Neise v. Empire West Foam Corp.

Filed 8/20/07 Neise v. Empire West Foam Corp. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge. Affirmed.

Peter Neise, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Plaintiff and appellant Peter Neise (plaintiff) appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrers of defendant Empire West Foam Corporation (defendant) to plaintiffs first amended complaint.[1] We affirm.

BACKGROUND

From 1998 to 2003, plaintiff was employed as an equipment repairman by defendant. When plaintiff commenced his employment in November 1998, defendant required plaintiff to file an Internal Revenue Service Form W-4, Employees Withholding Allowance Certificate, telling plaintiff that it was mandatory that he do so. Plaintiff filed a W-4 dated November 10, 1998. He did not claim on the W-4 that he was exempt from federal withholding.[2]

On November 9, 1999, plaintiff delivered a Notice of Worker Status of Exclusion to defendant, in which he purported to restrict[] [his] signature on all W-4s as to usage for payment of foreign source income only, and not for any Voluntary withholdings or deductions. Plaintiff apparently believed that his compensation from defendant did not constitute wages taxable under the Internal Revenue Code (26 U.S.C.  1 et seq.). Plaintiff also delivered a Statement of Citizenship and Residence, in which he claimed that he was not subject to federal or state tax laws, or the Immigration Reform and Control Act of 1986 (8 U.S.C. 1101 et seq.). On December 20, 1999, plaintiff sent correspondence to defendants accountant, claiming that there was NO statutory authority to withhold employment tax from [him]. He demanded that all withholding upon my remunerations cease within three days, that defendant correct all forms 940, 941, DE-6 and DE-88s immediately, and that defendant request Refunds on all erroneously paid in sums . . . .

On April 16, 2003, plaintiff filed a new W-4 on which he claimed to be exempt from withholding. He attached to the W-4 a seven-page Statement and Affidavit of Truth, explaining in detail why he believed that his compensation from defendant was not subject to withholding. In a letter dated June 14, 2003, the Internal Revenue Service instructed defendant to disregard plaintiffs 2003 W-4 and to withhold tax as if plaintiffs filing status was single with no allowances.

In January 2006, plaintiff sent a Notice and Demand to defendant demanding that defendant change your records concerning [plaintiffs] employment relationship with you . . . . Plaintiff threatened to sue defendant unless defendant chang[ed] all [its] records . . . to state that no Wages under section 6051 of the Internal Revenue Service Code has been paid by you, the private sector employer, and all money paid over to the Government are repaid to me personally as refunded to you by the Government . . . .

Plaintiff commenced this action on February 16, 2006, alleging a single cause of action denominated constructive fraud. Defendant removed the action to federal court; the federal court remanded the action to the Los Angeles Superior Court. On August 23, 2006, plaintiff filed his first amended complaint alleging causes of action for breach of contract and fraud.[3] On September 29, 2006, the trial court granted defendants demurrers without leave to amend, concluding that plaintiffs claims were barred by the applicable statutes of limitations; that the court lacked jurisdiction to grant plaintiffs prayer to correct the record with the Federal Government with respect to his W-4s and W-2s; and that plaintiffs fraud claim failed to allege justifiable reliance. Plaintiff timely appealed.[4]

DISCUSSION

A. Standard Of Review

When reviewing the trial courts order sustaining demurrers without leave to amend, we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We do not, however, assume the truth of contentions, deductions or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103; see also Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 257.) The judgment must be affirmed, however, if any one of several grounds of demurrer is well taken. (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21; Franklin v. The Monadnock Co., supra, 151 Cal.App.4th at p. 257.)

A trial court should sustain a demurrer without leave to amend only if there is no reasonable possibility that the defect can be cured by amendment. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810; see also Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) However, when a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. [Citations.] Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint, rendering it vulnerable to demurrer again. [Citations.] Facts appearing in exhibits attached to a complaint will also be accepted as true and will be given precedence over any contrary allegations in the pleadings. [Citations.] (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044-1045.)

