Employee's fraud claim against Eagle Test Systems set for trial.

Judge Ronald M. Whyte denied Eagle Test System's motion for summary judgment on former employee Dale Buxom's fraud claim against the company setting the matter for trial.

Mr. Buxom was Eagle's Vice President of Asia Operations.  His employment agreement guaranteed a severance package if he was terminated without cause.  On March 17, 2008 he signed a revised employment agreement stating that his employment was at-will.  He was terminated a month later.  Judge Whyte explains that Mr. Buxom,

claims that the job did not actually exist, that Foxman [Eagle's CEO] knew that the job did not exist and that the promise of the job was made with no intent to make it available.

Judge Whyte explained that Mr. Buxom's evidence raised an issue for the jury:

Defendant correctly argues that nonperformance of a promise alone does not prove that arepresentation was false when made. See Church of Merciful Saviour v. Volunteers of America, Inc.,184 Cal.App.2d 851, 859-60 (1960) (proof of non-performance at most warrants an inference of an intention not to perform at time the representation was made). Here, however, plaintiff has not justoffered defendant's non-performance of its promise. In light of the circumstances surrounding the offer of the 2008 Agreement, the concerns Eagle Test had at the time, and the facts as testified to by plaintiff, a triable issue of fact exists with respect to plaintiff's claim that defendant offered to create the position of Vice-President of Fabless/Subcontractors for plaintiff in California with no intent to perform that promise.

He denied summary judgment setting the case for trial.