Noble v. Draper

• Decision Date: 31 January 2008
• Docket Number: No. C053918.,C053918.
• Citation: 73 Cal.Rptr.3d 3,160 Cal.App.4th 1
• Parties: Joaquin NOBLE et al., Plaintiffs and Appellants, v. Martha DRAPER et al., Defendants and Respondents.
• Court: California Court of Appeals

73 Cal.Rptr.3d 3

160 Cal.App.4th 1

Joaquin NOBLE et al., Plaintiffs and Appellants, v. Martha DRAPER et al., Defendants and Respondents.

No. C053918.

Court of Appeal, Third District.

January 31, 2008.

Certified for Partial Publication.^*

As Modified February 25, 2008.

Law Offices of Fernando F. Chavez and Anthony J. Palik, Sacramento, for Plaintiffs and Appellants.

Rediger, McHugh & Hubbert, E.A. Hubbert, Jr., Sacramento, and Karen L. Turner, for Defendants and Respondents.

SIMS, Acting P.J.

In this case alleging employment relationships gone awry, plaintiffs Joaquin Noble (Noble), Jose Antonio Hernandez, Manuel Moreno, and Maria de Lourdes Rios de Noble (Maria Noble) appeal from a judgment entered in favor of defendants Martha Draper and Velasco, Inc., doing business as Cha-Cha's Cocina Mexicana, following the trial court's granting of defense motions for separate trial of special defenses (Code of Civ. Proa, § 597) and for judgment on the pleadings. We shall conclude the judgment must be reversed in part, because this civil action by some of the plaintiffs (Noble and Hernandez), alleging fraudulent inducement to enter employment, is not precluded by their prior pursuit of wage claims in an administrative forum before the Labor Commissioner pursuant to Labor Code "section 98 et seq.¹ We shall also conclude Moreno's claims are precluded by the Labor Commissioner's conclusion that he was not an employee, and we shall therefore affirm the judgment against Moreno. We shall also affirm judgment on the pleadings entered in favor of defendants as to a cause of action for intentional infliction of emotional distress, and we therefore affirm the judgment against Maria Noble, who was a plaintiff only as to this count.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2004, plaintiffs (and Esteban Salazar, whom we do not discuss because he dismissed his case with prejudice and is not a party to this appeal) filed a complaint asserting eight counts:

The first three counts (breach of contract, statutory violation of overtime wage law, and breach of contract of good faith and fair dealing) were brought by Moreno alone, and they were dismissed with prejudice at his request on the day set for trial. We therefore need not discuss them.

The other counts were:

(4) fraud by intentional misrepresentation;

(5) fraud by negligent misrepresentation;

(6) false advertising;

(7) unfair business practices (Bus. & Prof.Code, § 17200); and

(8) intentional infliction of emotional distress by Noble and Maria Noble.

The eighth count is the only count to which Maria Noble is a party. Accordingly, our reference to "plaintiffs" in this opinion excludes Maria Noble, except in our discussion of the eighth count.

The complaint alleged Noble, Maria Noble, and Jose Hernandez live in Mexico. Moreno lives in Sacramento County.

The complaint alleged plaintiffs lived and worked in Mexico before being "induced" by Draper to come to the United States (USA) to work in defendants' restaurant in Placer County. The complaint alleged: Defendants placed advertisements in Mexican newspapers in November and December 2002, soliciting chefs to work in the USA. Noble, Hernandez, and Moreno (referenced in the complaint as "employees" despite the Labor Commissioner's finding that Moreno was not an employee) responded to the ads by telephoning Draper, who interviewed them by phone and offered them jobs. Draper promised plaintiffs employment, thereby inducing them to quit their jobs in Mexico and incur the expense of traveling to the USA. They worked for defendants for a short period of time before defendants terminated the employment and failed to compensate plaintiffs for their work.

The fourth count, fraud by intentional misrepresentation, alleged that in November and December 2002, to induce plaintiffs to come to work for defendants, defendant Draper told plaintiffs that (1) she would assist them in obtaining legal status to work in the USA; (2) she would pay for their travel to the USA; (3) they would work a normal work week and enjoy the benefits and protections of the California labor laws; (4) defendants would compensate plaintiffs for their work; and (5) defendants would employ plaintiffs for a substantial period of time to justify the expense and hardship of relocating to the USA. The complaint alleged these representations were false, and Draper knew them to be false and made them with the intent to defraud plaintiffs. In reliance on these representations, plaintiffs were induced to leave Mexico and their jobs there and come to the USA, thereby incurring costs and "substantial hardship." Plaintiffs alleged they "would never have left their respective places of employment and incurred the expense of coming to the United States had they known the falsity of these material representations made by [Draper]." Plaintiffs claimed they suffered damages including the cost of travel, loss of employment opportunities, anxiety, and increased cost of living.

