Judge Bruce G. Iwasaki, Case Number: 23STCV12479, Date: 2024-05-08 Tentative Ruling

Case Name: Dominic Adua Nyaaba v. Quility-Asurea Agency Insurance Services, LLC

This case arises out of the termination of the alleged employer-employee relationship between Plaintiff Dominic Adua Nyaaba (“Nyaaba” or “Plaintiff”) and Defendant Quility-Asurea Agency Insurance Services, LLC (“Quility” or “Defendant”) which Plaintiff alleges terminated in a breach of contract on July 20, 2021. On June 5, 2023, Plaintiff sued Defendant Quility, alleging causes of action for (1) loss of wages; (2) battery; (3) assault(s); (4) negligence; (5) negligence-harassment, duress; (6) emotional distress; and (7) compensatory damages.[1] The Complaint further alleges damages for $165,000, to compensate Plaintiff for wrongful termination and being asked to leave because Defendant Quility did not want to pay Plaintiff Nyaaba commissions. (Compl. at p. 3.)

Defendant Quility now demurs to Plaintiff’s first cause of action for breach of contract, second cause of action for negligence, and other causes of action for lost wages, battery, assault, and wrongful termination because Plaintiff fails to state a cause of action and demonstrates uncertainty, pursuant to Code of Civil Procedure section 430.10(e) and (f). (CCP §430.10(e)-(f).)

Defendant filed the instant Demurrer on March 25, 2024. On April 26, 2024, the Court issued a Minute Order, continuing the Hearing on the Demurrer previously scheduled to May 7, 2024 to May 8, 2024. Plaintiff filed an Opposition or “Answer” to Defendant’s demurrer on April 29, 2024.[2] Defendant filed their Reply on May 1, 2024, requesting the Court strike Plaintiff’s Answer to Demurrer for being untimely.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Defendant argues that the first, second, and “other causes of action for lost wages, battery, assault, and wrongful termination” are uncertain. A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) The Court finds that the Complaint is uncertain, as the allegations are not meaningfully and intelligibly discussed and do not provide facts sufficient to state a cause of action.

Defendant Quility asserts that Plaintiff’s allegations are insufficient to state a breach of contract claim because it is unclear as to (1) whether a written contract was even formed, (2) whether Quility or Plaintiff signed any agreement, or (3) whether Quility was even a party to the agreement.

To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.).

The Complaint alleges that the essential terms of such contract are the following:

Income Goal: $100,000.
Number of weeks to reach income goal: 48 Sold list 40
Place premium $1,500 average premium

Defendant notes that Plaintiff has provided no extrinsic evidence of such a contract but argues that the contract was breached because he was: abused, harassed, assaulted, and batter[ed]” when “Elmer pursued me to the fisrt [sic] floor and commanded me not to return.” (Compl., ¶ BC-2). Plaintiff also alleges that “Josh asked me to leave because they did not want to pay me commissions. Andy, Krystal, Chadd Parker and other employees screamed at me and made fist [sic] of rage. Andy had a hun [sic] in his car.” (Complaint, ¶ BC-2). Plaintiff contends that he is owed “165,700.00” in damages resulting from purported loss of wages at $100,000 per year and other vague allegations concerning commissions and leads.” (Id. ¶ BC-6.)

Plaintiff has failed to allege facts sufficient to state a cause of action because Plaintiff has not demonstrated the existence of a contract or a meeting of the minds. Without establishing the existence of a contract and/or the terms of the contract, Plaintiff has not established a breach. Further, Plaintiff’s allegations are unintelligible.

Accordingly, the demurrer as to the first cause of action is sustained with leave to amend.

“The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496].)

Defendant argues that Plaintiff’s facts in support of a cause of action for negligence are virtually incomprehensible and cites Ankey v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531 [the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing it left to surmise; recitals, references to, or allegations of material facts which are left to surmise are subject to special demurrer for uncertainty].)

The complaint fails to identify Defendant Quility’s duty of care or breach of duty, and does not allege facts of causation or injury. Plaintiff’s references to discrimination, loss of wages, assaults, and batteries are vague, unintelligible, and insufficient to demonstrate the elements of a negligence cause of action.

Accordingly, the Court sustains Defendant’s demurrer as to the second cause of action.

Other Causes of Action – Lost Wages, Battery, Assault, & Wrongful Termination

“Requiring the plaintiff to prove future economic losses are reasonably certain ‘ensures that the jury’s fixing of damages is not wholly, and thus impermissibly, speculative.’” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 738 [214 Cal.Rptr.3d 113].)

Defendant argues that “Plaintiff’s purported damages are insufficiently pled because the muddled facts do not support how or why he would be entitled to $100,000 in lost wages, commissions, and/or leads in the first place. (Demurrer at p. 7.). Moreover, it is unclear what Plaintiff means by “income goal,” “solid list,” “lead costs,” or “Commission Advanced.”

Plaintiff has not pleaded the payment of past wages or a payment schedule that would entitle Plaintiff to damages in the form of lost wages. Plaintiff has also not established a contract entitling Plaintiff to any such wages or that Plaintiff was wrongfully terminated and thus, owed future loss of income. There is no allegation of a contract providing Plaintiff with wages.

Thus, the Court sustains Plaintiff’s demurrer as to the cause of action for lost wages.

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890

Plaintiff fails to allege how Defendant Quility battered Plaintiff. (Demurrer at p. 8.) Plaintiff merely states that “Elmer” pursued Plaintiff to the first floor and commanded him “not to return.” (Compl. at p. 3.)

The Court notes that Plaintiff states “Prior to that date Josh asked me to leave because they did not want to pay me commissions. Andy, Krystal, Chadd Parker, and other employees screamed at me and made fist of rage. Andy had a hun in his car.” (Compl. at p. 1.)

Plaintiff alleges no physical touching that constitutes any form of harmful or offensive conduct. Plaintiff does not assert Defendant(s) made any form of contact with him. The demurrer to the cause of action for battery is sustained.

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Plaintiff fails to allege how Defendant Quility battered Plaintiff and allegations about being pursued to the first floor or being screamed at do not establish Defendant was acting with intent to cause harmful or offensive conduct or threatened Plaintiff such that Plaintiff reasonably believed Defendant was about to carry out a threat.

The Court sustains Defendant’s demurrer as to the cause of action for assault.

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973.)

Defendant argues there are no specific allegations that Defendant Quility employed Plaintiff, that Quility terminated Plaintiff, what position Plaintiff held, or what public policy was violated. (Demurrer at pp. 8-9.)

Again, Plaintiff has provided no facts demonstrating an employer-employee relationship existed between Defendant and Plaintiff. As such, the Court cannot find a cause of action for wrongful termination.

Therefore, the Court sustains Defendant’s demurrer as to the cause of action for wrongful termination.

The demurrer is sustained. Plaintiff shall have leave to amend. The amended complaint shall be served and filed on or before May 17, 2024.

[1] The causes of action, as listed here, appear this way on pages 16-24 on the Complaint. However, the causes of action are described in confusing and contradictory ways throughout the Complaint. (pp 1-4; pp 40-46.)

[2] Plaintiff’s Opposition was titled as “Plaintiff’s Answer to Quility-Asurea Agency Insurance Services, LLC Notice of Demurrer to Plaintiff’s Complaint and Motion to Strike. Defendants are wrong and liable to Plaintiff for damages in the amount of $165,700.” This caption/title was handwritten and challenging to read. Plaintiff’s Answer/Opposition was also untimely. The Court considers it nevertheless.

Judge Bruce G. Iwasaki

Department 58