Sanfilippo v. Wells
Filed 11/19/13 Sanfilippo v. Wells Fargo Advisors CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
DONNA SANFILIPPO,
Plaintiff and Appellant,
v.
WELLS FARGO ADVISORS, INC. et
al.,
Defendants and Respondents.
D062888
(Super. Ct. No. 37-2011-00084954- CU-OE-CTL)
APPEAL from a judgment of the Superior
Court of
County, Judith F. Hayes, Judge. Affirmed.
Grady and Associates and Dennis M.
Grady, Scott L. Zielinski, for Plaintiff and Appellant.
Paul, Plevin, Sullivan &
Connaughton and E. Joseph Connaughton, Emily J. Fox, for Defendants and
Respondents.
Plaintiff
and appellant Donna Sanfilippo (Sanfilippo) sued defendants and respondents
Wells Fargo Advisors, Inc. (Wells Fargo), her ex-husband, Joe Sanfilippo,
and three Wells Fargo employees in their individual capacities: Gary Endres,
Don Overbeck and Michael Barnes (collectively respondents). Sanfilippo alleged causes of action for (1)
marital status discrimination under the California Fair Employment and Housing
Act (FEHA; Gov. Code, § 12940 et seq.); (2) gender discrimination under FEHA;
(3) wrongful termination in violation of public policy; (4) interference with
prospective economic advantage; (5) violation of California's unfair
competition law (UCL; Bus. and Prof. Code, § 17200, et seq.); (6) violation of
Labor Code section 300; (7) violation of Labor Code section 2800; (8) conversion
and conspiracy to commit conversion; and (9) fraudulent concealment and
conspiracy to defraud.
Respondents successfully moved for
summary judgment on the following grounds:
(1) Sanfilippo failed to state a prima
facie case for either claim of discrimination as she was terminated for a
legitimate nondiscriminatory reason; (2) the wrongful termination cause of
action could not be sustained because there was no basis for the underlying
discrimination claims; (3) the cause of action for interference with
prospective economic advantage is barred by the
statutory violation or wrongful conduct by Wells Fargo to support the UCL cause
of action; (5) Labor Code section 300 does not provide for a private right of
action; (6) there was no Labor Code section 2800 violation because Wells Fargo
reimbursed Sanfilippo for all of her business related losses; and (7) the
claims for conversion and fraudulent concealment were barred by the workers'
compensation exclusivity rule and, alternatively, they were previously
adjudicated in the family court.
Sanfilippo contends the trial court
erred because she had established triable issues of material fact to defeat
summary judgment. We conclude there is
no basis for that contention, and therefore affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Starting in the mid-1990's,
Sanfilippo and her husband worked jointly as stockbrokers at Wells Fargo, and
following its procedures, split their commissions. At one point, Sanfilippo received 40 percent
of the commissions, and her husband received 60 percent. However, in late 2008, Sanfilippo learned
from Endres, a former branch manager, that the percentage split was changed to
20 percent for her and 80 percent for her husband. In 2008, the Sanfilippos separated without
informing Wells Fargo. In 2009,
Sanfilippo filed for divorce.
In June 2009, Overbeck, a Wells
Fargo first vice president, warned Sanfilippo that she needed to earn $10,000
more in commissions or she would be terminated.
He gave her a second warning in August 2009.
In December 2009, Sanfilippo was
informed by letter that Wells Fargo had terminated her employment the previous
month because she had failed to meet performance expectations.
In January 2011, Sanfilippo filed a
lawsuit against respondents.
On July 10, 2012, the Sanfilippos reached a dissolution
settlement agreement in family court.
Its terms were read into the transcript of the proceedings: "In . . . regard to the book of business
. . . [husband] shall pay [Sanfilippo] the sum of $400,000 in return for her
release of . . . any and all community property claims regarding the accounts
[that] currently or at any other time were managed by [husband] at Wells Fargo
or any of its predecessor firms. . . . [¶]
[Sanfilippo] further releases any claims against [husband] for any interest
[she] may or may not have in any alleged book of business." (Capitalization omitted.)
