Connie Parker vs. Nili N. Alai

Motion for Summary Judgment/Adjudication

Cal. Super. - 4th Dist.January 23, 2015

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nili Alai , SBR! #468142 (Practical Law Student in Training) 14 Monarch Bay Plaza, Suite 383 Dana Point, CA 92629 Telephone 949-542-6354 Defendant NILI N. ALAI in Limited Scope Representation Pursuant to C.R.C. 3.35-3.37° SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER CONNIE PARKER, CASE NO. 30-2015-00767937-CU-OE-CJC Plaintiff, ASSIGNED FOR ALL PURPOSES TO: JUDICIAL OFFICER HON. JAMES DI Vv. CESARE NILIN. ALAI, M.D., aka ALLY N. ALAIN, M.D., an individual; and DOES 1 through 20, inclusive, COMPLAINT FILED: January 23, 2015 CROSS-COMPLAINT: September 19, 2016 TRIAL DATE: None NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION PURSUANT TO C.C.P. § 437(c); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT BY DEFENDANT NILI ALAI Defendants. NILI N. ALAIL, M.D., NILIN. ALAI, M.D., INC. dba THE SKIN CENTER, and 12712, INC. Cross-Complainants, [Decl. Expert Talmo; Decl. Expert Economist Zengler, Decl; Decl. Handwriting Expert Gonzalez; And Decl. Forgery Expert Christiansen, In Support] V. CONNIE PARKER, CHARLES TON, and ROES1 through 100, inclusive, Cross-Defendants. Filed. With Plaintiffs’ Separate Statement, xhibits, And Declarations In Support] N a N a N a N e S N N a N a N a N a N a N a N a N a N a N a N a N a S N N a N a N a N a N e N e S N Date: Friday June 22, 2018 Time: 9:30 a.m. Dept. C-16 Reservation: 72786499 I'C.R.C. 9.42 and State BarTitle 3 Rules authorize “Practical Training of Law Students, and Registration with theState Bar. Law student status need not be related to instant case representation. Ally Alain2C.R.C. 3.37 Nondisclosure of Attorney assistance in law and motion, or hearings.iMOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARYADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE COURT, PLAINTIFF AND COUNSELS OF RECORD: NOTICE IS HEREBY GIVEN that on June 22, 2018, at 9:30 a.m., or as soon thereafter as the matter can be heard in Department 16 of this Court, located at 700 W. Civic Center Drive in Santa Ana, CA, Defendant Nili N. Alai will respectfully move the Court in accordance with Code of Civil Procedure §473 et. seq. and California Rules of Courts 3.1350, to grant this Motion for Summary Judgement (herein “MSJ”), or in the alternative Motion for Summary Adjudication (herein “MSA”). This pleading is lodged on good basis and just cause that there are no genuine issues as to any material fact. Thus Defendants are as a matter of law entitled to judgment, or in the alternative, summary adjudication. The motion will be made on the grounds that granting Defendant’s MSJ or in the alternative MSA is in furtherance ofjustice, and judicial economy. Plaintiff will be unable to make a prima facie case to these causes of action (herein “COA”), therefore, Defendant seeks summary judgement. In sum, Defendant moves the Court on grounds of Plaintiff’s testimony under oath in her verified original Complaint, Plaintiffs 24-4" complaints, and the operative Fifth Amended Complaint (herein “FAC”), her deposition transcripts, her discovery responses, her verified federal tax returns, and Defendants’ expert declarations. In the alternative, Defendant hereby does move for summary adjudication on the following COA. In compliance with Rules of Court 3.1350 (b) this MSA details the following: Plaintiffs’ operative FAC for Damages alleges five remaining causes of action: (1) Wrongful Termination In Violation Of Public Policy; (2)Violation Of Labor Code Section 1102.5; (3) Violation Of California Wage & Hour Laws; (4) Fraud; And (5) Breach Of Contract. This motion will be based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, Declarations, and any Request for Judicial Notice as served and filed wherewith, the exhibits, records and file herein, and on such evidence and oral argument as may be presented at the hearing of the motion. Respectfully submitted, Dated : April 6, 2018 _/s/Alai RIA Nili Alai ii MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES I CASE LAW Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247 Corp. v. Green (1973) 411 U.S. 792. County of Los Angeles v. Security Insurance Comparcy of Hartford (1975) 52 Cal. App. 3d 808-,816. Cucuzza v. City ofSanta Clara (2002) 104 Cal.App.4th 1031, 1038 Cummings v. Benco Building Services (1992) 11 Cal.App.4™ 1383, 1387 DeJung v. Super. Ct. (2008) 169 Cal.App.4th 533,553 Gantt v. Sentry Insurance (1992)1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680 Geniusz v. Hoffman Laroche, Inc., 1996 WL 79839 at **6-8 (N.D. Cal. 1996) Guz v. Bechtel National, Inc.(2000) 24 Cal.4th 317, 355-356 Hansen v. California Dept. of Corrections and Rehabilitation, 171 Cal. App. 4% 1537, 1546 (2008) Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1214 (C.D.Cal. 2004) King v. Service (2007) 152 Cal.App.4th 426,433,fn.2 Krasley v. Superior Court (1980) 1.01 Cal. App. 3d 425, 432. Morgan v. Regents of University of California, 88 Cal. App. 4th 52, 69 (2000) McDonnell Douglas Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 882. Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil <& Shapiro (2001) 91 Cal.App.4™ 859, 869 to 874 Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) United Parcel Knickerbocker v. City of Stockton, 81 F.3d 907, 912 (9th Cir. 1996) Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 Yanowitz v. L 'Oreal USA, Inc., supra, at 1042.) BUSINESS & PROFESSIONS CODE B&P Code §6450-6456 CALIFORNIA CIVIL JURY INSTRUCTIONS CACI 3704 Employee Status iii MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CACI 204: Willful Suppression of Evidence, or Alteration CODE OF CIVIL PROCEDURE § Section §431.30,(d) EVIDENCE CODE _§ 413 Spoliation of Evidence RULES OF COURT 3.1350 (b)MSA iv MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Lo SUMMARYo.ooeee eee eee eee eee eee eee eee eee ee,1 IL. INTRODUCTION. ...c.uii tees eee eee eee eee eee eee eee eee eee ee1 IL BACKGROUND... ...cuii titties eee eee eee eee eee eee eee ee,2 IV. STATEMENT OF FACTS... ote e tees eee eee eee eee eee eee eee ee3 V. THE COURT HAS STATUTORY BASIS TO GRANT THIS’ MSJ/ MSA................4 VI. PLAINTIFF FAILS TO MAKE AN EMPLOYMENT CASE .....eoovveeoieeeeoe ee.6 VIL. LEGAL ARGUMENT: SUMMARY JUDGMENT IS JUSTIFIED BECAUSE PLAINTIFFS COMPLAINT STILL LACKS EVIDENTIARY SUPPORT...............6 VIII. PLAINTIFF FAILS TO SHOW A PRIMA FACIE EMPLOYMENT CASE ( CACI B70)... eee ee10 IX. PLAINTIFF FAILS TO MAKE A PRIMA FACIA CASE OF HER FIVE COA........... 12 1. FIRST COA- WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY..coorovveeeeeeeeeeeeeeeeeese eee sesese sees esse ss eeeesese sess seen sesess eee 12 2. SECOND COA- VIOLATION OF LABOR CODE § 112055............. 14 3. THIRD COA- VIOLATION OF CALIFORNIA WAGE AND HOUR LAWS... eee eee eee eee eee eee eee ee16 4. FOURTH COA-FRAUD........ccootioieeoeeeeeee,17 5. FIFTH COA- BREACH OF CONTRACT ......oooveeoieeeeeeeeee. 