                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 22 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DONNA LOUIS,                                     No. 09-56840

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00242-VBF-CW

  v.
                                                 MEMORANDUM *
NAILTIQUES COSMETIC
CORPORATION and DIANE
HAMMOND,

              Defendants - Appellees.



                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                       Argued and Submitted March 7, 2011
                              Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Donna Louis appeals from the District Court’s grant of summary judgment

in favor of Nailtiques Cosmetic Corporation and Diane Hammond (“Defendants”).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         We review a district court’s grant of summary judgment de novo. Lovell v.

Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Construing all of the facts in

Louis’s favor, we conclude that Louis failed to raise a genuine issue of material

fact as to any of her claims. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.

1998).

         With respect to her breach of contract claim, under California law, the

presumption is that employment is at-will, Cal. Lab. Code § 2922; Foley v.

Interactive Data Corp., 254 Cal. Rptr. 211, 223 (1988), and the burden is on the

employee to prove otherwise. Eisenberg v. Alameda Newspapers, Inc., 88 Cal.

Rptr. 2d 802, 824 (Ct. App. 1999). Here, there is no evidence that the parties

reached an oral or implied agreement to a three-year employment contract allowing

termination only “for cause.” In fact, the evidence demonstrates that the parties

did not enter into a written contract because they disagreed about certain material

terms in the proposed contract, including a clause permitting termination of Louis

without cause. All of the factors set out in Foley, 254 Cal. Rptr. at 225, weigh

against finding an implied contract. “Where the undisputed facts negate the

existence of the breach of the contract claimed, summary judgment is proper.”

Guz v. Bechtel Nat. Inc., 100 Cal. Rptr. 2d 352, 366 (2000) (citations omitted).




                                            2
      Because “a claim for breach of an implied good faith covenant depends upon

the existence of a valid contract,” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1078

(9th Cir. 1999) (citing Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 272 Cal. Rptr.

387, 397 (Ct. App. 1990)), judgment was properly granted on this claim.

      Louis’s common count and quantum meruit claims are preempted by

California’s Uniform Trade Secrets Act, Cal. Civ. Code § 3426.7. See K.C.

Multimedia, Inc. v. Bank of Am. Tech. & Ops., Inc., 90 Cal. Rptr. 3d 247, 258 (Ct.

App. 2009). To the extent that Louis now argues that her salary did not adequately

reflect the value of the work that she performed, “there is no equitable basis for an

implied-in-law promise to pay reasonable value when the parties have an actual

agreement covering compensation.” Hedging Concepts, Inc. v. First Alliance

Mortgage Co., 49 Cal. Rptr. 2d 191, 197 (Ct. App. 1996). Thus, because Louis

agreed to work for a straight $170,000 annual salary, there is no basis for implying

a different compensation amount.

      Louis failed to present evidence that the Defendants’ conduct constituted

actionable fraud. That Defendants did not promise to employ Louis for a three-

year term is reflected in Louis’s own emails, and Hammond’s allegedly fraudulent

promises about Louis’s future success were merely expressions of opinion, not

representations as to facts. “Promises too vague to be enforced will not support a


                                          3
fraud claim any more than they will one in contract.” Rochlis v. Walt Disney Co.,

23 Cal. Rptr. 2d 793, 801 (Ct. App. 1993). Nor did Louis present any evidence

that Hammond’s purported statement that Nailtiques would be worth $100 million

in three years was made as a “positive affirmation of fact.” Hobart v. Hobart

Estate Co., 26 Cal. 2d 412, 431 (1945). A statement about future value is

ordinarily classified as “a speculative observation and a mere statement of opinion,

and as such, does not constitute a basis for a complaint of fraud.” Everts v.

Matteson, 21 Cal. 2d 437, 451 (1942). Similarly, Hammond’s alleged statement

that she “did not believe [her daughter] would return to work at Nailtiques after

childbirth, or that, if she did, it would be anywhere near [her] former capacity,”

was a non-actionable statement of opinion. See, e.g., Neu-Visions Sports, Inc. v.

