Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIC432834 Robert J. Moss, Judge. (Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Mesisca, Riley & Kreitenberg, Patrick A. Mesisca, Jr., Dennis P. Riley and Rena E. Kreitenberg for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Fred Plevin and Michael J. Etchepare for Defendant and Appellant and for Defendants and Respondents.
McKinster, Acting P.J.
Clara Newton, a 67-year-old certified Spanish language court interpreter, sued the Superior Court of Riverside County for age discrimination in hiring and for breach of contract. She appeals a judgment entered following the trial court’s grant of a motion for summary judgment filed by defendant Superior Court for the State of California, County of Riverside (hereafter RCSC or the court). In addition to contending that summary judgment was improperly granted, she contends that the trial court improperly sustained a demurrer to her fraud cause of action against four individual defendants and improperly denied her ex parte application to reassert that cause of action.
RCSC cross-appeals from the trial court’s order denying its application for attorney fees and costs, pursuant to section 998 of the Code of Civil Procedure.
We will reverse the judgment in part. For that reason, we will not address the issue raised in the cross-appeal.
BACKGROUND
This case arises in the context of the Trial Court Interpreter Employment and Labor Relations Act (Gov. Code, § 71800 et seq.; hereafter the Interpreter Act), which was enacted in 2002 to facilitate a transition from the existing practice in California trial courts to engage the services of interpreters as independent contractors to a new system in which interpreters would be court employees. (Gov. Code, § 71800; Stats. 2002, ch. 1047, § 1 (Sen. Bill No. 371); Stats. 2003, ch. 257, § 7; see Historical and Statutory Notes, West’s Ann. Gov. Code, foll. § 71800.) (All further statutory citations refer to the Government Code unless another code is specified.) The Interpreter Act provided for a transition period not to exceed two years. (§ 71801, subd. (i).) During the transition period, trial courts were required to create a new employee classification entitled “court interpreter pro tempore” (CIPT). (§§ 71803, subd. (a), 71805, subd. (a).)
Beginning July 1, 2003, the Interpreter Act required trial courts to appoint CIPT’s, rather than independent contractors, except under specified circumstances. One such circumstance, which is pertinent in this case, applied to court interpreters who were over the age of 60 on January 1, 2003. (§ 71802, subd. (b)(2); hereafter section 71802(b)(2).) Individuals who met the criteria of section 71802(b)(2) could continue to provide interpreting services if they so requested in writing before June 1, 2003. (Ibid.) Interpreters who chose that option are referred to by the parties as “opt-outs.”
This statute is referred to frequently in Newton’s briefing. Unfortunately, she consistently cites it as section “17802.”
Newton, who was born on July 1, 1937, was 65 years old on January 1, 2003, and chose to remain an independent contractor pursuant to section 71802(b)(2). She continued working as an interpreter in the court in Indio for some time, but her contract was ultimately terminated. She filed suit, asserting multiple causes of action against RCSC and four individual defendants.
Maggie Martinez, Carol Waterhouse-Tejada, Jana Douglass and Joan Moody (hereafter referred to individually by name or collectively as “the individual defendants”).
RCSC and the individual defendants successfully demurred to a number of Newton’s causes of action. Newton’s second amended complaint, filed on February 17, 2006, included a cause of action for fraud and deceit against the individual defendants. Their demurrer to that cause of action was sustained without leave to amend on April 24, 2006, and a judgment of dismissal was entered on November 30, 2007. On October 13, 2006, Newton filed a third amended complaint against RCSC, alleging age discrimination and breach of contract. RCSC’s motion for summary judgment was granted, and judgment was entered on July 25, 2007. Newton appealed the judgment in favor of the individual defendants and the judgment in favor of RCSC separately. We consolidated the two appeals.
On appeal, Newton asserts that the demurrer was improperly sustained as to Martinez and Waterhouse-Tejada only.
The third amended complaint named the individual defendants, but sought judgment only against RCSC.