18 X. CONCLUSIONS...eeeeee eee eee eee eee eee eee eee ee20 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARYADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY Defendant Nili Alai, M.D. (herein “Defendant”) brings this Motion for Summary Judgment (herein “MSJ”) and in the alternative Motion for Summary Adjudication (herein “MSA”) pursuant to Code of Civil Procedure § 437 (c¢) and Calif. Rules of Court 3.1350, based on just cause and good basis. Plaintiff Connie Parker’s (herein “Plaintiff”) testimony and pleadings in this action do not raise any triable issues of material fact, and thus the court would be statutorily authorized to grant this MSJ as a matter of law. This meritorious motion should be granted for the reasons set forth below. Plaintiff has not demonstrated that she was an employee. Plaintiff is a J.D. and paralegal by training. She controlled her own work. She is a licensed notary and licensed real estate agent who made her own hours, invoiced Defendants for her services and expenses, used her own accounts to pay for postage and OneLegal filing, controlled her own work, worked regularly out of her home office, and worked for multiple contractors at any time. Plaintiff was by all agreement an independent contractor. She kept her own hours and worked from where she wanted to work. She cashed her checks. She received 1099 income. She can not produce a W2. She filed her federal taxes as an employer, and deducted expenses. Her tax returns reflect contractor jobs at multiple firms during the time she purports to have been employed full-time by Defendants. Despite three full years, Plaintiff has failed to adequately allege facts or produce evidence to make a prima facie case to support her COA. Hence, Plaintiff’s Fifth Amended Complaint remains frivolous, meritless and vexatious. The evidence herein reflects that Plaintiff’s discovery responses and/or deposition testimony are inherently disingenuous. Plaintiff’s pleadings show that Plaintiff gainsaid her claims and even retracted part of the claims set forth in her employment law complaint in this case. Plaintiff’s COA based on a statutorily unsubstantiated claim of employmentis at best, vexatious See, Cummings Vv. Benco Building Services (1992) 11 Cal.App.4™ 1383, 1387 and Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4™ 859, 869 to 874 II. INTRODUCTION This instant pleading is lodged on the grounds that Defendant should be entitled to summary judgment as a matter of law. Code of Civil Procedure § 437 (c). 1. Plaintiff’s Pleadings Fail To Make A Prima Facie Case. 1 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants request that the Court take judicial notice of the following Plaintiff pleadings on file. On January 23, 2015 Plaintiff filed her original complaint, which was “verified”. In between, Plaintiff filed her 24-4" amended complaints. On March 2016, Plaintiff filed her Fifth Amended Complaint (herein “FAC”) which had 6 COA. Plaintiff was unable to prove her Intentional Infliction of Emotional Distress (herein “IIED”’) COA which was stricken on demure. Hence, five COA remain on Plaintiff’s operative FAC: 1. Wrongful Termination In Violation Of Public Policy; 2. Violation Of Labor Code Section 1102.5; 3. Violation Of California Wage & Hour Laws & Regulations; 4. Fraud; And 5. Breach Of Contract. III. BACKGROUND The underlying facts in this action are simple. This case is a Craigslist scheme perpetuated by Plaintiff, a paralegal who held herself out for private client legal advice and services. This case has an unwarranted contentious history. What should have been resolved at an early junction through dismissal of an frivolous claim has been a drain on the judicial system and Defendants for the past three years. The action is an alleged “wrongful termination” employment claim whereby Plaintiff (a Juris Doctorate [J.D.] operating as “Lawyer Support Services”) performed independent contractor paralegal work and invoiced Defendants and Cross-Complainants (medical doctors/medical practice) for a few months, from May 24, 2014 to September 24, 2104. on which date Plaintiff no longer did work for them. During the entire four month time, Plaintiff invoiced for her work and expenses, and she scheduled her own work hours and tasks. Plaintiff’s tax returns show that Plaintiff reported, under penalty of perjury, herself to be an employer to the IRS for the same period, never an employee. Plaintiff took self employment deductions and health insurance write offs. Plaintiff took advantage of heavy handed self- employment write-offs for her car, home office, office expense, postage, and the like. At no time, did Plaintiff claim that she was an employee on her 2014 filed tax returns. Plaintiff claimed all of her income as a vendor. However, Plaintiff here alleged that she was terminated as an employee. Plaintiff testified that she has $85,000 in law school loans. She was unable to pass the Bar. She stated she needed to pay the loans and had hoped that Defendants would be herticket to pay off her loans. Plaintiff’s current “employment” lawsuit seeks exactly $85,000. Although the plaintiff's complaint was first filed on January 23, 2015, the case was not joined until long afterwards. There were a series of defense demurrers which altered the case 2 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 significantly, and the pleadings on the underlying case were not settled until around November 9, 2016. A cross-complaint was filed on September 19, 2016, to which the cross-defendants initially defaulted. Following relief from default for cross-defendant Parker, an answer was filed by plaintift/cross-defendant Parker on May 30, 2017. Plaintiffs’ discovery responses have been contentious and delayed, as the court’s file will reflect. As of the date, Plaintiff remains in violation of at least 2 court orders, one on June 15, 2017. IV. STATEMENT OF FACTS A. Plaintiff Accepted a Part-Time Independent Contractor Paralegal Position. In May 2014, Plaintiff responded to a Craigslist ad for a part- time “personal paralegal”. (Exh.1 & 4 to Depo Paker). Defendants unwittingly hired Plaintiff for her purported legal and medical malpractice expertise. Plaintiff agreed to assist Defendants as a paralegal. Defendants candidly represented to Plaintiff that they were civilians, “not a law firm”. (Exh. 1 & 2 to Depo Parker: On May 21, 2014 Plaintiff accepted “paralegal independent contractor position at $25/ hour. B. Plaintiff Represented Herself To Be A Paralegal. Defendants were informed and believed that Plaintiff was an attorney and paralegal, and that she was subject to attorney client privilege. Hence, Defendant reluctantly entrusted their confidential documents and private medical records to Plaintiff. Plaintiff testified in deposition that as a paralegal her work was subject to attorney work product and privilege. (Parker depo). The Court also ruled that Plaintiff’s work for Defendant was subject to attorney work product privilege. Plaintiff coordinated and met with Defendants’ counsel in various legal matters, navigating legal waters, and facilitating communication with counsel. (Exh. 4 to Depo. Parker) C. Plaintiff Signed Defendants’ Non-Disclosure Agreements (“NDA”). In abundance of caution, Defendants required that Plaintiff sign at least five Non-Disclosure Agreements (herein “NDA”). Plaintiff voluntarily signed all of Defendant’s NDA’s. Defendants’ independent expert document examiner and forensic analyst confirmed authenticity of all NDA’s signed by Plaintiff. (Decl. Gonzalez ). The intent of Defendants’ NDAs was for the extra safeguard of Defendant’s medical practice, patients, medical records, personal and company trade secrets, and to ensure that Plaintiff would neither retain nor disseminate documents. D. Plaintiff Invoiced Defendants And Requested Payment As An Independent Contractor. 