Eisenberg v. Alameda Newspapers, Inc.

Eisenberg filed suit against the Newspaper, its managing editor (respondent Tim Graham) and editor (respondent Tim Hunt), alleging defamation, false light, wrongful termination, breach of employment contract, breach of the covenant of good faith and fair dealing, and fraud. This appeal arises from the trial court’s grant of respondents’ motion for summary judgment on all the causes of action of Eisenberg’s complaint. We affirm.

Factual and Procedural Background

In order to understand the issues in this case, it is necessary to review the background of the dispute, which concerns Golden Eagle Estates, a 260-acre, 80-lot luxury home development located on Pleasanton Ridge in the City of Pleasanton (the City). From the preliminary stages of planning the development project (the Project) in 1984 through its approval by the City in 1988, the exact physical proximity of the development site (the Site) to the Calaveras fault was a topic of considerable controversy.

Developers Bill Currin and Mike Timm hired civil engineer Ted Fairfield to evaluate the Site and guide them through the planning process. The initial report of geologist Marc Seeley to the City in 1984 could find no evidence of the Calaveras fault, but recommended further study and “deep borings” to determine the overall stability of the Site. City Planning Director Brian Swift signed a planning staff report recommending against approval of the Project. Over the complaints of Fairfield and the developers, Swift required the preparation of an environmental impact report on the proposed development, focusing on visual, aesthetic and traffic issues.

Meanwhile, the developers retained a second geologist, Murray Levish. Levish examined the Site, found no evidence of the Calaveras fault, and concluded that it was not there. Levish’s conclusions generated considerable controversy. Roy Shelmon, a soils dating expert who consulted with Levish on the Site, termed Levish’s conclusions “startling.” Consequently, the City hired a third geologist, Dave Carpenter, to review Levish’s work. Carpenter’s evaluation was sharply critical of Levish’s conclusions. The City ordered further seismic study. It retained Earl Hart, a geologist from the California State Division of Mines and Geology who had previously studied the Calaveras fault, as a consultant.

A fifth geologist, Dave Rogers, was hired by the City to review a soils report performed for the developers by Levish’s company. In his report, Rogers severely criticized the Levish study as contrary to all previous geological studies of the Pleasanton Ridge, and suggested that Levish was biased in favor of the developers who had hired him. Rogers stated that

further soils work should not proceed until all the seismic and geological questions were resolved. He recommended that the City obtain an in-depth study to determine whether the Calaveras fault actually ran through the Site. At the time of making this recommendation, Rogers was not licensed to perform a state-mandated earthquake fault study. The City notified Rogers that his services were no longer required.

In early October 1988, Swift and Fairfield met with geologists Levish, Carpenter and Hart to discuss the seismic site studies. As a result of this meeting, additional trenches were dug at the Site, which all three geologists examined. The results were inconclusive, and did not reveal whether or not the Calaveras fault crossed the Site. Around the same time, geologist Seeley wrote the City a letter disavowing Levish’s conclusions. Seeley continued to believe the deep borings he had originally recommended in his initial report should be performed. Carpenter disagreed, opining on the basis of similar studies in the Livermore area that such deep borings would be inconclusive. Seeley also disputed the conclusion of soils expert Shelmon that the Site was seismically stable.

In May 1989, the city planning department recommended that the City approve the Project, but conditioned its approval on the retention of yet another geologist to study the Site as grading, excavation and utility trenching took place. The City ultimately approved the Project, with the recommended conditions in force. Building code requirements applicable to the Project were upgraded to require single-family homes in the development to have foundation piers extending twelve feet into the ground, rather than the five to six feet found in older homes elsewhere in Pleasanton. A sixth geologist was retained by the City to monitor the development as it proceeded. Still, no trace of the Calaveras fault was found on the Site.

Nearly six years after the Project was approved and completed, the issue of its seismic safety was reopened when charges of incompetence and professional negligence were brought by the California State Licensing Board against the developers’ geologist, Levish, prompting him to surrender his license. Planning Director Swift was asked to review the City’s files on the development amid concerns that the Project had been approved too hastily and without sufficient study.

