Judge Lisa K. Sepe-Wiesenfeld, Case Number: 20SMCV01254, Date: 2023-10-04 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 20SMCV01254, Date: 2023-10-04 Tentative Ruling

Plaintiff Eidan Gamaty (“Plaintiff”) moves for summary adjudication as to his fourth cause of action for failure to pay wages, fifth cause of action for waiting time penalties, sixth cause of action for wrongful termination in violation of public policy, and tenth cause of action for violation of Penal Code section 496 alleged against Defendants James Bekhor (“James”) and James S. Bekhor Insurance Services, Inc. (“JSB”) (collectively “Defendants”). The Court notes that Plaintiff’s motion was filed as to the First Amended Complaint, but Plaintiff was subsequently granted leave to file a Second Amended Complaint (“SAC”) after the motion was filed. The allegations of the causes of action at issue in this motion are identical in the two pleadings, except that Plaintiff asserts liability in the fourth and fifth causes of action against both James and JSB in the SAC; thus, the Court refers to the SAC in this motion ruling, as the SAC is now the operative complaint in this action.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

In the present motion, Plaintiff seeks adjudication of four causes of action in his favor. However, his separate statement fails to identify any of these causes of action; rather, Plaintiff simply provides a list of undisputed facts. Rule 3.1350(d)(1)(A) of the California Rules of Court provides that “[t]he Separate Statement of Undisputed Material Facts in support of a motion must separately identify . . . [e]ach cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” “The separate statement is not merely a technical requirement, it is an indispensable part of the summary judgment or adjudication process.” (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.) For this reason, Plaintiff’s motion is DENIED in its entirety on procedural grounds. However, in the interest of judicial economy, the Court also provides an analysis as to the merits of each cause of action at issue below.

The Court notes that it has not considered “Plaintiff’s Response to Defendants’ Separate Statement of Facts” filed on March 29, 2024, as this document is a reply separate statement not authorized by statute, and Plaintiff failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].) The Court also has not considered the evidence submitted with Plaintiff’s reply. While the Court has discretion to consider new evidence with the reply, Defendants must have notice and opportunity to respond, and a continuance of the hearing on the motion would be prejudicial to Defendants, as the trial date is imminent, and Plaintiff was aware of the issues in this motion when he first filed his motion. (See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449.)

In the fourth cause of action, Plaintiff alleges that JSB owes him unpaid wages of $25,000 per month because he performed the work assigned to him by and for JSB’s benefit. (SAC ¶¶ 46-48.) Labor Code section 200 describes “wages” as “all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” Under California’s test of employment, as the “principal test of an employment relationship” is “[w]hether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350.)

While Plaintiff provides evidence that JSB had the right to control every aspect of Plaintiff’s job performance (Pl.’s UMF No. 9), and Plaintiff performed insurance sales work as part of JSB’s business (Pl.’s UMF No. 10), Defendants provide evidence that Plaintiff was an independent contractor, as he was selling policies with little to no supervision, he made his own hours, he worked independently, he had no set schedule, and he did not have to formally report to anyone. (Defs.’ UMF Nos. 6-8.) Further, JSB’s business is selling personal insurance policies, while Plaintiff was the only agent selling commercial insurance policies. (Defs.’ UMF No. 9.) Plaintiff was also engaged in the business of his independent insurance agency since at least 2019. (Defs.’ UMF No. 15.) It follows that there is a triable issue as to whether Plaintiff is entitled to wages under the Labor Code as JSB’s employee.

In the fifth cause of action, Plaintiff alleges that Labor Code section 201 requires an employer such as JSB to pay all compensation due at the time of termination, and Labor Code section 203 provides that failure to do so makes the employer liable for waiting time penalties in the form of continued compensation of up to 30 days of pay. (SAC ¶¶ 53-54.) Plaintiff alleges that he met with James to discuss issues and demand payment of his wages, but JSB has not paid such wages. (SAC ¶ 55.) For the same reasons stated above, there is a triable issue as to whether Plaintiff was an employee of JSB such that he is entitled to certain wages, which would make Defendants liable for waiting time penalties. Accordingly, there is a triable as to whether Plaintiff is entitled to waiting time penalties under the Labor Code as JSB’s employee.

In the sixth cause of action, Plaintiff alleges that he and JSB were operating under an employment relationship, and JSB promised a monthly salary of $25,000. (SAC ¶¶ 60-61.) JSB failed to pay salary since April 2019, despite Plaintiff’s requests and JSB’s promises that payment was forthcoming, and JSB ultimately terminated Plaintiff without cause. (SAC ¶¶ 62-64.)

“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. It is well established that a termination premised on an employee’s refusal to violate either a statute or an administrative regulation may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.) It follows that, for the same reasons stated above, there is a triable issue as to whether Plaintiff was an employee of JSB such that it is liable for wrongful termination.

In the tenth cause of action, Plaintiff alleges that by refusing to pay Plaintiff back on the loans, by withholding wages and other payments for labor and services, and by withholding Plaintiff’s pro rata share in the various brokerages, Defendants have violated Labor Code section 496, which the Court assumes to be typographical error, with an allegation that Defendants have violated Penal Code section 496. (SAC ¶ 91.)

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.

First, Plaintiff provides no legal authority showing that nonpayment of wages falls within the purview of Penal Code section 496, and the statute does not read to so allow. Second, there is a triable issue as to whether Plaintiff was entitled to the compensation alleged. Third, Plaintiff’s claim relates to wages, loans, shares in brokerages, and other payments, but Plaintiff’s motion appears to only relate to wages, such that the entire cause of action cannot be disposed. Finally, Plaintiff’s allegation as to Defendants generally makes it such that the Court cannot determine the specific basis of liability against James and JSB separately. For these reasons, there is a triable issue as to whether Defendants are liable for a violation of Penal Code section 496.

Plaintiff objects to certain statements within the declaration of James Bekhor. Objection Nos. 1 to 5 are SUSTAINED. Objection Nos. 6 to 9 are OVERRULED. Objection No. 10 is SUSTAINED as to Plaintiff’s internal motivation and otherwise OVERRULED.