Demurrer by Defendant Door Specialties to Amended Complaint:

The demurrer by defendant to the 1st, 2nd, 3rd, 7th, 11th, 13th and 14th causes of action on grounds of failure to state is sustained, in part, and overruled, in part, as follows:

(a) Overruled as to the 1st, 2nd, 7th, and 13th causes of action. Sufficient facts are alleged to support the causes of action claimed.

(b) Sustained as to the 3rd, 11th and 14th causes of action.

(i) The 3rd cause of action for Misrepresentation Inducing Change of Residence fails to allege the misrepresentation with the required factual specificity.

This cause of action incorporates all prior allegations. Moving Party challenges whether the misrepresentation is alleged with sufficient facts. This cause of action is based on an alleged misrepresentation that plaintiff would only be installing doors 1 to 2 days a week (¶ 33), and plaintiff references allegations from the 1st cause of action by Mr. Bonnema (¶ 34.) Paragraph 33 itself does not allege the who, what, where, etc. of the alleged misrepresentation. Paragraph 20 does not allege the who, what, where, etc., of the misrepresentation. Plaintiff only alleges that “defendant” made the representation without identifying who made it, when it was made, where, and how it was made. Paragraph 24 alleges that defendant knowingly stated in writing that plaintiff would be installing doors 1 to 2 days a week. (FAC at ¶ 24), but no further details are alleged. More specificity is needed here as required by law.

(ii) The 11th cause of action for Breach of Fiduciary Duty fails to allege the existence of a fiduciary relationship between plaintiff and defendant. Plaintiff cites no legal authority indicating that the cited statutes in paragraph 71 create a fiduciary relationship between an employer and employee.

In general, employer-employee relationships are not fiduciary or confidential relationships. (O’Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 812; Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1391.)

No presumption of a confidential relationship arises from the employment contract; something additional must be alleged to create a confidential, fiduciary relationship. (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1391; Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 129.) “The mere fact that in the course of their business relationships the parties reposed trust and confidence in each other does not impose any corresponding fiduciary duty in the absence of an act creating or establishing a fiduciary relationship known to law.” (Worldvision Enterprises, Inc. v. American Broadcasting Companies, Inc. (1983) 142 Cal.App.3d 589, 595.) The parties to a contract necessarily place an element of trust and confidence in the other to perform that contract, but contractual trust and confidence gives rise to the implied covenant of good faith and fair dealing, not a fiduciary relationship. The obligation to pay money is a debt, not a trust, and does not create a fiduciary relationship. (Wolf v. Superior Court (2003) 106 Cal.App.4th 25, 31 [holding that the contractual right to contingent compensation in the control of another does not, by itself, create a fiduciary relationship where one would not otherwise exist].)

Where no fiduciary duty exists, no cause of action for breach of fiduciary duty lies. (O’Byrne v. Santa Monica-UCLA Medical Center, supra, 94 Cal.App.4th at p. 812.)

Plaintiff cites to Cortez for the proposition that once earned, unpaid wages become property to which the employee is entitled. (Cortez, supra at 168.) Plaintiff also cites to Vai, supra, for the contention that a fiduciary duty can be based on control by one party over the property of another. Plaintiff then concludes that because defendant owed plaintiff wages, which are plaintiff’s property, defendant owed plaintiff a fiduciary duty. This is rejected as contrary to the law.

The relationship at issue in Vai was a husband and wife relationship where the husband had control of the community property. The Supreme Court of California in Vai held that: “Because of his management and control over the community property, the husband occupies the position of trustee for his wife in respect to her half interest in the community assets; this position of trust is not terminated as to assets remaining in his hands when the spouses separate. It is part of his fiduciary duties to account to her for the community property when the spouses are negotiating a property settlement agreement.” (Vai, supra, 56 Cal.2d at 337.)

This is not a husband and wife situation.

Plaintiff has not shown that a fiduciary relationship exists under the facts alleged. The demurrer to this 11th cause of action is sustained without leave to amend.

(iii) The 14th cause of action for breach of contract fails to allege facts supporting an implied-in-fact contract for termination for good cause only.

An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.” (Lab. C. § 2922.) The statute creates a presumption that the employment is at will. Because it is based on public policy considerations, the presumption affects the burden of proof (Ev.C. § 605). Therefore, the burden is on the employee to prove the employment was not at will by evidence of a contract, express or implied, for a fixed term or to terminate only for cause. (Haycock v. Hughes Aircraft Co. (1994) 22 CA4th 1473, 1488–1489; Eisenberg v. Alameda Newspapers, Inc. (1999) 74 CA4th 1359, 1386.)

Absent proof of a contrary agreement or other limitation on the employer’s right to terminate, an employer may discharge at any time, with or without notice, and for any lawful reason. (Guz v. Bechtel Nat’l, Inc. (2000) 24 C4th 317, 335–336.)

Here, there is no term of employment specified in the Employment Agreement (FAC at Ex. B). There are no facts alleged in this cause of action to support an implied-in-fact agreement not to terminate without good cause.
Plaintiff just alleges that the parties had an employment contract and that defendant communicated to plaintiff that he had an employment contract with defendant. Plaintiff then concludes that there was an implied contract for termination for good cause only. (FAC at ¶ 93-95.) This will not do. No facts are pled to show how this implied contract was created.

(b) Plaintiff is granted leave to amend as to the 3rd and 14th causes of action.

(c) Leave to amend is denied as to the 11th cause of action (absent a showing of proof by plaintiff that this cause of action can be amended to state a valid claim.)

Counsel for Moving Party Door Specialties to give notice.