On July 30, 2012, the trial court granted respondents' motion
for summary judgment, ruling Sanfilippo had failed to raise triable issues of
material fact regarding the different claims.
Specifically, the court found (1) Sanfilippo did not rebut respondents'
explanation of their reasons for terminating Sanfilippo and there was no
showing of discriminatory animus on respondents' part; therefore, the marital
status and gender discrimination causes of action could not be sustained; (2)
absent a showing of underlying discrimination, the wrongful termination cause
of action could not be proved; (3) the claim for interference with prospective
economic advantage was barred by the statute of limitations; (4) the UCL claim
failed because there was no showing that Wells Fargo violated any law or
engaged in unfair conduct; (5) Sanfilippo had admitted in her deposition that
Wells Fargo had reimbursed her for all of her business losses, and the family
court had resolved the financial dispute between the Sanfilippos; therefore,
the claims of Labor Code violations were unsupported by the facts; and (6) the
workers' compensation exclusivity rule barred the causes of action for conversion
and fraudulent concealment.
DISCUSSION
Summary judgment may be granted
only if there is no triable issue of material fact and the party is entitled to
judgment as a matter of law. (Code Civ. Proc.,
437c, subd. (c).) A defendant moving for
summary judgment has the burden of presenting evidence that negates an element
of plaintiff's claim or evidence that the plaintiff does not possess and cannot
reasonably expect to obtain evidence needed to support an element of the
claim. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460;
Cal.4th 763, 768.) If the defendant
meets this burden, the burden shifts to the plaintiff to set forth "specific
facts" showing that a triable issue of material fact exists. (§ 437c, subd. (p)(2).)
We review de novo the trial court's
grant of summary judgment. (
1039; Lonicki v. Sutter Health Central
(2008) 43 Cal.4th 201, 206.) We take the
facts from the record that was before the trial court when it ruled on the
motion and consider all the evidence set forth in the moving and opposing
papers, except those to which objections were made and sustained. (Lonicki
v. Sutter Health Central, at p. 206; § 437c, subd. (c).) The court does not weigh the parties'
evidence; rather, it must consider all the evidence and "all inferences
reasonably deducible from the evidence."
(§ 437c, subd. (c); Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 540-541; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) However, "any doubts as to the propriety
of granting a summary judgment motion should be resolved in favor of the party
opposing the motion." (
Under FEHA, an employer is
prohibited from discriminating against an employee based on marital status or
gender. (Gov. Code, § 12940, subd.
(a).) The court applies a "three-stage
burden-shifting test" for discrimination claims. (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Yanowitz v. L'Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) At trial, the plaintiff employee bears the
initial burden of establishing a prima facie case of discrimination. If he or she does so, a presumption of
discrimination arises. (
at p. 354; Yanowitz,
rebut the presumption by producing admissible evidence that its adverse
employment action was taken for a legitimate, nondiscriminatory reason. (Guz,
If the employer succeeds, the burden shifts back to the plaintiff to "attack
the employer's proffered reasons as pretexts for discrimination," or to
offer other evidence of intentional discrimination. (Guz,
at p. 356; Yanowitz,
A defendant moving for summary
judgment may skip to the second step of the analysis by demonstrating it has a
legitimate business reason, unrelated to marital status, gender, or other protected
classifications. (Guz, supra, 24 Cal.4th at
p. 357.) The plaintiff then has "the
burden to rebut this facially
dispositive showing by pointing to evidence which nonetheless raises a rational
inference that intentional discrimination occurred." (Ibid.)
I. Cause
of Action for Marital Status Discrimination
Sanfilippo contends that in a
February 2009 meeting with Endres, she requested that he restore the
Sanfilippos' original commission split that Wells Fargo had altered without her
permission. Endres refused on grounds
that she was in the process of divorcing her husband. Sanfilippo claims Endres's statement provided
proof that Wells Fargo acted out of animus based on her marital status as a
separated person. Her subsequent efforts
to get Wells Fargo managers to change the commission split also failed, and she
concludes their inaction was based, at least in part, on her marital status.