At this point, Eisenberg entered the controversy. He interviewed Rogers, who had been the geologist most critical of the geotechnical and seismic studies of the Project Site. Rogers criticized the City’s subdivision approval process, which he considered insufficiently “open.” However, Rogers did not believe the City, the developer, or Fairfield had done anything illegal in

records himself, Hunt discovered that City Planning Director Swift had actually recommended against approval of the Project; the City’s independent geologist, Carpenter, had criticized Levish’s analysis and persuaded the City to undertake extensive further seismic studies; the City had procured Calaveras fault expert Hart of the state Division of Mines and Geology to review the seismic evaluation of the Site; and the City had thereafter required the developers to perform additional testing not required by state law but recommended by Hart and Carpenter. Hunt also learned that although Fairfield had recommended two geologists to developer Currin, one of whom was Levish, it was Currin, and not Fairfield, who had hired Levish.

Concerned with the quality and thoroughness of Eisenberg’s investigation and the accuracy of his published articles, on May 27, 1994, Hunt and Graham asked Eisenberg if he had any evidence to support the allegations made in his articles about “the stink of corruption . . . ,” “favoritism and influence peddling,” “complaints that [Swift] greased the skids for Ted Fairfield,” or that Fairfield was hired in order “to convince the [C]ity it was safe to build homes” on the Site and had himself in turn hired Levish to fulfill that purpose. Eisenberg defended his articles as “good journalism,” but did not provide any specific evidence to support his allegations. Graham and Hunt terminated Eisenberg’s employment with the Herald later the same day, less than one month after he had been hired.

Under section 48a, a potential media defendant can avoid exposure to claims for general or exemplary damages by publishing a retraction in the manner specified by the statute. On June 7, 1994, therefore, the Herald published a retraction in compliance with section 48a. This “Correction and clarification” stated that (1) the May 8 and May 15 articles “contained inaccurate and misleading information” about the Golden Eagle development, Fairfield and the Alameda County Grand Jury; (2) “[t]here is no evidence that Fairfield was involved in improper, corrupt or illegal activities” in connection with the Project; (3) the editors of the Herald “regret any insinuation” that Fairfield or anyone connected with the Project was “engaged in any acts of collusion, illegal or otherwise”; (4) the May 8 article “should have made it clear that it was the reporter himself’ who contacted the Alameda County District Attorney and presented information concerning the Project; (5) the developers themselves, not Fairfield, had hired geologist Levish; and (6) “[a]ny insinuation” Fairfield “engaged in improper and unethical behavior” concerning the Project “is incorrect, and we regret the errors in this regard.” The retraction did not mention Eisenberg by name.

On June 19, 1994, after publishing the retraction, Hunt took the additional step of publishing his own article on the history of the Golden Eagle

controversy, entitled “City prudent with Golden Eagle.” Among other things, the article made the following points: (1) “[r]eporting in this newspaper, which was inaccurate and unfair and lacked balance, helped spur the controversy”; (2) “[c]ontrary to claims, the [C]ity acted reasonably and prudently”; (3) “Planning Director Brian Swift made Golden Eagle Estates developers clear many more hurdles than was normal at the time”; (4) “[t]he Planning Department twice recommended against plans for Golden Eagle”; (5) “[i]n earlier reporting, Swift was treated particularly unfairly with a number of inaccurate statements printed about his performance”; (6) “[i]n fact, [Swift] did his job professionally and went the extra steps to ensure that the [P]roject received the studies necessary so the department could recommend a decision”; (7) “[t]he dispute over the location of the Calaveras fault and whether it crosses the [Project] property is one that probably cannot be resolved” but instead is “the type of debate between professionals that reasonable people can disagree on”; and (8) “[t]here was no effort to hide the possible presence of the fault” on the Site. Once again, Hunt’s article made no reference to Eisenberg by name.

Eisenberg subsequently submitted his own demand to the Herald for a retraction, claiming that the Herald’s earlier retraction of the statements in Eisenberg’s two articles and the Hunt article had defamed Eisenberg. Through its attorney, the Herald refused Eisenberg’s demand on the grounds its own earlier retraction had been required by the lack of any evidence for “the very serious and inflammatory charges made by Mr. Eisenberg about Ted Fairfield, Brian Swift and the City of Pleasanton,” as well as by Eisenberg’s “breach” of journalistic standards in failing to disclose the fact it was he himself who had approached the Alameda County District Attorney with the charges about which he was writing. The letter invited Eisenberg to submit any additional evidence in support of his charges of corruption “as soon as possible.”

Thereafter, Eisenberg filed this lawsuit against respondents, alleging causes of action for defamation, false light, wrongful termination in violation of public policy, breach of implied-in-fact contract, breach of the implied covenant of good faith and fair dealing, and fraud. At the conclusion of discovery, respondents moved for summary judgment. The trial court granted the motion and entered judgment for respondents. This appeal followed.

