This case was last updated from Los Angeles County Superior Courts on 06/11/2019 at 00:24:41 (UTC).

MICHAEL BOYD VS CLARE FOUNDATION, INC.. ET AL.,

Case Summary

On 05/06/2016 MICHAEL BOYD filed a Labor - Wrongful Termination lawsuit against CLARE FOUNDATION, INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is NANCY L. NEWMAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5813

  • Filing Date:

    05/06/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

NANCY L. NEWMAN

 

Party Details

Plaintiff

BOYD MICHAEL

Defendants

LWP CLAIMS SOLUTIONS INC.

EQUIFAX

JAMES FRANCES

CLARE FOUNDATION INC.

VRATARIC NICHOLAS

CHO DIANA

LEON AARON

EQUIFAX WORKFORCE SOLUTIONS

Attorney/Law Firm Details

Defendant and Plaintiff Attorneys

APPLETON LAW GROUP APC

APPLETON BLADY & MAGNANIMO LLP

HAUBRICH JOHN JR.

HAROWITZ CRAIG

 

Court Documents

Civil Case Cover Sheet

5/6/2016: Civil Case Cover Sheet

Unknown

10/25/2016: Unknown

Case Management Statement

4/17/2017: Case Management Statement

Unknown

5/4/2017: Unknown

Unknown

6/28/2017: Unknown

Memorandum of Points & Authorities

7/5/2017: Memorandum of Points & Authorities

Notice of Ruling

7/17/2017: Notice of Ruling

Unknown

9/5/2017: Unknown

Unknown

9/14/2017: Unknown

Request for Judicial Notice

9/27/2017: Request for Judicial Notice

Unknown

12/15/2017: Unknown

Unknown

2/14/2018: Unknown

Memorandum of Points & Authorities

3/16/2018: Memorandum of Points & Authorities

Notice of Ruling

3/26/2018: Notice of Ruling

Request for Judicial Notice

4/6/2018: Request for Judicial Notice

Unknown

4/6/2018: Unknown

Unknown

5/23/2018: Unknown

Minute Order

2/13/2019: Minute Order

108 More Documents Available

 

Docket Entries

  • 05/20/2019
  • Notice (Notice of Case Management Conference); Filed by Michael Boyd (Plaintiff)

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  • 05/14/2019
  • at 08:30 AM in Department P; Trial Setting Conference - Held

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  • 05/14/2019
  • Minute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 05/13/2019
  • Proof of Personal Service; Filed by Michael Boyd (Plaintiff)

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  • 05/13/2019
  • Proof of Personal Service; Filed by Michael Boyd (Plaintiff)

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  • 05/03/2019
  • Case Management Statement; Filed by Michael Boyd (Plaintiff)

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  • 04/30/2019
  • Case Management Statement; Filed by Diana Cho (Defendant); Clare Foundation, Inc. (Defendant); Frances James (Defendant) et al.

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  • 03/15/2019
  • Summons (on Complaint (1st)); Filed by Michael Boyd (Plaintiff)

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  • 03/08/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Michael Boyd (Plaintiff)

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  • 02/25/2019
  • Answer; Filed by Diana Cho (Defendant); Clare Foundation, Inc. (Defendant); Frances James (Defendant) et al.

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226 More Docket Entries
  • 08/23/2016
  • Ex-Parte Application ( TO SHORTEN TIME FOR RULING ON PLAINTIFF'S MOTION TO EXTEND TIME TO SERVE DEFENDANTS IN THE INSTANT MATTER ); Filed by Plaintiff & Plaintiff In Pro Per

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  • 08/23/2016
  • Ex-Parte Application; Filed by Michael Boyd (Plaintiff)

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  • 05/06/2016
  • Summons Filed; Filed by Plaintiff & Plaintiff In Pro Per

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  • 05/06/2016
  • Request-Waive Court Fees; Filed by Plaintiff & Plaintiff In Pro Per

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  • 05/06/2016
  • Civil Case Cover Sheet

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  • 05/06/2016
  • Order-Court Fee Waiver (AS TO MICHAEL BOYD ); Filed by Plaintiff & Plaintiff In Pro Per

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  • 05/06/2016
  • Complaint Filed; Filed by Attorney for Plaintiff