The factual allegations in the second and third amended complaints are substantially similar, if not identical. Newton alleged that she began to suffer harassment from her supervisor, Maggie Martinez, during the period in which the transition under the Interpreter Act was being implemented. In January 2004, Martinez told her that as an opt-out, she was vulnerable to having her assignment at the court given to a CIPT, if any CIPT requested that assignment. Newton submitted a letter application during a period of open recruitment for CIPT’s which ended on January 30, 2004. On February 6, 2004, she spoke to Carol Waterhouse-Tejada, the interpreter coordinator, who confirmed that Newton was an independent contractor and that she could lose her job at any time. Waterhouse-Tejada was informed by the Administrative Office of the Courts that because Newton had worked for the court for a long period of time without any complaints about her performance, the court would have to accept Newton’s application. “Knowing that [Newton’s] application had to be accepted, that [Newton] would become a court employee and that once an employee [Newton] could not be terminated without just cause, Defendant[s] Martinez and Waterhouse-Tejada conspired with one another to persuade [Newton] to maintain her opt out status to leave her vulnerable for termination without the protection of employee status. On February 10, 2004, Waterhouse-Tejada along with Martinez decided to set [Newton] up for termination. The first step was to convince [Newton] not to apply for an employee position and to remain as an Opt Out. The second step was to start documenting [Newton’s] file to give reason to cease using her services.” Waterhouse-Tejada’s alleged motivation was to dismiss Newton because of her age.
In furtherance of this plan, Waterhouse-Tejada called Newton on February 11, 2004, and in an attempt to get Newton to withdraw her application, promised Newton that if she remained an opt-out and gave up the benefits of being an employee, she would be able to keep her job “until basically, [Newton] wanted to retire.” Waterhouse-Tejada promised Newton that she would not lose her current assignment in Indio, but could continue her assignment unless a CIPT or another opt-out with greater seniority requested her assignment or the criteria for giving out assignments changed and her assignment was affected as a result. Waterhouse-Tejada failed to disclose to Newton that her real intention was “to document incidents to terminate” Newton. Waterhouse-Tejada documented her promises in a memorandum dated February 11, 2004.
In reliance on Waterhouse-Tejada’s promises, Newton withdrew her employment application. Thereafter, Martinez, Waterhouse-Tejada and others began documenting misconduct by Newton. In an email dated June 9, 2004, Martinez stated that the incidents were not sufficient to justify terminating Newton’s services. Nevertheless, on June 30, 2004, Newton’s services were terminated.
Newton understood that the court was then recruiting for CIPT’s. The same day, Newton submitted an application for employment as a CIPT. On July 14, 2004, she received a letter from Joan Moody, a court personnel analyst, stating that the application was being returned because the court was not recruiting for CIPT’s. She also received a letter from Moody dated October 12, 2004, stating that Newton’s application was rejected because her credentials “do not suit the Court’s needs at this time.”
LEGAL ANALYSIS
THE TRIAL COURT ERRED IN GRANTING SUMMARY ADJUDICATION AS TO THE AGE DISCRIMINATION CAUSE OF ACTION
The Fair Employment and Housing Act (§ 12900 et seq.) prohibits age-based discrimination in the hiring or retention of employees who are 40 years old or older. (§§ 12926, subd. (b), 12940, subd. (a).) To prevail on a claim of age discrimination in hiring, a plaintiff must generally provide evidence (1) that he or she belongs to a protected class; (2) that he or she was qualified for a job for which the employer was seeking applicants; (3) that, despite his or her qualifications, he or she was rejected; and (4) that after his or her rejection, the position remained open and the employer continued to seek applications from persons having the plaintiff’s qualifications. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 149.) RCSC contended in its motion for summary judgment that Newton could not make a prima facie case of age discrimination because there was no open position when Newton applied to become a CIPT after her services as an independent contractor were terminated. It makes the same argument on appeal. As we discuss, however, Newton has demonstrated that there is a triable issue of fact as to whether there was an open position for which she was qualified. Therefore, RCSC’s motion for summary adjudication fails.
