Filed 4/23/20 Kothari v. Vaghashia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RAKESH KOTHARI,

Plaintiff and Respondent,

v.

GOVIND R. VAGHASHIA et al.,

Defendants and Appellants.

B292209

(Los Angeles County

Super. Ct. No. EC067612)

APPEAL from an order of the Superior Court of Los Angeles County, Ralph C. Hofer, Judge. Affirmed.

Enenstein Pham & Glass, Darren S. Enenstein, Teri T. Pham and Chris S. Pacetti for Defendants and Appellants.

Law Offices of Jovi Usude and Jovi Usude for Plaintiff and Respondent.

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Rakesh Kothari sued, among others, Govind R. Vaghashia, Sonal Vaghashia, and the Vaghashia Family Limited Partnership (collectively Vaghashia) for employment related claims. Vaghashia moved to specially strike two causes of action in Kothari’s complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court granted the motion in part and denied it in part. Vaghashia appeals, contending it should have been granted in its entirety. We disagree and affirm the order.

BACKGROUND

I. Termination of Kothari’s employment

Vaghashia Family Limited Partnership owns several hotels. Govind Vaghashia (Govind) is the partnership’s sole general partner. In 2014, Kothari was hired to assist with marketing and managing the hotels. Per the employment agreement, Kothari lived rent free in an apartment. Vaghashia fired Kothari in March 2018 and, the same day, served him with a notice to quit the apartment. When Kothari did not leave, Govind filed an unlawful detainer action in April 2018. Vaghashia also filed a request for a temporary restraining order (TRO) to prevent Kothari from trespassing on Vaghashia’s properties.

II. This lawsuit

Kothari commenced this action in November 2017 alleging, among others, causes of action for breach of contract and failure to pay wages. After he was fired in 2018, he filed a first amended complaint (FAC) alleging 12 causes of action: (1) breach of contract, (2) interference with business advantage, (3) promissory estoppel, (4) declaratory relief, (5) injunction, (6) failure to pay wages, (7) failure to pay minimum wage, (8) failure to pay overtime, (9) violation of Business and Professions Code section 17200, (10) workplace harassment, (11) wrongful discharge, and (12) intentional infliction of emotional distress.

Kothari generally alleged he had a written employment agreement to manage the hotels. Per the agreement, he was paid a minimum hourly wage and was entitled to a commission tied to a target revenue. Kothari was also provided a rent-free apartment and he was entitled to 12 months’ notice to vacate the apartment if he was fired. Over the course of Kothari’s employment, Govind asked Kothari to commit fraud, but Kothari always refused. Kothari, for example, refused to get workers’ compensation in Kothari’s name to cover hotel employees. Kothari also refused to sign a false statement saying that Vaghashia did not employ someone, but Govind had a housekeeper sign and submit it to the workers’ compensation carrier. Govind also had employees sign blank pieces of papers for his use. When Govind fired Kothari, Govind continued to harass him by failing to pay him wages owed, issuing a notice to quit the apartment, and requesting a TRO.

Kothari specifically alleged in the 10th cause of action that Govind pressured him to employ workers who did not have proper work authorization documents, not to use the e-verification process, and to disclose a “unique business model” Kothari had developed. Govind also asked Kothari to falsify information on government audits. By reference, Kothari incorporated into the 10th cause of action all preceding allegations, including those pertaining to the unlawful detainer action and TRO.

III. The anti-SLAPP motion

Vaghashia moved to specially strike the fifth cause of action for injunction and the 10th cause of action for workplace harassment. Vaghashia argued that the 10th cause of action was predicated on statements made in connection with government audits, which statements are protected activity per section 425.16, subdivision (e)(2), and on the request for a TRO, which is protected activity per section 425.16 subdivision (e)(1) and (2). Further, Kothari could not prevail on the workplace harassment cause of action because he had not pleaded he was a member of a protected class. Vaghashia also asked the trial court to strike allegations describing protected activity. Vaghashia supported the motion with Govind’s declaration in which he denied having written employment and lease agreements with Kothari and asserted that he fired Kothari because of operational problems, including theft and embezzlement.

In opposing the motion, Kothari submitted a written employment agreement for a seven-year term under which he could only be fired if he did not meet revenue targets. The agreement further provided that Kothari would move into a rent-free apartment, and, if he was fired before June 30, 2021, could not be evicted without 12 months’ notice.

Kothari also submitted his declaration, explaining that his duties included responding to a city audit. When Kothari refused Govind’s order to omit cash sales from the audit, Govind manipulated the documents himself. Kothari also refused to obtain workers’ compensation insurance in his name to cover hotel employees. Govind told Kothari about other acts of fraud he committed, such as forging employees’ names onto documents for use in the event of a future lawsuit by that employee. Because Kothari refused to engage in fraudulent conduct, Govind harassed him and finally fired him after refusing to pay Kothari his commission.

