Filed 3/1/22 Valdivia v. The Ticket Clinic CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LUIS VALDIVIA B310699
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC651238)
v.
THE TICKET CLINIC, A
Professional Law Corporation,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi, Judge. Affirmed.
Medvei Law Group and Sebastian M. Medvei for Plaintiff
and Appellant.
Sherman Law Corporation and Lisa Sherman for
Defendant and Respondent.
——————————
Plaintiff Luis Valdivia (Valdivia) appeals from a summary
judgment in favor of defendant The Ticket Clinic, A Professional
Law Corporation (Ticket Clinic). Valdivia, a former employee of
the Ticket Clinic, alleged that his former employer failed to
comply with its legal obligations to provide accurate wage
statements and pay wages. The trial court, after reviewing the
wage statements and other evidence, granted summary
judgment. Valdivia raises a variety of arguments for each cause
of action but has not demonstrated any triable issue of material
fact. Accordingly, we affirm.
BACKGROUND
The Ticket Clinic, a firm that focuses on defending traffic
tickets, hired Valdivia, a traffic ticket defense attorney, in
January 2016. The Ticket Clinic terminated Valdivia’s
employment in December 2016.
On February 23, 2017, Valdivia filed a complaint against
the Ticket Clinic, alleging five causes of action relating to his
wages, wage statements and termination. On December 6, 2018,
the Ticket Clinic filed a motion for summary judgment. On
January 31, 2019, Valdivia voluntarily dismissed his first cause
of action for wrongful termination in violation of public policy.
This dismissal left standing Valdivia’s four other causes of action:
(1) failure to furnish timely and accurate wage statements;
(2) failure to make payment within the required time; (3) unfair
competition; and (4) breach of an oral contract. These four causes
of action became the subject of the trial court’s summary
judgment ruling and are at issue on appeal.
On December 8, 2020, the trial court issued a tentative
ruling granting summary judgment. Valdivia and the Ticket
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Clinic submitted on the court’s tentative without oral argument.
The court adopted its tentative granting summary judgment.
The court entered judgment in favor of the Ticket Clinic on
January 8, 2021. Valdivia timely filed his notice of appeal on
January 27, 2021.
DISCUSSION
Valdivia argues that the court incorrectly granted
summary judgment, asserting multiple arguments for each cause
of action. We examine Valdivia’s arguments below.
I. Standard of review
Summary judgment is properly granted if all the papers
submitted show no triable issue of material fact exists and the
moving party is entitled to judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 849.) A defendant meets the initial burden
by showing that one or more essential elements of the plaintiff’s
cause of action cannot be established or that there is a complete
defense. (Code Civ. Proc., § 437c, subd. (o); Aguilar, at p.
849; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
If the defendant makes this showing, the burden shifts to the
plaintiff to demonstrate that a triable issue of fact exists.
(Aguilar, at p. 849.)
We review a trial court’s ruling granting summary
judgment de novo, liberally construing the nonmoving party’s
evidence while strictly scrutinizing the moving party’s showing.
(Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273;
Saelzler v. Advanced Group 400, supra, 25 Cal.4th at pp. 768–
769.) “ ‘ “We begin by identifying the issues framed by the
pleadings since it is these allegations to which the motion must
respond.” ’ ” (Stokes v. Baker (2019) 35 Cal.App.5th 946, 956;
3
Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 931.) The
“complaint limits the issues to be addressed at the motion for
summary judgment.” (Laabs v. City of Victorville (2008)
163 Cal.App.4th 1242, 1258.)
II. The trial court correctly found no triable issue of
material fact on the claim for failure to furnish wage
statements
In his second cause of action, Valdivia asserted that the
Ticket Clinic violated Labor Code1 section 226 by failing to
furnish timely and accurate wage statements. Valdivia alleged
that during his employment, he “was never presented with an
itemized statement in writing, showing: (1) gross wages earned,
(2) total hours worked, (3) the number of piece-rate units earned,
(4) all deductions, (5) net wages earned, (6) the inclusive dates of
the period for which [Valdivia] was paid, (7) the name of the
employee and last four digits of social security number, (8) the
name and address of the legal entity that was [Valdivia’s]
employer, and (9) hourly rates in effect during the pay period.
This is a violation of section 226 of the Labor Code.”
