RITA FRANCO v. GLOBAL INTEGRITY REALTY CORPORATION (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff Rita Franco (Franco) appeals summary judgment on her claim for wrongful termination in violation of public policy against her former employer Global Integrity Realty Corporation (GIRC) and its Chief Executive Officer and co-owner, Henry Manoucheri (Manoucheri).   She contends factual issues exist whether she was terminated or quit, and whether there was a nexus between her protected activity (complaining to GIRC of statutory violations) and her termination.   We reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

GIRC is a property management, construction and brokerage firm that manages over 3000 residential units in Southern California.   GIRC employs over 100 persons, and is co-owned by Manoucheri and his wife.   Manoucheri also manages or is a partner in approximately 35 limited liability companies (LLCs) and limited liability partnerships (LLPs) that own residential apartment complexes.

GIRC provides management services to these LLCs and LLPs, and collects rents and other revenues from the properties, including laundry and vending machine income, cable revenue, cleaning fees, security deposits, and other fees.   GIRC disburses funds on behalf of the LLCs and LLPs to pay property taxes, insurance, construction, gardening, plumbers and other maintenance workers, and to employ on-site managers, leasing agents, and other personnel.   When an LLC or LLP “borrows” one of GIRC's employees, the portion of the employee's salary attributable to the property is added to that property's payroll.   However, in all other cases, general corporate employees' salaries are not charged to specific properties.

GIRC receives a percentage of gross revenues as compensation for its services from the LLCs and LLPs. The remainder of the net proceeds from each property is distributed to the owners of that LLC or LLP.

Franco was employed as GIRC's director of human resources (HR) from August 2005 until November 2006;  in July 2006 she took on additional duties and was also employed as its controller from July 2006 until November 2006.   Plaintiff apparently made two sets of complaints to GIRC:  the first set occurred while she was acting solely as HR director and involved GIRC's hiring practices, and the second set occurred while she was acting as controller and involved its accounting practices.

1. Franco Is Hired as Director of HR;  Her Complaints About GIRC's Hiring Practices

GIRC hired Franco in August 2005 as its director of HR;  Manoucheri was Franco's direct supervisor.   Franco was charged with managing the HR department, drafting and updating an employee handbook, addressing and investigating employee complaints, ensuring that GIRC's employment practices complied with applicable laws, managing benefits, and processing the company's payroll.   At the time of her employment, Franco signed an agreement acknowledging her employment was on an “at-will” basis.

Franco claimed that shortly after her hiring, she discovered that GIRC hired undocumented workers;  hourly employees were improperly classified as exempt;  and persons who were GIRC's employees were designated as independent contractors.   Franco advised Manoucheri against hiring undocumented workers and informed him that she had properly classified non-exempt employees.   She noticed, however, that with respect to employees improperly classified as independent contractors, she no longer received payment information for them.   Manoucheri disputes that Franco complained to him about these issues and that if she had done so, because it was GIRC's intent to comply with the law, he would not have treated her differently if she had raised such concerns.

2. Franco Becomes Controller in Addition to HR Director;  Her Complaints About GIRC's Accounting Practices

During the summer of 2006, Manoucheri gave Franco additional job duties.   In July 2006, when GIRC's Chief Financial Officer (CFO) left the firm, Franco became GIRC's controller and received a salary increase from $60,000 to $100,00 per year.   Franco also remained its HR director and performed the duties of both positions.   Franco's duties as controller included the following:  overseeing the accounting department of GIRC;  handling accounts payable and receivable;  preparing financial reports;  processing and tracking checks;  interfacing with banks, and performing banking duties.   About 70 percent of her duties were allocated to her position as controller, but she was able to keep up with her duties as HR director.

While controller during the summer of 2006, Franco learned that GIRC drew down the LLC and LLP's accounts improperly, resulting in insufficient funds and account closures;  made transfers between the different entities' bank accounts without proper documentation;  purchased appliances and other materials for one property but charged the costs to another property;  and maintained insufficient balances to pay obligations.   Furthermore, GIRC charged the LLCs and LLPs for its corporate costs.   Franco contended Manoucheri would reduce the profits of some of the entities such that there were no funds left over for distribution to investors.   Manoucheri was also diverting funds to his and his wife's personal accounts.