1. Forensic Economist Expert Testified That Plaintiff Was An Employer, Not An Employee. 3 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff submitted her verified federal tax returns in discovery responses. Those tax returns showed that Plaintiff filed as an employer. 2. Legal Ethics Expert Testified That Plaintiff Was Practicing Law and Performing Services in Violation of Bus. And Prof. Code §88 6450-6455 up until the last day of her time with Defendants on Sept 24, 2014. E. Defendants had less than S employees at the time Parker purports she was "employed". Thus, even if Parker was an employee, which is not a position supported by any evidence Defendants would not be subject to FEHA. Defendants did not employ enough employees in the relevant time in 2014 to be subject to FEHA. V. THE COURT HAS STATUTORY BASIS TO GRANT THIS MSJ/ MSA. A. Summary Judgment Is Appropriate When There Is No Triable Issue. California Code of Civil Procedure section 437c(a) authorizes the court to grant summary judgment if a party contends a cause of action has no merit. Defendants contend that Plaintiffs action has less than no merit. In the alternative, a motion for summary adjudication may be made as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment See Code of Civil Procedure section 437¢c(9)(2). The entry of summary judgement is mandatory where the documents disclose no triable issue of material fact. Krasley v. Superior Court (1980) 1.01 Cal. App. 3d 425, 432. Defendants are entitled to summary judgment where the record establishes that, a matter of law, a Plaintiff’s asserted complaint can not prevail. County of Los Angeles v. Security Insurance Comparcy ofHartford (1975) 52 Cal. App. 3d 808-,816. A Defendant has met his or her burden of showing a Complaint has no merit if that party has shown that Plaintiff fails to establish the elements of the cause of action. CCP§ 437c(0)(l). Once the Defendant has met her burden, the burden shifts to the Plaintiff to show a triable issue of one or more material facts exists as to defense to the causes of action. Munro v. Regents of University of California (1989) 215 Cal. App. 3d 977, 882. In this case, Plaintiff cannot proffer the evidence needed to establish the essential elements of her causes of action. Therefore, summary judgmentis appropriate. This Motion for Summary judgement or in the alternative, Summary Adjudication is timely, meritorious, and supported by Code of Civil Procedure §437 (c) et. seq. 4 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion if granted even in part will enhance judicial efficacy by either disposing ofat least some or all COA, or promoting the likelihood of a fair and reasonable dismissal ofthis case. VI. PLAINTIFF FAILS TO MAKE AN EMPLOYMENT CASE. (CACI 3704) A. MSJ/MSA is Justified Because Plaintiff Can Not Make a Prima Facie Case. Code §473 (p) For purposes of motions for summary judgment and summary adjudication: (1) A Defendant has met her burden of showing that there is no triable issues of fact to any cause of action. Once the Defendant has met that burden, the burden shifts to the Plaintiff to show that a triable issue of one or more material facts exists as to that cause of action. The Plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action B. Plaintiff Fails to Meet Her Burden of a Prima Facie Case of Employment. Plaintiff must prove that Defendant was Plaintiff’s employer. In deciding whether Plaintiff was Defendant’s employee, the most important factor is whether Defendant had the right to control how Plaintiff performed the work, rather than just the right to specify the result. In deciding whether Defendant was Plaintiff’s employer, in addition to the right of control, the full nature of their relationship must be E Connie Parker Paralegal 2014 considered. The following additional facts show that Defendant was never the employer of Plaintiff. On or about May 21, 2014 Plaintiff was hired expressly as an independent contractor at the rate of $25 per hour. See Exhibit 1 attached hereto and Declaration of Siamak Nabili, M.D. (“Nabili Decl.”), 9 3, 5 and 7, Plaintiff’s Deposition, p. 47:24-48:11. Plaintiff was working part-time. During Plaintiff’s entire position as an independent contractor, Plaintiff set her own schedule and came and 5 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 went as she pleased. Furthermore, Parker used her own Onelegal accountto file court documents on behalf of Defendants and submitted invoices for her work and postage. Plaintiff did not receive a W-2 IRS tax form or benefits from Defendant at any time. Rather, Plaintiff submitted invoices for 4 months, which were paid by Defendant without any withholding. (Plaintiff Deposition, p. 99:10-12.) Defendants would have timely provided Plaintiff with a 1099 Form for her work in 2014, but through Oct. 2014 and her last pay check Plaintiff obfuscated and refused to provide a social security number or Tax ID. The Oct. 2, 2014 text exchange with Plaintiff’s cell 714-658-3652 is inset below: Defendant: “Payroll complete today. Was there an ? [| J LLm CREE entry I may have overlooked for hours for time from home for prior week?”” Were you going to email the W9 out Tax ID for accounting” Payroll complete today. Was there an entry | may have overlooked for hours for time from homefor prior week phone list work? Can mail out paycheck this morning before 11 in todays mail to you unless you Plaintiff: “Iforgot 8 hours on the phone list” Plaintiff custom invoiced Defendants more than 10 times andprefer me hold it for you to pick up, Were you going to email the W9 out with tax ID for accounting? reciprocally received more than 10 checks from Defendants from May through October 2014. Plaintiff cashed or deposited all of her checks from Defendants. None of the checks had withholding fl Sent: October 2, 2014 10:40 AM pursuant to Plaintiff’s business invoices, and Plaintiff never Mike (mailman) just picked up both checks Let me know if don't have them byfriday! _ f Sent: October 2, 2014 11:10 "1 complained about it. In fact, that is how Plaintiff required her pay. VII. LEGAL ARGUMENT: SUMMARY JUDGMENT IS JUSTIFIED BECAUSE PLAINTIFF'S COMPLAINT STILL LACKS EVIDENTIARY SUPPORT. While no one factor is necessarily decisive in determining employment, this case is easier than most. Here, there is not a scintilla of evidence pursuant to Civ. Code § 1624 et.s eq. or Evid, Code§ 250, or a single witness to substantiate Plaintiff’s disingenuous claims of being an employee. Defendant denies ever a consideration or offer to Plaintiff to change her status to an employee. Had such an agreement been made, Defendant would have made such in writing. Much like the 5 NDAs in this case, Defendant and Plaintiff did execute only those contracts. Plaintiff has failed to produce any evidence of any employment status despite three years in this case. 6 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There is simply not a single text, email, letter, note, contract or agreement to even intimate that Plaintiff was ever Defendant’s employee at anytime.