Thakar v. Smitray CA2/4

Filed 5/21/15 Thakar v. Smitray CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CHETAN THAKAR, B246828
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC064739)
v.
SMITRAY INC. et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court for Los Angeles
County, Stuart M. Rice, Judge. Affirmed.
Chetan Thakar, in pro. per., for Plaintiff and Appellant.
Littler Mendelson and Robert W. Conti for Defendants and Respondents.
This is the fifth appeal in a lawsuit brought by plaintiff Chetan Thakar (who
has represented himself throughout this litigation) against numerous defendants in
New Jersey and California based upon an alleged conspiracy to deprive Thakar of
employment and legal representation. In the first appeal, we affirmed the trial
court’s denial of Thakar’s ex parte application for a preliminary injunction
prohibiting all defendants from interfering with Thakar’s search for legal
representation and interfering with his employment. (Thakar v. Smitray, Inc. (June
19, 2012, B234776) [nonpub. opn.].) In the second appeal, we affirmed the trial
court’s order granting the New Jersey defendants’ motion to quash service of
process for lack of personal jurisdiction. (Thakar v. The Community Hospital
Group, Inc. (Jan. 28, 2013, B236926) [nonpub. opn.].) In the third appeal, we
reversed a judgment of dismissal in favor of defendant Robert Conti based upon
the trial court’s sustaining Conti’s special demurrer, but found that Conti’s general
demurrer as to some of the causes of action was well taken and affirmed the
dismissal of those causes of action. (Thakar v. Conti (March 18, 2013, B238498)
[nonpub. opn.].) In the fourth appeal, we affirmed the trial court’s dismissal of all
causes of action asserted against defendant Ajit Chunilal Shah, M.D. for failure to
state a cause of action. (Thakar v. Shah (March 25, 2014, B242286) [nonpub.
opn.].)
In this appeal from a judgment in favor of two defendants -- Dinu Dahyabhai
Patel and Nick Dahya -- and an order denying Thakar’s motion to disqualify Conti
as counsel for some of the defendants, Thakar raises some issues over which we
have no jurisdiction and other issues that he has forfeited for failure to provide an
adequate record or argument. As to the issues that were not forfeited and over
which we have jurisdiction, we find no merit to Thakar’s arguments and affirm the
judgment and the order denying the disqualification motion.
2
BACKGROUND
Thakar filed an unverified complaint in this action on May 6, 2011. Therein,
he alleged that in 1998 defendants Martin Gizzi and Subramanian Hariharan
wrongfully terminated him from a hospital residency program at defendant JFK
Medical Center in New Jersey (these defendants are collectively referred to as the
New Jersey defendants)1 and falsified the results of his medical licensing
examination to make it appear he had failed. The New Jersey defendants
purportedly conducted surveillance of him and interfered with his attempts to
obtain a medical license and employment. Thakar tried to engage attorneys in
order to sue the New Jersey defendants, but he alleged he was thwarted by their
interference with his efforts to do so.
At some point, Thakar moved to California, and in 2006, he began working
as Resident Manager for defendant Smitray, Inc., dba Days Inn Airport Center (the
hotel). The hotel was managed by defendants Nick Dahya and S.D.P. Investments,
Inc.; defendant Dinu Dahyabhai Patel was alleged to be the dominant owner of
Smitray, Inc. and S.D.P. Investments, Inc. (Thakar refers to Smitray, Inc., S.D.P.
Investments, Inc., Dahya, and Patel collectively as the Smitray defendants; we will
do the same when referring to all of them, but at times we will refer to Smitray,
Inc. and S.D.P. Investments, Inc. as the Smitray corporate defendants and to Dahya
and Patel as the Smitray individual defendants.) Thakar alleged that the Smitray
defendants were contacted by Gizzi and Hariharan and given false information,
which eventually led to the Smitray defendants conspiring with the New Jersey
defendants to wrongfully terminate Thakar’s employment at the hotel and interfere
1
Although we identify all of the defendants in our discussion of the complaint, the
only defendants relevant to this appeal are the Smitray defendants and Robert Conti.
3
with his rights in a multitude of ways, including causing him to be criminally
prosecuted.