The trial court concluded that the undisputed evidence
established that the wage statements—copies of which were
submitted in support of the summary judgment motion—
complied with the statutory requirements. The court noted that
the Ticket Clinic furnished these statements to Valdivia
electronically through an experienced payroll company. In
addition, the court found that Valdivia had no evidence that the
Ticket Clinic violated section 226, subdivision (a) “knowingly and
1 All undesignated statutory references are to the Labor
Code.
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intentionally” as the statute requires. Accordingly, the court
ruled against Valdivia on this cause of action.
Valdivia raises three arguments asserting that the trial
court erred in connection with Valdivia’s claim for failure to
furnish wage statements. First, Valdivia argues that the Ticket
Clinic’s use of an online payroll system that made wage
statements electronically available violated section 226. Valdivia
concedes that he has no authority for this proposition.
Section 226, subdivision (a) states that an “employer,
semimonthly or at the time of each payment of wages, shall
furnish to his or her employee, either as a detachable part of the
check, draft, or voucher paying the employee’s wages, or
separately if wages are paid by personal check or cash, an
accurate itemized statement in writing” showing the types of
information about wages that Valdivia asserted in his complaint
had not been provided. “ ‘Furnish’ means to ‘provide with what is
needed,’ or to ‘supply’ or ‘give.’ (Merriam-Webster’s Collegiate
Dict. (10th ed. 1993) p.474, col. 1.)” (Canales v. Wells Fargo
Bank, N.A. (2018) 23 Cal.App.5th 1262, 1270 [discussing section
226, subd. (a)].) Apart from specifying that the wage statement
must be a detachable part of the check, “section 226 describes no
other specific means by which an employer is to furnish the
itemized statement to an employee.” (Ibid.)
Subdivision (a) of section 226 nowhere states that an
employer must send an employee a hard copy of the wage
statement or provide it by any other specified means. The
Department of Industrial Relations’s Division of Labor Standards
has long allowed employers to comply with section 226,
subdivision (a) by making electronic wage statements available to
employees so long as these statements can be easily accessed and
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converted to hard copy at no expense, and the employee retains
the right to receive a paper record. Here, the Ticket Clinic,
through a professional third-party service, had a system in which
its employees who elected to receive payments by direct deposit
were automatically enrolled for electronic delivery of itemized
wage statements unless they requested paper copies. Valdivia
never requested paper statements or made any other requests
with respect to his wage statements. Valdivia has identified
nothing about this system that violates the statute.2
Second, Valdivia argues that he was misclassified as an
“exempt” employee, and there were triable issues of fact as to
whether the wage statements contained sufficient information for
non-exempt employees. Valdivia, however, does not explain or
develop this argument and does not provide supporting legal
authorities. “ ‘The absence of cogent legal argument or citation to
authority allows this court to treat the contention as waived.’ ”
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956.) Valdivia has not preserved this argument for appeal.
Moreover, Valdivia waived this argument in the trial court.
“ ‘It is axiomatic that arguments not raised in the trial court are
forfeited on appeal.’ ” (Delta Stewardship Council Cases (2020)
48 Cal.App.5th 1014, 1074.) Valdivia did not mention any
2 Because Valdivia has not demonstrated any triable issue
of material fact about whether the electronic payroll system
violated section 226 subdivision (a), we need not reach the trial
court’s alternative ground: that even assuming a violation
relating to the payroll system, Valdivia has not shown triable
issues of fact about whether the violation was “knowing and
intentional.” We discuss the issue of intentionality only with
respect to Valdivia’s final paycheck.
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allegation about his non-exempt status in his complaint. In his
summary judgment opposition, Valdivia argued—contrary to his
appellate argument—that whether he “was misclassified as
exempt is immaterial in the context of the claims being brought
by [Valdivia] against [the Ticket Clinic] in this lawsuit.” Valdivia
cannot assert an argument he previously disclaimed.
Third, Valdivia argues that that the Ticket Clinic refused
to provide Valdivia with a hard copy itemized wage statement for
his final paycheck, which was provided to him at his request as a
hard check. Thus, according to Valdivia, the Ticket Clinic
violated in this instance the requirement to provide the wage
statement “as a detachable part of the check.” (§ 226, subd. (a).)
