Judge: Stephen I. Goorvitch, Case: BC716737, Date: 2023-05-25 Tentative Ruling

Case Number: BC716737    Hearing Date: May 25, 2023    Dept: 39

Sylvia Noland v. Land of the Free, L.P., et al.

Case No. BC716737

Motion for Summary Judgment

Motion for Sanctions

Motion to Terminate Fee Waiver

BACKGROUND

            Plaintiff Sylvia Noland (“Plaintiff”) filed this employment action against Defendants Land of the Free, L.P. (the “company”) and its owner, Jose Luis Nazar (collectively, “Defendants”).  In her second amended complaint, Plaintiff asserts a series of wage and hour violations, as well as causes of action for retaliation under Labor Code section 1102.5, wrongful constructive termination in violation of public policy, breach of contract, breach of the implied covenant of good faith and fair dealing, intentional interference with prospective economic advantage, quantum meruit, unfair business practices, conversion and theft of labor, wrongful termination and retaliation under Labor Code section 98.6, misclassification of employees as independent contractors, and intentional infliction of emotional distress (“IIED”).  There is also a claim under the Labor Code Private Attorney General Act of 2004 (“PAGA”).  Now, Defendants move for summary judgment or, in the alternative, summary adjudication.  Defendants also move to terminate Plaintiff’s fee waiver.  Plaintiff moves for monetary sanctions under Code of Civil Procedure sections 128.5 and 128.7 but does not oppose the motion for summary judgment.  The Court grants the motion for summary judgment and denies the other motions. 

PROCEDURAL HISTORY

Plaintiff Sylvia Noland (“Plaintiff”) filed this employment action against Land of the Free, L.P. and Jose Luis Nazar (collectively, “Defendants”) on August 7, 2018.  This case originally was assigned to the Honorable David Sotelo, Superior Court Judge, who sustained a demurrer to the ninth, tenth, and eighteenth causes of action.  Following Judge Sotelo’s retirement, the case was reassigned to the Honorable Anne Richardson, Superior Court Judge. Defendant filed a peremptory challenge under Code of Civil Procedure section 170.6 on February 14, 2023, and the case was reassigned to the undersigned on February 17, 2023.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

DISCUSSION

            A.        Successive Motion for Summary Judgment

            Defendants previously filed a motion for summary judgment on September 29, 2022, in advance of a trial date of January 17, 2023.  Code of Civil Procedure section 437c(f)(2) states: “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting these issues reasserted in the summary judgment motion.”  The Court interprets this section as prohibiting a second motion for summary judgment following a prior decision on the merits.  Judge Sotelo did not decide the prior motion for summary judgment on the merits.  Defendants filed and served the motion on September 29, 2022, and noticed the motion for hearing on December 1, 2022, in advance of a trial date on January 17, 2023.  Judge Sotelo denied the motion for lack of statutory notice without addressing the merits.  The record is unclear why Judge Sotelo did not continue the hearing on the motion to Thursday, December 15, 2022, or Friday, December 16, 2022, or Monday, December 18, 2022.  These dates would have afforded statutory notice (based on the motion having been served electronically).  A trial court may not refuse to hear a motion for summary judgment filed and served electronically at least 107 days before trial.  (See Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88.) 

            In the alternative, the Court elects to consider Defendants’ motion for summary judgment.  Notwithstanding section 437c(f)(2), the Court has inherent authority to consider a second motion for summary judgment, provided there is good cause to do so.  (See, e.g., Nieto v. Blue Shield of California Life & Health Insurance Company (2010) 181 Cal.App.4th 60, 71-72.)  The Court does so for the reasons stated.  Defendants are entitled to a ruling on the merits, having filed the motion sufficiently in advance of the prior trial date.  Moreover, the issues raised in Defendants’ motion should be decided in advance of trial.  It would not promote the interests of judicial economy to select the jury and permit Plaintiff to conduct her case-in-chief before ruling on these issues on a motion for non-suit.

            The Court informed the parties at the case management conference on March 21, 2023, that it would decide the motion on the merits and set a hearing date of May 25, 2023.  Therefore, Plaintiff had sufficient notice and opportunity to file a written opposition addressing the merits of Defendants’ motion.   

