United States District Court, N.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
William H. Orrick United States District Judge.
Katherine Oster alleges that she is entitled to, but was
denied, the opportunity to invest in an energy project that
she helped develop and finalize while working at her former
employer, Caithness Corporation (“Caithness”).
She brings a number of claims, including (1) breach of an
oral contract; (2) breach of an implied contract; (3) breach
of the implied covenant of good faith and fair dealing; (4)
false promise; (5) misrepresentation; (6) promissory
estoppel; and (7) retaliation. The defendants move for
summary judgment because, among other reasons: Oster's
contract and contract-dependent claims fail because she has
not demonstrated the existence of a valid contract; her fraud
and misrepresentation claims fail because she has not
demonstrated that she relied on any misrepresentations; her
promissory estoppel claim fails because she has not
demonstrated that she relied on any promise; and, her
retaliation claim fails because she had not demonstrated that
she engaged in any “protected activity.” I agree
that Oster has failed to demonstrate a material issue of fact
with regard to these necessary elements of her claims.
Defendants' motion for summary judgment is
The Job Offer
Corporation, based in New York, develops and operates
renewable and traditional energy generation projects and
energy storage projects. In 2012, Caithness's President,
Leslie Gelber, was looking to hire someone based on the west
coast with experience in renewable energy sources and
storage. Def. Ex. 6, Gelber Depo at 19:10-11, 26:5-12 (Dkt.
No. 54-8). Oster had spent her career involved in the
development of power projects and sustainable energy
generation. Pl. Ex. 7 (Dkt. No. 57-9). She worked as a
director or manager at various energy companies, spearheading
the development and acquisition of power plants and solar,
biomass, and biofuel technologies. Id.
October 15, 2012, Caithness approached Oster regarding a
position as “Vice President - Development” at
Caithness. Oster Decl. ¶ 2 (Dkt. No. 58-4). At the time,
Oster was employed by First Solar, Inc. as a Director and its
Vice President of Latin America Business Development. Pl. Ex.
9, Oster Depo at 53:14-21, 55:4-7 (Dkt. No. 57-11). Before
accepting Caithness's offer, Oster indicated that she was
interested in becoming a partner at Caithness. Id.
at 27:4-11; Pl. Ex. 3, Gelber Depo at 34:2-35:5, 41:3-13
(Dkt. No. 58-8). Gelber told her that it was not possible for
her to become a partner immediately and that he would have to
get to know her better before that was an option. Pl. Ex. 3,
Gelber Depo at 34:2-11. However, he did indicate that there
would be potential for her to become an investor on the
projects she worked on. Def. Ex. 1, Oster Depo at 28:12-29:7;
Pl. Ex. 1, Bishop Depo at 36:13-37:17 (Dkt. No. 58-31).
October 25, 2012 Oster accepted the employment offer and
signed an Employment Agreement. Def. Ex. 17 (Dkt. No. 54-19).
The Employment Agreement outlined that Oster would receive an
annual salary and an annual target performance bonus, as well
as other job benefits. Id. It stated that she was an
at-will employee and that “[a]lthough your job duties,
title, compensation and benefits . . . may change from time
to time, the ‘at will' nature of your employment
may only be changed in a document signed by you and the
President.” Id. The Employment Agreement
contained an integration clause that read: “This letter
sets forth the terms of employment with Caithness and
supersedes any prior representations or agreements, whether
written or oral.” Id. It did not mention or
state that she would have the opportunity or right to invest
in any energy projects that she helped develop for Caithness.
December of 2013, Oster helped lead a bid for a project known
as WestGen with the company Southern California Edison. Oster
Decl. ¶ 3; Pl. Ex. 11 (Dkt. No. 58-25).
“WestGen” is a Caithness entity that was bidding
on energy storage and gas-fired generation projects. Pl. Ex.
3, Gelber Depo at 48:8-24. Oster was listed as a “key
member of the WestGen Development Team” in documents
sent to Edison. Oster Decl. ¶ 3. In December, 2013,
Caithness offered Oster the opportunity to invest in a 1%
equity share of WestGen. Id. ¶ 4. It appears
that, at that time, she was not told any of the details of
the investment deal beyond that she would get a 1% interest
in WestGen. Nor was she given any paperwork regarding the
WestGen equity interest. Id. Instead, she was told
that “the paperwork was not going to be done right
away” but that “[i]t would be done if [Caithness]
won the bid” on the project. Pl. Ex. 9, Oster Depo at
never signed any paperwork regarding the WestGen project and
Caithness did not win the bid. Notwithstanding that fact, an
April 17, 2014 application filed by Caithness and WestGen for
a Minority and Women-owned Business Enterprise certification,
signed under penalty of perjury, reports that Oster held a 1%
interest in WestGen. Pl. Ex. 11.