However, Valdivia has a damage claim against the Ticket Clinic
for a violation of subdivision (a) of section 226 only for injury “as
a result of a knowing and intentional failure by an employer to
comply.” (§ 226, subd. (e)(1).) A “ ‘knowing and intentional
failure’ does not include an isolated and unintentional payroll
error due to a clerical or inadvertent mistake.” (§ 226,
subd. (e)(3); see Wilner v. Manpower, Inc. (N.D.Cal. 2014)
35 F. Supp.3d 1116, 1130 [interpreting the “ ‘knowing and
intentional’ ” term as requiring something other than the
violation itself].)
Here, the Ticket Clinic met its initial burden of showing
that this error was a clerical mistake and not a “knowing and
intentional” failure. The Ticket Clinic prepared a hard copy
check on short notice at Valdivia’s request, after an in-person
altercation between Valdivia and the Ticket Clinic’s chief
executive officer. The Ticket Clinic presented evidence that its
employee who created the check had just recently taken over
payroll and was still learning to prepare manual checks. She
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forgot to include the manual payment detail and a copy of the
electronic itemized wage statement that one time. She did not
believe she was violating any wage and hour laws. Moreover, the
preparation of the final check did automatically generate an
electronic version of the wage statement in the third party
payroll service. Valdivia has not adduced any facts showing that
this error was anything other than an isolated and unintentional
incident. Accordingly, this argument provides no grounds for
reversal.3
III. The trial court correctly found no triable issue of
material fact on the claim for failure to pay wages
The third cause of action asserted failure to make payment
within the required time under Labor Code Section 203. It
alleged that Valdivia was “due and owing wages” and that the
Ticket Clinic “willfully refused to pay [Valdivia] these wages on
the date of [Valdivia]’s termination. The trial court ruled against
Valdivia on this claim because the Ticket Clinic demonstrated
that it paid Valdivia all his ordinary wages except for the final
severance payment, which was alleged to be due only as a result
of an oral contract.
On appeal, Valdivia argues that severance pay should be
considered wages to be enforced based on the chief executive
3 Valdivia’s papers also contain scattered complaints about
the wage statements not listing accrued sick leave. Valdivia has
not explained or supported an argument about sick leave and has
thus waived the issue. (Cahill v. San Diego Gas & Electric Co.,
supra, 194 Cal.App.4th at p. 956.) Moreover, as the trial court
noted, Valdivia failed to allege this claim in his complaint. Sick
leave is not even a subject of section 226, the basis for Valdivia’s
cause of action.
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officer’s promise. Because we agree with the trial court that
there was no binding agreement to pay severance, as explained
below, we need not determine whether any such severance
payment would have been considered wages.
Valdivia also asserts that he was denied sick pay. Valdivia
did not allege this in his complaint and the trial court therefore
properly refused to consider it. (California Bank & Trust v.
Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 [party may not
oppose summary judgment motion based on claim not alleged in
pleadings].) Moreover, except for a citation to wage statements
generally, Valdivia does not provide any record citations showing
he was in fact owed but denied sick leave. An argument without
appropriate record citations may be deemed waived. (Lonely
Maiden Productions, LLC v. Golden Tree Asset Management, LP
(2011) 201 Cal.App.4th 368, 384.) Valdivia has not preserved
this issue for appeal.
IV. The trial court correctly found no triable issue of
material fact on the claim for unfair competition
The fourth cause of action asserted unfair competition. It
alleged that the Ticket Clinic has engaged in “an unfair act by
withholding wages due [Valdivia]” and “in unlawful acts through
conduct, including, but not limited to, violating the labor laws of
the State of California.” Valdivia sought an injunction under
Business and Professions Code section 17203, a section of the
Unfair Competition Law (UCL).4
4 Business and Professions Code section 17203 provides:
“Any person who engages, has engaged, or proposes to engage in
unfair competition may be enjoined in any court of competent
jurisdiction. The court may make such orders or judgments . . . as
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The trial court ruled against Valdivia on this claim because
he “failed to meet his burden to show a triable issue of fact as to
whether [the Ticket Clinic] violated Labor Code section 226[,
subdivision] (a) or section 203. Accordingly, [Valdivia]’s UCL
claim, which is derivative of those violations, must also fail.”
Because we agree that Valdivia has failed to meet his burden
with respect to those predicate claims, we agree that he has
failed to meet his claim for injunctive relief under the UCL.