Franco informed Manoucheri of her objections to his accounting practices.   According to Franco, Manoucheri accused her of causing the problems.   He curtailed her authority over bank accounts and cash management, and appointed his brother Philip Manoucheri to supervise Franco.   In September 2006, Manoucheri accused plaintiff of being late with investor distributions;  and at a meeting with Chief Operating Officer Tom McCarthy, Manoucheri belittled Franco's skills.   Manoucheri disputes that Franco complained to him about these issues and that if she had done so, because it was GIRC's intent to comply with the law, he would have not treated her differently if she had raised such concerns.

3. Franco's Decision to Step Down as Controller

Faced with this adverse environment, Franco concluded she was unable to perform her duties and decided to step down as controller.   On September 29, 2006, she sent a letter to Tom McCarthy advising him of her “inability to do the job due to lack of management support and the intensely negative atmosphere in which I must work i.e. not being allowed to control funds/cash flow, distributions, make decisions on simple matters, implement and maintain basic accounting procedures.”   The letter informed him she was upset at “having people look over my shoulder who have little or no knowledge of accounting or having the duties that are inherent to the Controller position being delegated to non-accounting staff members” which slowed the entire process down.   Franco complained that she had found an ad GIRC had placed regarding her position as Controller.¹  Franco advised GIRC that she intended to make November 15, 2006 her last day as controller, but that she wished to remain as GIRC's human resources director.

In October 2006, Franco began to search for employment, forwarding her resume to Sachse Realty and interviewing with that firm.   In mid-October 2006, Franco approached Manoucheri, and according to Manoucheri, advised him that she wanted to give up the controller position because she was “overwhelmed and had no idea the position would require so much work.   She also shared with me that she could not adequately perform her job duties.”

4. Franco Leaves GIRC

On November 2, 2006, Franco met with Manoucheri and McCarty to discuss her September 29, 2006 letter.   Manoucheri advised her that it was “not an option” for her to remain as human resources director.   Franco concluded that she had been terminated, responding, “Well, then, I don't have a job and I am out of here.”   After the meeting, Manoucheri asserts that McCarthy told him that Franco had quit.   McCarthy disputes this account.   However, Manoucheri told several other individuals Franco had told him she was quitting.   One of those persons, Tony Lugo, asserts that McCarthy told him Franco was discharged from her employment.

On November 3, 2006, Franco returned to GIRC to retrieve her last paycheck.   She spoke with Manoucheri, who contended that he asked her what it would take for her to stay, and she responded, “$140,000.”   Manoucheri responded that they intended to hire a CFO, she had told him the controller position was too much for her, and that she could work with the CFO. Franco told him she was not interested, and did not want to be controlled by or report to a CFO. After she reiterated her demand for $140,000 and Manoucheri told her that he would not pay her that amount, she told him she would be quitting.

Franco prepared for herself an exit interview document entitled “Notice to Employee as to Change in Relationship” (Notice).   When she met with Manoucheri, according to Franco, he asked her to check the box “voluntarily quit” on the Notice in order to receive her last paycheck;  she claims she did as he requested in order to receive her paycheck.   According to Manoucheri, Franco had checked the box “terminated,” and that after he pointed out to her that she had quit, she changed the box checked to “voluntarily quit.”

She discovered the Employer Comment section of the Notice stated that “[Franco] was asked to stay in the Controller/HR Director position by the CEO of [GIRC] but wanted to step down as Controller,” and that “[GIRC] has decided not to retain her in the position of HR Director.”   Franco, although she had the opportunity to do so, did not write anything in the employee comment section of the Notice.   She contended that she did not have the “wherewithal at the time” due to the negative atmosphere.

Manoucheri contends that after Franco left, numerous documents, reports and data could not be located.   Payroll was “simply chaos.”   Franco had either deleted or misplaced all payroll allocation sheets, formulas, investors lists and addresses.   Franco had cleaned out her employment file.   GIRC was unsuccessful in locating much of the information.   A forensic examination of her computer disclosed that she had erased data from her computer.

Less than two weeks after leaving GIRC, Franco began working at Sachse Realty.