Standard of Review

Code of Civil Procedure section 437c, subdivision (c), requires a trial court to grant summary judgment if all the papers and affidavits submitted,

together with “all inferences reasonably deducible from the evidence” and uncontradicted by other inferences or evidence, show that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 217, p. 629.) Where the defendant is the moving party, he or she may meet the burden of showing that a cause of action has no merit by proving either that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action. Once that burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of one or more material facts with respect to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2); Sangster v. Paetkau (1998) 68 Cal.App.4th 151 , 161-163 [ 80 Cal.Rptr.2d 66 ] (Sangster).)

A defendant moving for summary judgment may establish that an essential element of the plaintiff’s cause of action is absent by reliance on the pleadings, competent declarations, binding judicial admissions contained in the allegations of the plaintiff’s complaint, responses or failures to respond to discovery, and the testimony of witnesses at noticed depositions. (Code Civ. Proc., § 437c, subd. (b); D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 , 20-21 [ 112 Cal.Rptr. 786 , 520 P.2d 10 ]; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 , 579-593 [ 37 Cal.Rptr.2d 653 ] (Union Bank), Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425 , 1433 [ 266 Cal.Rptr. 695 ]; Brown v. City of Fremont (1977) 75 Cal.App.3d 141 , 145-146 [ 142 Cal.Rptr. 46 ]; Saporta v. Barbagelata (1963) 220 Cal.App.2d 463 , 468-469 [ 33 Cal.Rptr. 661 ] (Saporta).) The plaintiff may not rely on his or her pleadings alone, but must file opposition to the motion, with affidavits setting forth specific facts demonstrating that a triable issue of material fact exists as to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (o); Villa v. McFerren (1995) 35 Cal.App.4th 733 , 743-746 [ 41 Cal.Rptr.2d 719 ] (Villa), Union Bank, supra, 31 Cal.App.4th at pp. 590-593; Saporta, supra, 220 Cal.App.2d at pp. 468-469; 6 Witkin, Cal. Procedure, supra, Proceedings Without Trial, § 201, pp. 613-614.)

The purpose of the summary judgment procedure is to identify those cases in which “there is no triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) For practical purposes, an issue of material fact is one which, in the context and circumstances of the case, “warrants the time and cost of factfinding by trial.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718 , 1735 [ 35 Cal.Rptr.2d 181 ] (Martin).) In other words, not every issue of fact is worth submission to a jury. The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial -from those in which there are no such issues.

exercise their fundamental right of resort to the courts for assistance in the resolution of their disputes, without being chilled from exercising this right by the fear that they may subsequently be sued in a derivative tort action arising out of something said or done in the context of the litigation. [Citation.]” (Edwards, supra, 53 Cal.App.4th at p. 29.)

Although the express language of section 47(b) applies only to communications made in a judicial or other official proceeding, courts have applied the privilege to some communications made in advance of anticipated litigation. (Rubin v. Green (1993) 4 Cal.4th 1187 , 1193-1194 [ 17 Cal.Rptr.2d 828 , 847 P.2d 1044 ]; Edwards, supra, 53 Cal.App.4th at pp. 30-37; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573 , 577-578 [ 131 Cal.Rptr. 592 ].) This expansion of the judicial privilege to statements made in a prelitigation context is explicitly reflected in the Restatement Second of Torts, under which attorneys, parties and witnesses are absolutely privileged “to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding.” (Rest.2d Torts, §§ 586-588, italics added; see also Edwards, supra, 53 Cal.App.4th at pp. 31-32.) Nonetheless, as the Restatement’s comments make clear, this prelitigation privilege “applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.” (Rest.2d Torts, § 586, com. e, p. 248; id., § 587, com. e, p. 250; see also Edwards, supra, 53 Cal.App.4th at p. 32; Laffer v. Levinson, Miller, Jacobs & Phillips (1995) 34 Cal.App.4th 117 , 122-125 [ 40 Cal.Rptr.2d 233 ].)

As this court has previously stated, “[t]he fact that California courts have extended the judicial privilege to prelitigation communications by way of the Restatement [Second of Torts] does not change the underlying rationale and justification for the privilege, which remains the same whether the communications at issue are made in the course of an actual judicial proceeding or in a prelitigation context. . . . [T]he privilege is based on a policy of encouraging free access to the courts for assistance in the resolution of disputes and the ascertainment of truth, without fear of incurring a derivative tort action.” (Edwards, supra, 53 Cal.App.4th at p. 33, italics in original.) Because “[t]his rationale for the privilege cannot logically be extended to communications made prior to or in anticipation of litigation until the prospect of litigation has gone from being a mere possibility to becoming a contemplated reality,” (ibid.) we have therefore held that the litigation privilege, only attaches when imminent access to the courts is seriously proposed and actually contemplated, seriously and in good faith, as a means

of resolving a dispute and not simply a tactical ploy to induce a settlement. (Id. at pp. 34-39, italics in original.)