B. The Trial Court Properly Concluded That Plaintiffs Claims Are Time Barred

Plaintiffs first amended complaint alleges causes of action for breach of contract and fraud. The limitations period on a claim for breach of an oral agreement is two years. (Code Civ. Proc., 339, subd. (1).)[5] The statute of limitations for fraud is three years, with the cause of action not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud . . . . ( 338, subd. (d).)

Plaintiff alleged in his first amended complaint that on November 10th, 1998, Plaintiff and Defendant entered into an oral contract labor agreement. Plaintiff further alleged that [u]pon the start of the private work agreement, Defendant breached the private agreement by compelling Plaintiff to submit and attest to a Federal formW-4 [sic] . . . . (Italics added.) Plaintiff attached the W-4 to his original complaint as Exhibit A; it is subscribed by plaintiff and dated November 10, 1998. Accordingly, plaintiffs pleadings establish that the alleged breach of the oral employment agreement occurred on November 10, 1998, more than two years before plaintiff filed his action on February 16, 2006. Plaintiff pleaded no facts to avoid the limitations bar, nor has plaintiff identified any facts that he could plead in that regard if he were given leave to amend his pleading. The trial court therefore properly sustained without leave to amend the demurrer to plaintiffs breach of contract claim.

In his cause of action for fraud, plaintiff alleged that defendant fraudulently represented that it was the law that plaintiff had to file a W-4. Assuming that such a statement might constitute an actionable misrepresentation, Exhibit E attached to plaintiffs original complaint establishes that plaintiff knew or should have known of the alleged fraud no later than December 20, 1999. Plaintiff sent correspondence on that date to defendants accountant proclaiming that theres NO statutory authority to withhold employment tax from me, and demanding that defendant cease withholding from his pay, correct its tax and employment records, and request refunds for all amounts previously withheld from his pay. This was more than three years before plaintiff filed his action. Plaintiff has not pleaded and has not identified any facts that he could plead to avoid the limitations bar. Accordingly, the trial court properly sustained without leave to amend the demurrer to plaintiffs fraud claim.

We recognize the difficulties faced by a party representing himself. But, the law is that this does not exempt that party from complying with the basic requirements applicable to all litigants. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.)

DISPOSITION

The judgment of dismissal is affirmed. As defendant did not defend the appeal, no costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

I concur:

ARMSTRONG, Acting P. J.

J. KRIEGLER, Concurring (B195373)

I concur in the judgment, but would affirm on the basis appellant did not present this court with a complete record prepared in compliance with the California Rules of Court.

KRIEGLER, J.

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[1] Defendant failed to file a respondents brief. We therefore resolve the appeal on plaintiffs opening brief and the record, pursuant to California Rules of Court, rule 8.220(a)(2).

[2] Each of the documents referenced in the recitation of the facts was attached as an exhibit to plaintiffs original complaint.

[3] The caption of the first amended complaint includes a claim for conversion of inalienable rights, but there are no allegations relating to any such cause of action in the body of the pleading.

[4] In plaintiffs Notice Designating Record on Appeal (Judicial Counsel Form APP-003), plaintiff failed to designate for inclusion in the clerks transcript his original complaint, his first amended complaint, or defendants demurrer. Instead, plaintiff erroneously checked item B.1, which designates for inclusion in the clerks transcript all exhibits admitted into evidence or marked for identification. In this case, there were no exhibits admitted into evidence or marked for identification because the matter had proceeded only to the demurrer stage. When plaintiff was informed that the superior court had no record of any exhibits, he erroneously concluded that this meant the superior court had lost the case file. Plaintiff then improperly lodged with this court, as exhibits pursuant to California Rule of Court, rule 8.224, various pleadings, including his original and first amended complaints. Plaintiff also failed to provide a reporters transcript of the demurrer hearing. Rather than dismiss plaintiffs appeal for plaintiffs failure to provide an adequate record, however, we exercise our discretion under California Rules of Court, rule 8.155(a)(1) to augment the record with the superior court file, which we have obtained and reviewed. We therefore consider the merits of plaintiffs appeal.

[5] All statutory references are to the Code of Civil Procedure.