Case Name: Alycia Singleton v. Luxul Technology, Inc., et al.

Case No.: 16CV292976

Defendant James Pan’s Motion for Summary Judgment

Plaintiff Alycia Singleton (“Singleton”) joined defendant Luxul Technology, Inc. (“Luxul”) in May 2014 as an hourly employee. (Complaint, ¶19.) From May 2014 until approximately January 2015, plaintiff Singleton was an hourly employee who worked substantial overtime but did not receive overtime pay. (Id.)

Shortly after joining defendant Luxul, plaintiff Singleton was sent to the LFI lighting show in Las Vegas from May 30, 2014 through June 6, 2014. (Complaint, ¶20.) During this lighting show, defendant James Pan (“Pan”), founder and CEO of defendant Luxul, promised to pay plaintiff Singleton and others a 10% commission on all sales that they generated. (Complaint, ¶¶8 and 20.) Defendant Pan’s statement is consistent with defendant Luxul’s commission policy which is to pay 10% commissions for all sales of defendant Luxul’s products at or above the company-specified price and 5% for all sales of defendant Luxul’s products below the company-specified price. (Complaint, ¶¶20 – 21.)

In 2014 and 2015, plaintiff Singleton generated millions of dollars in sales for defendant Luxul but was not paid any commissions. (Complaint, ¶22.) In or around December 2014 or January 2015, defendant Pan met with plaintiff Singleton as part of a performance evaluation. (Complaint, ¶23.) As part of the meeting, plaintiff Singleton was promoted from a regular employee in the Customer Service Department to supervisor in the Customer Service Department. (Id.) The Customer Service Department at defendant Luxul is responsible for not only resolving customer complaints, but also for generating sales. (Id.) At the meeting, plaintiff Singleton reminded defendant Pan that she was owed commissions and defendant Pan told plaintiff Singleton she would be paid those commissions. (Id.) Plaintiff Singleton was not paid any commissions in 2015. (Complaint, ¶24.)

In February 2016, defendant Pan claimed commissions were not owed to plaintiff Singleton. (Complaint, ¶25.) Shortly after plaintiff Singleton complained about commissions, defendant Luxul restructured the Customer Service Department by shifting the sales function to a different department. (Complaint, ¶27.) Defendant Luxul informed plaintiff Singleton that her pay would be significantly reduced as a part of the restructuring. (Id.)

On March 9, 2016, defendant Luxul demanded plaintiff Singleton sign an agreement which memorialized her pay cut, included false statements regarding employment status, and included an arbitration clause. (Complaint, ¶28.) Plaintiff Singleton refused to sign the document. (Complaint, ¶¶28 and 29.) On March 10, 2016, defendants Luxul and Pan terminated plaintiff Singleton’s employment. In terminating plaintiff, defendants attempted to force plaintiff to sign documents stating all of her wages had been paid and she was not owed the commissions previously promised to her. (Complaint, ¶31.) At the time of termination, plaintiff Singleton was owed substantial compensation in the form of unpaid salary, accrued vacation time, and unpaid commissions. (Complaint, ¶32.) This compensation remains unpaid. (Id.)

On March 31, 2016, plaintiff Singleton filed a complaint against defendants Luxul and Pan asserting causes of action for:

(1) Breach of Contract
(2) Breach of the Implied Covenant of Good Faith and Fair Dealing
(3) Failure to Pay Compensation Owed
(4) Failure to Pay Wages on Termination
(5) Failure to Pay Overtime
(6) Failure to Provide Accurate Itemized Wage Statements
(7) Violation of Labor Code §558
(8) Fraud and Deceit
(9) Negligent Misrepresentation
(10) Violation of Labor Code §98.6
(11) Violation of the California Unfair Competition Law
(12) Wrongful Termination

On April 25, 2016, defendants filed a demurrer to plaintiff Singleton’s complaint.

On May 31, 2016, the court sustained, with leave to amend, defendants’ demurrer to the second and seventh causes of action, but otherwise overruled the defendants’ demurrer. Plaintiff Singleton did not file an amended pleading.

On October 31, 2017, defendant Pan filed the motion now before the court, a motion for summary judgment of plaintiff Singleton’s claims against him.

III. Procedural violation.

As a preliminary matter, the court note that defendant Pan’s memorandum of points and authorities exceeds the page limitations. California Rules of Court, rule 3.1113, subdivision (d) states, in relevant part, “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” Defendant Pan’s memorandum of points and authorities is 29 pages. Defendant Pan did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.1113, subdivision (e).