Moxie Freedom Project
2014, one of Oster's former colleagues offered her, and
her employer Caithness, the opportunity to join a natural gas
power plant project that was in development called the
“Moxie Freedom Project.” Pl. Ex. 3, Gelber Depo
at 86:14-16; Def. Ex. 12, Answer ¶ 28 (Dkt. No. 54-14).
During the months of negotiations, Gelber mentioned to Oster
that she would have an opportunity to invest in the Moxie
Freedom Project. Pl. Ex. 9, Oster Depo at 109:5-110:10. For
example, in early 2015 Oster, Gelber, and Scott Taylor, the
CFO of Moxie, attended a meeting to finalize the term sheet
for the Moxie project. Id. Gelber told Taylor and
Oster that Oster would have an equity interest in the
project. Id. at 114:8-18.
13, 2015 Caithness sent Oster a more robust draft employment
agreement than the one she had originally signed. Def. Ex. 18
(Dkt. No. 54-20); Def. Ex. 19 (Dkt. No. 55-8). This new
employment agreement included the requirement that Oster
“identify for the sole benefit of Caithness Energy . .
. any business opportunities whatsoever.” Id.
It also included a non-compete provision, a provision
requiring arbitration in New York, and stated that
“each party and its counsel have reviewed and revised
this Agreement” so “the normal rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be
employed[.]” Id. § 4(c) and § 8(e).
Oster carefully reviewed the document and sent it to an
attorney friend of hers. Pl. Ex. 9, Oster Depo at
14, 2015, Caithness sent Oster paperwork regarding her equity
interest in both the Moxie Freedom Project and the WestGen
investment project, including both a draft loan agreement and
an interest transfer agreement. Def. Ex. 20 (Dkt. No. 54-22).
These documents laid out the general terms of the investment
agreement Caithness was offering to Oster. They provided that
Oster could invest 1% of the capital Caithness Energy was
investing in these projects in exchange for 1% of the return
and Caithness Energy would loan Oster the 1% commitment in a
non-recourse loan with a 10% interest rate. Pl. Ex. 16 (Dkt.
No. 58-20); Def. Ex. 21 (Dkt. No. 55-9); Pl. Ex. 19 (Dkt. No.
58-18); Def. Ex. 23 (Dkt No. 55-10). They also stated that
she would only receive payouts from distributions after
interest on the loan had been paid and that the loan would be
collateralized against Oster's interests in other
Caithness Energy projects that she might have or later
Oster Attempts to Negotiate
had questions and concerns about the employment agreement and
the investment documents and did not sign them. Def. Ex. 10,
Request for Admission (“RFA”) 31 (Dkt. No.
54-12); Pl. Ex. 9, Oster Depo at 122:8-14. Instead, she
approached one of Caithness's Senior Vice Presidents, Mr.
Casale, to discuss and attempt to negotiate some of the terms
of the agreements. Def. Ex. 10, RFA 32-34; Pl. Ex. 9, Oster
Depo at 115:17-118:9, 122:8-12. Oster was particularly
concerned that the 10% interest rate in the loan agreement
was too high and discussed this issue with Casale. Oster
Decl. ¶ 9; Pl. Ex. 9, Oster Depo at 124:23-125:22. She
mentioned that she might take out an equity line on her house
in lieu of accepting the 10% interest rate in the loan
agreement. Pl. Ex. 5, Casale Depo at 26:5-15 (Dkt. No. 57-7);
Oster Decl. ¶ 6.
told Oster that she did not need to accept the loan to invest
in the Caithness projects, but that if she took a loan, the
10% interest rate was non-negotiable. Pl. Ex. 9, Oster Depo
at 118:25-119:5. He explained that the terms of the
investment “were not open to negotiation” because
they were part of the terms of a separate agreement among
Caithness's three controlling families. Def. Ex. 4,
Bishop Depo at 48:1-24 (Dkt. No. 54-6). He told her that she
should speak to Gelber if she had concerns with the terms.
