Case Number: BC637373 Hearing Date: June 05, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

james jang,

Plaintiff,

vs.

catwalk to sidewalk, inc., et al.

Defendants.

Case No.:

BC 637373

Hearing Date:

June 5, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

MOTION BY DEFENDANTS CATWALK TO SIDEWALK, INC. AND BILLY KANG FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Background

On October 14, 2016, Plaintiff James Jang (“Jang”) filed this action against Defendants Catwalk to Sidewalk, Inc. (“CTS”) and Billy Kang (“Kang”) (jointly, “Defendants”) for wrongful termination, breach of contract, breach of implied contract, fraud and false imprisonment.

Defendants now move for summary judgment, or in the alternative, summary adjudication as to all causes of action. Jang opposes.

Evidence

The Court rules on Jang’s evidentiary objections as follows:

Declaration of Kyong Won Kang: Objection Nos. 1, 3, 4, 5, and 21 are overruled. Objection Nos. 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, and 25 are sustained.

Declaration of Jenny Kang[1]: Objection No. 1 is overruled. Objection Nos. 2 and 3 are sustained.

The objection to the Deposition of Kyong Won Kang is sustained.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

Discussion

The undisputed facts are as follows:

Jang was hired as a manager for CTS in May 2012. (Defendants’ Undisputed Material Fact (“UMF”) 1.) Jang was promoted in August 2015. (UMF 3.) On or about December 29, 2014, Jang signed and dated an acknowledgment of receipt of the CTS employee handbook, which provided that employment was at-will (the “Acknowledgment”). (UMF 6, 7, 8.) The Acknowledgement also provided that the employee understood that the at-will relationship “may not be modified by any oral or implied agreement.” (UMF 10.) At some point during Jang’s employment, he believed that CTS had altered its vacation/sick leave policy illegally. Specifically, Jang believed that decreasing an employee’s vacation time to make up for potential paid sick leave was illegal. (UMF 21.) Jang was terminated from his employment at CTS effective August 2, 2016. (UMF 34.)

First Cause of Action – Wrongful Termination

An employee has a common law right to sue for wrongful termination “when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.” ((Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 [overruled on other grounds].)

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-1235 (internal quotations and citations omitted).) A discharge is actionable as against public policy if it violates a policy that is (1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” (Id. at pp. 1238-1239 (internal quotations and citations omitted).)

Jang alleges that he was wrongfully terminated because he objected to Defendants’ new policies concerning sick leave and vacation pay and further objected to Defendants’ refusal to notify their employees of changes to California law relating to those topics. Defendants contend that they are entitled to judgment as a matter of law because there was no violation of California’s Paid Sick Leave Act and because Jang’s terminated for legitimate business reasons and not for objecting to CTS’ sick leave policy.

As an initial matter, Jang fails to address Defendants’ argument that the only statutory violation at issue is with regard to the Paid Sick Leave Act and not California Constitution, Article I, Section 8, and therefore, the Court construes this as a concession on Jang’s part that Article I, Section 8 does not apply. Next, Jang does not dispute that CTS’ sick leave policy was, in fact, in compliance with California law. Instead, Jang contends that even if there were no statutory violation, his good faith belief that CTS was violating the law is sufficient for purposes of establishing a wrongful termination cause of action. ((See Barbosa v. IMPCO Technologies, Inc. (2009) 179 Cal.App.4th 1116, 1123 [“As long as the employee makes the … complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of … statutes or regulations.”].) At some point after discussing the new vacation/sick leave policy with Kang, Jang discussed with other CTS employees his belief that this policy was illegal. (Jang’s Undisputed Material Facts (“JMF”) 4; Houtz Decl., Ex. A, Jang Depo., p. 88:15-19, p. 124: 10-14.) Jang’s belief was also based on behavior by Kang that suggested that the new policy was illegal, specifically, that the new policy should be hidden from the employees. (JMF 4; Houtz Decl., Ex. A, Jang Depo., p. 127: 12-19.) Based on the foregoing, the Court finds that there is a triable issue of fact as to whether Jang had a reasonable good faith belief that CTS was in violation of California’s Paid Sick Leave Act.