IV. The trial court’s ruling

The trial court granted the motion as to the fifth cause of action for injunction as it was based on the protected activity of filing the unlawful detainer action. However, the trial court denied it as to the 10th cause of action for harassment. Although the trial court found that the claim arose in part out of protected activity, Kothari established a probability of prevailing on the merits. The trial court rejected Govind’s argument that Kothari could not prevail because Kothari failed to allege an element of the cause of action and because it was duplicative of the 11th cause of action, advising that such arguments are not properly raised in an anti-SLAPP motion.

Govind appeals, contending that the trial court should have struck the 10th cause of action as well as other allegations.

DISCUSSION

I. Anti-SLAPP motions

The anti-SLAPP statute “provides a procedure for the early dismissal of what are commonly known as SLAPP suits (strategic lawsuits against public participation)—litigation of a harassing nature, brought to challenge the exercise of protected free speech rights.” (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

In evaluating an anti-SLAPP motion, the trial court first determines whether the moving defendant has made a threshold showing that the challenged action arises from protected activity, that is, activity in furtherance of the rights of petition or free speech. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; § 425.16, subd. (e).) If so, the burden shifts to the plaintiff to demonstrate a probability of prevailing. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) We review an order granting or denying a special motion to strike de novo. (Id. at p. 820.) We consider the “pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) We examine the complaint in a fair and commonsense manner and we broadly construe the anti-SLAPP statute. (See § 425.16, subd. (b)(2).) “[W]e neither ‘weigh credibility [nor] compare the weight of the evidence.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) Because our review is de novo, we may affirm a trial court’s ruling on any ground. (Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 188–189.)

II. Probability of prevailing on the merits

As our review is de novo, we will assume that the 10th cause of action arose in part from protected activity, as the trial court found, and proceed directly to the second prong of the analysis, whether Kothari established a probability of prevailing on the merits. (See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989 [court proceeded directly to second prong].) The second prong of the analysis is akin to the summary judgment procedure. (Baral, supra, 1 Cal.5th at p. 384.) The trial court does not weigh evidence or resolve conflicting factual claims but limits its inquiry “to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.)

Kothari met his burden. The gravamen of his 10th cause of action for workplace harassment was that when Kothari refused to commit fraud for Govind, Govind harassed and fired him, in violation of the employment agreement and public policy. The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer fired the plaintiff, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) To support the FAC’s allegations, Kothari submitted a written employment agreement, which also contained the terms of his lease. He also submitted evidence he met the terms of his employment by increasing hotel revenues. Further, he detailed in his declaration the various acts of fraud Govind asked him to commit, including falsifying documents to be submitted to government entities and workers’ compensation carriers.

On appeal, Vaghashia does not respond to this evidence. Instead, it merely makes two inapt arguments as to why Kothari has no probability of prevailing on the merits of his cause of action. First, Kothari failed to allege he belongs to a protected class, as required for a cause of action under California’s Fair Employment and Housing Act. Second, the 10th cause of action for workplace harassment is duplicative of the 11th cause of action for wrongful discharge in violation of public policy. But, as the trial court explained, these arguments are properly raised in a demurrer and motion to strike, which are designed to eliminate sham or facially meritless allegations at the pleading stage. (See §§ 430.10, 435; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) Anti-SLAPP motions are not analogous to demurrers and motions to strike. Rather, an anti-SLAPP motion pierces the pleadings and requires an evidentiary showing, and is therefore more akin to a motion for summary judgment. (Ibid.) An anti-SLAPP motion is not the proper vehicle to claim that a cause of action is redundant to another cause of action or is surplusage. (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 692; accord, Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 742.) The trial court therefore correctly denied the motion to strike the 10th cause of action.

III. Striking allegations

Relying on Baral, Vaghashia asked the trial court to strike allegations supposedly describing protected activity. Baral, supra, 1 Cal.5th at page 382 noted that causes of action may be “mixed,” in that they allege protected and unprotected activity. The court held that an anti-SLAPP motion may be brought to eliminate allegations of protected activity from a cause of action. (Baral, at p. 396.) Thus, allegations of “protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Ibid.)

We have reviewed the allegations Vaghashia wants stricken. Primarily, they provide context to validly stated claims. As such, they are not strikeable. (See Baral, supra, 1 Cal.5th at p. 394.) Paragraph 29 of the FAC, for example, merely alleges that when Kothari refused to falsify a statement to be submitted to a workers’ compensation insurer, Govind had a housekeeper do it instead. Paragraph 33 alleges that Govind threated to fire and to evict Kothari if Kothari did not dismiss his lawsuit. Although it is unclear how these allegations reflect protected activity, they, as well as those pertaining to the unlawful detainer, notice to quit, and TRO, merely provide context to Kothari’s contractual and wrongful discharge causes of action. That is, they are cited as evidence of how Govind harassed Kothari to pressure him to commit fraud for Govind or to dismiss his lawsuit. And, as to paragraphs 77 through 86, those pertain to the fifth cause of action. The trial court granted Govind’s anti-SLAPP motion as to that cause of action, and it is therefore unclear what more Govind expected the trial court to do as to those paragraphs.

DISPOSITION

The order is affirmed. Rakesh Kothari is awarded his costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.