            B.        Wage and Hour Claims

            Plaintiff asserts a series of wage and hour claims under the Labor Code.  Wage and hour laws apply to employees, not independent contractors.  (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351.)  Plaintiff conceded in her deposition that she was an independent contractor of the company.  Specifically, Plaintiff testified during her deposition that she was hired to “do the events, be their event director” and that “[she] just was an independent contractor.”  (Declaration of Michael Yadegari, Exh. B, p. 50.)  Plaintiff testified that “nobody supervised [her]” and “[she] did everything.”  (Ibid.)  Plaintiff also testified that “[she] had full autonomy.”  (Ibid.)  Defendants rely on a declaration from Loretta G. Seyer, the company’s managing director, which states that Plaintiff “was an independent contractor who ran her own business with a variety of clients according to her own schedule and even mentions one of those clients in her complaint.”  (Declaration of Loretta G. Seyer, ¶ 4.)  Seyer states that Plaintiff “was never given designated work hours” but “rather, she determined when she came to either property by making appointments at her discretion with potential tenants to do showings or conduct other business with potential tenants.”  (Ibid.)  Defendants rely on a declaration from Alicia Squarzon, Nazar’s executive assistant, which states that Plaintiff “ran her own business and had several clients with which she would work according to her own schedule.”  (Declaration of Alicia Squarzon, ¶ 3.)  Plaintiff was never provided with a work desk, telephone, or supplies.  (Declaration of Loretta G. Seyer, ¶ 4; Declaration of Alicia Squarzon, ¶ 3.)  Finally, Defendants rely on a declaration of Jose Nazar, which provides the same information as the other declarations.  (Declaration of Jose Nazar, ¶ 4.)     

This evidence satisfied Defendants’ burden, shifting the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue.  Plaintiff fails to do so.  Nor could she do so.  A party cannot defeat summary judgment by relying on a subsequent declaration contradicting “clear and unequivocal admission[s] by the plaintiff” in her deposition testimony.  (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)  Therefore, the Court grants summary adjudication of all wage and hour claims.

            B.        Unpaid Commission   

            Plaintiff asserts the following causes of action based upon Defendants’ alleged failure to pay a certain commission: (1) Breach of contract, (2) Breach of the covenant of good faith and fair dealing, (3) Intentional interference with prospective economic advantage; (4) Quantum meruit, (5) Unfair business practices, and (6) Conversion and left of wages.  Specifically, Plaintiff alleges that she was not paid a two percent commission for securing a new tenant.  (Second Amended Complaint, ¶ 64.)  Defendants rely on Plaintiff’s deposition testimony suggesting that she received all of her wages.  (Declaration of Michael Yadegari, Exh. C, pp. 391, 417.)  Defendants also rely on the declarations of Loretta G. Seyer and Alicia Squarzon, which state that the tenant did not execute the lease.  (Declaration of Loretta G. Seyer, ¶ 3; Declaration of Alicia Squarzon, ¶ 4.)  Defendants rely on a declaration from Jose Nazar, which also states that the tenant did not execute the lease.  (Declaration of Jose Nazar, ¶ 2.)  Finally, Defendants rely on Plaintiff’s inability to identify any law, rule, ordinance, regulation, code, or order violated by Defendants.  (Declaration of Michael Yadegari, Exh. C, pp. 433-434 & Exh. F.)  This evidence is sufficient to satisfy Defendants’ burden, and Plaintiff proffers no evidence giving rise to a triable issue.  Therefore, the Court grants summary adjudication of these claims. 

            C.        Wrongful Constructive Termination, Retaliation, and IIED

            Finally, Plaintiff asserts claims for wrongful constructive termination, retaliation, and IIED.  Plaintiff alleges that because she complained about her wages and opposed Defendants’ unfair practices, she was prevented from attending company events and suffered constant nagging.  (Second Amended Complaint, ¶¶ 341-342.)  Plaintiff also alleges that she was berated and abused by Nazar.  (Id., ¶¶ 343-347.)  Defendants rely on declarations by Loretta G. Seyer and Alicia Squarzon, which state that Plaintiff was not treated inappropriately.  (Declaration of Loretta G. Seyer, ¶¶ 5-7; Declaration of Alicia Squarzon, ¶ 2.)  Defendants also rely on a declaration of Jose Nazar denying Plaintiff’s allegations.  (Declaration of Jose Nazar, ¶¶ 5-9.)  This evidence is sufficient to satisfy Defendants’ burden, and Plaintiff proffers no evidence giving rise to a triable issue.  Therefore, the Court grants summary adjudication of these claims. 

            D.        Plaintiff’s Motion for Sanctions

            Plaintiff seeks sanctions under Code of Civil Procedure sections 128.5 and 128.7 based upon Defendants having filed a successive motion for summary judgment.  The motion is denied, as there was good cause for Defendants having filed a second motion for summary judgment. 

CONCLUSION AND ORDER

            Based upon the foregoing, the Court rules as follows:

            1.         Defendants’ motion for summary judgment is granted.

            2.         Defendants may lodge a proposed judgment if necessary.

            3.         Plaintiff’s motion for sanctions is denied.

            4.         Defendants’ motion to terminate Plaintiff’s fee waiver is denied as moot.  

5.         Defendants’ counsel shall provide notice and file proof of such with the Court.