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  • 05/06/2016
  • Order on Court Fee Waiver (Superior Court); Filed by Plaintiff

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  • 05/06/2016
  • Summons; Filed by Plaintiff

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  • 05/06/2016
  • Complaint; Filed by Michael Boyd (Plaintiff)

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Tentative Rulings

Case Number: SC125813    Hearing Date: March 13, 2020    Dept: P

 Tentative Ruling

Michael Boyd v. Clare Foundation, Inc. et al. Case No. SC125813

Hearing Date: March 13, 2020

Defendant’s Motion for Summary Judgment/Summary Adjudication

Plaintiff Boyd alleges wrongful termination, discrimination and various wage and hour violations against defendant CLARE Foundation, Inc. and its employees, which he alleges engaged in adverse employment actions and terminated him based on depression and physical disabilities.

Defendants CLARE and the individual defendants move for summary judgment or adjudication.

Alleged Defects in Moving Papers

Plaintiff argues defendant’s motion is improper because it does not cite directly to defendant’s separate statement. There is no such requirement. Defendant filed a memorandum of points and authorities, the required separate statement and cited to evidence attached as part of defendant’s compendium of evidence. This is sufficient.

Evidentiary Objections

Plaintiff’s Objections

SUSTAINED as to objections 32-35 for relevance, objection 40 for speculation, OVERRULED as to other objections.

Defendant’s Objections

SUSTAINED as to objection 3 for hearsay, objection 5 as a legal conclusion, 7 as hearsay, 8 as speculation. All other objections OVERRULED.

Joinder

Papers supporting a motion for summary judgment must include a separate statement setting forth “plainly and concisely all material facts which the moving party contends are undisputed.” Cal. Code of Civ. Proc. §437c. A party seeking to join a motion for summary judgment must file an independent separate statement. Frazee v. Seely (2002) 95 Cal.App.4th 627, 636, Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, 46.

The individual defendants seek to join defendant CLARE’s motion. Plaintiff argues joinder should not be allowed, since the individual defendants did not file separate statements. In Village Nurseries the moving party’s notice of joinder read, in its entirety, “Comes now, Defendant, Raymond King doing business as King & Associates herein and joins Defendants Martin B. Greenbaum, Greenbaum and Ferentz and Dennis Ferentz’s Motion for Summary Judgment set for April 6, 2000 at 9:00 a.m. in Department C10 of the above entitled Court.” Id. The individual defendants’ notice here specifically identifies the causes of action and issues as to which they are moving. See Individual Defendants’ joinder at pgs. 2-3. The facts are distinguishable from Village Nurseries. Additionally, Frazee notes the decision to deny a motion for failure to file a separate statement is up to the trial court’s discretion. Frazee, supra 95 Cal. App.4th at 636. Plaintiff has not demonstrated prejudice if the individual defendants were not required to file duplicative separate statements. Finally, the court notes individual defendants

incorporated CLARE’s separate statement into their notices of joinder. The court exercises discretion to allow the individual defendants to join CLARE’s motion. Plaintiff’s opposition to defendants’ motion for joinder is DENIED; the individual defendants will be treated as moving parties in this analysis.

Termination Based Claims

To prevail on a motion for summary judgment to a FEHA claim for wrongful termination, an employer has the initial burden to either (1) negate an essential element of Plaintiff’s prima facie case or (2) establish a legitimate, nondiscriminatory reason for terminating plaintiff. Wills v. Superior Court (2011) 195 Cal.App.4th 143, 160. A reason for termination is “legitimate” if it is facially unrelated to prohibited bias and which, if true, precludes a finding of discrimination. Nakai v. Friendship House Ass’n. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 41. Evidence that plaintiff “had a gun, was angry at all of the employees of [defendant], and had relapsed to using drugs and/or alcohol,” or evidence that a plaintiff poses a threat to the lives or safety of his or her co-workers, is sufficient to establish a legitimate reason for termination. Id.

Once the employer makes that showing, the employee must offer substantial evidence the stated nondiscriminatory reason was untrue or pretextual or evidence the employer acted with discriminatory animus. Hersant v. Dep’t. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005. To show pretext, “the employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Hersant, supra, 57 Cal. App.4th 997, 1005.

