Herbert v. Delphia

• Decision Date: 27 February 1961
• Parties: Harvey HERBERT, Plaintiff and Appellant, v. John DELPHIA, dba John Delphia, General Contractor, Delphia Construction Company, a corporation, and John Delphia, Defendants and Respondents. Civ. 9989.
• Court: California Court of Appeals Court of Appeals

Page 353

11 Cal.Rptr. 353

189 Cal.App.2d 485

Harvey HERBERT, Plaintiff and Appellant, v. John DELPHIA, dba John Delphia, General Contractor, Delphia Construction Company, a corporation, and John Delphia, Defendants and Respondents.

Civ. 9989.

District Court of Appeal, Third District, California.

Feb. 27, 1961.

Henry F. Saunders, Hanna & Brophy, Sacramento, for appellant.

Cleveland J. Stockton, Modesto, for respondents.

WARNE, Justice pro tem.

Defendant made a motion to dismiss plaintiff's first amended complaint and for summary judgment. The trial court granted the motion and summary judgment was entered against plaintiff. Plaintiff appeals from the judgment.

Appellant in his first amended complaint alleges in substance the following facts: That appellant was employed by the respondents as a truck driver from November 1, 1952 until October 8, 1955; that during the period of employment the respondents were under contract to a labor union as bargaining agent for respondents' employees; that the contract provided for basic rates to payment for the work done by appellant; that on receiving his first paycheck appellant believed that the amount of payment was not in accordance with the provisions of the union contract and questioned an agent of the respondents; that the agent, acting in the course and scope of his employment, falsely and fraudulently and with the intent to deceive and defraud the plaintiff, represented to appellant that the respondents had entered into a separate agreement with the union which provided for a lower pay scale; that these representations were false and at the time known to the respondents to be false; that the appellant believed and relied upon these representations and was thereby induced to accept smaller payments than were actually due and that respondents willfully withheld part of the payment due; that despite diligent inquiries beginning November 7, 1952, regarding the terms and conditions of the special agreement which respondents alleged controlled appellant's rate of compensation appellant did not until February 14, 1958, become aware of the fact that no such special contract had been entered into between respondents and the union; that respondents refused to pay the amount actually due. Appellant prayed for the amount of wages withheld, interest, and examplary damages.

On March 2, 1959, respondent John Delphia, in support of the motion for summary judgment, filed a declaration wherein he declared the following: That the collective bargaining agreement (incorporated by reference) provided for a 'Grievance Procedure' under which disputes involving the payment of wages were to be brought before a board of arbitration set up by the parties; that neither the appellant nor the union on his behalf had instituted, pursued, or exhausted the remedies given under the arbitration clause. Respondent further alleged that in 1957 he advised the appellant that the grievance procedure set forth should be pursued.

Appellant filed a declaration in opposition to respondents' motion for said summary judgment wherein he declared that on February 4, 1959 he executed and filed a declaration in opposition to a prior motion for summary judgment made by respondents and that the statements contained in his prior declaration are true and correct. (It appears from the record that a similar motion had been made in respect to plaintiff's original complaint.) He further declared that upon reading the declaration in support of the motion, he, for the first time, became aware that respondent John Delphia conceded that the employment of appellant was covered by the collective bargaining agreement. Appellant also declared that during the entire time he was employed by respondents, the respondents and their agent informed the appellant that the contract did not cover his employment. Further, appellant states that if he had not been misinformed, he would have availed himself of the administrative remedies provided in the contract.

In his declaration of February 4, 1959, hereinabove referred to, appellant, in effect, reiterated the facts alleged in his complaint in further detail, and further stated: That during the period of his employment the appellant contacted the union, representative of which advised appellant that the union would send a man to look into the situation; that nothing was done in this regard, but later the union representative advised appellant to file a claim with the office of the Labor Commissioner; that this was done on June 15, 1957; that in connection with his claim appellant prepared a chronological...