On appeal from an order granting summary judgment or adjudication, we review the record independently to determine whether triable issues of material fact exist. If there are such issues, we must reinstate the action. In performing our review, we view the evidence in the light most favorable to the plaintiff as the losing party. We liberally construe the plaintiff’s evidentiary submissions and strictly scrutinize the defendant’s evidence in order to resolve any evidentiary doubts or ambiguities in the plaintiff’s favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
An employer seeking summary adjudication of a claim of unlawful discrimination has the initial burden either to negate a necessary element of the plaintiff’s case or to state a complete defense. If the employer makes a sufficient initial showing, the burden shifts to the plaintiff to present evidence that there exists a triable issue of fact in support of his or her prima facie case or to rebut the defense proffered by the employer. (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at pp. 148, 150-151; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1050-1051; accord, Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.)
Here, RCSC contends that it conclusively demonstrated that it did not have an open recruitment for CIPT’s at the time Newton applied, but rather was hiring only individuals subject to the mandatory hiring provision of section 78102, subdivision (c)(2), also referred to by the parties as “45-day interpreters.” We disagree. Joan Moody stated in her declaration that when she received Newton’s application, the court did not have open recruitment for the CIPT position for which Newton applied. In her deposition, however, Moody testified that when Newton submitted her application in July 2004, she reviewed the application as she would have reviewed any application and that after doing so, she decided not to hire Newton. A reasonable trier of fact could conclude from Moody’s testimony that there was an open position when Newton applied in July 2004; otherwise, Moody would not have gone through the normal process of reviewing the application and then rejected it based on the conclusion that the applicant was not suitable for the job. Rather, she would simply have rejected it because there was no open position. We must resolve any conflicts, doubts or ambiguities in the evidence in Newton’s favor. (Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.) Consequently, we must conclude that there is a triable issue of fact as to whether Newton applied for an available job in July 2004. Moreover, there was open recruitment in February 2004, when Newton alleges that Waterhouse-Tejada persuaded her to withdraw her first application for employment as a CIPT.
Section 71802, subdivision (c)(2) (hereafter section 71802(c)(2)) provides, in pertinent part, that an interpreter who has been appointed by a trial court “pursuant to this subdivision on more than 45 court days or parts of court days during the same calendar year shall be entitled to apply for employment by that trial court as a court interpreter pro tempore and the trial court may not refuse to offer employment to the interpreter, except for cause.” The parties argue about whether Newton qualified as a 45-day interpreter, but as we discuss below, we need not make that determination for purposes of the appeal. The trial court also did not resolve that issue.
Waterhouse-Tejada and Moody explained the distinction between open recruitment and the ongoing application process for interpreters who were subject to the mandatory hiring provisions of section 71802(c)(2)—those applications were accepted at any time and were not considered part of an “open recruitment.”
When an employer in an employment discrimination case moves for summary adjudication and produces evidence that it had a legitimate, nondiscriminatory reason for its actions with respect to the plaintiff’s employment, the plaintiff must respond with evidence which is sufficient at least to permit a rational inference that the employer’s actual motive was discriminatory. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356, 361.) RCSC contends that Newton failed to make a sufficient showing to overcome its evidence that it had a legitimate, nondiscriminatory reason for refusing to hire her. However, the only legitimate, nondiscriminatory reason for not hiring Newton that RCSC asserted in its motion was that there was no open position at the time of her application. Because we have found that there is a triable issue of fact as to the existence of an open position, we reject RCSC’s contention that Newton failed to rebut this evidence.
Because we have determined that RCSC failed to meet its initial burden, we need not address the remaining issue to which the parties devote much of their argument, i.e., whether Newton was eligible for mandatory hiring under section 71802(c)(2).
THE TRIAL COURT PROPERLY GRANTED SUMMARY ADJUDICATION AS TO THE BREACH OF CONTRACT CAUSE OF ACTION
Newton alleged in her complaint that a document written by Carol Waterhouse-Tejada on February 11, 2004, entitled “Memorandum,” was a contract conferring on her the right to continuous employment as an independent contractor unless (1) a CIPT or an opt-out interpreter with greater seniority wanted her assignment, or (2) her assignment was affected by a change in the criteria for giving assignments. In its order granting RCSC’s motion for summary judgment, the trial court ruled, first, that the memorandum was not a binding contract, and second, that “[n]o reasonable person” could have interpreted the memorandum “as binding the Indio Court to offer [Newton] perpetual employment unless one of the two conditions [was] met.”