Defendants also contend that Jang cannot establish that his termination was substantially motivated by his complaints about CTS’ vacation/sick leave policy because he was actually terminated for other wrongful conduct. However, Defendants have not carried their burden of proof in making a prima facie showing that there are no triable issues of fact as to this element. First, Defendants’ only evidence to show that Jang was terminated for legitimate business reasons appears to be Kang’s declaration and deposition testimony, as well as declaration testimony from Jenny Kang. The Court has sustained Jang’s objections to those portions of the Kangs’ testimonies, so there is no admissible evidence that Jang was terminated for legitimate business reasons. Moreover, there is no evidence of when any of Jang’s alleged violations of CTS’ policies occurred. Instead, the only evidence regarding the timing of any of these events shows that less than a month after Jang complained to Kang about CTS’ vacation/sick leave policy, he was fired. (JMF 5.) [2]

Accordingly, the Court finds that there is a triable issue of fact as to the wrongful termination cause of action, and so summary judgment/adjudication is denied.

Second and Third Causes of Action – Breach of Contract/Implied Contract

Although Jang objects to the admissibility of the Acknowledgment, he does not dispute that he signed the Acknowledgment and that the Acknowledgment contains various statements regarding the at-will nature of his employment with CTS. (UMF 6, 7, 8, 9, 10, 11.) Therefore, the Court finds that there is no triable issue of fact as to the validity of the Acknowledgment in establishing that an at-will employment relationship existed between Jang and CTS. Nonetheless, Jang contends that his own testimony raises a triable issue of fact as to the existence of an agreement that Jang would only be terminated for good cause. The Court finds this argument unavailing, as the Acknowledgement clearly provides that the at-will employment relationship could only be “specifically modified by an express written employment agreement executed by the appropriate officer of Company and [employee].” The Acknowledgment also clearly provides that the at-will relationship “may not be modified by any oral or implied agreement.” (UMF 10, 11.) There is no evidence that an express written employment agreement was executed by Jang and CTS. Therefore, the Court finds that there is no triable issue of fact as to the breach of contract causes of action, and summary adjudication is granted in favor of Defendants as to the second and third causes of action.

Fourth[3] Cause of Action – Fraud

The elements of fraud 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.” ((Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)

Defendants contend that they are entitled to summary adjudication because Jang cannot show any misrepresentation was made with the intent to commit fraud and because Jang cannot show detrimental reliance on his part. Defendants assert that Jang does not recall when and what was promised regarding the lifetime position. However, Jang submits evidence (by way of his own deposition testimony) that he was repeatedly promised by the Kangs that he would always be employed by CTS. (JMF 1.) Defendants also assert that there could be no intent to induce reliance because Jang was promoted while at CTS. The Court finds this unpersuasive, as an argument could also be made that Jang’s promotion is additional evidence of an intent to induce Jang to undertake certain work in reliance on the Kangs’ representations.

With respect to detrimental reliance, Defendants submit that Jang testified that he was already working hard before Jenny Kang offered him a lifetime position, so he could not have relied to his detriment (presumably in the form of working harder) on her promises. Jang contends, in opposition, that he took on additional responsibilities, including cleaning the parking lot and fixing whatever needed to be fixed within the company in reliance on the promise of lifetime employment. (Response to UMF 31.) Although Jang asserts in his opposition that he took on these additional responsibilities “without additional compensation,” that fact is not substantiated in either his response to Defendants’ Separate Statement or in his own Separate Statement. (See Opp’n, p. 12:27 – 13:2; Response to UMF 31.)

“Reliance exists when the misrepresentation or nondisclosure was an immediate cause of the plaintiff’s conduct which altered his or her legal relations, and when without such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into the contract or other transaction.” ((Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.) Here, the Court finds that there is no evidence that Jang altered his legal relations in response to Jenny Kang’s alleged promise of lifetime employment. Jang was already working for CTS at the time, so there is no contract or other transaction he could have entered into. Moreover, there is no evidence that Jang relinquished any entitlement to additional compensation for doing the extra work like sweeping the parking lot. Accordingly, the Court finds that Defendants have shown that one of the elements of the fraud cause of action cannot be established, and therefore, Defendants are entitled to summary adjudication on the fraud cause of action.

Fifth Cause of Action – False Imprisonment

The elements of a false imprisonment cause of action are “(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” ((Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 496.) The Court notes that Defendants present a different test for false imprisonment, but there is no citation to any legal authority, and so the Court proceeds with the test as articulated in Easton.

