Boseovski v. McCloud Healthcare Clinic, Inc.

          ORDER

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         I. BACKGROUND

         A. Factual Allegations

         This 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:

¶ V(C)(2) The term of employment will be four years.

¶ 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.

¶ IV(A) D Defendant would schedule a minimum average of 8-10 visits per day barring unforeseen circumstances.

         On 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.

         Plaintiff 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 unlawful.

4. Patient volume (22-25 patients per day) exceeded the terms of plaintiff's contract.

         Plaintiff 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 facility.

¶ 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.

         Plaintiff 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 employment.

         B. Legal Claims

         Plaintiff 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.

         C. Procedural History

         Defendant 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.

         II. THE PARTIES' EVIDENCE

         A. Defendant's Evidence

         According to defendant, the following facts are not in dispute:

         Facts related to ...