007, he knew for a fact that it was absolutely necessary to report broken
containers and that he could be fired for failing to do so.

                                              13
       Any whistleblowing in this instance occurred during interment verification
training on October 18, 2007, when some of plaintiff‟s coworkers disclosed in open
session that they were instructed by Eden supervisors to damage adjoining graves to
make room for new interments. Plaintiff was not present when the disclosures were
made. The following day, plaintiff attended training, but no discussion about grave
damage took place during an open session. Later on, in private meetings and in response
to questioning, plaintiff may (or may not) have disclosed mishandling of human remains.
In his deposition, plaintiff could not recall “what I said.”
       Someone who discloses personnel matters during an exclusively internal
administrative investigation is not generally considered a whistleblower. A
whistleblower is someone who discloses legal violations to a government agency,
because the courts do not want to be thrust into “micromanaging employment practices
. . . arising from the routine workings and communications of the job site.” (Patten v.
Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1385.) Giving
plaintiff‟s testimony the broadest possible reading, there is no evidence that he was a
whistleblower: plaintiff‟s colleagues blew the whistle on management, and he (at a later
date) merely confirmed what his colleagues had already disclosed. Plaintiff did not
initiate any disclosures; instead, the company solicited his input. Plaintiff‟s colleagues
who originally disclosed wrongdoing at Eden were not fired, although the general
manager certainly was, based on defendants‟ investigation.
       No substantial evidence supports a finding of an implied-in-fact contract to
terminate for good cause. Plaintiff forthrightly admitted at trial that (1) the company
handbook states that his employment is at-will; (2) he understood he could be terminated
at any time, without cause; (3) he was required to report broken grave containers; (4) he
broke a grave container with a backhoe, ignored his coworkers‟ pleas to report the
damage, and concealed the damage; and (5) he knew he could be terminated for violating
company policies.
       Plaintiff did not testify to any understanding that he could only be terminated for
cause. The evidence showed, and the jury found, that plaintiff was not terminated in

                                              14
retaliation for being a “whistleblower.” Temporal proximity between an employee‟s
protected actions and his termination, standing alone, is not sufficient evidence of a
pretextual firing when there is proof that the employer had a legitimate reason for
termination. (Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 357.)
3. Covenant of Good Faith and Fair Dealing
       The jury awarded plaintiff damages for breach of the implied covenant of good
faith and fair dealing. “[T]he implied covenant of good faith and fair dealing imposes no
independent limits on an employer‟s prerogative to dismiss employees.” (Guz, supra, 24
Cal.4th at p. 351.) “The covenant of good faith is read into contracts in order to protect
the express covenants or promises of the contract, not to protect some general public
policy interest not directly tied to the contract‟s purposes.” (Foley v. Interactive Data
Corp., supra, 47 Cal.3d at p. 690.) When employment is at will and there is no evidence
of a promise of continued employment, a claim for breach of the implied covenant of
good faith and fair dealing fails. (Flait v. North American Watch Corp. (1992) 3
Cal.App.4th 467, 480-481.)
       As discussed in section 2, ante, plaintiff‟s employment was at will and there was
no promise of continued employment. As a result, his claim for breach of the implied
covenant of good faith and fair dealing fails. As a further basis for vacating the
judgment, the jury awarded damages against SCI, although the jury instructions only
refer to CCFS. If the jury was instructed to make findings only as to CCFS, it could not
award damages against a defendant who was not mentioned in the instructions.
(Compare Weddle v. Loges (1942) 52 Cal.App.2d 115, 119, in which the jury allocated
damages among “two joint tort feasors.”)




                                             15
                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                    BOREN, P.J.
We concur:


     ASHMANN-GERST, J.


     CHAVEZ, J.




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