We agree with the trial court that the document is not a contract. A contract is an “agreement to do or not to do a certain thing.” (Civ. Code, § 1549.) It requires a bargained-for exchange of promises to do or to refrain from doing specified acts. (See Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1248-1249.) The Waterhouse-Tejada memorandum reflects no bargained-for reciprocal agreement of the parties to perform or to refrain from any acts. Rather, it merely states the writer’s understanding of Newton’s right to interpreter assignments under “SB 371,” i.e., the Interpreter Act.
Newton contends, however, that even if the document itself is not a contract, there is a triable issue of fact as to whether she and Waterhouse-Tejada intended to enter into a contract “for the terms expressed in the Memo” and that the memorandum is documentation of an oral agreement.
Newton stated in her declaration in opposition to the summary judgment motion that when she spoke to Waterhouse-Tejada on February 11, 2004, Waterhouse-Tejada “persuaded me and convinced me not to become a CIPT and forego [sic] employee benefits by promising me that I could continue my current interpreting assignment in Indio until a CIPT or other Opt Out [sic] with more seniority bumped me from that assignment or the criteria for giving out the assignment changed if I did not become a CIPT. After Ms. Waterhouse-Tejada confirmed my job security and offered the uninterrupted future interpreting jobs from the Riverside Court, I accepted the offer and told Ms. Waterhouse-Tejada to discard my CIPT application. In discarding my CIPT application, I knew that I was giving up the benefits of becoming an employee, including health benefits, paid time off, vacation time, and retirement benefits. I was later sent a document [i.e., the memorandum] dated February 11, 2004, which set forth the terms agreed to over the phone.”
The memorandum does not memorialize any such agreement. It addresses only Newton’s concerns about “los[ing her] current interpreting assignment” if she did not become an employee. In response to that concern, the document states that as an opt-out interpreter, Newton has “equal priority in assignments” with CIPT’s and that she can lose her assignment only if a CIPT or another opt-out interpreter with greater seniority requests Newton’s assignment, or if the court changes its criteria for making assignments. The memorandum does not contain any reference to circumstances under which Newton could lose her position as a contract interpreter, nor does it reflect a promise of “uninterrupted future interpreting jobs from the Riverside Court,” as Newton asserts. Accordingly, the memorandum provides no evidence to support Newton’s assertion that she and Waterhouse-Tejada made such an agreement.
It is arguable that Newton’s declaration, stating that she and Waterhouse-Tejada orally made an agreement that Newton would receive “job security” and “uninterrupted future interpreting jobs from the Riverside Court,” is sufficient to establish a triable issue of fact that the agreement was made, even though the memorandum does not memorialize such an agreement. Her complaint did not allege an oral contract, however, but only a written one. A motion for summary judgment need only address issues which are raised by the complaint, and Newton did not seek to amend her complaint to allege an oral contract. (See Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) Accordingly, this issue is not before us. (Ibid.)
Newton also asserts that even if the memorandum is not an enforceable contract, she was entitled to rely on Waterhouse-Tejada’s promise, and that the promise is enforceable under the doctrine of promissory estoppel.
A party claiming promissory estoppel must plead all facts establishing the doctrine’s elements. (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1112.) The elements of promissory estoppel are “(1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages ‘measured by the extent of the obligation assumed and not performed.’” (Helmer v. Bingham Toyota Isuzu (2005) 129 Cal.App.4th 1121, 1130, fn. 3.) In her cause of action for breach of a written contract, Newton’s complaint alleged that she relied on Waterhouse-Tejada’s promise of job security and gave up her application for employment as a CIPT and thus gave up employee benefits. However, as we have discussed above, the memorandum does not contain such a promise. Accordingly, Newton failed to establish a triable issue of fact as to promissory estoppel on the basis of the purported written contract, and summary adjudication was properly granted as to Newton’s cause of action for breach of contract.