5. Franco's Complaint and GIRC's Motion for Summary Judgment

On November 5, 2007, Franco filed a complaint for wrongful termination, stating claims based upon tortious discharge in violation of public policy,² breach of contract, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and defamation.   The trial court sustained GIRC's demurrers to Franco's claims for breach of contract, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress.

Defendants moved for summary judgment on the remaining defamation and wrongful termination in violation of public policy claims, contending that Franco was not subject to any adverse employment action because she resigned, and that she was unable to establish a nexus between protected activity and any adverse employment action.   Franco opposed, contending that triable issues of fact existed as to both whether she was terminated or voluntarily quit and whether there existed a nexus between her protected activity and her adverse employment action.³

The trial court's tentative ruling found that there was no causal nexus between Franco's protected activity and her eventual termination because her evidence did not provide dates on which she engaged in such activity.⁴  On the other hand, the court noted defendant's reply referred to protected activity occurring before July 2006, and included a timeline showing the alleged protected activity, when it occurred, and defendant's response.   At the hearing, Franco argued that GIRC's reply referenced her protected activity occurring in late July, August, and September 2006, which was shortly before her termination.   The trial court, after taking the matter under submission, granted GIRC's motion on Franco's wrongful termination and defamation claims, and entered judgment for defendants.

DISCUSSION

Franco raises two issues on appeal.   She first contends that she is a whistleblower who reported her suspicions of statutory violations to her supervisor, Manoucheri, and was actually or constructively terminated from her employment based upon such protected activity.   She further contends she established a nexus between her reporting activities as controller and her termination.

I. STANDARD OF REVIEW

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar ).)  “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(1);  Aguilar, supra, 25 Cal.4th at p. 849.)   A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar, supra, 25 Cal.4th at p. 850.)   Where summary judgment has been granted, we review the trial court's decision de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports.”  (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

II. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

Franco's cause of action for wrongful termination in violation of public policy requires her to show:  (1) she was employed at GIRC;  (2) GIRC dismissed her;  (3) the alleged violation of public policy was a motivating factor in her discharge;  and (4) the discharged caused harm.  (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641 (Haney ), citing Jud. Council of Cal. Civ. Jury Instns.  (2004) CACI No. 2430;  BAJI Nos. 10.06, 10.41, 104.42 & 10.43.)   Here, the parties dispute the second and third elements-whether Franco was terminated or quit, and whether a nexus exists between her complaints and her termination.   We conclude factual issues exist with respect to both elements of her wrongful termination claim.⁵

A. Factual Issues Exist Whether Franco Was Terminated

To establish a claim of wrongful termination, Franco must show she was subjected to an adverse employment action.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614 (Fisher );  see also Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 217;  Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426, fn. 8.)

Here, factual issues exist whether Franco voluntarily quit or Manoucheri terminated her.   While there can be no dispute Franco quit the controller position, she apparently wanted to remain as HR director.   The facts on summary judgment showed that:

Franco had complained that her duties as controller were taking up too much of her time and she wished to return to her position as HR director.   At the time, she was aware that GIRC was looking for a new controller, and that Manoucheri had been criticizing her performance as controller (although he did not criticize her skills as HR director).   She concluded that Manoucheri's reply to her request to remain as HR director that was “not an option” meant she was being terminated from a position she did not wish to resign, hence her response “well then, I don't have a job.”   Furthermore, Franco asserts that she initially prepared her exit interview sheet to indicate she had been terminated and was forced by Manoucheri to change it to state she had voluntarily quit.   The fact that she declined to write anything at the bottom of the page to indicate her position on her reasons for leaving is not conclusive on this issue, because Franco maintains she felt pressured and did not wish to challenge Manoucheri.

On the other hand, Manoucheri states that when he refused her salary request of $140,000, Franco told him she was quitting.   Furthermore, he asserts that she had been looking for new employment at the time she quit, and could have written on the exit interview form that that she signed it only for the purpose of obtaining her check.   Franco had been looking for a new job during the time she was making complaints about GIRC's accounting practices, and started a new job within days of leaving GIRC.