Defendant Robert Conti is an attorney retained by the Smitray defendants in
various legal actions (including the present action) initiated by Thakar arising out
of his employment with the Smitray defendants. Thakar alleged Conti had
connections with Gizzi and Hariharan and also was part of the conspiracy to thwart
Thakar’s efforts to obtain legal assistance and employment.
The remaining defendants were Ajit Chunilal Shah, American International
Marketing, and Aaron Hoke. Shah was Thakar’s physician who allegedly joined
the conspiracy against plaintiff. American International Marketing and Hoke hired
Thakar as an insurances sales agent in May 2010. Thakar alleged that he faced
discrimination and unfair treatment in that position as well, including interference
with his business relationships with clients and potential clients.
A. Original Complaint
In his initial complaint, Thakar attempted to state 15 causes of action against
all defendants. The Smitray defendants filed special motions to strike under Code
of Civil Procedure2 section 425.16 (the anti-SLAPP statute), as well as demurrers
to the complaint. The trial court granted the special motions to strike as to some
causes of action, sustained the demurrers without leave to amend as to other causes
of action, and sustained the demurrers with leave to amend as to the remaining
causes of action. Conti also filed a special motion to strike and a demurrer. The
trial court sustained Conti’s demurrer without leave to amend and entered
judgment in favor of Conti. Thakar appealed from that judgment and, as noted, we
reversed the judgment to the extent it was based upon the trial court’s sustaining
2
Further undesignated statutory references are to the Code of Civil Procedure.
4
Conti’s special demurrer; we found, however, that Conti’s general demurrer as to
some of the causes of action was well taken and affirmed the dismissal of those
causes of action. (Thakar v. Conti (March 18, 2013, B238498) [nonpub. opn.].)
B. First and Second Amended Complaints
In the meantime, Thakar filed a first amended complaint, to which the
Smitray defendants filed a demurrer; the trial court sustained the demurrer without
leave to amend as to some causes of action and with leave to amend as to others.3
Thakar then filed a second amended complaint (SAC) alleging four causes of
action against the Smitray defendants: breach of contract, intentional infliction of
emotional distress (IIED), intentional interference with prospective economic
advantage (interference claim), and conspiracy to interfere with prospective
economic advantage (conspiracy claim).4
The Smitray defendants filed a demurrer to the SAC. They argued that
Thakar’s breach of contract claim failed to state a cause of action because the
written employment agreement he entered into (which was attached as an exhibit
to the SAC) expressly provided that he was an at will employee. In addition, they
argued that Dahya and Patel could not be held liable for inducing a breach of
contract because they were protected by the managerial privilege. They contended
the IIED claim failed because some of the alleged actions took place during his
3
None of the papers filed by the Smitray defendants in support of their demurrer is
included in the record on appeal. The record includes only Thakar’s opposition to the
demurrer and the minute order sustaining the demurrer.
4
The last three causes of action also were alleged against the remaining defendants,
Shah and Hoke. Before filing the SAC, Thakar sought by ex parte application leave of
court to add three more causes of action against the Smitray defendants (for wrongful
termination, retaliation, and misrepresentation), and additional causes of action against
Hoke. The trial court denied the application.
5
employment, and therefore fell under the exclusive remedy provisions of Labor
Code section 3602, or were privileged under Civil Code section 47, and the
remaining alleged actions were not sufficiently “outrageous” to meet the
requirements of the tort. With regard to the interference and conspiracy claims, the
Smitray defendants argued that Thakar failed to allege an economic relationship
with which they interfered.
In opposing the demurrer to the breach of contract claim, Thakar argued
there is an exception to “[t]he California at-will employment rule” when an
employee is fired for an unlawful reason such as discrimination or fired in
retaliation for filing charges with the Equal Employment Opportunity Commission
(EEOC) or the United States Department of Justice (DOJ), or when an employee
works under the contract for several months (which he contends automatically
makes the contract subject to termination only for just cause). He also argued that
the managerial privilege did not apply because Dahya and Patel own the
corporations. Addressing the IIED claim, Thakar argued that the exclusive remedy
rule does not apply to claims for IIED, that the litigation privilege does not apply,
and that the Smitray defendants’ conduct was outrageous. With regard to the
interference and conspiracy claims, Thakar argued that the prospective economic
advantage with which the Smitray defendants purportedly interfered was the
resumption of his medical career, and that he adequately alleged conspiracy to
interfere with that prospective economic advantage.