Defendants contend that Kang stood in front of Jang’s vehicle to try to speak to him, and that this is insufficient evidence of any intent to detain or confine Jang. Jang alleges that after his termination, he was trying to leave the CTS parking lot and that Kang stood in front of Jang’s vehicle for many minutes, making it impossible for Jang to leave the premises. (Response to UMF 41-A.) The Court finds that there is no dispute that Kang stood in front of Jang’s vehicle, which prevented Jang from leaving the premises. Even if all Kang wanted to do was speak to Jang, Kang clearly manifested an intent to keep Jang on the premises. Accordingly, the Court finds that there is a triable issue of fact whether Jang was intentionally confined for an appreciable period of time, and summary adjudication is denied as to this cause of action.

Sixth Cause of Action – Intentional Infliction of Emotional Distress (IIED)

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. ((Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” ((Ibid., quoting Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883.) A personnel management decision does not constitute extreme and outrageous conduct even if it was improperly motivated by discrimination and retaliation. ((Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Defendants contend that the bases for Jang’s IIED cause of action, his termination and his car being blocked by Kang, do not qualify as extreme and outrageous conduct. In light of the sparse argument presented by Jang in opposition, the Court agrees. For one, Jang’s termination from employment is not extreme and outrageous, and Jang cites to no other factors that would make his termination extreme and outrageous conduct. Additionally, though there may be situations where the facts supporting a false imprisonment cause of action could also constitute extreme and outrageous conduct, that is not the situation here. The Court finds that there is no triable issue of fact here, and summary adjudication is granted as to this cause of action.

Seventh Cause of Action – Negligent Infliction of Emotional Distress

The “negligent causing of emotional distress is not an independent tort, but the tort of negligence.” ((Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 213 (emphasis in original).) Thus to plead NIED, negligence must be established; duty, breach of duty, causation, and damages. (Ibid.) “[T]here is no duty to avoid negligently causing emotional distress to another, and [] damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” ((Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” ((Id. at p. 985.) “Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” ((Ibid. .)

Defendants contend that Jang cannot establish that Defendants breached any duty of care owed to him and that because termination of employment is an intentional act, an NIED claim cannot be brought on that basis. ((Semore v. Pool (1990) 217 Cal.App.3d 1087, 1105 [“An employer’s supervisory conduct is inherently ‘intentional.’”].) Jang does not address this argument in opposition. In any event, the Court agrees that there is no triable issue of fact as to the NIED cause of action because the conduct alleged was not negligent. Summary adjudication is therefore granted.

Punitive Damages

Under Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” ((Civ. Code, § 3294.) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” ((Civ. Code, § 3294(c).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” ((Civ. Code, § 3294(c).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” ((Civ. Code, § 3294(c).)

The only remaining causes of action are wrongful termination and false imprisonment. Defendants contend that there is no clear and convincing evidence that Defendants acted with malice, fraud, or oppression. In opposition, Jang asserts summarily that a trier of fact should be permitted to determine whether Defendants’ conduct justifies an award of punitive damages. However, that is not the standard on a motion for summary judgment. The standard is whether a triable issue of fact has been raised. Here, the Court finds that there is no triable issue of fact as to any punitive damages claim. Jang has not set forth any evidence that is clear and convincing that Defendants acted with intent to cause him injury when they terminated his employment or when Kang blocked his car in the CTS parking lot. There is also no argument that these acts were despicable or subjected Jang to cruel and unjust hardship. Therefore, summary adjudication as to the punitive damages claim is granted.

Conclusion

For the foregoing reasons, Defendants’ motion for summary judgment is denied. Summary adjudication is denied as to the wrongful termination and false imprisonment causes of action. Summary adjudication is granted as to the remaining causes of action (breach of contract, breach of implied contract, fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress. Summary adjudication is granted as to the punitive damages claim.

Defendants are ordered to provide notice of this ruling.

DATED: June 5, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

[1] The Court notes that the objections to the Declaration of Jenny Kang are not numbered; however, since there are only three objections, the Court will number them as such for ease of reference.

[2] There are to paragraphs labeled JMF 5; this refers to the second such paragraph.

[3] The Court notes that the causes of action are mislabeled numerically in the Complaint, but to prevent any confusion, the Court refers to them by the appropriate number.