United States District Court, E.D. California
M. COTA UNITED STATES MAGISTRATE JUDGE
who is proceeding with retained counsel, brings this civil
action. Pursuant to the written consent of all parties, this
case is before the undersigned as the presiding judge for all
purposes, including entry of final judgment. See 28
U.S.C. § 636(c). Pending before the court is
defendant's motion for summary adjudication (ECF No. 51).
action proceeds on the original unverified complaint.
Plaintiff claims that Merritt Hawkins (apparently a placement
firm and not a defendant to this action) posted a job opening
for a dentist with defendant which offered student loan
forgiveness, a base salary of $195, 000 per year, a signing
bonus, a relocation stipend, three weeks of vacation, a
four-and- one-half-day work week, and other “great
benefits.” According to plaintiff, after correspondence
with Merritt Hawkins, he began speaking directly with
defendant's Chief Executive Officer, Michael Schaub.
Plaintiff states that he rejected the first offer of
employment, but agreed to a four-year employment contract
after being “assured by Mr. Schaub that the Clinic was
not a high-volume practice. . . .” Plaintiff alleges
that the contract contains the following provisions:
Â¶ V(C)(2) The term of employment will be four years.
Â¶ VI(C)(3) Defendant may immediately terminate employment by
providing two weeks notice, and defendant reserves the right
to terminate employment immediately for just cause.
Â¶ IV(A) D Defendant would schedule a minimum average of 8-10
visits per day barring unforeseen circumstances.
April 10, 2016, plaintiff signed various employment documents
with defendant which, according to plaintiff, had hidden
among them “boilerplate language converting his
promised four-year employment agreement to an at-will. . .
.” In May 2016 plaintiff closed his practice and
relocated from Santa Rosa to McCloud.
next alleges that, shortly after commencing his employment
with defendant, he began to notice “various issues
regarding the work environment” he found “unsafe,
unlawful, and in need of correction.” Specifically,
plaintiff outlines the following four areas of concern:
1. The office manager was unable to properly train and
exhibits a hostile attitude.
2. Two employees with patient responsibilities appeared to be
drinking alcohol while on duty.
3. Defendant's practice of billing Denti-Cal was
4. Patient volume (22-25 patients per day) exceeded the terms
of plaintiff's contract.
states that he brought these issues to defendant's
attention in May and June 2016 and that, shortly thereafter,
defendant “began a campaign to manufacture reasons to
terminate Plaintiff's employment.” According to
plaintiff: “These efforts to prematurely end the
contract following Plaintiff's reports of unlawful and
unsafe working conditions included willfully intercepting
through an electronic device his oral communications with the
dental staff at the Clinic's facility to find reasons to
terminate his employment.” More specifically, plaintiff
alleges as follows in the complaint:
¶ 15. The Clinic knowingly and intentionally directed
and was aware of the use of an electronic device to record
discussions that Plaintiff had with third parties
(e.g., coworkers and patients).
¶ 16. The Clinic intercepted oral communications between
Plaintiff and third parties as part of its campaign to
prematurely terminate his employment. In fact, in or about
June 2016, Michael Schaub admitted to Plaintiff that he had
authorized the surreptitious interception of Plaintiff's
oral communications by electronic means at the Clinic's
¶ 17. Plaintiff is informed and believes that the Clinic
intercepted numerous additional oral communications between
Plaintiff and third parties without authorization or consent
from any party to the communication.
states that his employment was terminated on July 11, 2016.
According to plaintiff, he was told by defendant his
employment was at-will, he had engaged in misuse of
prescription software, and had a poor “chair-side
manner.” Plaintiff alleges that defendant failed to
conduct any type of investigation prior to terminating his
asserts seven legal theories in his complaint as follows:
First Claim Violation of federal wiretapping statutes, 18
U.S.C. §§ 2511 and 2520.
Second Claim Violation of California Labor Code § 970.
Third Claim Fraud.
Fourth Claim Negligent misrepresentation.
Fifth Claim Breach of Contract.
Sixth Claim Wrongful Termination.
Seventh Claim Defamation.
sought dismissal of plaintiff's sole federal claim -
alleged violations of 18 U.S.C. §§ 2511 and 2520 -
by way of a motion to dismiss filed on November 5, 2016. The
court denied the motion in an order issued on June 23, 2017,
reasoning that plaintiff's factual allegations were
sufficient to state a plausible claim for violation of the
federal wiretapping statutes at issue. Defendant filed its
answer on July 25, 2017, and thereafter the matter was
scheduled. The pre-trial conference is currently set for
December 17, 2019, and a jury trial is set to commence on
February 10, 2020.
THE PARTIES' EVIDENCE
to defendant, the following facts are not in dispute:
related to ...