Here, the evidence is subject to two inferences, and it is for a factfinder to determine whether Franco quit as HR director or GIRC terminated her.⁶

B. Factual Issues Exist Whether There Was a Nexus Between Franco's Complaints About Unlawful Conduct and Her Termination⁷

In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 169-170 (Tameny ), the Supreme Court held that employees may bring an action in tort when their discharge contravenes the dictates of fundamental public policy.   As the tort is predicated on public policy, rather than the terms and conditions of the employment relationship, an employee may assert the claim whether his or her employment is “at-will” or is based on an employment contract for a specified term.  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 667.)   To recover in tort for wrongful discharge in violation of public policy, the plaintiff must show the employer violated a public policy affecting “society at large rather than a purely personal or proprietary interest of the plaintiff or employer.”  (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090.)   In addition, the policy at issue must be substantial, fundamental, and grounded in a statutory or constitutional provision.  (Id. at pp.   1089-1095.)   Consistent with these principles, courts recognize tortious wrongful discharge claims where an employee establishes he or she was “terminated in retaliation for reporting to his or her employer reasonably suspected illegal conduct ․ that harms the public as well as the employer.”  (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1119-1120.)

A Tameny claim is stated where the employee was terminated for (1) refusing to violate a statute, (2) performing a statutory obligation, (3) exercising a constitutional or statutory right, or (4) reporting a statutory violation for the public's benefit.  (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1112.)

A plaintiff cannot merely show he or she engaged in whistle-blowing activities that were followed at some point by his termination.   To establish a claim for wrongful termination in violation of public policy, the employee must also “demonstrate the required nexus between his reporting of alleged statutory violations and his allegedly adverse treatment.”  (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258 (Turner ), overruled on other grounds in Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 7479, 498.)   Evidence of a causal connection is usually shown with circumstantial evidence and includes a consideration of the proximity in time between the protected action and the retaliatory employment action.  (Fisher, supra, 214 Cal.App.3d at p. 615.)   Nonetheless, the employee must present more than speculation.  “[A] material triable controversy is not established unless the inference is reasonable.   And an inference is reasonable if, and only if, it implies the unlawful motive is more likely than defendant's proffered explanation.”   (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038, citing Aguilar, supra, (2001) 25 Cal.4th at p. 858.)

In some cases, the evidence establishes that the employer has a mixed motive for the adverse employment decision.  “In a mixed motive case, both legitimate and illegitimate factors contribute to the employment decision.”  (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748.)   In that case, once the employee establishes an illegitimate factor played a motivating or substantial role in the employment decision, the burden shifts to the employer to show that he or she would have made the same decision even if the illegitimate factor had not been taken into account.  (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.)

1. While controller, she questioned the transfers of funds from the LLP and LLC bank accounts to Manoucheri's personal bank accounts, the charging of unrelated fees to those accounts, the transfers of funds between property accounts, and the failure to maintain adequate cash reserves.

2. She brought to defendants' attention the practice of purchasing materials and appliances for one property against the account of another property.

3. While controller, she objected to the assignment of her cash management duties to Philip Manoucheri because it impeded her ability to prevent fund shortfalls and the depletion of accounts.

4. During her three-month tenure as controller in 2006, Franco would point out Manoucheri's accounting improprieties, to which Manoucheri consistently responded that Franco was creating the problem and did not know what she was doing.

5. On September 7, 2006, Manoucheri complained without justification that Franco had not timely prepared the investor distribution reports and accused her of failing to get them out on time for two months in a row.   Shortly after that, Manoucheri belittled her skills, and declared that he would replace her as controller.   Franco discovered that GIRC had placed a job listing for its controller or CFO.

Franco contends that neither her good performance reviews or her compliments paid her while HR director or controller disprove her arguments because any congratulatory sentiment had dissipated by early September 2006 with Manoucheri's baseless claims that the investor reports were not timely.   She contends any positive feedback he gave her does not mitigate the effects of the systematic stripping of her authority, which rendered her a mere figurehead.   Furthermore, Manoucheri's punitive conduct towards her was unjustified by any legitimate measure of her performance because her complaints were justified, as evidenced by property tax defaults on two properties and overdrawn bank accounts.