(Evidence Code § 250) Plaintiff was a business proprietor who invoiced all of her customers. (Depo. Souders) (Decl. Zengler) Each Of These Additional Factors And Evidence Support That Plaintiff Was Never Defendant’s Employee: (a) Plaintiff Supplied The Equipment To Perform Her Job. Plaintiff had her own phone, computer, western digital hard drive, and legal templates and files which she offered. Plaintiff had her own Onelegal account and filed and served documents. Plaintiff’s testimony is basis to grant this motion. May 19, 2014 Plaintiff: “I have a complete home office with fax machine, scanner, etc.” (Exh. 4, p.2 to Parker Depo) (b) Plaintiff Was Paid According To Her Own Generated Invoices. Plaintiff submitted invoices at intervals under her own control. (c) Defendant Is In The Medical Field Of Dermatology And Surgery. Defendant is a medical doctor licensed by the Medical Board of California as a physician and surgeon. Defendant had authority only as to specify the result sought from Plaintiff. (d) The Work Being Done By Plaintiff (Legal And Paralegal Work) Was Never A Part Of The Regular Business Of Defendants. (e) Plaintiff Was Engaged In A Distinct Occupation Or Business Of Paralegal. B&P Code 6450 Plaintiff’s verified federal tax returns shows “paralegal” under “your occupation” on Form 1040, adjacent to Plaintiff’s signature. (Decl. Zengler, Exh. to Decl.) (f) Plaintiff held her services and performed paralegal work as an independent “personal” paralegal. The kind of work performed by Plaintiff must statutorily be done under the direction of a supervising attorney. (Bus. & Profess. Code §6450-6456) Pursuant to statute, a paralegal can not be supervised by anyone other than a licensed attorney. A medical licensee is neither qualified nor authorized to supervise a paralegal. In relevant parts, B&P Code 6450 reads: (a) “Paralegal” means a person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar «“. 7 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) Notwithstanding subdivision (a), a paralegal shall not /[emphasisido the following:(1) Provide legal advice; (2) Represent a client in court; (3) Select, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal; (5) Engage in conduct that constitutes the unlawful practice of law;(6) Contract with, or be employed by, a natural person other than an attorney to perform paralegal services. B&P Code § 6451 reads “It is unlawful for a paralegal to perform any services for a consumer except as performed under the direction and supervision of the attorney, law firm, corporation, government agency, or other entity that employs or contracts with the paralegal.” (g) The Kind Of Work Performed By Plaintiff Requires Specialized Or Professional Skill. A paralegal is a skilled profession which requires certification in the State of California. Bus. & Profess. Code § 6450. Plaintiff drafted leases, motions, protective orders, answered discovery, and drafted cross complaints. Plaintiff was practicing without a license and without requisite attorney supervision. (Decl. Talmo and Exh. To Decl.) (h) The services performed by Plaintiff were for a short or defined period of time. Plaintiff was hired to assist Defendants with litigation, and navigate unfamiliar legal waters. Plaintiff had no expectation of performing her work for Defendants over a long period of time. Plaintiff held multiple licenses and was engaged in several concurrent businesses including her notary license, her real estate license, her “ Lawyer Support services” business, paralegal work for Charles Ton, paralegal work for Scott Sauders (Depo Sauders), and others. As accessed on (http://www.paulchenglaw.com/About-Our-Firm/Connie-D-Parker.aspx), Parker currently also holds herself as having several licenses. Connie D. Parker | Paul P. Cheng & Associates www.paulchenglaw.com/About-Our-Firm/Connie-D-Parker.aspx Connie has a Real Estate Sales License, California Notary, Certified Loan Signing Agent, and is a Certified Anderson® Anger Management Facilitator. Connie's experience in the legal field includes pre-litigation and litigation. Her expertise includes all aspects of personal injury, medical malpractice, family law, criminal law,... (i) Defendant And Plaintiff Both Believed And Acted Upon That They Had AnIndependent Contractor Relationship. At all times, Plaintiff invoiced Defendant for her work8MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARYADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and expenses, including postage and Defendant remitted checks to Plaintiff in full. On or about May 21, 2014 Plaintiff implicitly accepted an independent paralegal contract position at $25 per hour with Defendant. (Exh. 4 to Parker Depo.) Plaintiff invoiced her services and expenses on periodic invoices to Defendant. Defendant paid Plaintiff checks without any withholding, simply according to invoice. Plaintiff herself believed that she was an independent contractor because that is how she filed her federal tax returns, and signed under penalty of perjury. Plaintiff testified under penalty of perjury that all of her work for Defendant was as an independent contractor. (Depo Parker supra) (Decl. Zengler). F. Plaintiff Fails To Establish A Prima Facie Case Of Wrongful Termination. In reviewing motions for summary judgment or adjudication in wrongful termination/discrimination cases, California courts employ the burden-shifting formula first articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (See King v. United Parcel Service (2007) 152 Cal.App.4th 426,433,fn.2; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004.) Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of discrimination, and the burden then shifts to the employerto offer a legitimate, nondiscriminatory reason for the adverse employment action. (Mixon v. Fair Employment and Housing Commission (1992) 192 Cal.App.3d 1306, 1318.) Here, Plaintiff did not allege and thus she can not make a prima facie showing of discrimination. "A defendant employer's motion for summary judgment slightly modifies the order of these [McDonnell Douglas] showings." (Scotch, supra, 173 Cal.App.4th at 1005, quoting Kelly Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 1097.) To prevail on its motion for summary judgment, the defendant employeris "required to show either that (1) plaintiff could not establish one of the [prima facie] elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff’s employment."(Avila v.Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247, citing Guz v. Bechtel National, Inc.(2000) 24 Cal.4th 317, 355-356& Kelly supra, 135 Cal.App.4th 1097-1098.) 1) Plaintiff can not establish elements of FEHA because Defendant did not have 5 employees in 2014 when Plaintiff claimed FEHA. An employer is required to have 5 employees, which Defendant did not have. 9 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2) There was a legitimate, nondiscriminatory reason for Defendant’s agreement to accept plaintift’s resignation. Defendant never released Plaintiff, nor terminated her contract. Plaintiff admitted in her SAC, 46 that she was “compelled to resign” on Sept. 24, 2014. 