Defending the applicability of the privilege in this case, respondents argue that the very purpose of a section 48a demand letter is to enable the party making the demand to obtain general and exemplary damages in subsequent defamation litigation, which itself is proposed for the purpose of resolving an underlying dispute as to the truth or accuracy of allegedly defamatory statements. Respondents urge that because the retraction or correction published in response to such a demand is the statutory means by which a potential media defendant can avoid exposure to claims for general or punitive damages, both the demand for a correction and the published retraction itself are inextricably linked to threatened litigation. Arguably, a retraction is by its very nature a “communication” that “has some relation to” and is “preliminary to a proposed judicial proceeding . . . that is contemplated in good faith and under serious consideration.” (Rest.2d Torts, § 586, & com. e, pp. 247-248; id., § 587 & com. e, pp. 248, 250; see Edwards, supra, 53 Cal.App.4th at pp. 31-37.) Thus, respondents argue, the contents of any retraction, clarification or correction published in response to a section 48a demand must be subject to the protection of the litigation privilege.

We disagree. No published decision has ever held a newspaper retraction is privileged under section 47(b). It was respondents’ burden to establish the preliminary facts on which to base their affirmative defense of privilege. (Edwards, supra, 53 Cal.App.4th at p. 37; Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408 , 421-423 [ 231 Cal.Rptr. 113 ], disapproved on other grounds in Silberg, supra, 50 Cal.3d at pp. 212, 219.) In moving for summary judgment, they were therefore required to "establish that at the time the retraction was published on June 7, 1994, “. . . litigation was not a mere possibility on the horizon, but was actually proposed, seriously and in good faith, as a means of resolving the dispute.” (Edwards, supra, 53 Cal.App.4th at p. 37.)

On this record, we conclude respondents failed to make this necessary showing of preliminary fact. In the first place, as we stated in Edwards, the “mere possibility or subjective anticipation” of litigation is insufficient; it is necessary that there be proof of “some actual verbalization of the danger that a given controversy may turn into a lawsuit . . . .” (Edwards, supra, 53 Cal.App.4th at pp. 35, 34, italics added.) Second, even though “[i]t is not necessary that a party make an actual ‘threat’ of litigation,” there must be “a serious, good faith proposal.” (Id. at p. 35.) Third, the contemplated litigation must be imminent. (Ibid.) Although “[t]he classic example of an instance in which the privilege would attach to prelitigation

communications is the attorney demand letter threatening to file a lawsuit if a claim is not settled,” it is not the mere threat of litigation that brings the privilege into play, but rather the actual good faith contemplation of an imminent, impending resort to the judicial system for the purpose of resolving a dispute. (Id. at pp. 35-36 & fn. 10.) “[B]ecause the privilege does not attach prior to the actual filing of a lawsuit unless and until litigation is seriously proposed in good faith for the purpose of resolving the dispute, even a threat to commence litigation will be insufficient to trigger application of the privilege if it is actually made as a means of inducing settlement of a claim, and not in good faith contemplation of a lawsuit. This is a question of fact that must be determined before the privilege is applied. [Citations.]” (Id. at p. 35, fn. 10, italics in original.)

On its face, the May 24, 1994, letter from Fairfield’s attorneys to the Herald does not expressly threaten to file a lawsuit if the Herald failed to publish a retraction. Although, in language closely tracking that of section 48a, Fairfield’s attorneys “demand” the publication of a “correction within three (3) weeks of receipt of this letter ... in substantially as conspicuous a manner” as Eisenberg’s original articles, the letter twice repeats that it was not written “out of a desire to litigate this matter,” but “in the interest of presenting correct and accurate information” and “to restore” Fairfield’s “good name.” There is no evidence to indicate either Fairfield or respondents themselves actually contemplated imminent resort to the courts or the judicial system to resolve their dispute, a fact acknowledged at oral argument by counsel for respondents. On this record, we cannot say whether the Fairfield demand letter was “merely a negotiating tactic,” written as “a tactical ploy to negotiate a bargain” or induce the settlement of a claim; or a good faith suggestion, made “under the actual threat of impending litigation,” that the controversy would imminently turn into a defamation lawsuit unless the demanded retraction was promptly published. (Edwards, supra, 53 Cal.App.4th at pp. 35, 36) The letter is in fact susceptible to interpretation as either of these possibilities.