Defendant provides evidence plaintiff was terminated because he posed a threat to co-workers. Executive Director Nicholas Vrataric’s decision to terminate plaintiff was based on his review of the following: CLARE employee submitted reports stating plaintiff told them he planned to acquire a gun to shoot himself; plaintiff stated “he wouldn’t leave CLARE without a fight”; and co-workers filed complaints that they felt unsafe with/around plaintiff. Defendant’s Separate Statement at ¶¶8-15.

Plaintiff argues it was improper for defendant to collectively address the first, second, third, fifth, sixth, seventh and eighth causes of action together as “termination-based claims.” The first cause of action relies on allegations of wrongful termination and is subject to the burden-shifting analysis. The eighth cause of action is also based on allegation that defendants discharged plaintiff because of his exercise of the right to take medical leave but is not based on a claim of FEHA discrimination. The other causes of action deemed “termination-based claims,” allege acts of discrimination and other adverse employment actions short of termination, such as wrongfully failing to relieve plaintiff of janitorial duties. The court will not treat the second, third, fifth, sixth, seventh, and eighth causes of action as “termination-based” claims and will not apply the burden-shifting FEHA analysis applied above. That analysis to the first cause of action only.

Defendant meets its initial burden. There is evidence that Vrataric terminated plaintiff because of a series of “escalating reports” regarding plaintiff’s behavior. Vrataric Decl. ¶¶4-12. Vrataric concluded it was simply too big of a risk to staff, Mr. Boyd and CLARE clients to continue to employ Mr. Boyd. See also Green Deposition at pg. 49; defendant’s exhibits 1-4. These reports

are evidence of information available to Vrataric when he decided to terminate plaintiff.

Under Nakai, CLARE’s good-faith belief that plaintiff posed a threat to the safety of other employees is a “legitimate reason” for termination. The burden shifts to plaintiff to provide substantial evidence that CLARE’s stated reason for termination was untrue or pretextual. Plaintiff denies making statements about buying a gun and/or shooting himself. Plaintiff’s Separate Statement of Additional Facts ¶¶145-146. Boyd states a disciplinary memo he received contained false information. Boyd Separate Statement ¶49. Plaintiff provides no evidence that Vrataric did not receive reports of such conduct, or that he did not act in good faith when relying on these reports. Defendant presented evidence of a valid basis for plaintiff’s termination. Plaintiff has not provided substantial evidence that this was pretextual. GRANTED as to first cause of action, DENIED as to other causes of action.

Disability-Based Claims

To proceed as a physically disabled person under FEHA, a plaintiff must demonstrate he or she possesses an injury or physical condition that “makes difficult the achievement of work or some other life activity.” Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 44, 47. Under FEHA, a “mental disability” includes being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2). Cal. Gov. Code §12926 (j)(5).

Defendant moves for summary adjudication as to plaintiff’s second, third, fourth, and ninth causes of action on the grounds that undisputed facts show plaintiff was not disabled under FEHA. Defendant points to plaintiff’s deposition, where Boyd states he was discharged from eight days of inpatient care “without restrictions.” Boyd depo at pgs. 68-69. Defendant claims this shows plaintiff’s depression did not “make difficult the achievement of work or some other life activity,” so does not constitute a disability. However, a psychological condition that has “no present disabling effect” can serve as a qualifying disability under FEHA. That plaintiff was released from the hospital with no restrictions is not dispositive. Additionally, plaintiff alleges he had additional disabilities, including orthopedic complaints, but defendants required him to perform janitorial duties. Plaintiff’s Additional Material Facts ¶25-37, Boyd Declaration ¶¶31-40. Defendant’s motion does not address this evidence.

Defendant also moves for summary judgment as to the “disability causes of action” on the grounds that unrefuted evidence shows defendant had a good faith belief Boyd’s continued employment posed an unreasonable risk of danger to himself or others at CLARE. Under Cal. Gov’t. Code §12940(a), FEHA does not prohibit an employer from discharging an employee who, because of a physical or mental disability “cannot perform [his job duties] in a manner that would not endanger the employee’s health or safety or the health and safety of others.” As explained, defendant provided unrefuted evidence that, when Vrataric decided to discharge plaintiff, he had a good-faith belief that plaintiff posed a threat to himself or others. Defendant provided no evidence that plaintiff’s physical disabilities caused him to pose a threat to himself or others. Since plaintiff’s “disability-based” claims are at least partially based on the claim that defendants wrongfully discriminated against him on the basis of these physical disabilities, the “unreasonable risk of danger” defense does not defeat those causes of action. DENIED.

