*1 See, e.g., guably point, moreover, AR 101-02 dicta. may get married. There is no married.”) (Cald (“We’re getting remanding. us, planning on On the record before we are (We well); plan getting perfectly capable applying do id. at 102 our own rule her.”) affirming this is behind married as soon as the INS’s decision because (Caldwell). This, course, utterly prove is at war with Kahn has failed to her case. the notion required for common law (1943) cock v. sufficient Piel, (intent Peacock, to form common law they’re already So.2d to be married in future not 196 Ga. at 93 (present agreement 441, 26 married. See marriage). marriage); S.E.2d Pea see where no federal court has respectfully decline the mission. domestic By purporting to establish a federal law of relations, ^[*] majority ^[*] gone ^[*] boldly goes before. I satisfy Nor do Kahn and Caldwell the sec- requirement, they

ond as don’t hold them- Kahn her-'

selves out as married. Affidavits produced girlfriend”

self describe her as “the See, Caldwell, e.g.,

of John not the wife. AR (Affidavit MacKinnon)

at 149 of James

(“Ruta girlfriend my is the friend John (Affidavit TONRY,

Caldwell....”); Plaintiff-Appellee, Alfred F. AR at 151 (“Ruta Ludwig) and Yasmin is the Steve girlfriend of our friend John Cald- EXPERTS, INC., SECURITY well_”). None of these folks seem to Defendant-Appellant, think Kahn and Caldwell are married. It’s thus hard to see what this case has to do marriage. with common law FOGLIA, Robert Defendant. Petitioner, course, bears the burden of No. 92-15505. presenting support claim. her presented nothing Here Kahn to show she Appeals, United States Court of any- qualify would as a common law wife Circuit. Ninth making where. Even if we excuse her from showing perhaps such a because the INS Argued — and Submitted Nov. 1993. rejected ignore her claim2—we cannot March Decided present, the evidence did evidence that she possibly establishes she couldn’t be deemed living

Caldwell’s wife if she even were recognizes marriages.

state common law Kahn, way

Given the Caldwell and their relationship,

friends characterized the there’s

nothing say she could or show to her revive

claim. why majority

I therefore can’t see

orders the to evaluate INS Kahn’s relation- jurisdiction

ship as if she lived in a

recognizes marriages. common law The sim- is,

ple if fact even such a claim were available litigant,

to some other it’s not available to case, being majority’s pro-

her. This subject gratuitous,-

nouncement on the ar- given hand in 2. There is no indication in the record that the the INS seems to have Kahn a free prevented introducing INS her from evidence to presenting whatever evidence she wanted about ' qualified show she would have as Caldwell’s relationship her with Caldwell. fact, common wife in some other state. law *2 bonuses). $65,000 (plus of over SEI also provided Tonry disability with insurance and health family benefits for his company and a Throughout period car. employ- of his Roeder, Littler, Mendelson, Randolph C. SEI, ment at consistently SEI and its clients *3 Francisco, CA, Tichy, Fastiff & San for de- Tonry’s Moreover, viewed work with favor. fendant-appellant. specific there were no criticisms of his work during the Clifford, eight years more than Drath, that he Hyde R. John & San Francisco, CA, worked for SEI. plaintiff-appellee. for Motherway, Tonry’s friend,