Moreover, any application of the* litigation privilege must satisfy the ultimate justification for the privilege, by encouraging the free exercise of the parties’ fundamental right of resort to the courts for assistance in the ascertainment of truth and the resolution of their disputes. (Silberg, supra, 50 Cal.3d at pp. 212-214; Edwards, supra, 53 Cal.App.4th at pp. 29, 33, 35-36.) In this regard, it is important to bear in mind that the question presented here is not whether the privilege applies to the demand letter, but whether it covers the retraction published in response to the demand letter. The retraction was published not to obtain access to the courts, but to avoid litigation. Applying the privilege here would serve, not the purpose of encouraging free

451-452 [ 175 Cal.Rptr. 157 , 629 P.2d 1369 ]; Copp, supra, 45 Cal.App.4th at p. 837.)

Whether or not the statement in Hunt’s June 19, 1994, article that previous reporting had been “unfair and lacked balance” implied knowledge of unstated facts, the statement was not actionable for the same reasons it was not actionable for Hunt to state that certain previous reporting in the Herald had been “inaccurate”: any such factual implication was not provably false. Accordingly, the trial court was correct in granting summary judgment as to respondents’ publication of Hunt’s article.

With respect to the retraction, Eisenberg claims four statements therein were defamatory: (1) the articles “published May 8 and May 15 . . . contained inaccurate and misleading information” about Golden Eagle, Fair-field and the Alameda County Grand Jury; (2) “[t]here is no evidence that Fairfield was involved in improper, corrupt or illegal activities related to” Golden Eagle, and the Newspaper “regret[s] any insinuation that Fairfield or anyone connectéd with” Golden Eagle was “engaged in any acts of collusion, illegal or otherwise”; (3) “[t]he May 8 article should have made it clear that it was the reporter himself who presented information concerning [Golden Eagle] to an assistant district attorney, who agreed to forward the information to the grand jury”; and (4) Levish was hired by Golden Eagle owners Currin and Timm, not by Fairfield, and “[a]ny insinuation from this passage that Fairfield engaged in improper and unethical behavior concerning [Golden Eagle] is incorrect, and we regret the errors in this regard.” For the same reasons discussed with respect to Hunt’s June 19, 1994, article, none of these statements in the retraction was defamatory.

The statement that the May 8 and May 15 articles “contained inaccurate and misleading information” about Golden Eagle, Fairfield and the Alameda County grand jury, like the parallel statement in the Hunt June 19 article, is not provably false. Eisenberg reported as fact that Rogers had made accusations of “favoritism,” “influence-peddling,” and the lack of “integrity” in the City government, and clearly implied that Rogers had “lodged” these accusations with the Alameda County Grand Jury. Because these reported “facts” were false, Eisenberg cannot as a matter of law prove that the retraction’s characterization of them as “inaccurate” and “misleading” was itself false.

The retraction’s statement that “[t]here is no evidence that Fairfield was involved in improper, corrupt or illegal activities related to” Golden Eagle is similarly a statement of fact that Eisenberg cannot prove false. To the contrary, the record shows that when asked to produce evidence to support his insinuations about the “stink of corruption,” “accusations of favoritism

cause; (2) alleged breach of an implied covenant of good faith and fair dealing; and (3) alleged wrongful termination in violation of his rights under the First Amendment and the California labor law. These contentions are all meritless.

Breach of Implied-in-fact Contract of Employment

Eisenberg argues that his termination breached an implied-in-fact contract to terminate only for cause, and the trial court erred in granting summary judgment on this cause of action. The trial court determined on the basis of undisputed evidence that Eisenberg’s contract was terminable at will, and Eisenberg had failed to produce any admissible evidence of a contract, either express or implied, that could only be terminated for cause. The trial court did not err.

Under Labor Code section 2922, “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.” Under this statute, an employee’s term of employment, when not otherwise specified in an employment contract, written document or oral agreement, is considered a term that may be terminated at will by either party. Thus, in the absence of any evidence of the duration or term of employment under a written or oral agreement, there is a statutory presumption that employment is terminable at will, and a contract of employment may be ended at any time at the option of either party. (Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473 , 1488 [ 28 Cal.Rptr.2d 248 ] (Haycock); Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743 , 749 [ 200 Cal.Rptr. 605 ]; Hoy v. Sears, Roebuck & Co. (N.D.Cal. 1994) 861 F.Supp. 881 , 884-885 (Hoy).)

