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Chew v. International Norcent Technology10/26/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
The trial court granted summary judgment to cross-defendant International Norcent Technology, Inc. (Norcent) on the cross-complaint by Paul Chew for wrongful termination in violation of public policy. The ruling followed a criminal trial in which a jury found Chew guilty of theft of Norcent's trade secrets and attempted extortion of Norcent's president. The issues are whether the judgment in the criminal action collaterally estopped Chew from litigating key issues, and provided Norcent an affirmative defense in the wrongful termination action. We reverse the judgment for Norcent.
FACTS AND PROCEEDINGS BELOW
Norcent hired Chew as its senior accountant responsible for preparing financial statements, completing the general ledger and balancing the bank accounts for Norcent and a related company, International Reliance Corporation (IRC). As senior accountant Chew had full access to the accounting system software for both companies. When hired, Chew signed a confidentiality agreement promising not to disclose the companies' private financial information and customer lists. He also agreed not to use confidential information for any purpose detrimental to Norcent.
In March 2003 Norcent filed a breach of contract action against Chew and sought injunctive relief to prevent him from disclosing "proprietary, sensitive financial information obtained by him through his employment at Norcent" including "transfers of money, cost and pricing data, profit margins, vendor sources and other confidential information." In May 2003 Chew filed a cross-complaint against Norcent for wrongful termination in violation of public policy. In the meantime Norcent's president, Jennifer Long, went to the police alleging Chew had stolen confidential documents from the company and was threatening to make them public unless she paid him $50,000.
A police investigation of Long's allegations resulted in the seizure of confidential Norcent documents from Chew's home and Chew's arrest and trial on one count of grand theft and two counts of extortion. Chew defended on the grounds the documents he took from Norcent were evidence of Long's fraudulent manipulation of the company's sales records and embezzlement of company funds which he needed to protect himself in case of a criminal investigation into Long's activities. A jury convicted Chew of grand theft for stealing Norcent's confidential financial data and convicted him on one count of extortion. It found him not guilty on the other extortion count.
While Chew's criminal convictions were on appeal Norcent moved for summary judgment on his action for wrongful termination. The trial court granted the motion on alternative grounds. It found: (1) "there is no admissible evidence of actual termination" and (2) "Chew's criminal conviction for attempted extortion and theft of trade secrets against Norcent during his employment establishes good cause for his termination[.] The court entered judgment in favor of Norcent on Chew's cross-complaint and Chew filed a timely appeal.
DISCUSSION
I. A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER NORCENT CONSTRUCTIVELY DISCHARGED CHEW
A. Norcent Had The Burden Of Negating The Termination Element Of Chew's Cause Of Action For Wrongful Termination
As the party moving for summary judgment Norcent h
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