RUINELLO v. MURRAY (1950)

The appeal herein is from a judgment in favor of defendant, entered pursuant to an order sustaining a demurrer to plaintiff's third amended complaint without leave to amend.

Stripped of extraneous matter, the basic allegations of the third amended complaint may be briefly summarized. In October, 1945, defendant entered into an oral employment agreement with plaintiff, whereby in consideration of plaintiff giving up an alleged ‘permanent lifetime position’ with another employer as engineer and superintendent and taking a similar position with defendant, the owner of the Ninth and Broadway Building in Los Angeles, for the term of five years, defendant would pay plaintiff a monthly salary of $350 plus a yearly bonus of 20% of the gross income in excess of $114,000.

As noted in the respondent's brief, ‘None of the terms or conditions of the alleged employment which plaintiff claims to have given up is pleaded, other than that it was ‘oral’ and was ‘a permanent lifetime job’.' It is also alleged that plaintiff had been personally acquainted with defendant for 20 years and was previously employed by defendant and the latter's husband. Finally, the complaint alleges that after having worked for defendant from December 1, 1945 to February 21, 1948, plaintiff was summarily discharged. The complaint seeks recovery of $11,050, which is the sum plaintiff would have been entitled to receive as salary during the balance of said employment agreement. Plaintiff also prays for an accounting as to gross profits and for judgment of 20% of the yearly gross profits in excess of $114,000.

Plaintiff's original complaint, substantially the same as the one now in issue, was attacked by demurrer—‘on the ground that the oral agreement, admittedly not to be performed within one (1) year, was invalid under the Statute of Frauds.’ Demurrer thereto was sustained, as was a demurrer to the amended complaint. Plaintiff's second amended complaint was, by stipulation, followed by a third amended complaint to which demurrer was sustained without leave to amend.

It is argued by appellant that, ‘based on the facts set forth in his complaint, the respondent is estopped to set up the Statute of Frauds * * * where the appellant acted in good faith upon the statements and representations made to him by the respondent, and in reliance of said representations has changed his position so materially that it would be unconscionable to permit the respondent to set up the Statute of Frauds as a defense.’ In this connection it is claimed that after inducing appellant to give up a permanent lifetime position, ‘and when he had so successfully performed his duties that the bonus to which he was entitled reached a figure which was not contemplated by the respondent, she arbitrarily discharged the appellant to avoid her obligation, and now seeks to raise the technical defense of the Statute of Frauds.’

The case of Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88, 134 Am.St.Rep. 154 is relied upon by the appellant. The facts in that case are stated as follows at page 797 of the opinion in 156 Cal., at page 95 of 106 P.: ‘Practically, defendants said to plaintiff: ‘We want you to enter our employ at once. We know that to do so you must give up your life position in the police department and that you are not willing to do this unless you are assured of employment for ten years at $300 a month. A written contract is, under our statute, essential to guarantee you such employment. We will execute this contract just as soon as Mr. Fair returns from Europe. Go ahead and resign your position now and commence work with us at once, and it will be all right. The written contract will be given as promised.’' It was there held that subsequent repudiation of the oral contract ‘would constitute such a manifest fraud as would justify the application of the doctrine of equitable estoppel.’

The complaint here in question neither alleges nor suggests such a state of facts, nor is any such situation even remotely intimated in any of the four complaints filed. It is further to be noted that the complaint fails to allege any facts connected with the former employment, or ‘what, if anything, plaintiff gave up by leaving his former position’, other than by alleging a previous ‘permanent lifetime job’.

The recent case of Monarco vs. Lo Greco, 35 Cal.2d 621, 220 P.2d 737, has been cited by appellant, where in the language of the headnote, the Supreme Court held that ‘The doctrine of estoppel to plead the statute of frauds is not rendered inapplicable merely because a change of position * * * did not result from reliance on a representation that a contract would be put in writing * * *. It is the promise that the contract will be performed, rather than such representation, on which a party relies when he changes his position, and the other party would be unjustly enriched by his acceptance of benefits under the contract’. The factual situation in the Monarco case, however, was in no respect similar to that of the instant controversy, and the case is of no assistance in maintaining the appellant's position. The present situation is simply one in which the pleader failed to set up requisite facts to justify the application of the principles of estoppel.

It is further contended by appellant that the trial court abused its discretion in sustaining the demurrer without leave to amend. As stated in respondent's brief, ‘Plaintiff has four times attempted to plead a cause of action, and to each of the complaints put in issue defendant has appeared and interposed the Statute of Frauds. Three different judges found plaintiff's complaint fatally defective.’

The right to amend is simply the right to have a reasonable opportunity to plead a cause of action. In the instant appeal the record clearly reveals that appellant has been accorded this opportunity, and that no manifest abuse of discretion has taken place.

The judgment is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.