The fifth count alleged "FRAUD BY NEGLIGENT MISREPRESENTATION" on the same facts.

The sixth count alleged false advertising, in that defendants allegedly offered work in the USA to chefs working in Mexico who "either did or did not have a work visa" to work in the USA, and the advertisements were false in that Draper knew or should have known that plaintiffs would not be able to work in the USA. Plaintiffs incurred the expense of coming to the USA and worked for a short period of time, sharing with defendants their culinary experience and recipes, to defendants' benefit.

The seventh count, for unfair business practices, alleged that the foregoing allegations constituted acts of unfair competition and "other acts of impropriety" under Business and Professions Code section 17200.

The eighth count, by Noble and Maria Noble for intentional infliction of emotional distress, alleged that on March 11, 2004, four days before a Labor Commissioner administrative hearing of Noble's claim for unpaid wages, "an individual associated with defendants" called Maria Noble by telephone and warned her that Noble should not appear to testify against defendants. The caller allegedly revealed he knew the Nobles' address and the name of their daughter and allegedly threatened that if Noble testified, the daughter would be injured.

Although a date was set for jury trial, the entire case was disposed of without a trial. First, the trial court, at Salazar's request, dismissed his entire case with prejudice. The court then dismissed with prejudice, at Moreno's request, the first three counts (in which Moreno was the only plaintiff).

Defense counsel then asked to "revisit" a motion under Code of Civil Procedure sections 597 and 598, to bifurcate and proceed to a court trial on the special defenses of res judicata and collateral estoppel.²

Defendants argued that the plaintiffs had pursued claims for unpaid wages in an administrative forum before the Labor Commissioner and, having chosen that forum, were precluded from pursuing in a separate civil action any claims that could have been raised in the administrative forum. The defense motion requested judicial notice (which the court granted) of an "ORDER, DECISION, OR AWARD OF THE LABOR COMMISSIONER" (ODA) as to Noble (named in the ODA as "Noble Coronado"), a separate ODA as to Hernandez (named in the ODA as "Hernandez Cisneros"), and a Labor Commission document labeled, "NOTICE—INVESTIGATION COMPLETED" which rejected Moreno's claim because "[b]ased on the information presented both at the conference and prior to the conference, there was not an employee/employer relationship."

As to Noble, the ODA stated he filed a claim with the Labor Commissioner seeking wages for November, 29, 2002, to February 28, 2003, in the approximate amount of $36,540, plus interest, plus additional wages as a penalty under section 203, which penalizes an employer who fails timely to pay an employee who is discharged or who quits. A hearing was conducted, at which testimony, evidence and arguments were presented. The Labor Commissioner found Noble was employed by defendants as a chef under an oral agreement, from November 29, 2002, until February 28, 2003, when Noble quit. Noble did not give advance notice of his intent to quit, did not return for his final paycheck after 72 hours (as set forth by statute), and did not provide a mailing address, and he was therefore not entitled to statutory penalties. Noble performed services for defendants at the residences of the corporate officers by preparing dishes to be used in the restaurant, assisting in the development of menus, cooking, and cleaning. He lived for free at the Drapers' residence. He helped with pre-opening duties before the restaurant opened, and then helped supervise.employees and performed other duties of a chef. He was not an exempt managerial employee. Noble did not prove his claimed pay rate. Defendants admitted a weekly pay rate of $300 but failed to maintain time and payroll records. The Labor Commissioner ordered defendants to pay Noble $5,760 in back wages, plus $600 in interest.

The ODA regarding Hernandez said he filed a claim for wages of $48,541, plus wages under section 226.7 for failure to provide meal breaks, plus interest, plus the penalty under section 203. A hearing was held at which testimony, evidence, and arguments were presented. The ODA found Hernandez was employed by defendants as executive chef under an oral agreement, from January 18, 2003, until May 27, 2003, when Hernandez quit without notice. He did not return for his last paycheck or leave a mailing address and was therefore not entitled to penalties. The promised rate of compensation was $30,000 per year (less than Hernandez was claiming), with a promised raise once legal resident status was obtained. He performed services at the residence of defendant's corporate officers by preparing dishes to be used in the restaurant, organizing and writing menus,...