James close president served as SEI’s from 1979 until resigned. time, June when he At that Foglia, Robert major SEI’s founder and CANBY, NOONAN, Before: and Circuit shareholder, position presi- assumed the of HUFF, Judges, Judge.* and District resigning, dent. One month after Mother- way trip a During made to California. OPINION portion trip, Motherway of the stayed at HUFF, Judge: District Tonry’s addition, home. In Tonry he and (“SEI”) Sandy had' lunch with Phillips, representa- Security Experts, Incorporated (“DHL”), Airways tive of DHL one of appeals SEI’s the district court’s in favor major purpose clients. The lunch Tonry’s of Alfred F. action for an breach of to Motherway’s resignation announce to Phil- implied employment contract action. SEI lips, professional colleague.1 a close appeals the district court’s dismissal of duty its counterclaims for breach In July Tonry had a conversation loyalty implied and the covenant of faith Cox, employee with fellow SEI Mark Manag- dealing. Finally, appeals and fair it the dis- Cincinnati, Dayton er of the and Ohio facili- damages. trict court’s award We affirm. job ties. Cox was concerned about his secu- rity light apparently precarious of the BACKGROUND financial condition of SEI at the time and a recent, unsettling meeting Foglia. with Ton- July Tonry In Alfred F. ended his ry position reassured Cox that his with SEI seventeen-year police begin career to em- Tonry was secure. also discussed with Cox ployment with SEL SEI is a New York steps necessary competing to establish a corporation which was founded in to security business. provide professional security for ma- service jor commercial at clients certain United Among things, Tonry other mentioned his airports. Although joined Tonry States SEI Sandy Phillips lunch with and commented facility, open, at its New York he relocated to would, always security that DHL need at its operate manage and SEI’s Francisco San that, Finally, Tonry Ohio hub. stated time, facility in promoted 1980. At that light employment of the absence of a written Tonry position manager to the of division and restrictions, containing any contract such $30,000 salary increased his annual from to option resigning had Cox from his $40,000. position any at time in order to establish a

Tonry position competing Tonry continued in the of division business. and Cox had manager August until November 1987. His an- September similar discussions and salary during period high nual rose to a 1987.2