At the hearing on the demurrer, the trial court indicated its tentative ruling
was to sustain the demurrer without leave to amend as to the interference and
conspiracy claims. With regard to the breach of contract claim, the court indicated
it would overrule the demurrer. The court explained that the claim would be better
addressed in a motion for summary judgment because the issue that needed to be
addressed was whether Thakar was terminated with or without cause (there was a
6
30-day notice provision for termination without cause, and Thakar alleged that he
was not given notice). The court also noted that with regard to the Smitray
individual defendants there appeared to be sufficient allegations of alter ego to
keep them in the case on the breach of contract claim. Addressing the IIED claim,
the court rejected the Smitray defendants’ exclusive remedy argument, but it
observed that the statute of limitations may bar the claim, although it
acknowledged that the Smitray defendants had not raised that issue. In response to
the court’s observation, Thakar noted that he had filed claims with the EEOC and
the Department of Fair Employment and Housing (DFEH) and had filed his first
lawsuit (not the present lawsuit) in 2010.
The court indicated that it wanted to conduct some research on the IIED
claim and it took the demurrer to the IIED claim under submission. It sustained
the demurrer as to the interference and conspiracy claims without leave to amend,
and overruled the demurrer to the breach of contract cause of action. It appears
that the court subsequently sustained the demurrer to the IIED claim without leave
to amend on statute of limitations grounds (the order is not included in the record
on appeal).
C. Motions for Reconsideration and for Leave to File a Third Amended
Complaint
Almost a month later, Thakar filed a motion for reconsideration, arguing that
the complaints he filed with various governmental agencies (including the EEOC
and DOJ) and prior lawsuits he filed against the Smitray defendants equitably
tolled the statute of limitations. A few days later, Thakar filed a motion for leave
to file a third amended complaint, in which he sought to add claims against the
Smitray defendants for retaliation and wrongful termination in violation of public
7
policy.5 The Smitray defendants opposed the motion for leave on the grounds that
the statute of limitations barred both claims and the conduct upon which Thakar
based those claims was not protected conduct.
The motion for reconsideration was heard at the same time as the motion for
leave to file a third amended complaint with additional claims (along with other
motions not at issue in this appeal). The court denied the reconsideration motion
on the grounds it was untimely and had “no substantive support.”
With regard to the motion to add the retaliation and wrongful termination
claims, the court stated: “Now you’re asking to add two new causes of action
against the Smitray defendants. I shouldn’t say ‘new causes of action’ because
there’s nothing new about them. The third and fourth causes of action for
retaliation and wrongful termination have been briefed, have been considered, have
been researched by me, have been given due consideration and have already been
sustained without leave. [¶] They have already been tossed from this case. . . . So
it is my intention to deny the motion for leave to file a third amended complaint as
to the third and fourth causes of action.”
Thakar responded that when he had filed his first amended complaint, which
added retaliation and wrongful termination claims against the Smitray defendants,
he had not first obtained leave of court to add those claims. He stated that during
the hearing on the demurrer, the court sustained the demurrer and told him that he
was welcome to ask for leave of court if he wanted to add those claims again.
The court asked counsel for the Smitray defendants if it had made a
substantive ruling on the causes of action, and counsel responded that he did not
recall. But counsel argued that in any event, the claims were barred by the statute
of limitations. When counsel finished his argument, the court said: “All right. I
5
Thakar also sought to add other claims against defendant Hoke.
8
see no reason to allow leave to amend to file yet another complaint, and I’ve
already ruled on the second amended complaint after thorough consideration of all
the causes of action that were before me. So I’m gonna stand by my ruling on [the
retaliation and wrongful termination claims].” The Smitray defendants filed a
notice of ruling stating that Thakar’s “motion for leave to plead in his proposed
Third Amended Complaint claims for (1) Retaliation and (2) Wrongful
Termination in Violation of Public Policy is DENIED because they are untimely
pursuant to C.C.P. § 335.1.”6
D. Third Amended Complaint and Motion for Summary Adjudication
Thakar filed a verified third amended complaint (TAC); the only cause of
action against the Smitray defendants was for breach of contract. The Smitray
defendants moved for summary adjudication seeking (1) an adjudication in favor
of the Smitray individual defendants on the grounds that they are immune from
liability for breach of the contract; (2) an adjudication that Thakar cannot recover
compensatory damages on his breach of contract claim; (3) an adjudication that
Thakar cannot recover punitive damages; and (4) an adjudication that Thakar is
limited to damages in the form of wages and housing for the 30-day notice period
set forth in the contract. The motion was supported by allegations in the verified
TAC and Thakar’s responses to form interrogatories. The Smitray defendants
argued that Thakar admitted in his verified TAC that Dahya and Patel were
managers for the Smitray corporate defendants and that Patel was a principal for
those corporate defendants. They contended that the managerial privilege bars
individual liability for breach of contract, and that there were no allegations or
evidence that Patel was an alter ego of Smitray, Inc., the sole signatory to the
6
The minute order from the hearing does not give grounds for the denial.