Pl. Ex. 9, Oster Depo at 117:2-14; Pl. Ex. 5, Casale Depo at
24 and 25, Oster met with Gelber to discuss the terms of her
potential investment in the Moxie project. Pl. Ex. 9, Oster
Depo at 115:5-116:7, 117:7-16, 122:17-124:3. Oster had still
not signed the Loan Agreement or Interest Transfer Agreement
because she wanted to see if there “was any potential
to up-front” her 1% interest.” Id. at
122:10-14. Oster raised her concerns with the 10% interest
rate with Gelber; queried whether she could be paid up front
on part of the investment, instead of over the life of the
project; and asked if she could get a $1.5 million special
bonus and a comparable year-end bonus. Def. Ex. 6, Gelber
Depo at 69:15-70:11, 71:12-22; Pl. Ex. 9, Oster Depo at
115:17-118:9. During these conversations, she presented
Gelber with various projections of how she believed the Moxie
project would pay out to demonstrate that she would not see a
return on her investment for a number of years. Pl. Ex. 9,
Oster Depo at 125:8-22, 143:2-6. Gelber rejected Oster's
requests to modify the agreements. Id. at
26, Oster spoke with Casale about finalizing her paperwork to
memorialize her 1% equity interest in the Moxie Freedom
Project. Id. at 141:20-25. Casale told Oster that
Gelber had told him to put her paperwork “on
hold” and make it his “lowest priority.”
Id. at 122:1-7. He told her “Les [Gelber] says
don't finalize them. We can't finalize them.”
Id. at 122:10-14.
that Gelber was upset with her, Oster called him to
apologize. Id. at 141:20-25. Gelber told her she was
a difficult partner and questioned her math skills, noting
that he thought her projections for how long it would take
her to see returns on the Moxie investment seemed inaccurate.
Id. at 141:16-144:19. Gelber felt that the models
she had used to project the Moxie project's returns
misrepresented and devalued the project. Id. at
142:10-23. He told her that if she was at a public company
she would have been fired for misrepresenting what the
project was worth. Id. at 142:2-4. Oster declares
that Gelber was clearly agitated but never told her that her
“right to have a 1% equity investment in the Moxie
Freedom Project had been rescinded.” Oster Decl. ¶
8. Gelber remembers the conversation differently, claiming
that he told Oster twice that her equity interest was off the
table. Pl. Ex. 3, Gelber Depo at 152:10-21, 209:7-20. If he
did affirmatively rescind Oster's offer to invest in the
Moxie project, he did not memorialize that rescission in any
29, 2015, Oster spoke with McNamara, another Vice-president
at Caithness, who advised her not to approach Gelber about
her equity interest. Pl. Ex. 9, Oster Depo at 146:1-12. When
Oster asked him if Gelber would “make good on his
promise” regarding her equity interest McNamara said
“[Y]es, just keep your head down, and  do your
the next few months, Oster worked with Gelber to finalize and
close the Moxie project for Caithness. The topic of
Oster's potential equity interest in the project was
largely ignored. At some point in August, 2015, Gelber told
Oster, in the course of a discussion about how to approach
equity investors, that Moxie was her “investment as
well.” Oster Decl. ¶ 13; Pl. Ex. 9, Oster Depo at
109:5-18. In early November, days before the Moxie project
closed, Gelber brought up the agreement again, telling Oster,
“[W]e got to sign our agreement  and I'm going to
get that to you.” Pl. Ex. 9, Oster Depo at 153:16-24.
He told Oster that “it was a better deal for
[her]” and that she was “going to be happy with
the agreement.” Id. at 161:19-162:17.
Caithness closed the Moxie Freedom Project deal on November
10, 2015. Def. Ex. 8, Heath Depo at 41:6-9 (Dkt. No. 54-10).
the close of the Moxie project, Gelber asked Casale to work
with legal counsel for Caithness to prepare a “special
bonus payment” for Oster in lieu of her 1% equity
interest. Pl. Ex. 3, Gelber Depo at 113:3-116:25. Casale told
Oster that they were going to be sending her a letter
agreement that would “have the one percent, but it was
going to be paid out differently.” Pl. Ex. 9, Oster
Depo at 162:11-17. On December 2, 2015, Caithness sent Oster
an alternative letter agreement through which Oster would not
invest in the project, but during her employment with
Caithness would have “the right to receive . . . in
cash an amount equal to 1% of amounts that [Caithness Energy]
has chosen, in its discretion, to distribute to Moxie
Members.” Def. Ex. 27 (Dkt. No. 54-28). This income
distribution would become wholly discretionary if Oster left
Caithness, an arrangement that Caithness says was necessary
to prevent Oster from being subject to significant tax
penalties. Id.; Def. Ex. 5, Casale Depo at 64:16-22
(Dkt. No. 54-7). On December 3, 2015, Oster rejected this
offer and asserted that she was entitled to an investment
opportunity. Def. Ex. 28 (Dkt. No. 54-29).