3) Assuming arguendo that the decision to terminate was not Plaintiff’s (which Defendants vehemently deny), Defendant would have had non-discriminatory basis to terminate Plaintiff for the following reasons that Plaintiff failed to show for a Small Claims Court Hearing on Sept 16, 2014. But for Plaintiff's failure to show, a default judgment resulted against Defendant. Plaintiff failed to show for her filed rehearing on the Small Claims matter again on Oct. 2014.Plaintiff abandoned her position and did not return to work. The elements for a discrimination claim are: that (1) [the plaintiff] was a member of a protected class,(2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz, supra, 24 Cal.4th at 355.) Plaintiff clearly stated in her SAC that she resigned. Prior to Plaintiff resigning from her position, there was no adverse “employment” action Plaintiff requested to decrease her hours as she wished to resume work in a law office. Once the defendant articulates a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination disappears. (Guz, supra, 24 Cal.4th at 356.) "If the employer has met its burden by showing a legitimate reason for its conduct, the employee must demonstrate a triable issue by producing substantial evidence that the employer's - stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action." (DeJung v. Super. Ct. (2008) 169 Cal.App.4th 533,553,citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 Defendants carried workman's compensation insurance at all times. Since Plaintiff will be unable to show that she was wrongfully terminated, and Defendants have established through the declaration that it had workers' compensation insurance at all relevant times, the exclusive remedy provisions of the Workers' Compensation Act provide Defendants a complete defense. This Court previously ruled that “Plaintiff also failed to adequately allege facts to show intentional infliction of emotional distress, nor has she adequately alleged facts which would remove this claim from the exclusive ambit of workers compensation (since she claims to be an employee).” 10 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VIII. PLAINTIFF FAILS TO SHOW A PRIMA FACIE EMPLOYMENT. (CACI 3704) The house of cards of Plaintiff’s Fifth Amended Complaint is stacked on an unsubstantiated claim that Plaintiff was an employee. In her verified original Complaint, Plaintiff admitted she was at all times an independent contractor. (Exh A. Original Complaint filed 1/23/15). Plaintiff admits throughout her deposition that she was an independent contractor and not an employee of any of Defendants. (Plaintiff Depo. p. 47:24-48:11, p. 49:10-14, p. 49:16-50:18, 54:7-55:2, p. 57:22-58:20.) While apparently for the purposes of filing this meritless lawsuit, Plaintiff opportunely decided to “believe” she was a “full-time employee,” (p. 54:17-18), Plaintiff admits that she never was paid as an employee, never received a written contract stating that she was a full-time employee (p. 50:15-18), was never paid at the rate of $85,000 per year that she was allegedly promised (p. 54:7-10), never received any of the benefits that were allegedly promised her (p. 54:14- 15) and never received any of the bonuses/commissions that were allegedly promised (p. 208:23- 210:7). Plaintiff testified that that Defendants were “supposed to make [her] an employee,” but admits that Defendant’s never did. (Plaintiff’s Dep., p. 54:16-55:2, p. 58:11-19.) Plaintiff’s verified original Complaint reads either as an inducement or disingenuous attempts to build COA. The court notes that Defendant presented no evidence of any discovery responses and/or deposition testimony by Plaintiff whereby Plaintiff retracted the claims or even part of the claims set forth in Plaintiff’s employment law complaintin this case. Plaintiff may be bound by admissions made in deposition testimony or responses to discovery. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 ["Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant's earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and conclude there is no substantial evidence ofa triable issue of fact."']) 1. Plaintiff’s Own Testimony Is Basis To Grant This Motion. Plaintiff’s testimony support her independent contractor position as follows: a) May 19, 2014 “I have a complete home office with fax machine, scanner, etc.” ( Exh. 4, p.2 to Parker Depo) Plaintiff is unable to articulate or allege any consistent facts as to the purported contract and when it was made, by whom, or for what term. b) Plaintiff claimed that her employment contract started in June 2014 (Complaint q1, 12.) c) Plaintiff stated her contract went “until July 2015” (Complaint 11). 11 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d) Plaintiff claimed on September 24, 2014 that she had 10 month remaining on her “contract” (Complaint 48, 11). Plaintiff’s conflicting statements can not reasonably stand as credible since June through Septemberis four months, thereby purportedly Plaintiff then had 8 months left on her “contract”. e) Plaintiff stated her contract went “until June 2015”. (Complaint 916) Plaintiff states that she seeks “for interest on lost earnings and benefits at the prevailing rate from September 24, 2014” (Complaint P.10 93, 16). g) However, Plaintiff’s Federal tax return for 2014 shows she was earning at the “prevailing rate” of $8,155 for the entire 2014 calendar year. h) Plaintiff stated that she “entered into an employment relationship with Defendant.” (Complaint 7 949), but she has failed to make a prima facie showing of that purported relationship. Plaintiff’s discovery and testimony, including her certified 2014 federal tax returns provided in verified discovery, fully contradict Plaintiff’s disingenuous claims of “employment”. Plaintiff’s purports that her “contract” was 4 months in effect when she left on September 24, 2014. However, Plaintiff states she was content and wanted to stay in her position (Orig. Complaint q 12) even though she was paid $35/hour as an independent contractor from July 2014 through September 2014. Plaintiff claims that she had an “unpaid balance of $80,000 plus an end-of-year bonus” which were “reserved under the contract” for the ten months that she was not permitted to work. (Orig. Complaint 98, 13). k) Plaintiff also claims that she was offered “compensation of $85,000 annually plus bonuses for a D one year contract to serve as office administrator/manager”. (Third Am. Complaint 927, 7). Plaintiff claims that she was not provided overtime wages. (Third Amended Complaint 446). However, none of Ms. Parker’s dozen invoices for her hours reflect any overtime hours worked. (Exh. to Zengler Decl.) m) Plaintiff claims that she was not paid all wages earned. But Plaintiff’s text on October 2, 2014 stated she was only owed 8 more hours for working from home, which she was then paid. (Exh. Texts between parties) Plaintiff is therefore unable to make a prima facie case that she was ever an employee. Therefore Plaintiff is unable to assert wrongful termination and wage and hour since she was never an employee. 