Otworth v. Southern Pac. Transportation Co.

• Decision Date: 01 April 1985
• Citation: 212 Cal.Rptr. 743,166 Cal.App.3d 452
• Court: California Court of Appeals Court of Appeals
• Parties: Clarence Matthew OTWORTH, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent. Civ. B006656.

Page 743

212 Cal.Rptr. 743

166 Cal.App.3d 452

Clarence Matthew OTWORTH, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.

Civ. B006656.

Court of Appeal, Second District, Division 3, California.

April 1, 1985.

As Modified April 29, 1985.

[166 Cal.App.3d 454] Clarence Matthew Otworth, in pro. per.

William E. Still, David Kyle, Stephen W. Traverse and Roy C. Wilson, Jr., Los Angeles, for defendant and respondent.

KLEIN, Presiding Justice.

Plaintiff and appellant Clarence Matthew Otworth (Otworth) appeals the dismissal of his complaint alleging conversion, breach of contract, violations of his 1st, 5th and 14th Amendment rights and unjust enrichment against defendant and respondent Southern Pacific Transportation Company (Southern Pacific). Dismissal was based on Otworth's failure to amend his complaint after the trial court sustained Southern Pacific's demurrer with 30 days to amend. (Code Civ.Proc., § 581, subd. (3)). ¹

Otworth's complaint fails to allege facts sufficient to support any cause of action against Southern Pacific. Therefore, the trial court did not abuse its discretion in sustaining the demurrer and the dismissal is affirmed.

PROCEDURAL AND FACTUAL BACKGROUND

Otworth, employed by Southern Pacific in June 1978, each year filed a W-4 Form On May 15, 1981, Southern Pacific, having not received a valid "W-4 Exempt" certificate from Otworth, withheld taxes from Otworth's paycheck until June 10, 1981, when Southern Pacific received a valid W-4 Exempt form from Otworth. ³ Southern Pacific refused to remit to Otworth the withheld funds totaling $1,403.58 because the funds had been turned over to the Internal Revenue Service and the Franchise Tax Board.

claiming total exemption from the withholding of federal and state income taxes from his paycheck, and as a result, Southern Pacific did not withhold any taxes from any of Otworth's paychecks. ²

No taxes were withheld from Otworth's paycheck from June 10, 1981, until August 25, 1983, at which time the Internal Revenue Service (IRS) directed Southern Pacific to begin withholding taxes from Otworth's paycheck as Otworth's W-4 form was improper.

In September 1983, Otworth filed a complaint for actual and punitive damages alleging that Southern Pacific's refusal to remit the withheld funds totalling $1,804.27, constituted conversion, breach of contract, violations of his 1st, 5th and 14th Amendment rights, and unjust enrichment.

In November 1983, Southern Pacific's demurrer was sustained with leave to amend as to the conversion cause of action, overruled as to the breach of contract cause of action and sustained without leave to amend as to the 1st, 5th and 14th Amendments and unjust enrichment causes of action. The trial court also granted Southern Pacific's motion to strike Otworth's request for punitive damages.

Responding to Otworth's petition for a writ of prohibition to restrain proceedings In December 1983, after Southern Pacific filed an answer to the complaint, Otworth moved to vacate and set aside the ruling on the demurrer. Southern Pacific joined the motion, provided that the answer also be set aside and the demurrer and motion to strike reheard.

by a disqualified judge, the trial court later in November 1983, [166 Cal.App.3d 457] held that the affidavit of bias filed against Superior Court Judge Norman Epstein was effective only as to future matters before said judge and that there was no legal basis for vacating the ruling on the demurrer.

The motion was granted, and in February 1984, after a rehearing, the trial court sustained the demurrer as to all causes of action for failure to state facts sufficient to state a cause of action and granted 30 days leave to amend. In May 1984, the matter was dismissed following Southern Pacific's motion for dismissal for failure to amend.

Otworth appeals the dismissal.

CONTENTION

Otworth contends that the trial court abused its discretion in sustaining Southern Pacific's demurrer.

DISCUSSION

1. Standard of review.

An order sustaining a demurrer with leave to amend is not a final judgment and therefore not itself appealable. (Jeffers v. Screen Extras Guild, Inc. (1951) 107 Cal.App.2d 253, 254, 237 P.2d 51.) If a plaintiff fails or refuses to amend the complaint, the court will enter a judgment of dismissal from which an appeal to review the correctness of the ruling on the demurrer may be taken. (Ibid; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 794, 304 P.2d 738; 3 Witkin, Cal.Procedure (2d Ed.1971) Pleading, § 843, pp. 2448-2449.)

