2013-00144897-CU-BT
Performance Contracting vs. Triumph Specialty Construction
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Curliano, Jason J.

Plaintiff and Cross-defendant Performance Contracting Inc.’s (“PCI”) Demurrer to the
First Amended Cross-Complaint is OVERRULED in part and SUSTAINED in part,
without leave to amend.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

The underlying verified complaint by PCI alleges, inter alia, that the three crosscomplainants
were employees of PCI, misappropriated trade secrets and improperly
solicited PCI’s customers. In their verified Answer to that complaint, they each
admitted that they had resigned effective March 8, 2013.

The First Amended Cross-Complaint of Timothy Beaubien, Breau Keller and Michael
Leyrer, alleges four causes of action against PCI: the 1st for breach of contract; 2nd for
violation of Labor Code, sec. 2802; 3rd for false imprisonment and 4th for
eavesdropping (Penal Code, sec. 632(a), 637.20.) PCI demurs to the 3rd and 4th
causes of action only.

Demurrer to 3rd for false imprisonment as to Beaubien and Keller only is

OVERRULED.

The Cross-complaint alleges that Beaubien and Keller were employed until March 8,
2013. (FACC para.8.) On March 7, 2013, they were instructed by PCI to clean out their
offices, and to leave the Sacramento office. They were each monitored and observed
by PCI as they cleaned out their offices, surrendered their respective cellular
telephones, iPad(s), work computer(s), and other PCI personal property, and left the
Sacramento office as instructed. (FACC, para. 23.)

During their employment with PCI, PCI knew and was aware that Beaubien and Keller
each had purchased a personal external hard drive, with their own personal funds,
which they took with them when they traveled to PCI job sites. (FACC, para. 24.)
On March 7 or March 8, 2013, Beaubien and Keller were instructed by PCI, by and
through Dennis Dean, to appear at the Sacramento office on March 8, 2013 to “take
care of some exit paperwork” and to pick-up their last check(s) from PCI. Beaubien
and Keller allege that this was a false pretense. They were separately taken into
rooms with closed doors, and asked to allow PCI access to their hard drives. Each
refused. Both were told they could not leave the office until the matter was resolved.
(FACC, paras. 25-26.)

Beaubien and Keller concede that they were not physically compelled to remain in the
office, but assert that because they were told they could not leave until the matter was
taken care of, they felt could not leave.

The tort of false imprisonment requires a showing of (1) the nonconsensual, intentional
confinement of a person; (2) without lawful privilege; (3) for an appreciable period of
time, however brief. Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350,
372-73; Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715. Thus, a person is falsely
confined if another person deprives him of his freedom to leave a particular place.
Force, or threat of force, is not required: the requisite confinement may be
accomplished by fraud, deceit, or any form of unreasonable duress. Scofield v. Critical
Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1002. In addition, the threat may be
implied, through either conduct or words. Parrott v. Bank of Am. Nat. Trust & Savings
Ass’n (1950) 97 Cal.App.2d 14, 22.

In the context of an employer/employee relationship, “the tort of false imprisonment
involves criminal conduct against the employee’s person.” (Fermino v. Fedco, Inc.,
supra, 7 Cal.4th at 722.) The restraint involved may be effectuated by physical force,
threat of force or arrest, confinement by physical barriers, or by means of any other
form of unreasonable duress. Id. at 715.

An employee has an obligation to “substantially comply with all the directions of his
employer” (Labor Code § 2856). The California Supreme Court has held that “all
reasonable attempts to investigate employee theft, including employee interrogation,
are a normal part of the employment relationship. It is also true that all such
reasonable interrogation or voluntary confinement cannot be regarded as false
imprisonment and is not actionable.” Fermino v. Fedco, Inc. (1994) 7 Cal. 4th 701,
717.

Opposing parties contend that as of the time they were falsely imprisoned they were
no longer employees of PCI. Additionally, they rely upon Parrott v. Bank of America
Nat’l Trust & Sav. Asso. (1950), 97 Cal. App. 2d 14,17-20. There, a bank teller was
wrongly accused of stealing the deposit of a customer and threatened that if she did
not confess, the matter would be turned over to the FBI, she would be prosecuted and
it would be very expensive and embarrassing, as it was her word against the bank’s.
Here, the allegations are that cross-complainants were “lured” back to the office under
the pretext of exit paperwork, and “threatened” that they could not leave until the
matter was resolved, and there was “trouble” heading their way if they did not follow
directions.

The Court must accept as true the allegations, and finds that the facts alleged are
sufficient, for pleading purposes, to state a cause of action for false imprisonment.
Demurrer to the 4th for eavesdropping (Penal Code, sec. 632(a), 637.20) is
SUSTAINED without leave to amend.

To state a cause of action under Penal Code, sec. 632(a), the factual allegations must
establish the “secret monitoring” of a conversation in which the claimant participated,
and an objectively reasonable expectation by the claimant that the conversation was
not being overheard or recorded. See Ribas v. Clark (1985) 38 Cal. 3d 355, 359,
Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776-77.

Here, the facts alleged are that during Beaubien’s March 8, 2013 meeting with his
manager at PCI, Beaubein participated in a telephone call with another PCI office,
PCI’s human resources manager Matthews. The subject of the call was the end of
Beaubien’s employment by PCI and the request to inspect his hard drive on which he
had stored PCI materials during his employment.

There can be no objectively reasonable expectation of privacy or confidentiality by
Beaubien in that conversation. The participation by PCI’s attorney, Williams, whose
presence on the speakerphone with the human resources manager was not
immediately disclosed, cannot constitute “eavesdropping”, as Williams announced his
presence during the conversation.

As Beaubien has not proffered any facts to support leave to amend, none is granted.
Although the Opposition papers treat the demurrer as made jointly by PCI and
Williams, this Court granted Williams’ motion to quash service of the summons and
complaint on April 3, 2014, thus he is not a party to the demurrer.

PCI shall file its Answer to the remaining causes of action not later than Thursday,
April 24, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.