Soren, 103 Cal. Rptr. 2d 159, 162 (Ct. App. 2000) (“The law is quite clear that

expressions of opinion are not generally treated as representations of fact, and thus

are not grounds for a misrepresentation cause of action.”); Carlson v. Brickman,

110 Cal. App. 2d 237, 247 (Ct. App. 1952) (“[T]he general rule is that an

expression of opinion or belief, if nothing more, and if so understood and intended,

is not a representation of fact, and although false, does not amount to actual fraud.

Ordinarily a person has no right to rely upon such statements, and if he does so

rely, he cannot treat them as fraudulent . . . .”).


                                             4
      Even if we were to construe Hammond’s opinions as factual assertions

because of Hammond’s superior knowledge of the inner-workings of Nailtiques,

see Pacesetter Homes, Inc. v. Brodkin, 85 Cal. Rptr. 39, 42 (Ct. App. 1970)

(“Exceptional circumstances resulting in expressions of opinion being treated as

misrepresentations have been found where . . . the expression of opinion is made

by a party ‘possessing superior knowledge.’”) (citations omitted), Louis’s claim

would fail because she did not adduce any evidence of actual reliance. See Mirkin

v. Wasserman, 23 Cal. Rptr. 2d 101, 103 (1993) (“It is settled that a plaintiff to

state a cause of action for deceit based on a misrepresentation, must plead that he

or she actually relied on the misrepresentation.”). Nor did she present any

evidence of fraudulent intent on Hammond’s part. See Tenzer v. Superscope, Inc.,

216 Cal. Rptr. 130, 137 (Cal. 1985) (en banc) (“[S]omething more than

nonperformance is required to prove the defendant’s intent not to perform his

promise . . . [I]f plaintiff adduces no further evidence of fraudulent intent than

proof of nonperformance of an oral promise, he will never reach a jury.”) (citations

omitted). And contrary to Louis’s argument on appeal, her counsel did not make

an oral motion to amend the fraud pleadings during the summary judgment

hearing, so the district court did not abuse its discretion in not granting leave to

amend. See Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir.


                                            5
1991), abrogated on other grounds by Cramer v. Consol. Freightways, Inc., 255

F.3d 683 (9th Cir. 2001).

      Louis’s claim that she was wrongfully terminated in violation of public

policy in retaliation for her threats to report the Defendants’ alleged fraudulent

conduct fails because there is no evidence that Louis threatened to report fraud. In

addition, under California law employer fraud cannot serve as the basis of a

wrongful termination claim because it does not implicate a substantial public

policy. Hunter v. Up-Right, Inc., 26 Cal. Rptr. 2d 8, 15 (1993) (“At root, fraud and

deceit affect only the individual interests of the employer and employee. A claim

of fraud or deceit is essentially a private dispute seeking a monetary remedy, not an

action to vindicate a broader public interest.”).

      Louis has not raised an issue of genuine material fact that the Defendants

engaged in the type of “outrageous conduct” that would support an intentional

infliction of emotional distress claim. See Cole v. Fair Oaks Fire Prot. Dist., 233

Cal. Rptr. 308, 312 n.7 (1987). Nor has she raised an issue of genuine material fact

with respect to the Defendants’ alleged violation of California Business and

Professions Code § 17200. Section 17200, which prohibits unfair or unlawful

business practices, is not to be used as “an all-purpose substitute for a tort or




                                            6
contract action.” Cortez v. Purolator Air Filtration Prod. Co., 96 Cal. Rptr. 2d

518, 525 (2000).

      Louis’s remaining arguments, that the district court erred (1) in providing

her with only 21 days notice of the motion for summary judgment, and (2) in not

ruling on Louis’s Ex Parte Application for further information on Nailtiques’

finances, lack merit. The local rules allow the district court to shorten the notice

period for motions, and the exclusion of further evidence of Nailtiques’ finances

was not prejudicial to Louis’s claims.

      AFFIRMED.




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