* Huff, Marilyn Judge way Phillips company The Honorable L. District met with to recruit her as California, business; sitting by forthcoming security the Southern District of a client for his designation. 2) Tonry and knew as much. argues by concluding 1. SEI the trial court erred lunch, purpose argues by concluding Tonry's 2. SEI the trial court erred and role in it, sum, purpose Tonry’s were innocuous. conversations with Cox 1) conclusively job demonstrated Mother- was to reassure Cox that his was secure and tress, contract. of breach of and inducement steps neces- Tonry considered While business, security referred the The district court then own sary his to establish hearing doing He arbitration. After step toward so. court-annexed to took no overt he Tonry’s potential evidence, spoke specific to arbitrator dismissed identified never security obtain a he did contract action and SEI remaining and while breach of investors so part he did latter then Foglia’s cross-complaint. in the license behest. only Foglia’s request a trial de novo. right his to exercised Tonry’s remain- seven-day trial on A bench Tonry’s decreased August of contract claim $55,000 $35,000. to On salary from annual April cross-complaint commenced on Foglia’s 11,1987, reassigned November 1,' 1991. at the Oak- night watchman position 5:00 working p.m. an 8:00 facility, *4 land 12, 1991, trial court September On reassignment, time of his At the a.m. shift. findings of fact and preliminary issued its company car. On Decem- Tonry of a lost use Tonry finding in of of law favor conclusions He 2, 1987, Tonry resigned from SEI. ber parties to submit memoran- and directed employment in the se- subsequently obtained 28, February concerning damages. On da industries. curity insurance and 1992, court issued its final the trial Tonry’s employment point during law, At no finding in of of fact and conclusions employ- party to a written was he with SEI entering judgment in the Tonry and favor of fact, in of the summer ment contract. $33,701. also dis- of The trial court amount 1987, Tonry to enter into a written refused Foglia’s cross-complaint. missed SEI and among provided, with SEI which contract not be things, he could terminated other that DISCUSSION Nonetheless, although good cause. without employ- in either individual never formalized I. STANDARDS OF REVIEW manual, gener- policy contracts or a ment following reviewing employ- terminate practice at was to al SEI trial, court’s we the district bench review good cause. ees for only and its findings of fact for clear error 29,1988, Tonry against filed suit On March Millstein, de novo. Stone v. conclusions Foglia Superior in the Court for SEI and (9th Cir.1986); Cooling Sys. F.2d complaint stated of California. State Radiator, Inc., Flexibles, Inc. v. and Stuart contract, for of of action causes (9th Cir.1985); Fed. 777 F.2d good faith and fair the covenant breach of 52(a). apply the same standard R.Civ.P. We infliction of emotional dis- dealing, intentional involuntary district court’s dismissal to the tress, of contract. inducement of breach and Stone, cross-complaint. 804 F.2d at SEI’s Foglia their filed May SEI On Finally, the district court’s we review against Tonry cross-complaint answer and a damages computation of for clear error. Ste of action for breach of stated causes which Vista, City phens v. dealing fair duty of'good faith and Cir.1993). 1, 1988, loyalty. December duty of On Foglia removed the action to the SEI BREACH OF IM- II. EXISTENCE AND North- District Court for the United States PLIED EMPLOYMENT CONTRACT California, diversity based ern District citizenship. in find- argues the district court erred SEI 1) ing: Tonry implied-in-fact employ- an 18,1989, had July granted court On required “good that cause” for summary judg- ment contract Foglia’s motion for SEI and 2) termination; constructively dis- SEI Tonry’s alleging claims his respect ment to with 3) Tonry; “good lacked cause” good charged fair faith and breach of the covenant 4) so; grounds, do and on the same of emotional dis- to dealing, intentional infliction as a client options unlikely have Cox leave SEI and deliver DHL event to advise him of his contends, forthcoming Rather, Motherway’s Tonry own evi- to that it was not. and/or security company. Tonry’s goal was to dence demonstrated that (1) satisfy Tonry’s years the elements of its counter- than employ failed more (2) SEI; claim. ment at early promotion his Manager Division of SEI’s San Francisco Implied Employment A. Existence (3) facility; family’s and his reloca Contract (4) tion to San request; Francisco at SEI’s the series of salary; increases his annual first court (4) provided, [sic] the including benefits by concluding an im erred had (5) car; company the use of a the lack of plied employment required contract of by criticism regarding SEI or its clients “good cause” for his termination. Under (6) Tonry’s work; the fact of and increase law,3 interpret California courts must con in his during interest ownership his tracts “to effectuate the mutual intention of (7) employment; and SEI’s custom of not contracting, at the time of so far terminating employees except is as that intention ascertainable and lawful.” cause. Miller, 507; 885 F.2d at see also Schneider v. TRW, Inc., (9th Cir.1991). (“ER”) Excerpt of Record at 55. Hence, implied the existence of an contract finding The district court’s parties’ employment turns on the intent of the actions demonstrated an intent to form an determined, parties. ““‘[I]t must be as a implied employment contract of continued *5 fact, question in whether the acted necessarily Miller, factual. See 885 F.2d at provide necessary such manner as to the a 508 n. 13. Because SEI fails to demonstrate contract], implied foundation for and evi [an the district court committed clear error in may dence be introduced to rebut the infer making determination, that we affirm. explana ence and show that there is another ”’ Miller, tion for the conduct.” 885 F.2d at B. Discharge Constructive (quoting Foley Corp., 508 v. Interactive Data argues SEI next trial the court erred 654, 211, 677, 223, Cal.Rptr. 47 254 Cal.3d by concluding constructively that was (1988))(alterations 373, origi 765 P.2d 385 in law, discharged. Under California construc nal). determining intent, In parties’ the the discharge employee tive occurs when an re trial court should such consider factors as: signs aggravated in the face of intolerable or policies practices Personnel or of the em- conditions sufficient to cause a reasonable service, ployer, employee’s longevity the Inc., person resign. to v. See Soules Cadam by employer actions communications the 390, 399, Cal.App.4th 6, 2 Cal.Rptr.2d 3 10 reflecting employ- assurances of continued (1991); Smith v. Brown-Forman Distillers ment, practices industry and the of the in 503, 513, Corp., Cal.App.3d 241 Cal.Rptr. 196 employee engaged.... which the 916, (1987); Indus., Brady 920 v. Elixir 196 680,