THE DEMURRER WAS IMPROPERLY SUSTAINED ON THE FRAUD CAUSE OF ACTION
Newton sued the individual defendants for fraud and deceit. The trial court sustained the individual defendants’ demurrer to the fraud cause of action in the second amended complaint without leave to amend. On appeal, Newton asserts that the demurrer was improperly granted as to Maggie Martinez and Carol Waterhouse-Tejada. Newton also purports to contend that the trial court abused its discretion when it denied her ex parte application to file a third amended complaint restating the fraud cause of action. She makes no argument in her opening brief in support of this contention, however, and we will therefore deem it waived. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, an appellate court assumes the truth of the complaint’s properly pleaded or implied factual allegations. We determine independently whether the complaint adequately states a cause of action under any legal theory. We give the complaint a reasonable interpretation and read it in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We do not review the reasons for the trial court’s ruling; if the ruling is correct on any theory, even one not mentioned by the trial court, and even if the trial court made its ruling for the wrong reason, it will be affirmed. (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637-638.) Conversely, if we determine that the complaint alleges facts sufficient to state a cause of action under any theory, we must find that the trial court erroneously sustained the demurrer as a matter of law. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) If the trial court sustained the demurrer without leave to amend, we decide whether there is a reasonable possibility that the plaintiff could cure the defect with an amendment. If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion. The plaintiff has the burden of proving that an amendment would cure the defect. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
In the second amended complaint, Newton alleged that the individual defendants deliberately and with actual malice misled her to believe that her “position would continue unchanged” if she opted out of the CIPT program and remained an independent contractor. She alleged that she relied on their representations that her schedule and seniority would not be affected and that she would continue to receive the same assignments with the same frequency. She alleged that the individual defendants actually intended to induce her to opt out, so that she could be terminated without cause. She alleged that after she had opted out, she contacted Waterhouse-Tejada with further concerns about her job security. She alleged that Waterhouse-Tejada told her that as an independent contractor, she could be terminated without cause. She alleged that Waterhouse-Tejada induced her to withdraw her application for employment as a CIPT by promising her that even if she refrained from applying to become a CIPT, she would continue to receive her current assignments unless a CIPT or another opt-out with greater seniority “bump[ed]” her or the criteria for making assignments changed. Newton alleged that because the individual defendants acted with “a clear intent to deceive, annoy, vex, and harm [Newton] and her livelihood,” they were not immune from suit pursuant to section 822.2.
The Interpreter Act provides that during the regional transition period, CIPT’s are not subject to disciplinary action except for cause. (§ 71805, subd. (d).) It does not provide such protection for independent contractors.
Section 822.2 provides that employees of a public agency are immune from tort claims based on misrepresentations, unless the employee is “guilty of actual fraud, corruption or actual malice.”
The individual defendants demurred, arguing that they were immune from suit pursuant to sections 820.2 and 822.2, and that Newton could not justifiably rely on the opinion of another layman as to the effect of the Interpreter Act, as a matter of law. The trial court sustained the demurrer without leave to amend, ruling that the individual defendants were immune pursuant to section 820.2 and that as a matter of law, Newton could not justifiably rely on a layman’s opinion on a matter of law.
Although as a general proposition, a legal opinion by a layman does not give rise to a cause of action for fraud, there are circumstances under which reliance on such an opinion may be justified. One such circumstance is where the parties occupy “confidential or fiduciary relations”; another is where “one who has had superior means of information possesses a knowledge of the law and thereby gains an unconscionable advantage of another who is ignorant and has not been in a situation to become informed.” (Bank of America v. Sanchez (1934) 3 Cal.App.2d 238, 242.)
To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove (1) that the defendant represented to the plaintiff that an important fact was true; (2) that the representation was false; (3) that the defendant knew that the representation was false when the defendant made it, or that the defendant made the representation recklessly and without regard for its truth; (4) that the defendant intended that the plaintiff rely on the representation; (5) that the plaintiff reasonably relied on the representation; (6) that the plaintiff was harmed; and (7) that the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 & fn. 6.)
