Judge Thomas D. Long, Case Number: 23STCV15621, Date: 2024-02-15 Tentative Ruling

On August 21, 2023, Tynan Leachman filed a first amended complaint against Bella + Canvas LLC, alleging waiting time penalties and failure to provide employment records.

On September 25, 2023, Bella + Canvas LLC (“Cross-Complainant”) filed a cross-complaint against Tynan Leachman (“Cross-Defendant”), alleging fraud.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

The cross-complaint’s sole cause of action is for fraud. The cross-complaint alleges that Cross-Defendant, through his agency, misrepresented that Cross-Complainant should pay the agency for Cross-Defendant’s modeling services upon receipt of an invoice instead of paying Cross-Defendant directly. (Cross-Complaint ¶¶ 9-10, 18.) Cross-Defendant reasonably relied on this representation “because it was instructed to do so by someone with authority and the instruction comported with standard industry practice.” (Cross-Complaint ¶ 20.) At the September 6, 2022 photoshoot, Cross-Defendant intentionally failed to disclose that he intended to make a claim against Cross-Complainant unless it paid him directly shortly after the photo shoot, prior to receipt of an invoice. (Cross-Complaint ¶ 21.) Cross-Complainant waited to receive the November 16, 2022 invoice from the agency and then paid the agency directly, rather than paying Cross-Defendant directly, which led to Cross-Defendant’s action for waiting time penalties. (Cross-Complaint ¶¶ 12, 15, 24.)

Cross-Defendant argues that the cross-complaint does not plead specific facts. (Demurrer at p. 3.)

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) Fraud must be pleaded with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.] A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).)

Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)

The cross-complaint alleges that on August 29, 2022, it and Two Management agreed to a contract with specific terms, including timing and method of payment for Cross-Defendant’s services. (Cross-Complaint ¶ 9.) However, there are no facts about who at the agency made the representations, their authority, or to whom at Cross-Complainant the statements were made. (See Lazar, supra, 12 Cal.4th at p. 645.) There is also no allegation that Cross-Defendant had a duty to disclose information about payment, as required for fraudulent concealment.

Because the cross-complaint lacks the required specific facts to allege fraud, the demurrer is sustained.

Cross-Defendant also argues that the cross-complaint fails as a matter of law. (Demurrer at pp. 3-4.)

Cross-Complainant argues that that the issue of whether Cross-Defendant was an “employee” requires a fact-intensive inquiry. (Opposition at p. 6.) However, under the Labor Code, a “print shoot employee” is “an individual hired for a period of limited duration to render services relating to or supporting a still image shoot, including film or digital photography, for use in print, digital, or internet media.” (Lab. Code, § 201.6, subd. (a)(1).) “A print shoot employee is entitled to receive payment of the wages earned and unpaid at the time of termination by the next regular payday.” (Lab. Code, § 201.6, subd. (b).) As a matter of law, Cross-Defendant was an employee entitled to payment of wages by the next payday.

As Cross-Defendant notes (Demurrer at pp. 3-4), the timely payment of wages cannot be waived by agreement. (Lab. Code, § 219, subd. (a) [“no provision of this article can in any way be contravened or set aside by a private agreement, whether written, oral, or implied”; see also Lab. Code, § 432.6, subd. (a) [an employer cannot require an employee to waive any rights under the Labor Code].) Thus, regardless of what Cross-Defendant or the agency represented, or what the industry custom and practice was, Cross-Complainant could not reasonably rely on those representations for the timing of paying wages. (See Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 244 [“ employers are presumed to know the law and whether they come within the statutory definition of ‘employer’”].)

Cross-Complainant also alleges that “[t]he Court of Appeal[] has explicitly held that a model’s failure to disclose payment expectations that differ from agreed contract terms is a material non-disclosure that satisfies the misrepresentation element of fraud.” (Opposition at p. 5.) Cross-Complainant’s cited case does not support this claim. In Brighton Collectibles, LLC v. Hockey (2021) 65 Cal.App.5th 99, 104, the Court of Appeal found that employer showed the requisite minimal merit for a similar fraud claim to survive an anti-SLAPP motion. The court did not discuss any implications of the Labor Code, and “cases are not authority for propositions not considered.” (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11, quotation marks omitted.)

The demurrer is SUSTAINED. Cross-Complainant has not shown how it can cure the deficiencies, so no leave to amend is granted.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court