BAKER v. AMERICAN HORTICULTURE SUPPLY, INC. ,
Filed 7/21/10
CERTIFIED FOR
PUBLICATION
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
EDWIN BAKER,
Plaintiff and
Appellant,
v.
AMERICAN HORTICULTURE SUPPLY, INC. ,
Defendant and
Respondent.
2d Civil No.
B212975
(Super. Ct. No.
244149)
(Ventura
County)
MODIFICATION OF
OPINION
ON DENIAL ON
REHEARING
[NO CHANGE IN
JUDGMENT]
THE
COURT:
The opinion filed herein
on June 23, 2010, is modified as
follows:
1. On page 15, line 4 of the first full
paragraph after the word "verdict"
delete the sentence beginning with " '[I[t" and ending on line
8 with the word "[Citations.]"
2 On page 15, after the words "fn.
omitted" add the following including footnote 7, which will require
renumbering of all subsequent footnotes.
The application here of
the ordinary definition of "willful" is supported by the judicial construction of Labor Code
section 203, subdivision (a), which provides in relevant part: "If an employer willfully fails to pay . . . any wages of an employee who is
discharged or who quits, the wages of the employee shall continue as a penalty
from the due date thereof at the same rate until paid or until an action
therefor is commenced; but the wages shall not continue for more than 30
days." (Italics added.) "The settled meaning of 'willful,' as
used in section 203, is that an employer has intentionally failed or refused to
perform an act which was required to be done.
[Citations.] '[T]he employer's
refusal to pay need not be based on a deliberate evil purpose to defraud
workmen of wages which the employer knows to be due.' [Citations.]" (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1201.)7
3 On page 16, before the word
We reject respondent's contention in its petition for
rehearing that "conduct violating the Act is willful only if the
manufacturer, jobber or distributor knows of its obligations but intentionally
declines to fulfill them." The
knowledge requirement would be difficult to prove and would encourage
manufacturers to remain ignorant of their obligations under the Act. This would frustrate the legislative intent
to provide "unique protection" to independent wholesale sales
representatives. (§ 1738.10.) But a manufacturer's failure to comply with
the Act would not be willful if the manufacturer proved that its failure was
"the result of a good faith and reasonable belief the facts imposing the
statutory obligation were not present."
(Kwan v. Mercedes-Benz of North
America, Inc. (1994) 23 Cal.App.4th 174, 185.) For example, a failure to comply would not be
willful if the manufacturer reasonably and in good faith believed that a person
did not qualify as a "wholesale sales representative" within the
meaning of the Act. This interpretation
"will not vitiate the intended deterrent effect of the [treble damages
provision]." (Ibid.)
[There is no change in the judgment.]
Respondent's petition for rehearing is
denied.
CERTIFIED FOR PUBLICATION.
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7 The courts, however,
have recognized that a finding of "willfulness" within the meaning of
Labor Code section 203 may be negated by a reasonable, good faith belief in a
legal defense to a wage claim. (
Cal.App.4th 314, 325; Barnhill v. Robert
Saunders & Co. (1981) 125 Cal.App.3d 1, 8-9; see also Cal. Code Regs.,
tit. 8, § 13520.) Accordingly, we
conclude that a finding of a willful failure "to pay commissions as
provided in the written contract" (§ 1738.15) may be negated by a
reasonable, good faith belief in a legal defense to a commissions claim.