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) Defendant Pan is hereby admonished for this procedural violation. Any future failure by defendant Pan to comply with the California Rules of Court or rules of Civil Procedure may result in the court’s refusal to consider defectively filed papers.

Although a judge should ensure that self-represented litigants are not being misled or unfairly treated (see Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284), self-represented litigants are not entitled to special treatment with regard to the Rules of Court or Code of Civil Procedure. “[W]e cannot disregard the applicable principles of law and accord defendant any special treatment because he instead elected to proceed in propria persona. [Citations.]” (Stein v. Hassen (1973) 34 Cal. App. 3d 294, 303.) “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.’” (Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)

IV. Defendant Pan’s motion for summary judgment is DENIED.

In the eighth and ninth causes of action, plaintiff Singleton alleges defendant Pan, “on behalf of defendant Luxul, made a promise and material representation to Plaintiff that she would receive a 10% commission of the sales total on all sales that she generated in which Defendant Luxul’s products were sold at or above the company-specified price, and a 5% commission on the sales total on all sales that she generated in which Defendant Luxul’s products were sold at below the company-specified price.” (Complaint, ¶¶77 and 86; see also ¶¶20 – 21.)

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; see also CACI, No. 1900.) “Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962; internal citation omitted; see also CACI, No. 1903.)

In moving for summary judgment, defendant Pan denies the representation or promise was made to plaintiff and instead contends the representation or promise was limited to only “brand ambassadors” and only for the duration of the LFI lighting show which occurred from June 2, 2014 to June 5, 2014. Defendant Pan failed to include a separate statement, thereby making this court’s task of locating evidence more difficult. The lack of a separate statement aside, the court reviewed defendant Pan’s evidence and finds the evidence insufficient to meet defendant’s initial burden. Defendant Pan directs the court to plaintiff’s own allegation that defendant Pan made this promise not only to plaintiff Singleton, but to other individuals. (See Complaint, ¶20.) Defendant Pan asserts those other individuals were “brand ambassadors” hired only for the LFI lighting show. Defendant Pan proffers job postings for the “brand ambassadors” as evidence of the limited duration of the employment. However, defendant Pan’s evidence does not speak to the issue of who the representation was made to or whether it was limited to only “brand ambassadors.”

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2017) ¶10:225, p. 10-98 citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2017) ¶10:241, p. 10-103 citing Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) Here, defendant Pan has not produced admissible evidence which would negate the alleged misrepresentation.

Even if defendant Pan had met his initial burden, plaintiff Singleton proffers evidence in opposition which would present a triable issue of material fact as to whether the alleged misrepresentation/promise was made to plaintiff Singleton and not just to “brand ambassadors” and not just for the limited duration of the LFI lighting show.

Additionally, defendant Pan argues that even if he made the representation regarding commissions, plaintiff Singleton did not rely on the representation because she had already accepted the position of customer service representative. Actual reliance occurs when a misrepresentation is “ ‘an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,’ ” and when, absent such representation, “ ‘he would not, in all reasonable probability, have entered into the contract or other transaction.’ ” [Citation.] “It is not . . . necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. . . . It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 976 – 977.)

Defendant Pan’s argument fails because defendant Pan has not shown that plaintiff Singleton’s reliance is limited to acceptance of the customer service position. Moreover, in opposition, plaintiff Singleton proffers evidence that she continued to rely on defendant Pan’s representation in performing sales work. At the very least, this presents a triable issue of material fact as to whether plaintiff Singleton relied on defendant Pan’s representations.

Finally, defendant Pan argues plaintiff Singleton was not injured because she received the agreed upon compensation for her position as a customer service representative. This argument is based on defendant Pan’s earlier argument that he did not promise to pay plaintiff any commissions. As discussed above, defendant Pan did not meet his initial burden in that regard and even if he had, a triable issue of material fact exists with regard to the scope of the representation.

Since defendant Pan did not meet his initial burden and/or a triable issue of material fact exists with regard to the eighth and ninth causes of action, defendant Pan’s motion for summary judgment is DENIED. “When the notice of motion seeks only summary judgment, the presence of any triable issue requires denial of the motion. The court may not summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶10:88, p. 10-36 citing Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498.) Here, defendant Pan’s notice of motion seeks only summary judgment. As such, the court declines to address defendant Pan’s arguments as to the remaining causes of action.

The court declines to rule on plaintiff Alycia Singleton’s objections to defendant James Pan’s evidence in support of defendant’s motion for summary judgment. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).)