When a plaintiff elects not to amend the complaint, it is presumed that the complaint states as strong a case as is possible (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994, 176 Cal.Rptr. 569); and the judgment of dismissal must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer. (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, 137 Cal.Rptr. 681; Totten v. Underwriters at Lloyd's London (1959) 176 Cal.App.2d 440, 442, 447-448, 1 Cal.Rptr. 520.)

Thus, we review the allegations in Otworth's complaint and determine if any of the grounds raised in Southern Pacific's demurrer apply. (See Hooper v. Deukmejian, supra, 122 Cal.App.3d at p. 994, 176 Cal.Rptr. 569.)

2. The complaint fails to allege any of the elements necessary for a cause of action for conversion.

In order to state a cause of action for conversion, Otworth must allege that he owned or had the right to possess the withheld money at the time of the conversion and that Southern Pacific willfully and without legal justification interfered with this right. (Hartford Financial Corp. v. Burns (1979) 96 Cal.App.3d 591, 598, 158 Cal.Rptr. 169; de Vries v. Brumback (1960) 53 Cal.2d 643, 647, 2 Cal.Rptr. 764, 349 P.2d 532; 14 Cal.Jur.3d, § 54, pp. 848-849.)

Otworth's complaint does not allege that he had or was entitled to possession of the withheld money. Nor does the complaint allege any facts indicating that the withholding of the money by Southern Pacific was unlawful. In fact, Otworth's complaint indicates that the money was withheld for tax purposes and turned over to the IRS.

Otworth's argument that Southern Pacific is liable for having withheld the taxes as directed to do by the IRS both by letter and by regulation, is meritless. It has consistently been held that employees have no cause of action against employers who, pursuant to directives or regulations of the IRS, withhold wages and pay them over to the government in satisfaction of federal income tax liability. (Edgar v. Inland Steel Co. (7th Cir.1984) 744 F.2d 1276 1278; Beerbower v. United States (E.D.Mich.1984) 592 F.Supp. 67, 68; McFarland v. Bechtel Petroleum, Inc. (N.D.Cal.1984) 586 F.Supp. 907, 910; Pascoe v. I.R.S. (E.D.Mich.1984) 580 F.Supp. 649, 654.)

Consequently, the demurrer, which objected to the complaint on the grounds that it failed to state facts sufficient to constitute an action for conversion, was properly sustained.

3. The complaint fails to state a cause of action for breach of contract.

To state a cause of action for breach of contract, Otworth must plead the contract, his performance of the contract or excuse for nonperformance, Southern Pacific's breach and the resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290, 78 Cal.Rptr. 6.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Code Civ.Proc., § 430.10, subd. (g).) ⁴ If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59, 35 Cal.Rptr. 652.)

Otworth's complaint makes no mention of whether the contract is written or oral, sets forth none of the alleged contract's terms, and includes no assertion that Otworth has either performed the contract or is excused from performing.

Moreover, the complaint contains no allegation that the employment contract contained a provision requiring Southern Pacific to refrain from withholding federal taxes from Otworth's wages. ⁵ In the absence of such a provision, an employer discharges its contractual obligations when it withholds taxes from the employee's wages and pays the employee the balance. (Edgar v. Inland Steel Co., supra, 744 F.2d at p. 1278; Stonecipher v. Bray (9th Cir.1981) 653 F.2d 398, 403, cert. den. 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297.)

Thus, the trial court properly sustained the demurrer as to the contract cause of action.

4. The complaint fails to allege any particular violation of any 1st, 5th or 14th Amendment rights.

Otworth further alleges that Southern Pacific, acting under color of federal law, deprived him of his 1st, 5th and 14th Amendment rights.

It is well settled law that the use of summary procedures to collect federal revenue, such as provided by the federal income tax withholding laws, does not violate due process, as taxpayers may challenge alleged liability in tax court or sue for a refund. Taxpayers' due process rights are adequately protected by this procedure. (Stonecipher v. Bray, supra, 653 F.2d at pp. 401-403; Campbell v. Amax Coal Co. (10th Cir.1979) 610 F.2d 701, 702; Phillips v. Commissioner (1931) 283 U.S. 589, 595-598, 51 S.Ct. 608, 611-612, 75 L.Ed. 1289; Pascoe v. I.R.S., supra, 580 F.Supp. at pp. 653-654.)

Even if Southern Pacific were acting under color of state and federal law in withholding taxes from Otworth's wages, this act did not deprive Otworth of any constitutional right. (See Edgar v. Inland Steel Co., supra, 744 F.2d at p. 1278; Stonecipher v. Bray, supra, 653 F.2d at p. 403.) Otworth alleges no acts on the part of Southern Pacific which indicate any violation of his 1st Amendment rights.

The demurrer was properly sustained as the complaint...