Sanfilippo's contention fails
because the primary evidence she relies on to show animus deals with her
version of the February 2009 meeting with Endres. However, the trial court sustained
respondents' objections to that evidence.
Sanfilippo does not challenge the trial court's evidentiary rulings;
therefore, we do not rely on those portions of her contention that restate
evidence to which objections were sustained.
(Wall Street Network, Ltd. v. New
York Times Co. (2008) 164
Cal.App.4th 1171, 1181.)
The other evidence Sanfilippo relies on to support her claim of
discriminatory animus derives from Endres's deposition testimony, in which he
was asked whether he had contemplated reverting the Sanfilippos' commission
split to the original percentages.
Endres said no, explaining that at the February 2009 meeting, he told
Sanfilippo he would have to check with Joe Sanfilippo about the matter, given
that Endres was just learning the Sanfilippos were separating or
divorcing.
We conclude Wells Fargo met its burden by producing admissible evidence
that its motive for terminating Sanfilippo was unrelated to her marital status. Specifically, notwithstanding Wells Fargo's
warning, Sanfilippo failed to increase her commission to $10,000 per
month. Wells Fargo applied the same
standards regarding commission levels and disciplinary proceedings to all
financial consultants, independently of marital status.
The burden next shifted to Sanfilippo to rebut Wells Fargo's evidence by
pointing to evidence which nonetheless showed that Wells Fargo's decision to
terminate her "[was] actually made on the prohibited basis" of
marital status discrimination. (
24 Cal.4th at p. 358.) Sanfilippo failed
to meet her burden because she provided no direct evidence that the reasons
given for her termination were pretextual.
She likewise provided insufficient circumstantial evidence of pretext,
that is, evidence that was sufficiently " ' "specific" and "substantial"
' " to show that respondents were more likely motivated by a
discriminatory reason. (
California (2000) 88 Cal.App.4th 52, 69.) Therefore, the court did not err in
adjudicating this cause of action in Wells Fargo's favor. "[A]n employer is entitled to summary
judgment if, considering the employer's innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational inference that the
employer's actual motive was discriminatory." (Guz,
at p. 361; fn. omitted.)
II. Cause
of Action for Gender Discrimination
In arguing
that Wells Fargo discriminated against her because of her gender, Sanfilippo
relies on the same evidence as that regarding her marital status discrimination
claim. Specifically, she asserts: "Given that Endres made gender[-]related
comments while informing [her] at this February 2009 meeting that he would not
rectify the compensation structure that [she] learned was incorrect and
detrimental to her; and given that after this February 2009 meeting [she] was
subjected to further adverse employment actions including termination, a jury
could have found that these actions were taken against [her] due to her gender." (Some capitalization omitted.) Sanfilippo adds that despite her "repeated
attempts to ask management to correct the unauthorized commission split,
unauthorized client asset and client reassignation, and wage reallocation,
these issues never were corrected.
Instead, [she] was given two separate warnings . . . , denied access to
her clients, given goals with which she could never comply, and ultimately
terminated. . . . In contrast, Mr. Sanfilippo, a male broker
with whom [she] shared a pool of clients, still works for [Wells Fargo] and was
allowed to keep all his client assets, commissions, and bonuses, despite [her
allegations]."
As noted,
the trial court excluded evidence related to the February 2009 meeting, and
Sanfilippo does not challenge that evidentiary ruling on appeal; therefore, we
do not consider it. In any event, Wells
Fargo's justification for terminating Sanfilippo is nondiscriminatory and
relates to her failure to increase her commission earnings. Sanfilippo has failed to produce evidence
attacking Wells Fargo's proffered reason as a pretext for discrimination. (Yanowitz,
supra, 36 Cal.4th at p. 1042.) Accordingly, we conclude the trial court did
not err in summarily adjudicating this claim.
III. Cause
of Action for Wrongful Termination
Sanfilippo's cause of action for wrongful termination is based on the same FEHA
claims of marital status and gender
discrimination that we concluded lack merit. "As a result, the wrongful termination
claim fails for the same reasons as the FEHA claim[s.]" (Arteaga
v. Brink's, Inc. (2008) 163
Cal.App.4th 327, 355.)