This presumption of at-will employment may be rebutted only by evidence of an express or implied agreement between the parties that the employment would be terminated only for cause. The existence of an implied promise to discharge an employee only for good cause is generally, but not always, a question of fact for the jury. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 , 668 [ 254 Cal.Rptr. 211 , 765 P.2d 373 ] (Foley); Haycock, supra, 22 Cal.App.4th at p. 1488; Pugh v. See’s Candies, Inc. (1981) 116 Cal.App.3d 311 , 324-325 [ 171 Cal.Rptr. 917 ]; Hoy, supra, 861 F.Supp. at p. 885.) On the other hand, if the facts are undisputed and admit of only one conclusion, then summary judgment may be entered on issues that otherwise would be submitted to the jury. Thus, the issue of the existence of an implied-in-fact contract not to terminate except for good cause may appropriately be resolved as a matter of law given the undisputed

facts of a particular case. (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354 , 366 [ 34 Cal.Rptr.2d 438 ] (Davis); Tollefson v. Roman Catholic Bishop (1990) 219 Cal.App.3d 843 , 855-856 [ 268 Cal.Rptr. 550 ], disapproved on other grounds in Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454 , 474, fn. 5 [ 46 Cal.Rptr.2d 427 , 904 P.2d 834 ]; Miller v. Pepsi-Cola Bottling Co. (1989) 210 Cal.App.3d 1554 , 1558 [ 259 Cal.Rptr. 56 ] (Miller v. Pepsi-Cola); Hoy, supra, 861 F.Supp. at p. 885.)

To raise a triable issue of material fact and defeat an employer’s motion for summary judgment based on the presumption of at-will employment, a plaintiff must produce competent evidence of an agreement that he or she could not be discharged without good cause. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137 , 1151-1153 [ 37 Cal.Rptr.2d 718 ] (Gould); Davis, supra, 29 Cal.App.4th at pp. 366-369.) In determining the existence of such a promise of termination only for cause, we look to the entire relationship of the parties, including such factors as the terms of any relevant application for employment, employee handbook or manual; the personnel policies and practices of the employer; the employee’s longevity of service; actions or communications by the employer constituting assurances of continued employment; and the practices of the industry in which the employee is engaged. (Foley, supra, 47 Cal.3d at pp. 677-680; Gould, supra, 31 Cal.App.4th at pp. 1151-1152; Haycock, supra, 22 Cal.App.4th at p. 1488; Miller v. Pepsi-Cola, supra, 210 Cal.App.3d at pp. 1557-1558; Hoy, supra, 861 F.Supp. at p. 885.) A contract requiring termination only for cause will not be implied if there is an express writing providing to the contrary. There cannot be a valid express contract and an implied contract, each embracing the same subject, but compelling different results. (Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal.App.3d 467 , 482 [ 199 Cal.Rptr. 613 ] (Shapiro); Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605 , 613 [ 119 Cal.Rptr. 646 ]; Hoy, supra, 861 F.Supp. at p. 885.)

In this case, there is overwhelming evidence in support of the presumption that Eisenberg’s employment was at will. The employment application, which appellant signed on May 3, 1994, explicitly stated his understanding and acknowledgment that (a) “unless otherwise defined by applicable law, any employment relationship with this organization is of an ‘at will’ nature, which means that the Employee may resign at any time and the Employer may discharge Employee at any time with or without cause”; and (b) “this ‘at will’ employment relationship may not be changed by any written document or by conduct unless such change is specifically acknowledged in writing by an authorized executive of this organization.” In addition, the employee handbook Eisenberg acknowledged receiving on May 25, 1994, set out a 90-day probationary period during which the employer could

terminate an employee’s employment if the latter “fails to meet the expectations of the job”; and restated the Newspaper’s personnel policy and practice that unless an employee was hired for a specified period of time or “an agreement says otherwise,” all employment was “at will,” meaning it could be terminated “at any time, without cause . . . .”

Eisenberg signed his name to the employment application and to a form acknowledging his understanding that the employee handbook stated the Newspaper’s employment “polices and procedures.” In so doing, Eisenberg explicitly acknowledged that he understood his employment to be at will. In his deposition, Eisenberg conceded both that the statement on the employment application was consistent with his understanding of his employment with the Herald, and that neither before nor after signing it did anyone tell him anything that contradicted the “at-will” statement on the application. Eisenberg nevertheless points out that he signed both the employment application and the receipt form for the employee handbook after the Herald had already hired him; neither the application nor the handbook was supported by any independent consideration; neither document covered his position or his salary; and the application was on a standardized form that did not contain an integration clause. Citing these facts and relying on Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514 , 1519-1520 [ 273 Cal.Rptr. 296 ] (Seubert), Eisenberg argues that neither the employment application nor the employee handbook constituted an enforceable, integrated contract or was intended to represent the entire employment agreement between the parties; and his signatures on those documents did not bind him to at-will employment.