She contends the trial court erred in failing to consider her complaints related to her activities as HR director, including misclassification of employees and hiring of undocumented workers, but admits such complaints “did not result in adverse employment action” because Manoucheri had taken steps to correct the problems and other employees expressed problems with the hiring of undocumented workers.   Further, the record establishes plaintiff made numerous complaints after July 2006, when she became controller, and those complaints were the basis of her termination.

On the other hand, Manoucheri contends there was no nexus because Franco was receiving positive performance reviews, had received a raise, and he had been remarking on her success in producing reports and improving accounting operations.   For example, she was not criticized for reporting in January 2006 that some GIRC employees were improperly allocated to GIRC's properties;  in June 2006 she provided information on how GIRC could conform its payroll practices to federal law in response to an employee complaint he had worked without pay;  on July 27, 2006 she complained to Manoucheri that she had sent the reports to lenders;  on August 23, 2006, she asked accounts payable how long GIRC had been allowing corporate expenses to management properties, and was told “always,” on September 7, 2006, Manoucheri was disturbed that investor reports were late two months in a row, and after Franco provided an explanation, he thanked her for taking the time to provide a comprehensive response;  on September 13, 2006, he sent an email questioning why taxes had not been paid on two properties, but did not criticize Franco;  and on September 20, 2006, he did not criticize her for expressing concern that two accounts had negative balances, but instead asked her to transfer money to the two accounts.

Although the undisputed facts establish Franco admittedly resigned from the controller position and she cannot contend otherwise, she told Manoucheri she wished to remain on as HR director.   Here, we find triable issues of fact exist whether GIRC terminated Franco from the HR director position because she made complaints about Manoucheri's accounting practices in violation of his fiduciary duties, or whether he terminated her because she was unable to perform her duties.   Franco's numerous complaints about Manoucheri's improper accounting practices were made at or near the time of her termination, and caused Manoucheri to complain about Franco.   Manoucheri's evidence that Franco was not uniformly criticized for asking questions and bringing questionable practices to his attention does not alter the analysis because on numerous occasions, his response indicated he was displeased with Franco's continual questions.   A factfinder could conclude that Manoucheri, who had previously given Franco a raise and promoted her, terminated her as a result of her ongoing complaints about GIRC's accounting practices.

DISPOSITION

The judgment is reversed.   Appellant is to recover her costs on appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Franco discovered GIRC was advertising an opening for its controller position..  FN1. Franco discovered GIRC was advertising an opening for its controller position.

FN2. Franco alleged violations of Title 8 United States Code sections 1324a [unlawful employment of aliens], Title 8 United States Code section 1324b [discrimination based upon national origin or immigration status], Title 26 United States Code section 3509 [employer liability for employment taxes], Title 26 United States Code section 7201 [attempt to evade or defeat taxes], Title 26 United States Code section 7206 [submission of fraudulent or false statements], and California Revenue & Taxation Code section 19701 [tax evasion].   All of her claims, except for her defamation claim, were asserted against GIRC and Manoucheri;  the defamation claim was asserted solely against Manoucheri..  FN2. Franco alleged violations of Title 8 United States Code sections 1324a [unlawful employment of aliens], Title 8 United States Code section 1324b [discrimination based upon national origin or immigration status], Title 26 United States Code section 3509 [employer liability for employment taxes], Title 26 United States Code section 7201 [attempt to evade or defeat taxes], Title 26 United States Code section 7206 [submission of fraudulent or false statements], and California Revenue & Taxation Code section 19701 [tax evasion].   All of her claims, except for her defamation claim, were asserted against GIRC and Manoucheri;  the defamation claim was asserted solely against Manoucheri.

FN3. In her opposition, Franco did not rely upon any specific statutory or constitutional authority to support her claims..  FN3. In her opposition, Franco did not rely upon any specific statutory or constitutional authority to support her claims.

FN4. Although her separate statement of facts provided no dates on which complaints were made, Franco's declaration states that during her tenure as controller she made numerous complaints..  FN4. Although her separate statement of facts provided no dates on which complaints were made, Franco's declaration states that during her tenure as controller she made numerous complaints.