December 8, 2015, she sent an email reiterating her position
that she was entitled to an investment opportunity and
asserting that she had been treated “differently from
my colleagues.” Def. Ex. 30 (Dkt. No. 54-31). She
stated that she was promised a “right to invest in and
receive a 1% stake in Moxie” that was “never
dependent on my continued employment at Caithness and  was
never discretionary.” Id.
Oster's rejection of the alternative letter offer, Gelber
determined that “it would be best to separate Kim Oster
from Caithness.” Def. Ex. 6, Gelber Depo at
107:15-108:4. He and Barbara Bishop Gollan decided to
terminate Oster and on January 15, 2016, Gollan sent Oster a
termination letter. Def. Ex. 32 (Dkt. No. 54-33). Oster
responded to this letter on January 26, reiterating her
belief that she had been promised an equity interest in the
Moxie Freedom Project. Def. Ex. 33 (Dkt. No. 54-34). Gollan
replied on February 9, explaining Caithness's position
that Oster had never acquired an interest in the Moxie
project because, although she had been offered an equity
stake on “the same terms offered to partners of the
firm, ” she had rejected it. Def. Ex. 34 (Dkt. No.
54-35). This lawsuit followed.
judgment on a claim or defense is appropriate “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). In order to
prevail, a party moving for summary judgment must show the
absence of a genuine issue of material fact with respect to
an essential element of the non-moving party's claim, or
to a defense on which the non-moving party will bear the
burden of persuasion at trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant has
made this showing, the burden then shifts to the party
opposing summary judgment to identify “specific facts
showing there is a genuine issue for trial.”
Id. The party opposing summary judgment must then
present affirmative evidence from which a jury could return a
verdict in that party's favor. Anderson v. Liberty
Lobby, 477 U.S. 242, 257 (1986).
summary judgment, the Court draws all reasonable factual
inferences in favor of the non-movant. Id. at 255.
In deciding a motion for summary judgment,
“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”
Id. However, conclusory and speculative testimony
does not raise genuine issues of fact and is insufficient to
defeat summary judgment. See Thornhill Publ'g Co.,
Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
are seven live claims remaining in this case, but they can be
sorted into four groups. The first group contains Count 1:
Breach of an oral contract; Count 8: Breach of an implied
contract; and Count 9: Breach of the implied covenant of good
faith and fair dealing, (collectively the “Contract
Claims”). These claims overlap because they all depend
on the existence of a valid contract, which defendants claim
never existed. The second group contains Count 11: False
Promise; and Count 12: Intentional Misrepresentation,
(collectively the “Fraud Claims”). The parties
agree that these claims rise and fall together as for both
Oster must show that she justifiably relied on a
misrepresentation, which defendants claim was never made. The
third group contains Count 2: Promissory Estoppel. This
claims overlaps in certain ways with both the Contract Claims
and the Fraud Claims. To succeed on this claim Oster must
demonstrate that she reasonably relied on a clear and
unequivocal promise, of which defendants assert there is no
evidence. The fourth group contains only Count 5: Retaliation
in violation of the Fair Employment Housing Act
(“FEHA”), (the “Retaliation Claim”).
For this claim, Oster must show that she engaged in some
protected activity under FEHA and faced some adverse
employment action as a result, which defendants contend Oster
has not shown. As discussed below, I agree that Oster has
failed to create a material issue of fact regarding these
necessary elements. As a result, summary judgment in favor of
Caithness is appropriate.
THE CONTRACT CLAIMS
claims for breach of an oral contract, breach of an implied
contract and breach of the implied covenant of good faith and
fair dealing all require the existence of a valid contract.
Under California law, a breach of contract claim has four
elements: (1) that there is a contract between the parties;
(2) that the plaintiff performed her contractual obligations
or was excused from performance; (3) that the defendant
breached its contractual duties; and (4) the plaintiff was
damaged. See Reichert v. General Ins. Co., 68 Cal.
2d 822, 830 (1968). The elements of a claim for breach of
implied covenant of good faith and fair dealing are similar
and also require the existence of a contract. These elements
are: “(1) the plaintiff and the defendant entered into
a contract; (2) the plaintiff did all or substantially all of
the things that the contract required him to do or that he
was excused from having to do; (3) all conditions required
for the defendant's performance had occurred; (4) the
defendant unfairly interfered with the plaintiff's right
to receive the benefits of the contract; and (5) the
defendant's conduct harmed the plaintiff.”
Munson v. Splice Commc'ns, Inc., No.
12-cv-05089-JCS, 2013 WL 6659454, at *21 (N.D. Cal. Dec. 16,
2013. An implied contract is a contract where “the
existence and terms [of the contract] are manifested by
conduct.” Cal. Civil Code § 1621. “An
implied contract consists of ...