Foley, 225, Cal.Rptr. 47 Cal.3d at 254 at 1299, 1306, 324, Cal.App.3d Cal.Rptr. 242 328 (quoting Pugh 765 P.2d at 387 v. See’s Can (1987). dies, Inc., 311, 327, Cal.App.3d 116 171 Cal. (1981)). 917, Rptr. 925-26 The district court utilized that to test constructively discharged conclude SEI Ton case, present In the the district court ry. The district court cited its reliance on properly regard admitted extrinsic evidence which, noted, following factors the court Tonry’s employment the circumstances of eight years of-plain “occurred after almost parties. to ascertain the intent of the See having tiffs Francisco directed SEI’s San Miller, at 885 F.2d 508. Based on that evi operations”: dence, totality the court determined the (1) plaintiffs manage- the circumstances demonstrated the intent to demotion from a (2) implied employment position; significant form an contract. ment reduction (3) “particularly persuasive” plaintiffs salary; court found the fol in the undetermined lowing employment being relegat- factors: status his (9th Cir.1989), denied, reviewing the district court’s in this 507 n. 12 cert. 494 action, diversity apply principles we of California U.S. 110 S.Ct. 108 L.Ed.2d 764 Industries, Inc., (1990). law. Miller v. Fairchild short, attempts retry its case on to night for an watchman position ed to (4) purport- by proffering evidence which shift; appeal a.m. p.m. to 5:00 8:00 Tonry planned edly that benefits, demonstrates e.g., use of a and/or of certain stripping compete with and other- attempted to company car.4 again, disloyal fashion. Once acted wise

ER at 56. weight however, give due to must we in the record judge There is sufficient cred- opportunity to district court’s finding factual court’s the district support may the- testimony not set aside ibility of Tonry’s position person in that a reasonable finding proof at trial district court’s resign. We compelled to felt would have allegations unless support SEI’s did not court’s regard to give Cooling Sys., due clearly must finding erroneous. was credibility of testi- judge 52(a). opportunity 485; Be- Fed.R.Civ.P. 777 F.2d at its factual deter- may aside mony not set clear error to demonstrate cause fails Cooling clearly erroneous. unless minations conclusion that SEI district court’s 52(a). 487; Fed.R.Civ.P. Sys., 777 F.2d Tonry, we to terminate lacked cause Co., to demonstrate fails Because SEI v. Atlantic affirm. See Sutton Richfield in deter- Cir.1981). clear error court committed constructively termi mining that court’s dismiss- challenges the district City nated, See Sanchez affirm. we factual cross-complaint on the same al of its (9th Cir.1990), Ana, F.2d Santa trial, seven-day bench grounds. After — U.S. -, denied, S.Ct. cert. to meet found had failed district court (1991). L.Ed.2d on its counterclaims “its initial burden good faith and fair covenant and Dis- Cause” Existence of “Good C. duty loyalty.” ER at 56- dealing and the Cross-Complaint missal of SEI’s evidence that dem- the same 57. SEI *6 of-cause to terminate onstrates the existence challenges next SEI of SEI’s Tonry the elements also satisfies lacked that SEI court’s conclusion however, the dis- again, counterclaim. Once Tonry. court The district cause to terminate incredi- that evidence to be trict court found determining SEI did finding after made that in clear error Because SEI fails show ble. showing fair and “a its burden of not meet Stone, F.2d finding, affirm. See 804 that we Tonry’s termi or reason” honest cause at 1437. Pugh v. (quoting See’s ER at 56 nation. 329, Candies, at 171 Cal. Cal.App.3d 116 III. DAMAGES 928). addition, court Rptr. at argues the district court cross-action, finding dismissed SEI’s $5,088 damages by awarding Tonry in erred on its coun “its initial burden failed to meet insurance benefits. Whether good faith for lost health covenant of for breach of terclaims legal in standard duty loyalty.” a court selects the correct dealing and the and fair novo. computing damages is reviewed de both court based ER at The district 56-57. Matthews, that, v. Transamerica R.B. Inc. factual determination rulings on its (9th Serv., Cir. Transp. 945 F.2d support not a find proof trial [did] “[t]he 1991). However, a district court’s we review sought to establish a plaintiff of fact that clearly damages under the computation of attempted to lure competing business Stephens City Vis client, standard. much less erroneous his own DHL from as Thus, ta, an actual award 994 F.2d at 655. disloyalty.” ER at 57.5 any proof of noted, demotion, ease with which SEI standing court also Tomy’s "the 4. SEI plaintiff was in alone, confirmed whether legally con- could have rise to the level of could not e.g., by engaging disloyal con- addressing in discharge. fact Without structive conduct— DHL; Foglia’s tacting Sandy Phillips unveri- argument, court we note the district merit of factors, acceptance [sic]— of Mark Cox’s statements rather fied clearly upon a relied number alone, seriously weakened SEI's efforts to meet its bur- he Tonry’s to determine demotion than proof ER at 57. den of at trial.” constructively discharged. (cid:127) SEI, damages, computed ages against under the correct we affirm the district standard, only it should be disturbed damages. when court’s award of support it. clear that the evidence does not City Com/Sys., Phoenix v. 706 F.2d IV. IMPROPER REFERENCE TO AR- (9th Cir.1983); see also In re James E. BITRATION PROCEEDINGS ON Co., Inc., O’Connell APPEAL Cir.1986) (under law, any California doubts Finally, Tonry requests impose that we