FN5. Manoucheri has requested that he be dismissed from the appeal because he was named as a defendant only in the claim for defamation, which is not being appealed, and because an individual cannot commit the tort of wrongful discharge in violation of public policy.  (Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 900-901 [“An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy;  rather, he or she can only be the agent by which an employer commits that tort”].)   Franco asserted in her complaint that Manoucheri is the alter-ego of GIRC and its separate entity existence is a sham and should be disregarded.   The parties did not address the issue of alter-ego on summary judgment, nor obtain summary adjudication of this issue.   Such an argument, which involves the resolution of factual issues and matters not in the record, cannot be raised for the first time on appeal.  (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn. 6.) Manoucheri's failure to obtain summary adjudication of this issue precludes his dismissal from the wrongful discharge claim..  FN5. Manoucheri has requested that he be dismissed from the appeal because he was named as a defendant only in the claim for defamation, which is not being appealed, and because an individual cannot commit the tort of wrongful discharge in violation of public policy.  (Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 900-901 [“An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy;  rather, he or she can only be the agent by which an employer commits that tort”].)   Franco asserted in her complaint that Manoucheri is the alter-ego of GIRC and its separate entity existence is a sham and should be disregarded.   The parties did not address the issue of alter-ego on summary judgment, nor obtain summary adjudication of this issue.   Such an argument, which involves the resolution of factual issues and matters not in the record, cannot be raised for the first time on appeal.  (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn. 6.) Manoucheri's failure to obtain summary adjudication of this issue precludes his dismissal from the wrongful discharge claim.

FN6. We therefore need not address the issue of whether Franco was subject to constructive discharge, an issue that was not raised in the trial court..  FN6. We therefore need not address the issue of whether Franco was subject to constructive discharge, an issue that was not raised in the trial court.

FN7. Defendants sought summary judgment on this claim on the basis that Franco did not suffer an adverse employment action and that she could not establish a nexus between the alleged adverse action and her termination.   On appeal, Franco makes arguments regarding the first prong of the wrongful termination claim, namely that her termination violated public policy because Manoucheri was violating his fiduciary duties.   Defendants concede this is not at issue in this appeal.  (See Haney, supra, 121 Cal.App.4th at p. 643 [employee stated claim for termination in violation of public policy where he was terminated for failure engage in fraudulent billing practices];  See Bardis v. Oates, supra, 119 Cal.App.4th at p. 14.)   We therefore do not address this issue..  FN7. Defendants sought summary judgment on this claim on the basis that Franco did not suffer an adverse employment action and that she could not establish a nexus between the alleged adverse action and her termination.   On appeal, Franco makes arguments regarding the first prong of the wrongful termination claim, namely that her termination violated public policy because Manoucheri was violating his fiduciary duties.   Defendants concede this is not at issue in this appeal.  (See Haney, supra, 121 Cal.App.4th at p. 643 [employee stated claim for termination in violation of public policy where he was terminated for failure engage in fraudulent billing practices];  See Bardis v. Oates, supra, 119 Cal.App.4th at p. 14.)   We therefore do not address this issue.

FN8. California Corporations Code section 17153 provides, “The fiduciary duties a manager owes to the limited liability company and to its members are those of a partner to a partnership and to the partners of the partnership.”.  FN8. California Corporations Code section 17153 provides, “The fiduciary duties a manager owes to the limited liability company and to its members are those of a partner to a partnership and to the partners of the partnership.”

FN9. California Corporations Code section 16404 provides in relevant part:  “(a) The fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care set forth in subdivisions (b) and (c). [¶] (b) A partner's duty of loyalty to the partnership and the other partners includes all of the following:  [¶] (1) To account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property or information, including the appropriation of a partnership opportunity.”.  FN9. California Corporations Code section 16404 provides in relevant part:  “(a) The fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care set forth in subdivisions (b) and (c). [¶] (b) A partner's duty of loyalty to the partnership and the other partners includes all of the following:  [¶] (1) To account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property or information, including the appropriation of a partnership opportunity.”

FN10. Although she did not rely on these statutory provisions in the trial court, defendants make no objection to her arguments on appeal..  FN10. Although she did not rely on these statutory provisions in the trial court, defendants make no objection to her arguments on appeal.

MALLANO, P. J. CHANEY, J.