Moreover, with respect to the one unintentional violation of
section 226, subdivision (a) by failing to print out a hard copy
wage statement for Valdivia’s last check, Valdivia has not made
any showing that the past act is a continuing problem. Injunctive
relief under the UCL is not appropriate if there is no
“ ‘reasonable probability that the past acts complained of will
recur.’ ” (Colgan v. Leatherman Tool Group, Inc. (2006)
135 Cal.App.4th 663, 702.) The issues relating to Valdivia’s final
paycheck are not a proper basis for injunctive relief.
Valdivia complains that the trial court’s decision ignored an
alleged right he has under section 226, subdivision (h), which
provides for injunctive relief in the context of section 226. The
problem for Valdivia is that nowhere does his complaint seek
relief under section 226, subdivision (h). A “plaintiff cannot bring
up new, unpleaded issues in his or her opposing papers.”
(Government Employees Ins. Co. v. Superior Court (2000)
may be necessary to prevent the use or employment by any
person of any practice which constitutes unfair competition, as
defined in this chapter, or as may be necessary to restore to any
person in interest any money or property, real or personal, which
may have been acquired by means of such unfair competition.”
10
79 Cal.App.4th 95, 98, fn. 4.) The trial court correctly ruled
against Valdivia as to the injunctive relief claim.
V. The trial court correctly found no triable issue of
material fact on the claim for breach of oral
contract
Valdivia’s fifth cause of action alleged that Valdivia and the
Ticket Clinic “had an oral agreement for the payment of wages in
addition to [Valdivia]’s last paycheck, in exchange for [Valdivia]
coming in at a later date after his termination to pick up his
check,” that Valdivia “fulfilled his obligations under the contract
by appearing to pick up the check” and that the Ticket Clinic
“failed to pay the amount promised.”
The trial court ruled against Valdivia on this claim, stating,
“Still, while not addressed by either party, the [c]ourt must
conclude that no oral contract was formed because there was no
underlying consideration for . . . severance pay. As such, the offer
of severance merely constituted a gift.” The court relied on Dow
v. River Farms Co. (1952) 110 Cal.App.2d 403 (Dow), which held
that a promise to make a gift for past services was not legally
enforceable. The court concluded that because Valdivia had not
provided evidence that showed any detriment by Valdivia or
other consideration, the alleged promise was not enforceable.
Valdivia raises two arguments about this ruling, one
procedural and one substantive. We examine each in turn.
Valdivia argues that it was error for the trial court to grant
summary judgment on a legal theory that neither party pleaded,
proved, or argued. Valdivia, however, did not raise this objection
before the trial court. The trial court gave him an opportunity to
do so: it issued a tentative opinion that stated with clarity that
“while not addressed by either party,” the court was ruling on
11
this basis. Without objecting, asking for additional briefing, or
seeking a chance to submit additional evidence, Valdivia
submitted on the tentative. An appellate court will not consider
an alleged procedural defect when it could have been, but was
not, presented to the trial court. (In re Carrie W. (2003)
110 Cal.App.4th 746, 755.) To the extent Valdivia believed it was
procedurally improper for the court to rule on this ground, he
should have raised the issue before submitting.
Moreover, even on appeal Valdivia does not argue about the
facts but about their legal effect. “Even if the grounds entitling
the moving party to a summary judgment were not asserted in
the trial court, we must affirm if the parties have had an
adequate opportunity to address those grounds on appeal.”
(Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th
173, 181; accord, Johnson v. United Cerebral Palsy/Spastic
Children’s Foundation (2009) 173 Cal.App.4th 740, 754 [court
must affirm any applicable legal ground even if raised first on
appeal].) Here, the trial court considered the issue and Valdivia
fully briefed it on appeal.
On the merits, Valdivia argues that the promise made at
the time of Valdivia’s termination by the Ticket Clinic’s chief
executive officer was a promise for severance pay, and that
severance pay is legally enforceable without regard to
consideration. Notably, Valdivia does not discuss in either of his
briefs Dow, supra, 110 Cal.App.2d 403, the case on which the
trial court relied.