12 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IX. PLAINTIFF FAILS TO MAKE A PRIMA FACIE CASE OF HER FIVE COA. I. FIRST COA: WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY CACTI2430 : Wrongful Discharge/Demotion in Violation of Public Policy. Plaintiff fails to meet all of the essential factual elements: First, Plaintiff was never discharged by Defendants. Plaintiff walked out and resigned. (Depo Plaintiff p. 279, and SAC 946). Second, Plaintiff fails to show she was an employee. CACI 3074.Third, even assuming arguendo that Plaintiff could make any showing that she was an employee, Plaintiff could not show that she was discharged, or that she was even discharged from employment for reasons that violate a public policy. For example, it is a violation of public policy to discharge an employee based on race, religion, or age. Plaintiff testified that she had no special class of protection. Plaintiff also was unable to specify a retaliation and alleged conjecture that “she[Defendant] is trying to retaliate against me even though I'm gone, by- the impression I'm getting is making false accusations against me still ” (Depo Parker p. 280, 1-4) To establish this claim, Plaintiff must provethe following in this case: 1. Plaintiff was employed by Defendant; 2. Defendant discharged Plaintiff; 3. That the alleged violation of public policy; and 4. That the discharge caused Plaintiff harm. Plaintiff fails to make a showing of any of the requisite elements because : 1. Plaintiff admits she was an independent contractor; 2. Plaintiff admitted that she was “compelled to resign” and the reason was that she was ill on and before Sept. 24, 2014 (Exh. email to Mr. Caruso, and Exh. Medical records of Plaintiff at Medpost Urgent Care Sept 2014); 3. Plaintiff admits there was no violation of public policy; 4. Plaintiff admits she was not discharged, thus no harm to Plaintiff. Plaintiff’s verified tax returns show that Plaintiff was earning 4 times her purported salary in 2015, 2016, and 2017 than when she worked for Defendant and Mr. Sauders in 2014. (Exh. to Decl. Zengler) Plaintiff can not allege facts to support even CACI No. 2510, “Constructive Discharge” : 1) Plaintiff claimed [Defendant] “made Parker’s working conditions so intolerable that a reasonable person would feel compelled to resign and Parker felt so compelled to resign.” [emphasis] (SAC §35, 6-7) 2) Plaintiff then claimed that she did not resign. (Parker Depo p. 279, 18-20). 13 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3) Plaintiff claimed she would have stayed with Defendant for “that amount of money” even with the fraud Plaintiff claimed to endure. Plaintiff states she did not quit from a $85,000 a year job”.(Parker Depo p.287, 19-25). First, Defendants are entitled to MSJ/MSA on COA for wrongful termination and retaliation. "[I]n order to establish a prima facie case of retaliation under the FEHA, -a plaintiff must show (Dhe -or she engaged in a protected activity, (2) the-employer subjected the employee-to-an adverse - employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L 'Oreal USA, Inc., supra, at 1042.) "[C]complaints about personal grievances or vague" remarks do not qualify as protected activity. (Id. at 1047.)Plaintiff has neither claimed nor shown that she engaged in any protected activity, that she was retaliated against, not was there a causal link between any alleged protected activity.Plaintiff’s unlawful practice of law and failure to disclose is not a protected activity under public policy. To the contrary, Plaintiff’s unlicensed practice of law if discovered would have mandated discharge in support of public policy. Pursuant to CACI 2430, the judge would determine whether the purported reason for firing the plaintiff would amount to a violation of public policy. Here Plaintiff admits she was not discharged by Defendant, and Plaintiff felt compelled to resign. (See Gantt v. Sentry Insurance (1992)1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78Cal.Rptr.2d 16, 960 P.2d 1046].) Plaintiffs shifting claims and COA appear to be made whim on caprice. Even assuming that any of Plaintiff’s contradictory claims in her five amended complaints or original complaint could be substantiated, Plaintiff fails to meet a burden for constructive discharge. (CACI 2510). To establish constructive discharge, Plaintiff must prove the following: 1. That Defendant through its officers, directors, managing agents, or supervisory employees intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person in Plaintiff’s position would have had no reasonable alternative except to resign; and 2. That Plaintiff resigned because of these working condition. Plaintiff has not been able to make a case. 2. SECOND CAUSE OF ACTION:_VIOLATION OF LABOR CODE SECTION 1102.5 a) Plaintiff Cannot Prove Her Violation Of Labor Code § 1102.5 Claim. Plaintiff Was Not an “Employee” Entitled to Protection Under Labor Code § 1102.5 As with the wrongful termination claim, the viability of this claim is dependent upoi] Plaintiff’s “employee” status. Plaintiff has no such status and therefore is not protected under Labor 14 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) | 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code section 1102.5. “[A] prerequisite to asserting a Labor Code section 1102.5 violation is thg existence of an employer-employee relationship at the time the allegedly retaliatory action occurred.’ Hansen v. California Dept. of Corrections and Rehabilitation, 171 Cal. App. 4th 1537, 1544 (2008); Jacobson v. Schwarzenegger, 357 F. Supp. 2d 1198, 1214 (C.D.Cal. 2004) (plaintiffs 1102.5 claim must be dismissed because plaintiff was not an “employee” within the meaning ofthat statute.). Plaintiff Cannot Establish a Prima Facie Case of Retaliation Even if Plaintiff was an employee entitled to protection under Labor Code § 1102.5 which Defendants deny, this claim still fails. In order to establish retaliation, Plaintiff must establish that she (i) engaged in a protected activity; (ii) the employer subjected her to an adverse employmen action; and (iii) a causal link exists between the protected activity and the employer’s action Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). 1. No Protected Activity Plaintiff cannot establish that she engaged in a protected activity. Defendants deny unequivocally that Plaintiff ever made complaints of the type alleged in the FAC, SAC, TAC, or any of Plaintiff’s now 6 complaints. Defendants’ knowledge of the protected activity is required td establish a claim for retaliation. Morgan v. Regents of University of California, 88 Cal. App. 4th 32 69 (2000); Cohen v. Fred Meyer, Inc., 686 F. 2d 793, 796 (9th Cir.1982)(employer must have knowledge of protected activity for retaliation claim to lie); Addy v. Bliss & Glennon, 44 Cal. App 4th 205, 217 (1996) (summary judgment affirmed in FEHA retaliation action where no evidencg establishing causal link between the protected activity and the adverse employment action). Thus there exists no evidence ofretaliation beyond Plaintiffs own fabrication and speculation. Geniusz v Hoffman Laroche, Inc., 1996 WL 79839 at **6-8 (N.D. Cal. 1996). 