It is true that neither document was an integrated contract. Indeed, neither purported to be. However, this fact does not render these written documents stating the Herald’s policy of at-will employment, and Eisenberg’s signatures acknowledging that policy, any less significant to this case. To the contrary, these signed documents provide strong evidence in support of the statutory presumption that Eisenberg’s employment, which admittedly had no specified term, was terminable at will. The fact the application for employment and the employee handbook did not themselves constitute an integrated employment contract does not undermine their materiality as evidence of the nature of Eisenberg’s employment, in the absence of countervailing factual evidence of an implied-in-fact contract not to discharge in the absence of good cause. (Davis, supra, 29 Cal.App.4th at pp. 366-369; Haycock, supra, 22 Cal.App.4th at pp. 1488-1491; Shapiro, supra, 152 Cal.App.3d at pp. 480-482; Hoy, supra, 861 F.Supp. at pp. 885-886; cf. Seubert, supra, 223 Cal.App.3d at pp. 1519-1520 [presumption of

nor anyone else ever said anything about the duration of his employment. Neither has Eisenberg produced any evidence of any policy or practice, either in the newspaper industry in general or at the Herald in particular, of termination of employees only upon good cause.

Instead, Eisenberg’s allegations of unspecified “representations” or “understandings” about his tenure are all “conclusory,” in that they purport to establish an ultimate conclusion by inference without alleging the evidentiary facts necessary actually to demonstrate that conclusion. (3 Oxford English Dict., supra, at p. 667.) Because these conclusory assertions fail to provide the factual evidence necessary to overcome the presumption of at-will employment, they are insufficient as a matter of- law either to controvert that presumption, or to support a cause of action for breach of implied-in-fact contract. (Gould, supra, 31 Cal.App.4th at pp. 1151-1153; Davis, supra, 29 Cal.App.4th at pp. 366-369; Shapiro, supra, 152 Cal.App.3d at p. 482; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290 , 304 [ 188 Cal.Rptr. 159 , 35 A.L.R.4th 1015 ].) In any event, Eisenberg could not reasonably have relied upon any allegedly implied promises by respondents which contradicted the express provisions of both the application for employment he signed and the employee handbook. (Shapiro, supra, 152 Cal.App.3d at p. 482.) Having been terminated after less than one month of employment, well within the 90-day probationary period set out in the employee handbook, Eisenberg certainly cannot rely on longevity of service as a factor in support of the existence of an implied contract of employment. (Gould, supra, 31 Cal.App.4th at pp. 1151-1152; Davis, supra, 29 Cal.App.4th at p. 368.)

In sum, respondents were entitled to rely on the presumption of at-will employment unless rebutted by actual evidence of an impliéd-in-fact contract of employment providing otherwise. They provided evidence strongly supporting their claim that Eisenberg’s employment in fact was at will. Eisenberg failed to negate either the presumption or respondents’ actual practice of at-will employment. Thus, Eisenberg has failed to demonstrate there was any triable issue of material fact to support his claim of an implied-in-fact contract. Summary judgment on Eisenberg’s fourth cause of action for breach of such a contract was therefore proper.

Breach of Implied Covenant of Good Faith and Fair Dealing

Having failed to raise a triable issue of fact as to his at-will status, Eisenberg cannot raise a triable issue on his claim for breach of the implied covenant of good faith and fair dealing. “The covenant of good faith is read into contracts in order to protect the express covenants or promises of the

contract, not to protect some general public policy interest not directly tied to the contract’s purposes.” (Foley, supra, 47 Cal.3d at p. 690.) Thus, the implied covenant does no more than protect the right to enjoy the benefits of the contract. An at-will employee cannot use the implied covenant to create a for cause employment contract where none exists. (Ibid.;p Gould, supra, 31 Cal.App.4th at pp. 1151-1152; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467 , 480-481 [ 4 Cal.Rptr.2d 522 ].) Because Eisenberg cannot show that a contractual covenant or promise was violated, the trial court was correct in granting summary judgment on his fifth cause of action for breach of the implied covenant of good faith and fair dealing.

