Case Number: BC706010 Hearing Date: February 06, 2019 Dept: J

______________________________________________________________________________

Defendant Williams-Sonoma, Inc.’s DEMURRER
TO PLAINTIFFS’ COMPLAINT

Responding
Party: Plaintiffs, Maria Lourdes Castellanos, Hector Vargas, Sandra Lucero,
Deisey Mercado, Karina Davils, Jason Roberts, Marcus Thompson and Daniel
Vasquez

Tentative Ruling

Defendant Williams-Sonoma, Inc.’s Demurrer
to Plaintiffs’ Complaint is SUSTAINED.

The court will hear from counsel for Plaintiffs
as to whether leave to amend is requested,

and as to which cause(s) of action, and
will require an offer of proof if so.

Background

Plaintiffs Maria Lourdes Castellanos,
Hector Vargas, Sandra Lucero, Deisy Mercado, Karina Davila, Jason Roberts,
Marcus Thompson and Daniel Vasquez (“Plaintiffs”) allege that they were each
terminated in violation of their respective implied-in-fact employment
contracts. On November 21, 2018, Plaintiffs filed a complaint, alleging causes
of action therein against Defendant Williams-Sonoma, Inc. and Does 1-20 for:

Wrongful
Termination of an Implied-In-Fact Employment Contract (Eight Counts)

Legal Standard

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. In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Code Civ. Proc.,
§§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226
Cal.App.2d 725, 732 (internal citations omitted).)

Discussion

Defendant Williams-Sonoma, Inc.
(“Defendant”) demurs, per CCP § 430.10(e), to each of the eight counts of Wrongful Termination of an
Implied-In-Fact Employment Contract in Plaintiffs’ complaint, on the basis
that they fail to state
facts sufficient to constitute causes of action.

“[T]he
elements of a cause of action for breach of contract are (1) the existence of
the contract, (2) plaintiff’s performance or excuse for nonperformance, (3)
defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 821.)

Civil Code § 1621 states
that “[a]n implied contract is one, the existence and terms of which are
manifested by conduct.” “A cause of action for
breach of implied contract has the same elements as does a cause of action for
breach of contract, except that the promise is not expressed in words but is
implied from the promisor’s conduct.” (Yari
v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172,
182.)

“Under Labor Code section 2922, employment for an
unspecified term is terminable at will. The presumption of at-will employment
may be overcome by evidence of an implied agreement of continued employment,
pending the occurrence of an event such as the employers’ dissatisfaction with
the employee’s services or the existence of some cause for termination.” (Davis v. Consolidated Freightways (1994)
29 Cal.App.4th 354, 366-367.)

Each Plaintiff alleges that their respective terminations
was improper because the Progressive Counseling provision in Defendant’s
Associate Handbook “negated the at-will presumption of employment and created
an implied-in-fact employment contract wherein Plaintiffs had greater
protection than at-will employment, including termination for cause and rights
given under Progressive Counseling paragraphs of the Handbook.” (Complaint,
¶17.) Plaintiffs further allege that the termination of their respective
employments was improper because Defendant did not use progressive counseling
procedures. (Id., ¶20.)

The Progressive Counseling provision in the Associate
Handbook, however, confirms that it does not create an implied-in-fact contract
altering Plaintiffs’ at-will status. This provision states, in relevant part,
as follows:

“PROGRESSIVE
COUNSELING

In general, Williams-Sonoma, Inc., utilizes progressive
counseling to provide associates with the opportunity to improve their
performances in deficient areas. The goal of the process is to help the
associate correct performance, attendance or other problems by providing
constructive counseling and solutions.

Generally, the process may entail verbal counseling, written
counseling or termination. The level
at which counseling begins depends upon the frequency and severity of the
situation in question. Copies of written counseling documents are placed in the
associate’s personnel file. If the associate’s performance does not improve,
the associate will be subject to further disciplinary action, up to and including
termination.

Progressive counseling is based upon the particular
circumstances of each situation. While Williams-Sonoma, Inc., handles each
situation on a case-by-case basis, the Company reserves the right to apply,
modify or vary progressive counseling, and to accelerate or repeat steps as
deemed necessary, including the right to
move directly to termination. For example, in cases of serious violations as
determined by the Company, an associate may be immediately terminated without
any prior progressive counseling.

In all cases, however, employment
with the Company is at-will and terminable at any time, with or without cause
or notice, and with or without application of progressive counseling.” (Id., ¶16 [emphasis added].)

Plaintiffs, then, cannot demonstrate any mutual agreement to
alter the at-will nature of their employment. See Civil Code §§ 1550
(“[C]onsent” is “essential to the existence of a contract”) and 1565 (“The
consent of the parties to a contract must be: 1. Free; 2. Mutual; and, 3.
Communicated by each to the other.”)

The simple fact that an employer has progressive discipline
or counseling guidelines does not indicate that the parties mutually agreed to
be bound by those guidelines. (See Davis, supra, 29 Cal.App.4th at
367 [“Even if [a manager] used techniques other than immediate termination to
encourage compliance with production goals, that proves nothing regarding the
existence or nonexistence of [the employer’s] at-will employment policy.
Otherwise, an employer would be forced purposely to terminate employees for any
and every infraction—or none at all-in order to maintain the presumption of
at-will employment. The law does not require such caprice to avoid creating an
implied in fact contract.”)

Additionally, Plaintiffs acknowledge that they were at-will
employees. (Complaint, ¶15 [“Upon employment, each of the Plaintiffs received
from WS an ‘Associate Handbook’ (‘Handbook’) with an acknowledgment purportedly
agreeing that Plaintiffs’ employment was at-will”). Plaintiffs have not pled any facts alleging conduct, employment
practices, or other documents that supercede or otherwise alter the express
at-will language in the Associate Handbook.