As the appellate court explained in Bank of America v. Sanchez, supra, 3 Cal.App.2d 238, a fiduciary relationship in the strict sense is not required. Rather, the appellate court held, it is sufficient to demonstrate that the defendant occupied a position of trust and was in a position in which it was reasonable for the plaintiff to rely on the defendant’s superior knowledge of the law. In that case, the plaintiff was a housewife who had had business relations with the bank for a number of years, while the escrow officer who made the alleged misrepresentations had many years’ experience and vastly superior knowledge of the legal issue in question. In addition, the plaintiff was in a situation which prevented her from becoming better informed as to the law in question. (The appellate court did not explain the latter statement.) (Id. at pp. 243-244.)
Here, Waterhouse-Tejada was the person whose job it was to implement the Interpreter Act for RCSC. She served on the Region 4 committee which was created to implement the Interpreter Act in Riverside County. Moreover, she was the person to whom the interpreters were to turn with questions concerning the Interpreter Act. In that capacity, she had the authority to explain the ramifications of the Interpreter Act in response to Newton’s inquiries, and she did so in her memorandum of February 11, 2004. Because Waterhouse-Tejada was not only specially trained to interpret the law in question but was also designated as the person who was to explain the law to those affected by it, such as Newton, we cannot say as a matter of law that Newton could not justifiably rely on Waterhouse-Tejada’s representations as to the effect of the Interpreter Act. (Cf. Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294, 1307 [sophisticated business entity could not justifiably rely on legal opinion as to effect of lease provision, rendered by city manager].) Rather, whether her reliance was justified is a question of fact.
For purposes of developing regional terms and conditions of employment and for collective bargaining with recognized employee organizations, the Interpreter Act divided the courts into four regions and directed the Judicial Council to establish a regional court interpreter employment relations committee. (§ 71807, subds. (a) & (b).) Riverside County is in Region 4. (§ 71807, subd. (a)(4).) The regional committees were to represent the courts in their respective regions in collective bargaining with a recognized employee organization. (§ 71808; see § 71801, subds. (g) & (h).)
Waterhouse-Tejada’s statement that Newton would continue to receive her current assignment unless another opt-out with greater seniority or a CIPT with greater seniority requested it or unless the criteria for making assignments changed does not, on its face, imply that Newton’s position as an interpreter was secure; rather, it says only that her preferred assignment was secure, unless one of the two circumstances occurred. Although we question whether Newton could justifiably rely on that statement to infer that her position was secure and that she could be terminated only for cause, we cannot say as a matter of law that she could not do so. A true statement can support a claim of fraud if it was “made in a manner designed to create a false impression and [was] so acted upon. [Citation.]” (Smith v. Brown (1943) 59 Cal.App.2d 836, 838; see also Macco Const. Co. v. Fickert (1946) 76 Cal.App.2d 295, 300 [“Although a representation might be literally true, yet it is actionable if used to create an impression substantially false”].)
The same is not true as to defendant Martinez. Martinez, who was Newton’s supervisor, did not occupy a position similar to that of Waterhouse-Tejada with respect to representations made about the effect of the Interpreter Act. Accordingly, the demurrer was properly sustained as to her.
As we have previously noted, Newton does not contend that the demurrer was improperly sustained as to the other individual defendants.
We next address the contention that the individual defendants are immune from liability for fraud. Although the trial court ruled that the individual defendants were immune pursuant to section 820.2, it did not determine whether they were immune under section 822.2, as Newton alleged. We address the latter question first.
Section 822.2 provides that employees of a public agency are immune from tort claims based on misrepresentations, unless the employee is “guilty of actual fraud, corruption or actual malice.” For purposes of section 822.2, “actual malice” is defined as “a conscious intent to deceive, vex, annoy or harm the injured party in his business.” (Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 409-410, overruled on another point in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743; accord, Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 42.) “The term ‘actual fraud’ likewise appears to require an intent to deceive or to induce action of some sort.” (Golden West Baseball Co. v. Talley, supra, 232 Cal.App.3d at p. 1304.) Misrepresentations in the context of hiring for positions within public agencies fall within the scope of business or commercial interests, for purposes of governmental immunity for misrepresentation. (Burden v. County of Santa Clara (2000) 81 Cal.App.4th 244, 251-252.) Here, Newton alleged that Waterhouse-Tejada falsely promised or represented that Newton could not be terminated without cause with the intent to deceive her into withdrawing her application for employment and with the purpose of terminating her based solely on her age. This is a sufficient allegation of actual fraud or actual malice based on an intent to deceive and to harm Newton with respect to her business interests. Accordingly, the demurrer could not properly be sustained on the ground of immunity pursuant to section 822.2.