regarding damages amounts of resolved against sanctions bringing ap- SEI for this against defendant contract ac- peal. Tonry’s primary contention is that tion). improperly findings referenced the of a case, present ap In the the court court-annexed challenge arbitrator to the fac- plied proper legal standard to calculate findings tual of the district court.6 Because Namely, its award. the court Ton- awarded the issue is impression, one of first we de- ry the difference between what would impose However, cline to sanctions. we do if employ have earned he had continued his propriety address the of SEI’s conduct. actually ment with SEI and what he earned trial, Before the district court referred the during period. the same ER at 59-60. See mandatory action to court-annexed arbitra- Lorentzen, Inc., Kern v. Levolor evidence, hearing tion.7 After the arbitrator (9th Cir.1990) (citing Parker v. office, filed an “award” with the clerk’s which Century-Fox Corp., Twentieth Film 3 Cal.3d copies parties. served on the The award 737, 740, Cal.Rptr. 474 P.2d merely stated the arbitrator’s conclusion that (1970)). propriety SEI does not contest the party neither was entitled to relief. See of that standard. 500—6(a)-(b). Although N.Dist.Cal.L.R. not Rather, Tonry may SEI contends so, required to do the arbitrator also summa- post-termination have been entitled to health separate rized his in a document insurance benefits as a former New York benefit,,of prepared which he for the City policeman accordingly, and that dis parties.8 That “decision” was not filed including trict court erred the value of district court. Tonry’s However, those benefits in award. timely then exercised his Tonry’s fails to cite evidence of certain right request a trial de novo.9 Under the receipt—of entitlement—let alone the bene *7 system question, right arbitration in short, in the to a question. fits In because SEI fails preserved by general full trial is inadmis show clear error iii the district court’s sibility damages, inclusion of those benefits as of evidence of or from the and arbitration proceedings because the district court in was otherwise enti the district court.10 Pursuant any regarding rules, tled to resolve doubts dam- to the local SEI cited neither the arbi- document, appeal 6. that SEI's was frivo- 8. The entitled of "Decision Arbitra- tor", appeal clearly six-page summary lous. Because SEI's was not mer- is a of the arbitrator's itless, however, impose we do not sanctions on and factual conclusions. Mortg. Corp. Grady, that basis. See Amwest v. (9th Cir.1991) (claim rules, "frivo- pertinent 9. Under the local either “[i]f purposes lous” for Rule 38 if results obvious or party a flies and serves written demand for a trial merit).' arguments wholly without thirty days entry judgment de novo within of of award, judgment immediately on the shall by provides be vacated 7. The Northern the clerk and the action shall District California for proceed mandatory "the normal manner before the as- referral of certain actions to 500-7(a). signed judge." N.Dist.Cal.L.R. court-annexed arbitration." N.Dist.Cal.L.R. purpose practice 500-1. The of that "is to estab- 500—7(b) procedure just, lish a provides: less formal efficient 10. for Local Rule "At a trial de novo, and parties stipu- economical resolution of controversies in- unless the have otherwise lated, volving money damages concerning moderate amounts of no the arbitra- evidence, preserving right may except while to a full trial.” Id. tion be received into adopted by The Northern District court the arbitra- statements made a witness at the arbitration system question pursuant hearing may impeachment only." tion to the 1988 be used for 500-7(b). addition, Improvements Judicial and Access to Justice Act. N.Dist.Cal.L.R. In the con- (1988). §§ See 28 U.S.C. 651-58 tents of the arbitration award are sealed from Accordingly, Appellate Procedure. Rules of deci- the arbitrator’s nor proceedings

