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Court of Appeal, Second District, Division 4, California.

Gerald A. EZEKIEL, Jr., M.D., Plaintiff and Appellant, v. John WINKLEY, M.D., et al., Defendants and Respondents.

Civ. 48867.

Decided: November 10, 1976

Mink & Alpert, and Michael S. Mink, Encino, for plaintiff and respondent. Thelen, Marrin, Johnson & Bridges, San Francisco, and Curtis A. Cole, Fresno, for defendants and respondents.

Plaintiff appeals from a judgment (order of dismissal) entered after an order sustaining, without leave to amend, a demurrer to his Third Amended Complaint (complaint). We reverse the judgment.

Although, as plaintiff's present counsel admits, the third amended complaint is no model of pleading, we conclude that, read as it must be, and as defendants urge us to, in connection with the allegations of the two previous complaints, and tested by the usual rules of construction of pleadings, the facts set forth do show: (1) the existence of enforceable contracts of employment either for three years or for one year; and (2) an unjustified breach of those contracts.

Plaintiff alleges that he is a duly licensed physician; that he was engaged in general practice in San Diego and had completed one year as a resident in surgery at Mercy Hospital in San Diego; that, at the special request of defendants, he applied for and was accepted as a resident in surgery for a three-year term at defendants' hospital; that, in reliance on that acceptance and on the promise of that term of employment, he sold his home in San Diego, closed his practice and, by a written agreement effective as of December 4, 1972, entered on his residency at defendants' hospital. He further alleges that, as December 4, 1973, he was orally continued in that residency for a second year, at an increased salary. He then alleges that, on January 10, 1974, he was told by defendants that his residency would be terminated as of June 30, 1974. Although he was told that that decision would be reviewed in three months, no such review was ever made, no formal charges were ever given to him, and no hearing on his discharge was ever given.


The case before us involved no problem of compelling defendants to retain, as a resident, an incompetent surgeon.1 Plaintiff admits that, if his incompetency had properly been charged and properly proved, defendants had the right to terminate his residency. The gist of his complaint is that no such charge was ever made or proved, so that (as he states the facts) his termination was arbitrary and without cause.


As against the claim of an enforceable three-year contract, defendants rely on subdivision (1) of section 1624 of the Civil Code, relating to contracts not to be performed within one year. But it is well settled that a party may be estopped to assert the bar of that statute where the other party has been induced to believe that he has a contract for a longer term and has taken action, to his detriment, in reliance on the promise of a longer employment. (1 Witkin, Summary of Cal.Law (8th ed. 1973), Contracts, § 253, pp. 219–220.)

We regard the allegations that, in reliance on a promise of a three-year residency, plaintiff had sold his home and closed his practice, as sufficient, as a matter of pleading, to raise the issue of estoppel. Whether plaintiff can convince a trier of fact that those actions constituted a sufficient detriment is not involved at this stage of the litigation. Plaintiff is entitled to go to trial on the issue of the existence of a three-year contract.


Plaintiff alleges his reemployment, at the start of a second year of residence, at an increased salary—alleged to be the salary set by defendants for a third year of residency.2 Admittedly, the continued employment was not reduced to writing, and plaintiff does not allege that any express term accompanied his continuance in residency. However, it is for a trier of fact, and not for a court on demurrer, to determine whether a new one-year term (clearly not within the statute of frauds) should be inferred from the facts as pleaded.


Defendants rely, as justifying plaintiff's termination, on the claim that the employment was one ‘at-will,’ terminable by the employer at any time, with or without cause. However, on the facts pleaded here, that contention is without merit.

In addition to the facts above stated, plaintiff alleges that his termination, in mid-year, places him under such a stigma as to make it impossible for him to be accepted as a resident at any other hospital and, thus, to prevent him from ever achieving the status of a Board Certified Surgeon. Those facts bring plaintiff outside the holding in Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, on which defendants rely. In Roth, as the Supreme Court pointed out, nothing in the record before it showed that Roth, peremptorily terminated after a term as a nontenured teacher, could not or would not be considered for a teaching position in another institution.

In Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253, the Supreme Court held that the society could not reject Dr. Pinsker's application for membership without holding a hearing and giving him an opportunity to reply to any charges against him. In Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623, 114 Cal.Rptr. 681, the court held that Dr. Ascherman could not be deprived of staff privileges in a hospital without a fair hearing, on charges made. Similarly, in Ascherman v. Saint Francis Memorial Hospital (1975) 45 Cal.App.3d 507, 119 Cal.Rptr. 507, the court, relying on Pinsker and the earlier Ascherman case, held that Dr. Ascherman was entitled to a fair hearing on his application for staff privileges in the defendant hospital.

We regard those cases as controlling here. In all three cases the defendant was, as is defendant hospital here, a private organization; in all three cases the defendant organization had the power, by the action therein challenged, to prevent the plaintiff from effectively pursuing his chosen profession. In the case at bench, plaintiff, like the plaintiffs in the cited cases, is a duly licensed medical man; he seeks, as did those plaintiffs, to advance in his profession. The fact that he here seeks the opportunity to secure advanced skills, rather than the right to practice skills already acquired, is immaterial.


We note that two years have passed since plaintiff was terminated as a resident at defendants' hospital. In light of that fact, it is for the trial court to decide whether plaintiff should be reinstated to his residency pending such charges and hearing as defendants, in conformity with this opinion, provide or whether reinstatement should be postponed, for a reasonable time, to give defendants an opportunity to file charges and hold a fair hearing thereon.

The judgment (order of dismissal) is reversed.


1.  As plaintiff points out, he was permitted to remain in residency, practicing surgery, until June 30, 1974—five and one-half months after the notice of termination.

2.  Plaintiff alleges that, because he had had one year of residency at Mercy Hospital, his starting salary with defendants was at the second-year rate; the increase in December 1973, thus, was to the third year rate.

KINGSLEY, Acting Presiding Justice.

DUNN and JEFFERSON, JJ., concur.

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