Intentional Infliction of Emotional Distress

Claims for intentional infliction of emotional distress (IIED) arising out of employment are subject to worker’s compensation exclusivity. Shoemaker v. Myers (1990) 52 Cal.3d 1, 25. Courts have a limited exception for harassment or discrimination in violation of FEHA. Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756.

Defendant argues this cause of action is precluded by the worker’s compensation law, and because plaintiff failed to provide evidence of extreme or outrageous conduct. Plaintiff provided evidence that defendant forced him to engage in janitorial duties despite knowing he had a physical disability. If a finder of fact accepted this evidence, it could constitute discrimination in violation of FEHA, so would be exempt from worker’s compensation. Additionally, a reasonable finder of fact could determine such discrimination constitutes outrageous conduct. DENIED.

Wrongful Adverse Employment Action

Defendant argues this cause of action fails because plaintiff’s other causes of action for discrimination and/or retaliation fail. Plaintiff failed to refute defendant’s showing that Vrataric acted in good faith when he terminated plaintiff. However, plaintiff’s eleventh cause of action alleges other adverse employment actions besides termination, such as requiring him to perform janitorial duties and work off the clock without pay. 4AC at ¶¶251. The MSJ provides no argument or evidence refuting these allegations. DENIED.

Contract Claims

Defendant moves for summary adjudication as to plaintiff’s causes of action for Breach of Express and Implied Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing on the grounds that plaintiff’s employee handbook explicitly states it is not a contract. The handbook states “The Employee Handbook provides information relating to employment, benefits, and other personnel activities focused at CLARE . . . Therefore it should not be construed as a contract between CLARE and its employees[.]” Defendant’s exhibit 15. Plaintiff’s contract-based claims are based on the employee handbook, and plaintiff does not dispute the handbook contains the provision cited above. See 4AC at ¶¶262 – 275. Plaintiff argues the handbook created an implied contract by making representations about the terms and conditions of plaintiff’s employment.

“When an employer promulgates formal personnel policies and procedures in handbooks . . . a strong inference may arise that the employer intended workers to rely on those policies as terms and conditions of their employment[.]” Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 344. In this case, the employee handbook contains an express term that it “should not be construed as a contract[.]” Plaintiff provides no evidence that it would be reasonable to rely on the handbook in spite of that express term, or that an implied contract existed between plaintiff and defendant outside of the employee handbook. GRANTED (twelfth and fourteenth causes of action).

Fifteenth Cause of Action for Failure to Pay Wages

An employee carried his burden to show he has performed work for which he was improperly compensated if he “produced sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference,” even if the evidence only produces an approximation of

actual damages. Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th 1072, 1079. When an employee only presents “uncertain and speculative” evidence as to unpaid work, there can be no recovery. Id. at 1079-1080.

This claim arises out of plaintiff’s allegation that he was compensated for 29 hours of work per week, but defendants regularly required him to perform uncompensated “off-the-clock” work. Defendant argues plaintiff presented “uncertain and speculative” testimony regarding his claim that he regularly worked more than his scheduled hours. In Boyd’s deposition he states “I don’t recall at this moment” in response to the question “when do you claim you began working more than 29 hours a week at CLARE?” Boyd Deposition, pgs. 265:16-265:18. Boyd states “it would have been most of the weeks,” in response to the question “on how many occasions to you claim that you worked more than 29 hours in a week?” Boyd Deposition, pgs. 266:2-266:11. Plaintiff provided evidence of at least one occasion when he worked 20 hours of overtime but was denied overtime pay. Plaintiff’s additional facts at ¶¶6-9, Boyd Declaration at ¶¶8-12. This is not “uncertain and speculative” evidence. There is a triable issue of material fact as to plaintiff’s unpaid wages. DENIED.