tration to the references appeal, howev- neither SEI’s we consider On district court. in the sion arbitrator’s proceedings decision in nor-the er, the arbitrator’s arbitration included addition, presented in resolving In SEI made issues findings in excerpt of record. its proceed- to the arbitration general appeal. reference this direct during and oral reply brief in its ings—both findings factual challenge the argument CONCLUSION —to so, By doing SEI acted court. is, in all re- The district court’s two fashions. in at least improperly spects, affirmed. of the Federal First, violated Rule by including Appellate Procedure Rules concurring: NOONAN, Judge, Circuit excerpt of in its decision the arbitrator’s opinion judgment. I concur that the record on Rule states record. However, I award sanctions would of, original, papers and “[t]he consists appeal is one particular violation rules. of our court, the tran- in the district filed exhibits rules are old and impression, but the of first any, a if certified proceedings, script of be enforced. well-known should Fed. entries-” the docket copy of 10(a). the decision Becausé R.App.P. court, SEI violated in the district

never filed in its ex- by including 'decision

Rule record.

cerpt of by Second, improperly referenc- acted America, UNITED STATES briefing in its proceedings arbitration Plaintiff-Appellee, short, at- argument. oral and at rely upon evidence inadmissible v. tempted to challenge district court’s factu- trial to INC., CO., HUGHES AIRCRAFT party To allow appeal.11 on al Defendant-Appellant. any right to de novo vitiate do so would 92-50681. No. Moreover, a basic ten- it violate would trial. namely, that jurisprudence; appellate et Appeals, Court United States supplement unilaterally may not Circuit. Ninth not reviewed appeal with evidence record Dec. Argued and 1993. Submitted See, e.g., Dickerson the court below. by Alabama, 1364, 1367 State 1994. March Decided (discretion Cir.1982) so rests with court to do April Amended denied, 459 U.S. appeal), cert. (1982).12 74 L.Ed.2d S.Ct. sum, violated both the SEI’s conduct *8 and the local rules Federal court’s district Tomy’s testimony of may try 12. SEI contends any judicial the case until who officer with their tes- at trial was inconsistent has witnesses court entered timony We must address See N.Dist.Cal. before arbitrator. has otherwise terminated. 500-6(d). case inconsistencies, argues, or purported those L.R. following condoning perjury similar in trials risk sys- disagree. The arbitration arbitration. We analysis our transcends for- This facet of

11. question allows introduce tem in sys- the arbitration of. Rule Under malities 10. by a witness at the arbitration "statements made example, the question, for arbitration tem purposes hearing impeachment” trial. ... for clerk of the district with the "award” is filed Hence, 500-7(b). under lo- N.Dist.Cal.L.R, is, technically speak- the award court. Because rules, purport- court,” have introduced cal SEI could its citation on ing, "filed in district during its cross- ed testimonial inconsistencies literally 10. appeal violate Rule See would not however, Tonry’s witnesses. We note examination clarify, Fed.R.App.P. We rules, we provision in the local even absent that party’s contest the reference to such evidence conflicting allegedly not still could address would be of the factual court appeal. testimony the first time improper nonetheless.