IV. Cause
of Action for Interference with Prospective Economic Advantage
Under
section 335.1, Sanfilippo was required to bring a lawsuit for interference with
prospective economic advantage within two years after the cause of action
accrued. The limitations period begins
when the plaintiff suspects, or should suspect, that she has been wronged. (Jolly
v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1114.) "While resolution of the statute of
limitations issue is normally a question of fact, where the uncontradicted
facts established through discovery are susceptible of only one legitimate
inference, summary judgment is proper."
(Id. at p. 1112.)
Here, application of the discovery
rule supports the trial court's judgment.
Sanfilippo concedes in her opening brief that she "learned of a
commission change with Mr. Sanfilippo in or about December 2008." Nonetheless, she contends such knowledge "does
not constitute sufficient notice to satisfy the 'discovery rule' that would
begin the running of the statute of limitations" because "[i]t was
only later . . . that [she] learned many more facts related to the unauthorized
alteration of her pay structure, among other unlawful actions, with [Wells
Fargo]." We conclude that in light
of the undisputed fact Sanfilippo learned of the commission change in 2008, she
had sufficient information at that time to know she had been wronged;
therefore, she was required to bring her cause of action by 2010 under the
statute of limitations. Accordingly, her
claim brought in her 2011 lawsuit was time-barred.
V.
UCL Cause of Action
The trial court rejected Sanfilippo's
UCL claim, finding she had "failed to create triable issues of material
fact as to an applicable predicate violation of the law or unfair conduct." On appeal, Sanfilippo's argument challenging
the trial court's ruling is comprised of two paragraphs: one discussing
Business and Professions Code section 17200, and the other asserting her
substantive argument that "[she] does raise enough triable issues of
material fact related to her eight other causes of action contained in her
complaint to, at very least, defeat the [summary judgment motion]. Thus, this cause of action was erroneously
dismissed."
Sanfilippo's cursory argument is
insufficient to defeat the grant of summary judgment. " ' " 'Instead of a fair and
sincere effort to show that the trial court was wrong, appellant's brief is a
mere challenge to respondents to prove that the court was right.' " '
[Citation.] Therefore, plaintiff's
contention that the trial court erred by granting defendants' motion for
summary judgment is deemed waived."
(Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115-1116.)
In any case, as this court noted, a
claim under Business and Professions Code section 17200 is a derivative one. Because all of Sanfilippo's other claims fail,
and there was no showing Wells Fargo engaged in wrongdoing, this UCL claim also
fails. (Aleksick v. 7-Eleven (2012) 205 Cal.App.4th 1176, 1185 ["When
a statutory claim fails, a derivative UCL claim also fails."].)
VI. Cause
of Action for Violation of Labor Code Section 300
Labor Code Section 300
assignment of wages is valid unless "[w]here the assignment is made by a
married person, the written consent of the spouse of the person making the
assignment is attached to the assignment."
The trial court ruled Sanfilippo
had failed to present "admissible evidence of an assignment of her
wages/commissions." It also concluded that the Sanfilippos'
dissolution settlement had resolved the issue of the commissions. "The doctrine of collateral estoppel
means that once an issue is litigated and determined, it is binding in a
subsequent action." (
122, 125-126.)
On appeal, Sanfilippo contends she
presented sufficient evidence to support this cause of action in the form of
Endres's declaration, which stated: "The
Sanfilippos worked as a team, maintaining the same pool of clients. They split the commissions on a percentage
basis. Initially, Ms. Sanfilippo
received a higher percentage of the commissions than Mr. Sanfilippo. Over time, Mr. Sanfilippo requested that the
percentage split be changed. First, it
was changed to 60 [percent for] Mr. Sanfilippo and 40 [percent for] Ms.
Sanfilippo. Later, the commissions were
changed to 80 [percent for] Mr. Sanfilippo and 20 [percent for] Ms. Sanfilippo." Sanfilippo also points to Endres's deposition
testimony in which he states that she told him she had not given her husband
permission to change the commission split.