2. No Adverse Action Nor can Plaintiff establish the second element ofthis claim. Plaintiff was not terminated from her job. Rather, Plaintiff abandoned her position and voluntarily quit when she left the office and never returned and never responded to Defendants’ text message. Plaintiff claims she was compelled to resign”. (Parker SAC, 935, 6-7) Therefore, Plaintiff cannot establish that she was subjected to an adverse employment action. Furthermore, Plaintiff communicated that she wanted to find a new job and requested a reduced working schedule. Plaintiff reported on her 2015 and 2016 tax return morg than 4 times her 2014 declared wages. Parker has no damages from her claims here. (Decl. Zengler) 3. No Causal Connection 15 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff also cannot establish the requisite causal connection whereby she must show more than a sequential relationship between the protected activity and the adverse employment action. Knickerbocker v. City of Stockton, 81 F.3d 907, 912 (9th Cir. 1996)(adverse employment action closely following protected activity is insufficient evidence of causation when other evidence provides a reasonable basis for inferring the adverse action was not retaliatory). Here, there is no evidence that Defendant knew that Plaintiff engaged in a protected activity when she quit. Therefore, without any evidence of defendant's knowledge, a causal link based on proximity in time cannot be inferred. Morgan v. Regents of University of California, 88 Cal. App. 4th 52, 69 (2000) (notes that the causal link may be established by both “the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and alleged retaliatory employment decision.”) (emphasis added). Defendants’ knowledge of the protected activity is required to establish a causal connection Morgan, supra, 88 Cal. App. 4th at 69; Cohen v. Fred Meyer, Inc., 686 F. 2d 793, 796 (9th Cir. 1982)(employer must have knowledge of protected activity for retaliation claim to lie); Addy v. Bliss & Glennon, 44 Cal. App. 4th 205, 217 (1996) (summary judgment affirmed in FEHA retaliation] action where no evidence establishing causal link between the protected activity and the adversg employment action). Based on the foregoing, there exists no evidence of retaliation beyond Plaintiff’s own speculation. Geniusz v. Hoffman Laroche, Inc., 1996 WL 79839 at **6-8 (N.D. Cal 1996). Defendants could not have been motivated to “retaliate” against Plaintiff because Plaintiff never raised complaints as alleged in the SAC. 3. THIRD CAUSE OF ACTION: VIOLATION OF CALIFORNIA WAGE & HOUR LAWS Plaintiff is unable to make a prima facie case that she was ever an employee. CACI 3704. First, Plaintiff is unable to assert wage and hour since she was never an employee. If Plaintiff alleges that she was not paid according to her invoices, her remedy is a different COA, not as an employee. Even assuming arguendo, that Plaintiff was able to claim employee status, she still fails to make any credible showing of unpaid wages. a) Plaintiff Fails to Allege Any Facts in Support Of A Fabricated Wage and Hour Claim CACI 2700. “Nonpayment of Wages” Essential Factual Elements of this COA (Lab.Code, §§ 201, 202, 218) require Plaintiff to make a prima facia showing which she is unable to do. Plaintiff’s only claim of “unpaid wages”is 16 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 solely in her Complaint. Plaintiff’s own testimony, deposition, and invoices show that Plaintiff conveniently fabricated a claim that Defendant owes her unpaid wages for a COA. To establish this claim, Plaintiff must prove all of the following: 1. That Plaintiff performed work for Defendant 2. That Defendant owes Plaintiff wages under the terms of the employment; and 3. The amount of unpaid wages. b) Plaintiff is Bound by her Testimony and Cannot Prove Her Wage and Hour Claim. The opposing party is bound by admissions made in deposition testimony or responses to discovery. (id. Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 Plaintiff’s testimony and discovery responses under oath contradict any “wage and hour claim” and are as follows: a) Plaintiff invoiced Defendant for money. (Exh. to Zengler Decl) b) Plaintiff’s verified 2014 Federal tax return signed under penalty of perjury shows Plaintiff claimed she earned at the “prevailing rate” of $8,155 for the entire 2014 calendar year. (Decl Zengler) c¢) Plaintiff claims that she had an “unpaid balance of $80,000 [emphasis] plus an end-of-year bonus” which were “reserved under the contract” for the ten months that she was no permitted to work. (Orig. Complaint 48, 13). d) Plaintiff claims that she was offered “compensation of $85,000 [emphasis] annually plus bonuses for a one year contract to serve as office administrator/manager”. (Third Amended Complaint 427, 7). e) None of Plaintiff’s dozen invoices to Defendant reflect any overtime hours worked of claimed. (Exh. to Decl. Zengle)r As detailed supra, Plaintiff was an independent contractor, not an employee. (CACI 3704). Therefore, Plaintiff is not entitled to protection under the applicable wage and hour laws, and this claim necessarily fails. Independent contractors are not “employees” covered by the wage and hour laws. See S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 351 (1989) (interpreting workers' compensation law). . Plaintiff acknowledged she received a letter from Defendants dated November 10, 2014 requesting she notify them within 15 days if she felt she had not been paid in full for her services to which she did not respond. (Plaintiff depo, Exh.21 ). Plaintiff never reported unpaid wages. (Depo Parker supra) (Decl. Zengler)( Exh. 22 to Parker depo). 4. FOURTH CAUSE OF ACTION: FRAUD Pursuant to CACI 3116, “Fraud” is explained as an intentional misrepresentation, deceit, or concealment of a material fact with the intention of depriving Plaintiff of property or of a legal right 17 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) | | 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or otherwise to cause Plaintiff injury.” However, Plaintiff does not identify a specific past or existing material fact that was misrepresented to her, nor who made the representation. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [particularity in pleading requirement necessitates pleading facts showing how, when, where, to whom, and by what means representations were tendered].) At best, the identified goals might constitute a mere prediction of possible future results, which are expressions of opinion and thus not actionable. (Richard P. v. Vista Del Mar Child Care Service (1980) 106 Cal.App.3d 860, 866.) Fraud must be plead with particularity specificity rather than with general or conclusory allegations. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were made. Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1261-1262. To state the claim against an entity, Plaintiff must also include allegations regarding the speaker’s authority to bind the entity. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.Moreover, Plaintiff’s testimony on the purported contract is contradictory between amended complaint versions and within each complaint. For example, Plaintiff “American Acne Foundation” did not exist in June 2015 when Plaintiff purports she was given employment. Here, plaintiff has failed to identify the speaker who allegedly spoke on behalf of “12712 LLC” “Alai, Inc.” and “Acne Foundation.” Plaintiff has also failed to explain for example how she purports an oral contract in June 2014 for an entity (“Acne Foundation”) which was not even formed with the State until August 2014. Plaintiff has failed to allege facts that any individual purportedly promising her employment had the authority to bind the entities. As for Plaintiff’s unsupported claim asserted against defendant individually, the mere allegations are insufficient to apprise her of the claim that she made a false promise to make plaintiff an employee via written contract. There is no alter ago. Defendant Dr. Alai was not the corporations and thus Plaintiff’s argumentthat she was promised by an individual. Plaintiff is Bound By Her Testimony Plaintiff is bound by her verified Complaint and her Fifth Amended Complaint on MSA/MSJ. Plaintiff failed to show that she was subject to discrimination, or terminated. She has failed to show any causal link between her allegations and her resignation.. The pleadings serve as the "outer measure of materiality" in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (See Government Employees Ins. Co. v. 18 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sup. Ct.(2000) 79 Cal.App.4th 95,98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60,73 ["the pleadings determine the scope of relevant issues on a summary judgment motion."].) S. FIFTH CAUSE OF ACTION: BREACH OF CONTRACT Plaintiff had one written contract by email. Plaintiff responded in writing that she would start work from home, and agree on $25 per hour as an independent contractor. (Depo Parke, r Exh. 4). Payroll ledgers show that Parker was working nearly full-time for Mr. Souders through July 2014. Plaintiff’s employer Mr. Sauders also testified that Plaintiff worked for him through mid July 2014 and suddenly quit without advance notice. (Sauders Depo, Exh. 1). Plaintiff was working 20- 30 hours a week from 9am-2 or 3 pm for Mr. Souders in June 2014 and July 2014. ( Depo Souders). "California law is clear that there is no contract until there has been a meeting of the minds on all material points." (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357-358.)First, Plaintiffs is bound be her testimony. The opposing party is bound by admissions made in deposition testimony or responses to discovery. (id, Whitmire v. Ingersoll-Rand Co. (2010)) Plaintiff has failed to allege consistent claims within her own discovery and pleadings to substantiate that there was any “meeting of the minds”. Plaintiff ’s claims in her 6 complaints read like inducement in some areas and legal-ease fabrications in others. For example, Plaintiff claimed that her employment contract started in June 2014 (Complaint® 1, 12.) Then, Plaintiff claimed that she had 10 months remaining on her “contract” on September 24, 2014 (Complaint 98, 11). 1. Plaintiff’s Claim Of A Verbal Contract Fails According To The Statute Of Frauds. Civil Code § 1624 (a)(1) First, Plaintiff’s six amended Complaints are wholly unclear as to the purported contract which she claims. Much like the wind, Plaintiff’s alleged “facts” shift from one amended complaint to the next, with contradictions even within the same complaint. For example, Plaintiff asserts under oath all of the following inconsistent claims in the same verified Complaint: “employment contract started in June 2014” (Complaint 91, 12.); “contract went until July 2015” (Complaint 411); on September 24, 2014 that she had 10 months remaining on her “contract” (Complaint 98, 11); that her contract went “until June 2015” (Complaint 16), and finally that that she had an “unpaid balance of $80,000 plus an end-of-year 3 Complaint refers to Plaintiff’s original Complaintfiled on Jan 23, 2015. 19 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bonus” which were “reserved under the contract” for the ten months that she was not permitted to work (Orig. Complaint 48, 13). Plaintiff claims that as of June 2015 she had a one year employment contract that was supposed to start in the future, and as of Sept 2014 she had 10 months left. (TAC 927, 7). Hence, Plaintiff’s purported contract, even if non-conjured, which Defendants deny, would exceed one year and fail as a matter of law. Civ. Code 1624 (a)(1). Notwithstanding the aforementioned, Plaintiff fails to make a showing of evidence within Civ. Code § 1624(3) and Evidence Code §250. Section 1624 (a) states “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: (1) An agreement that by its terms is not to be performed within a year from the making”. 2. Plaintiff’s Unlawful Law Practice Could Not Form The Basis Of A Contract. Plaintiff, a seasoned legal worker knew that she was not entitled to practice law. (Bus.& Profes. Code 6450-6455 Paralegal). Defendants’ Expert, law Professor Mr. Talmo testified that Plaintiff was conducting legal activities such as drafting lease agreements and drafting a legal answer on behalf of another party in a lawsuit, which accounted for the unlicensed practice of law. (Decl. Talmo generally). Thus, Plaintiff was also working as a paralegal through her last days of service to Defendants.. Therefore, there can be no claim of violation of public policy, by Plaintiff for performing a job for which she failed to have the required license to do. 3. Plaintiff Cannot Make a Prima Facie Showing for Her Breach of Verbal Contract Claim. To establish a cause of action for breach of contract, a plaintiff must prove (1) the existence of a contract; (2) plaintiff’s performance of the contract or excuse for non-performance; (3) defendant’s breach of the contract; and (4) the resulting damage to the plaintiff. Reichert v. General Ins. Co., 68 Cal. 2d 822, 830 (1968); Lortz v. Connell, 273 Cal. App. 2d 286, 290 (1969). First, on May 20, 2014 Plaintiff and Defendant entered into a written contract through email for “independent contract paralegal services” at “$25 / hour”. Plaintiff agreed to the terms and stated she would provide her own “home office, fax machine, and equipment.” (Exh. 4 to Parker Depo 11/10/15). Second, on or about May 24, 2014 Plaintiff and Defendants entered into a second written contract, a non-disclosure agreement (herein “NDA”) which all parties signed. (Decl. Gonzalez, Exh. to Decl.) Lastly, on or about July 5, 2014, Plaintiff and Defendants entered into four additional NDAs. (Decl. Gonzalez & Exh.)No other contract exists or ever existed. X. CONCLUSIONS 20 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For all of these reasons, Defendant respectfully requests that this Court grant this Motion for Summary Judgment, and in the alternative Summary Adjudication. Plaintiff has obfuscated and failed to cooperate with any meaningful discovery, and the testimony which she has submitted justifies this motion to be granted as a matter of law. Based on Plaintiff's failure to produce responses in discovery to support her COA, Plaintiff is barred from doing so now. Plaintiffs are thus entitled to judgment as amatter of law. The summary judgement and/or adjudication of the causes of action in the Complaint will enhance judicial efficiency and prevent unreasonable preparation and costs for all parties. The Court’s adjudication as to matters of law on these pleadings and evidence is necessary and in furtherance ofjustice. Therefore the Court is authorized to grant Defendant’s summary judgment, or in the alternative summary adjudication in favor of Defendants. April 5, 2018 Respectfully Submitted, SE- ~X Nili Alai Defendant 21 MOTION FOR SUMMARY JUDGEMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANT PER CCP § 437 (¢)