Invasion of Privacy

The elements of invasion of privacy are (1) a reasonable expectation of privacy as to the interests invaded, (2) a serious invasion, (3) resulting in injury to plaintiff. Hill v. National Collegiate Athletic Ass’n. (1994) 7 Cal.4th 1, 32-37. There can be no liability for limited intrusions, including “accidental, misguided or excusable acts overstepping on legitimate privacy rights. Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 295.

Defendant argues plaintiff presented no evidence other than a mass email CLARE sent to clients and former clients inviting them to an “Alumni Dinner.” The email does not identify Boyd by name, but includes his email address. Defendant argues, as a matter of law, that an email not naming plaintiff and without any medical information constitutes a non-actionable limited intrusion. The court agrees. A reader of the email would not be able to identify plaintiff simply by reading it. The email does not state plaintiff was a recovering alcoholic or include specific information about his condition. If it is invasion of privacy, it was not a serious one. GRANTED.

Defamation

The elements of defamation are (1) the publication of a fact, (2) that is false, (3) defamatory, (4) unprivileged, and (5) which actually causes injury or has a special tendency to cause injury. Taus v. Loftus (2007) 40 Cal.4th 683, 720. A communication made “without malice, to a person interested therein by one who is also interested” is privileged and cannot be the basis of a defamation claim. Cal. Civ. Code §47(c). This privilege applies in the employment context and to uncomplimentary statements the plaintiff’s former employer made to prospective employers. Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369. Evidence that a statement was knowingly false in itself is sufficient to show malice and overcome the common interest privilege. Biggins v. Hanson (1967) 252 Cal.App.2d 16, 21.

Defendant argues plaintiff presented no evidence of malice with regard to other CLARE employee’s statements about plaintiff’s conduct, and all statements in support of this cause of action are protected by the common interest privilege. Defendant is correct that the identified

statements are protected by the common interest privilege. Plaintiff cites to allegedly false statements by defendant’s employees and claims the fact that these statements were “plainly false and wholly unsubstantiated by evidentiary support, instead relying solely on conjecture,” is evidence of malice. Plaintiff’s additional material facts 49, 118, 138, 146, 157-160. Plaintiff’s declaration states the claims were false, but any allegation that they were malicious or made with knowledge of falsity is based on conjecture, lacking direct evidence. Boyd Decl. at ¶¶136-153, 160-163. Plaintiff failed to present evidence of malice to create a triable issue of fact as to defendant’s common interest defense. GRANTED.

Fraud

Plaintiff’s fraud claim is based on representations allegedly made throughout the defendants’ employee handbook. As such, they are duplicative of the breach of contract claims and fail for the same reason—that plaintiff could not have reasonably relied on the handbook given that it explicitly states its terms “should not be construed as a contract.” GRANTED.

Personnel File and Wage Statements

Upon an employee’s request, an employer is required to provide copies of an employee’s wage statements “as soon as practicable, but not later than 21 calendar days from the date of the request.” Cal. Lab. Code §226(b). Further, an employee has a right to inspect his or her performance records, and the employer must make the contents of those records available within 30 days. Cal. Lab. Code §1198.5 (b)(1).

Defendant argues CLARE timely transmitted wage statements and personnel file. Plaintiff requested the records on April 30, 2015. Plaintiff’s additional facts ¶131. Defendant presented the cover page of an email from Frances R. James, sent on May 19, including the requested documents. Defendant’s exhibit 16. Frances James states the documents were timely emailed. Frances Decl. at ¶ 6. Plaintiff disputes, stating he never received any response. Boyd Decl. ¶135. There is a triable issue of fact as to whether defendants timely sent the requested materials. DENIED.

Unfair Business Practices

The motion makes no substantive argument as to this cause of action. Additionally, this cause of action is at least partially based on plaintiff’s allegations of wage and hour violations, which plaintiff has supported with sufficient evidence to defeat summary adjudication. DENIED.

Equifax Defendants’ Demurrer to Fourth Amended Complaint

Defendants Equifax Workforce Solutions, Inc. and Equifax, Inc. were retained to represent CLARE in connection with plaintiff’s claim for unemployment benefits. Plaintiff alleges the Equifax defendants failed to conduct a good faith investigation into the reasons for Boyd’s termination before opposing his application for unemployment. Defendants demurs to the fourth amended complaint (4AC).