Noonan v. Rousselot (1966) 239 Cal.App.2d 447, relied on by the individual defendants, holds that an allegation of malice in a libel action must be supported by assertion of the specific facts relied upon to constitute “personal malice.” (Id. at pp. 452-453.) Newton’s factual allegations of a conspiracy to maneuver her into a position to facilitate her termination are more than sufficient to satisfy the factual pleading requirements in the context of section 822.2.
Nor could it be sustained on the ground of immunity pursuant to section 820.2. That section provides, “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
The acts Newton alleges—misrepresenting to her that she could be terminated only for cause while planning to terminate her because of her age—are not discretionary acts within the meaning of section 820.2. The definition of immune discretionary acts “draws the line between ‘planning’ and ‘operational’ functions of government.” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 (Caldwell), quoting Johnson v. State of California (1968) 69 Cal.2d 782, 793, 794.) “Immunity [under section 820.2] is reserved for those ‘basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government,’ and as to which judicial interference would thus be ‘unseemly.’ [Citation.] Such ‘areas of quasi-legislative policy-making . . . are sufficiently sensitive’ [citation] to call for judicial abstention from interference that ‘might even in the first instance affect the coordinate body’s decision-making process’ [citation]. [¶] On the other hand, . . . there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated. [Citation.]” (Caldwell, at p. 981.) Rather, “The scope of the discretionary act immunity ‘should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.’ [Citation.]” (Barner v. Leeds (2000) 24 Cal.4th 676, 685.)
Thus, for immunity to apply, a defendant must show that the decisions in question are “basic policy decisions” made at the planning level of the government entity, rather than “routine duties incident to the normal operations” of the employee’s office or position. (Barner v. Leeds, supra,24 Cal.4th at p. 685.) Decisions regarding job assignments, training and promotion cannot be characterized as “‘“‘quasi-legislative policy-making.’”’” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1239, disapproved on another ground in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174.) Nor can decisions about the hiring and termination of employees and contractors such as Newton be characterized in that manner. Rather, such decisions are clearly operational and are not subject to immunity pursuant to section 820.2. Accordingly, the demurrer cannot be sustained on this ground either.
Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, on which Newton inexplicably relies, holds that a decision by supervisorial employees to institute disciplinary proceedings against a lower level employee is a discretionary act within the meaning of section 820.2. (Kemmerer v. County of Fresno, supra, at p. 1439.) For the reasons stated above, we respectfully disagree.
In Caldwell, supra, 10 Cal.4th 972, the court held that a school board’s decision to replace the district superintendent is a basic governmental policy decision and thus a discretionary act within the meaning of section 820.2. The court reasoned that the superintendent is the district’s foremost appointed official, with the primary responsibility for “representing, guiding and administering” the district. Moreover, the Education Code expressly entrusts the decision as to who should serve as superintendent to the elected officials of the school board. Because the decision is specially entrusted to a coordinate branch of government at its highest level, judicial abstention from interference with the board’s decision is appropriate. (Caldwell, at pp. 982-983.) The same cannot be said about decisions to hire or fire lower-level employees or contractors, particularly when those decisions are delegated to other employees who have no authority for policy-making decisions.
DISPOSITION
The judgment of dismissal on the fraud cause of action as to Carol Waterhouse-Tejada is reversed. The judgment in favor of RCSC is reversed as to the age discrimination cause of action. The judgment is otherwise affirmed.
Plaintiff Clara Newton is awarded her costs on appeal.
We concur: Gaut, J., King, J.