Wrongful Termination in Violation of Public Policy

Eisenberg also contends the trial court erred in granting summary judgment as to his third cause of action alleging wrongful termination in violation of public policy. There are two prongs to Eisenberg’s public policy contention. First, he argues his termination was a violation of his rights under the First Amendment. Second, he contends his termination was in violation of Labor Code section 970. There is no merit to either contention.

With regard to Eisenberg’s First Amendment claim, he has not cited any federal or California state decisional authority under either the United States or California State Constitutions holding that a newspaper publisher cannot terminate the employment of a reporter, hired on an at-will basis, based on dissatisfaction with the content of or views expressed by the reporter’s writing. To the contrary, the courts have long held that the right to control the content of a privately published newspaper rests entirely with the newspaper’s publisher. The First Amendment protects the newspaper itself, and grants it a virtually unfettered right to choose what to print and what not to. Although a news reporter obviously has First Amendment rights as well, those rights do not guarantee employment. (Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241 , 254-258 [ 94 S.Ct. 2831 , 2837-2840, 41 L.Ed.2d 730 ]; Columbia Brodcasting v. Democratic Comm. (1973) 412 U.S. 94 , 117 [ 93 S.Ct. 2080 , 2093-2094, 36 L.Ed.2d 772 ]; Collard v. Smith Newspapers, Inc. (S.D.W.Va. 1996) 915 F.Supp. 805 , 809-813; Yovino v. Fish (1989) 27 Mass.App. 442 [ 539 N.E.2d 548 , 550]; Veno v. Meredith (1986) 357 Pa.Super. 85 [ 515 A.2d 571 , 573-574, 581].)

Thus, it was the Herald’s right to set and enforce its own standards for acceptable and responsible reporting. Eisenberg was fired because he did not meet those standards. Although Eisenberg has a First Amendment right to express his own views, he does not have a right to publish them in the Herald against its wishes. His termination was not a violation of his First Amendment rights.

Eisenberg’s claim under Labor Code section 970 is similarly meritless. That statute prohibits employers from inducing employees “to change from one place to another ... for the purpose of working in any branch of labor, through or by means of knowingly false representations” concerning the nature, duration or conditions of employment.

The statute is inapplicable to this case. First, it requires the employee to demonstrate that his or her employer made “knowingly false representations” concerning the nature, duration or conditions or employment. As seen, there is no evidence of such misrepresentations in this case. Eisenberg admitted that no one at the Herald, including Hunt, ever said anything about the duration of his employment or told him anything in conflict with either the employment application or the employee handbook. Both of those documents indicated that Eisenberg was an at-will employee. Because there was no evidence of any misrepresentation about the duration of Eisenberg’s employment, his Labor Code section 970 claim must fail. (Tyco Industries Inc. v. Superior Court (1985) 164 Cal.App.3d 148 , 155 [ 211 Cal.Rptr. 540 ].)

Moreover, under the statute an employee must establish that the employer induced him or her to relocate or change residences. (Lazar v. Superior Court (1996) 12 Cal.4th 631 , 637 [ 49 Cal.Rptr.2d 377 , 909 P.2d 981 ]; Collins v. Rocha (1972) 7 Cal.3d 232 , 239 [ 102 Cal.Rptr. 1 , 497 P.2d 225 ]; Seubert, supra, 223 Cal.App.3d at pp. 1521-1523.) There was no such evidence in this case.

Other Claims

Finally, Eisenberg contends that the trial court erred in granting summary judgment on his sixth cause of action for fraud because of the existence of alleged material issues of fact. Specifically, Eisenberg asserts he has offered evidence that during the negotiations on his employment, respondents impliedly promised not to terminate him except for good cause, while deliberately failing to disclose either the Newspaper’s 90-day probationary period or the fact he was being hired on an at-will basis.

Once again, Eisenberg is wrong. As seen, Eisenberg has failed to offer evidence sufficient to establish a triable issue of material fact on the issue of whether respondents made any promises about the duration of Eisenberg’s employment, or whether he could be fired only for cause. Having failed to demonstrate that respondents promised to employ him on anything other than an at-will basis, or made any misrepresentations to him whatsoever, there is no substance to his allegation of fraud. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684 , 692-694 [ 237 Cal.Rptr.

667 ].) The trial court properly granted summary judgment on this cause of action.

Disposition

The judgment is affirmed. Appellant Eisenberg shall pay respondents’ costs on appeal.

Corrigan, J., and Walker, J., concurred.

A petition for a rehearing was denied October 19, 1999, and appellant’s petition for review by the Supreme Court was denied January 13, 2000.