Timeliness

A responsive pleading to the fourth amended complaint was due on November 18, 2019. The demurrer was filed on December 18, 2020. Under Cal. Code of Civ. Proc. §430.41, if the parties

are not able to meet and confer at least five days prior to the date the responsive pleading is due, and the demurring party files a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer, the demurring party shall be granted an automatic 30-day extension. Cal. Code of Civ. Proc. §430.41. Defendants filed the required declaration under CCP §430.41 on November 15, 2019. The demurrer is timely.

Intentional Infliction of Emotional Distress (IIED)

Defendants argue plaintiff has not sufficiently alleged outrageous conduct, the intention to cause injury or a reckless disregard to the probability of causing extreme emotional distress. The court agrees. This is based on allegations that defendants failed to conduct a good faith investigation behind the reasons for Boyd’s termination, and therefore made representations regarding his termination without a factual basis. 4AC at ¶228. Plaintiff alleges no clear facts, beyond conclusory recitations, indicating defendants intended to injure plaintiff or knew their acts were likely to result in injury. Additionally, defendants’ alleged failure to conduct a good-faith investigation does not constitute conduct “beyond all bounds of reasonable decency,” so cannot provide the basis of an IIED cause of action. SUSTAINED without leave to amend.

Breach of Express and Implied Contract

A complaint based on a contract is subject to demurrer if it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct. Cal. Code of Civ. Proc. §430.10(e). Defendants argue they cannot discern from the complaint whether the alleged contract was express or implied. This is a valid basis for demurrer—the complaint states “[o]n information and belief, CLARE had an express or implied contractual relationship with [Equifax], whereby Equifax agreed to manage unemployment claims filed by CLARE’s employees.” Complaint at ¶ 285. The “express or implied” language makes it impossible to tell whether the alleged contract was oral or written. Since the nature of the contract cannot be discerned, it is subject to demurrer. SUSTAINED without leave to amend.

Breach of Implied Covenant of Good Faith and Fair Dealing and Unfair Business Practices

Each cause of action is derivative of prior causes of action. The Breach of Implied Covenant of Good Faith and Fair Dealing claim arises out of the agreement for which plaintiff was allegedly a third-party beneficiary, while the Unfair Business Practices Claim does not set forth any new allegations against demurring defendants, instead incorporating by reference prior allegations against the Equifax defendants and listing unfair business practices allegedly committed by non-demurring CLARE. These causes of action fail for the same reasons the other causes of action against the Equifax defendants fail. SUSTAINED without leave to amend.

Case Number: SC125813    Hearing Date: October 29, 2019    Dept: P

 

Michael Boyd v. Clare Foundation, Inc. et al. Case No.: SC125813

Hearing Date: 10/29/2019

Motion to Set Aside Default (CCP 473)

TENTATIVE RULING

Plaintiff alleges he was wrongfully terminated. Default was entered against defendants Equifax and EWS on June 5, 2019. Defendants move to set aside default, claiming they were delayed in coordinating outside counsel and inadvertently missed the deadline to answer.

Under Cal Code of Civ. Proc. §473, a court may relieve a party from a “judgment, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Under California’s declared policy in favor of resolving actions on the merits, §473 motions are liberally granted, and doubts are resolved in favor of the party seeking relief. Elston v. City of Turlock (1985) 38 Cal.3d 227, 223. A motion for such relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Cal. Code of Civ. Proc. §473.

Defendants failed to timely answer because they mistakenly believed they were indemnified by a third party who would arrange counsel. Motion at pg. 4. Plaintiff argues defendants’ explanation is incomplete because it fails to state that defendants also failed to timely respond to the third amended complaint. Opposition at pg. 7. Additionally, plaintiff argues defendants’ failure to answer was unreasonable. Opposition at pg. 6.

Plaintiff has not adequately shown that granting this motion would result in prejudice, while defendants adequately explained their failure to answer. The court will follow the public policy in favor of resolving actions on the merits and set aside the default. Defendants to file a responsive pleading within 20 days. GRANTED.