Sanfilippo claims the commission split issue was not fully resolved in
the family court, noting that she and her husband separated in September 2008,
but Wells Fargo notified her about her termination in December 2009. She claims her wages earned between those
dates were not considered community property for family court purposes. We conclude that in the family court
settlement, Sanfilippo completely disclaimed any interest in Joe Sanfilippo's
book of business and all commissions arising from it. The resolution of this matter in the
family court barred its relitigation in the underlying action. In several cases, "courts have made it
clear that family law cases 'should not be allowed to spill over into civil
law.' " (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 393;
942, 965 ["[F]iling a separate civil action was duplicative of the family
law action."].)
VII. Labor
Code Section 2800 Cause of Action
The court found as a factual matter
that Wells Fargo had paid Sanfilippo all monies owed. At her deposition, defense counsel asked
Sanfilippo whether she had incurred any business expenses that Wells Fargo had
not reimbursed her. She replied, "I
don't recall."
Labor Code Section 2800
states: "An employer shall in all
cases indemnify his employee for losses caused by the employer's want of
ordinary care." On appeal, Sanfilippo
argues that the statute's scope extends beyond simply reimbursable
expenses. She specifically claims Wells
Fargo caused her significant losses by its lack of ordinary care in failing to
obtain her "written (or verbal) authorization before giving her earned
commissions and accounts to Mr. Sanfilippo, denying her a bonus, refusing to
return the percentage commission splits to the point at which [she] agreed,
denying [her] access to her clients, denying her an office space, putting her
on a [Performance Improvement Plan], putting her on a 'draw,' requiring her to
average $10,000 in monthly commissions or she would [be] terminated even though
she had no clients or assets to manage, terminating her, and asking her to pay
[Wells Fargo] a $5,894.01 'retention' bonus."
As noted, this matter involving the
commission split was resolved in the family court; therefore, under the
doctrine of collateral estoppel, the claim could not be litigated a second
time. Accordingly, the trial court did
not err in summarily adjudicating this claim against Sanfilippo.
VIII. Causes
Of Action for Conversion And Fraudulent Concealment
Sanfilippo bases her claims of
conversion and fraudulent concealment on the commission split. The trial court found she had not produced
admissible evidence that Wells Fargo had converted her property or fraudulently
concealed the commission split from her.
The trial court ruled these causes of action were barred by the workers'
compensation cause exclusivity rule and, alternatively, there was no evidence
Wells Fargo knew of the Sanfilippos' separation, or changed the commission
split in contravention of the Sanfilippos' pooling agreement.
Sanfilippo argues on appeal, "[Wells
Fargo], through its manager Endres, denied Sanfilippo her wages by changing her
compensation structure without her knowledge or consent." (Some capitalization omitted.)
To state a cause of action for
conversion, a plaintiff need only allege his or her
" ' "ownership or right to possession of the
property at the time of the conversion; the defendant's conversion by a
wrongful act or disposition of property rights; and
damages." ' " (Shopoff
& Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507.)
We conclude Sanfilippo failed to
raise a triable issue of material fact regarding this claim because in her
deposition she disclaimed that anybody at Wells Fargo held income owed to
her. She was asked, "Do you believe
anyone possessed income that you should have received instead of you?" She named only Joe Sanfilippo. Also, defense counsel asked her in a
deposition, "You'll agree with me that all of the commissions that what I'll
call the Sanfilippo team were owed were ultimately paid; correct? Your contention is about to whom those should
have been paid. Right?" Sanfilippo replied in the affirmative. Sanfilippo admitted Wells Fargo did not
withhold monies owed to her and her husband.
Further, the family court resolved all matters involving the commission
split, thus barring relitigation of the issue.
Therefore, we conclude the trial court did not err in granting summary
adjudication of these claims.
DISPOSITION
The judgment is
affirmed. Respondents are entitled to
costs on appeal.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
Sanfilippo in the underlying action were later dismissed with prejudice.
name="_ftn2" title="">[2] All statutory references are to the Code of Civil Procedure
unless otherwise stated.
