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Richard Foust v. San Jose Construction Company

August 10, 2011

RICHARD FOUST, PLAINTIFF AND APPELLANT,
v.
SAN JOSE CONSTRUCTION COMPANY, INC., DEFENDANT AND RESPONDENT.



Trial Court: Santa Clara County Superior Court Superior Court No. 1-05-CV038349 Trial Judge: Hon. Richard J. Loftus, Jr.

The opinion of the court was delivered by: Premo, J.

CERTIFIED FOR PUBLICATION

(Santa Clara County Super. Ct. No. 1-05-CV038349)

Richard Foust appeals from a judgment entered in favor of San Jose Construction Company Inc. (San Jose Construction) following a three day court trial on his claim that San Jose Construction breached a written employment contract. Foust argues that the trial court erred in finding that his written employment contract was subsequently modified. In preparing the record on appeal, Foust elected to proceed without a reporter's transcript and designated only a partial clerk's transcript.

San Jose Construction, in addition to arguing the merits of the case, has brought a separate motion for sanctions against Foust on the basis that the appeal is frivolous. (Cal. Rules of Court, rule 8.276(a).)

Foust's showing on appeal is insufficient and we shall affirm the judgment. We also find that the appeal is frivolous and award sanctions against Foust.

I. FACTUAL AND PROCEDURAL BACKGROUND

We take our recitation of the facts from the trial court's statement of decision.

In 1999, San Jose Construction hired Foust as a project manager pursuant to a written employment agreement (the letter agreement). The letter agreement provided for a base salary of $130,000 per year, a signing bonus, an annual bonus of $26,000 to be paid quarterly, as well as certain other benefits including car and cell phone allowances. It also provided for a performance bonus of 20 percent of all gross profits over $780,000 generated by Foust's projects.

On his first day of employment, Foust signed a copy of San Jose Construction's policies and procedures handbook, which specified that his employment was "at will" and that San Jose Construction reserved the right to adjust salaries "on a selective merit basis."

In 1999, San Jose Construction paid Foust his salary and annual bonus as set forth in the letter agreement. No performance bonus was earned or paid. In the first half of 2000, Foust was paid his salary and two quarterly bonus payments of $6,500. After he received his second quarterly bonus payment, Foust's salary was increased from $130,000 to $160,000, but no further quarterly bonus payments were made that year.

In September and December of 2000, Foust prepared written outlines of his compensation for that year. Both outlines noted the increase in his salary, and reflected a different performance bonus formula from that set forth in the letter agreement. Foust testified that he prepared these outlines at the request of San Jose Construction's president, Pat DiManto,*fn1 and was told he would not receive a bonus if he did not do so. Foust testified that he did not know why his compensation had been changed, but "indicated that DiManto told him that 'he was going to make good on this' every couple of months so he was 'not concerned.' " Foust made no written complaint about his compensation and continued working at San Jose Construction.

In February 2001, Foust's salary was increased to $175,000 and his car and cell phone allowances were also increased. In the spring of 2001, DiManto had a lunch meeting with all of the San Jose Construction project managers. All of the witnesses agreed that performance bonuses were discussed at this meeting and DiManto indicated that all such bonuses would be paid on a 10 percent calculation going forward. According to Foust, he never accepted this change from the letter agreement, but just listened to what was said at the meeting.

In 2001 Foust received his $175,000 salary, no quarterly bonus payments and a 10 percent performance bonus at year end. In December 2002, Foust prepared a written summary of his compensation for 2001 and 2002. This summary reflected Foust's $175,000 salary and the 10 percent performance bonus for both years. In addition, it showed Foust had been overpaid $17,000 in 2001, but that he was due a net bonus of $42,269 for 2002. Again, Foust testified that he was told that he should "write it up this way or he would get no bonus at all," and he was "not happy." Foust did not recall ...


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