We agree that Dow, supra,110 Cal.App.2d 403 and general
contract principles support the trial court’s ruling. In Dow, a
company’s board of directors decided to provide a $50,000
payment to the president upon his retirement. (Id. at p. 404.) It
12
was undisputed that the president was not otherwise entitled to
this amount under his employment contract. When his widow
attempted to enforce this promise, the Court of Appeal rejected
the claim, ruling that it was not “an offer to contract at all—it
was simply a promise to make a gift,” and “as such, was
unenforceable.” (Id. at p. 408.) To similar effect is Passante v.
McWilliam (1997) 53 Cal.App.4th 1240, where an attorney
arranged a loan for a company which, glad for the loan, then said
it would give the attorney three percent interest in the company.
(Id. at p. 1248.) Relying on Dow, the appellate court ruled that
since all lawyer’s services were in the past, the promise was not
supported by consideration and therefore unenforceable.
(Passante, at pp. 1248–1249.)
Here, the following facts are undisputed. Valdivia was not
entitled to severance payments under the general terms of his
existing employment agreement. On the morning of
December 14, 2016, the chief executive officer of the Ticket Clinic
spoke to Valdivia by phone and terminated him for economic
reasons. The chief executive officer then said that the company
would pay Valdivia for the last two weeks in December. At an in-
person meeting later that day, the chief executive officer and
Valdivia got into an altercation about Valdivia’s final check. The
chief executive officer then said to Valdivia about the two-week
payment words to this effect, “I don’t have to give you this. I’m
doing this to be nice. I don’t owe you this. I don’t owe you
anything[.] I don’t have to pay you anything.” He continued
talking in that vein and used an expletive. The Ticket Clinic did
not pay for the final two weeks.
Here, as in Dow and Passante, the Ticket Clinic’s chief
executive officer made a promise to pay money not otherwise
13
owed to Valdivia after all Valdivia’s services had already been
rendered. In the chief executive’s words, he offered the additional
money “to be nice.” This is not the ordinary case of severance pay
that was part of the employment package from the start, or that
was offered in exchange for a release of liability or some other
consideration. Valdivia has submitted no evidence that he
offered or did anything in exchange for the promise of two
additional weeks’ pay.5 Nor has Valdivia cited any cases in
which severance pay was enforceable even when it was promised
after services were over and for no consideration.
The case of Chapin v. Fairchild Camera etc. Corp. (1973)
31 Cal.App.3d 192, relied upon by Valdivia, does not help his
argument. Chapin was a case in which consideration was not an
issue and was never in doubt. In Chapin, employees of a division
of Fairchild enjoyed traditional severance benefits as part of their
compensation package under company policies. (Id. at pp. 195,
197.) The issue in Chapin was whether those severance benefits
continued to be binding after a second company purchased a
business division and retained Fairchild personnel. (Id. at
p. 195.) The appellate court decided that the sale by Fairchild
was a “layoff” and thus Fairchild remained responsible for the
severance benefits. (Id. at pp. 197–198.)
Valdivia relies on a statement in Chapin v. Fairchild
Camera etc. Corp., supra, 31 Cal.App.3d at pages 198 to 199, that
separation pay “is a kind of accumulated compensation for past
5 Valdivia’s complaint alleges that the Ticket Clinic
promised him two weeks’ salary in exchange for him picking up
his check “at a later date.” But Valdivia submitted no evidence to
support this allegation during the summary judgment
proceedings and did not argue this point in his appellate briefs.
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services and a material recognition of their past value.
[Citation.] It concerns the past, not the future, and once it is
earned, it becomes payable no matter what may thereafter
happen.” The appellate court made this statement in the context
of severance obligations that were part-and-parcel of the
employee’s compensation rights from the start of their
employment, and thus had been earned and could not thereafter
be nullified by a sale. (Ibid.) This is nothing like the current
case, where severance payment was not part of Valdivia’s general
compensation package, and the chief executive officer made a
gratuitous statement that he would pay an additional two weeks’
salary after Valdivia had already been terminated.
Here, Valdivia has presented no facts that there was any
consideration for the promise to pay an additional two weeks’
wages. Accordingly, as in Dow and Passante, there was no
enforceable contract. The trial court properly ruled against
Valdivia on this claim.
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DISPOSITION
The judgment is affirmed. The Ticket Clinic is awarded its
costs on appeal.
NOT TO BE PUBLISHED.
LIPNER, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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