Jo Ann Zepher v. Kaiser Foundation Hospital

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JO ANN ZEPHER,
Plaintiff-Appellant,
v.
KAISER FOUNDATION HOSPITAL,
Defendant-Appellee.
No. 15-16895
D.C. No.
2:14-cv-02540-JAM-EFB
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted April 17, 2017 **
San Francisco, California
Before: FERNANDEZ and MURGUIA, Circuit Judges, and CURIEL, *** District
Judge.
Plaintiff Jo Ann Zepher appeals the district court’s grant of summary
judgment in favor of her former employer, Defendant Kaiser Foundation Hospital
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“Kaiser”), on Zepher’s claims for discrimination, retaliation, and constructive
termination under various state and federal statutes. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
1. We review de novo a district court’s grant of summary judgment.
Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). “Summary
judgment is proper only if no material facts are in dispute and one party is entitled
to prevail as a matter of law.” McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir.
1984). We also review de novo a district court’s analysis of contractual language
and its application of principles of contract interpretation, Sentry Select Ins. Co. v.
Royal Ins. Co. of Am., 481 F.3d 1208, 1216 (9th Cir. 2007), as well as its
interpretation of state law, Wash. Pub. Power Supply Sys. v. Pittsburgh-Des
Moines Corp., 876 F.2d 690, 692 (9th Cir. 1989). Under California law, release
agreements are governed by the same principles applicable to any other contractual
agreement. Hess v. Ford Motor Co., 41 P.3d 46, 51 (Cal. 2002). In general, a
written release of claims will bar any claim covered by the release’s terms,
provided the release has not been obtained by fraud, deception, misrepresentation,
duress, or undue influence. Edwards v. Comstock Ins. Co., 252 Cal. Rptr. 807, 809
(Cal. Ct. App. 1988).
3. The district court properly concluded that all of Zepher’s claims are
covered by the Separation Agreement and General Release (“General Release”)

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she signed as part of an early retirement package. The General Release states in
broad terms that Zepher agreed to “release[] and forever discharge[] . . . Kaiser
Foundation Hospitals . . . from any and all claims of any kind, known and
unknown, arising out of or related to [Zepher’s] employment with [Kaiser] or the
termination of [Zepher’s] employment.” While the General Release does not bar
Zepher’s “right to file an administrative charge of discrimination,” it clearly
precludes her from bringing a claim to recover money or individual relief
associated with such a charge. Accordingly, the district court did not err in
concluding that the General Release’s clear and unambiguous language covers all
of Zepher’s claims, including those claims arising out of her October 2013
complaint lodged with the California Department of Fair Employment and
Housing.
4. The district court also did not err in concluding that Zepher’s various
arguments as to why the General Release is either void or should not be enforced
necessarily fail because they lack any evidentiary and legal support. Zepher has
presented insufficient evidence to raise a genuine dispute of material fact as to
whether Kaiser secured Zepher’s assent to the General Release through undue
influence or duress, and the undisputed evidence surrounding the execution of the
General Release strongly indicates that Kaiser did not exercise excessive pressure
on Zepher or otherwise engage in any wrongdoing. See Odorizzi v. Bloomfield Sch.

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Dist., 54 Cal. Rptr. 533, 540 (Cal. Ct. App. 1966) (identifying the elements to
establish “undue influence”); see also People v. Leal, 94 P.3d 1071, 1073 (Cal.
2004) (defining “duress”). Notably, the clear, plain language of the General
Release states that Zepher had 45 days to consider the retirement package before
accepting it, and expressly advised that Zepher could consult a lawyer before
executing the General Release. Zepher admittedly did not read the General Release
before signing it, and it appears she misunderstood how much time she had to
review the contents of her early retirement package; however, neither of these facts
indicates any wrongdoing on the part of Kaiser.
5. The district court also did not err in rejecting Zepher’s argument that
the General Release cannot be enforced because it lacked consideration. The
General Release specifically provided that Zepher’s release of claims was “in
consideration of” certain benefits, such as severance pay, medical benefits, and
early retirement eligibility. Zepher received more than nominal benefit from her
release of claims and she cites no authority to support her argument she should
have received more in exchange for her release of claims than other Kaiser
employees. See A. J. Indus., Inc. v. Ver Halen, 142 Cal. Rptr. 383, 389 (Cal. Ct.
App. 1977) (“[C]ourts do not weigh the quantum of the consideration as long as it
has some value.”). Further, Zepher’s argument that the General Release should not
be enforced because she did not subjectively intend to release her claims against

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Kaiser is foreclosed under California law, where “[m]utual assent to contract is
based upon objective and outward manifestations of the parties.” Stewart v.
Preston Pipeline Inc., 36 Cal. Rptr. 3d 901, 919 (Cal. Ct. App. 2005). Therefore,
subjective intent is irrelevant.
6. Lastly, Zepher has failed to proffer sufficient evidence to raise a
genuine dispute of material fact as to whether the General Release is
unconscionable. Unconscionability has both a “procedural” and “substantive”
element, and both elements must be present before a court may exercise its
discretion to refuse to enforce a contract under the unconscionability doctrine.
A&M Produce Co. v. FMC Corp., 186 Cal. Rptr. 114, 121–22 (Cal. Ct. App.
1982). The procedural element focuses on whether there was unequal bargaining
power between the two parties; while the substantive element focuses on “overly
harsh” or “one-sided” results. Id. Here, Zepher admittedly did not read the General
Release and there is no objective evidence in the record to support Zepher’s belief
that she had no power to negotiate the terms of her retirement package. Further,
Zepher does not appear to argue that the General Release was “overly harsh” or
“one-sided.” Indeed, because California courts have enforced similar releases in
the past, see, e.g., Skrbina v. Fleming Cos., 53 Cal. Rptr. 2d 481, 489 (Cal. Ct.
App. 1996), we cannot conclude that the General Release would not be deemed
“overly harsh” under California law.

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AFFIRMED.

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