9
contract at issue. The Smitray defendants also argued that, as a matter of law,
Thakar cannot recover compensatory or punitive damages on a breach of contract
claim. Finally, they argued that, since the contract provided that Thakar’s
employment was at-will and could be terminated upon 30 days notice without good
cause or immediately if good cause existed, the most he could recover for breach
of contract (if it was found that he was terminated without good cause) would be
the wages and housing he would have received during the 30-day notice period;
according to Thakar’s responses to form interrogatories, that amount was $3,350.
In opposition to the summary adjudication motion, Thakar asked the trial
court to take judicial notice of the Smitray defendants’ demurrer to the SAC,
Thakar’s opposition to that demurrer, the court’s ruling on the demurrer, Thakar’s
further responses to form interrogatories, and the Smitray defendants’ responses to
Thakar’s discovery requests (which consisted entirely of objections). He purported
to dispute that he was employed only by Smitray, Inc., relying upon his response to
form interrogatories and the allegation in the TAC that he was employed by the
Smitray defendants, and not Smitray, Inc. He argued that Dahya and Patel were
liable for breach of contract due to their tortious acts in furtherance of the breach,
and that the managerial privilege did not apply because they acted with a motive to
sabotage Thakar’s employment in order to thwart his pursuit to regain his medical
career.
At the hearing on the summary adjudication motion, the trial court noted that
Thakar appeared to be asking for a continuance of the motion based upon the
Smitray defendants’ failure to respond in good faith to his discovery requests. The
court continued the motion to the date the court had scheduled to hear Thakar’s
motion to compel further discovery responses. The court explained that if the
discovery issues were not resolved by that date, it would treat that date as a
summary adjudication setting date, but if it denied the motions to compel, it would
10
proceed with the summary adjudication motion at that time. The court then noted
deficiencies in both sides’ papers. It pointed out that the Smitray defendants did
not submit any declarations in support of their motions, relying exclusively on
discovery responses and the allegations of Thakar’s complaint. The court also
indicated that the moving papers were unclear regarding whether Thakar was
terminated or stopped working voluntarily. Finally, the court noted that Thakar’s
separate statement did not comply with the Rules of Court. The court gave both
sides time to provide supplemental papers in support of or opposition to the
summary adjudication motion.
The Smitray defendants filed a supplemental brief and a declaration from
Dahya clarifying the facts surrounding Thakar’s termination as well as the
structure of the Smitray corporate defendants and Dahya and Patel’s positions in
those corporations. Thakar filed an opposition to the supplemental brief and an
amended separate statement.
At the hearing on the continued motion, the trial court granted summary
adjudication on all four issues, noting that as a result, judgment would be entered
in favor of the Smitray individual defendants, and any damages against the Smitray
corporate defendants would be capped at $3,350. At the end of the hearing, Thakar
asked the court if, in light of the $3,350 cap on damages against the Smitray
corporate defendants, it would be possible to not go forward with the trial on the
breach of contract claim against them7 until it is determined by the appellate court
whether any of his claims must be reinstated. The court suggested that Thakar
discuss that with counsel for the Smitray defendants to see if they could work out a
stipulation. Thakar and counsel did so, and eventually reached a stipulation stating
7
Trial on the claim against the Smitray defendants and the claims against Hoke was
scheduled to go forward in a few months.
11
that “pursuant to the in-court stipulation between all parties, and in light of [the
trial court’s] rulings granting the Smitray Defendants’ Motion for Summary
Adjudication which limits [Thakar’s] potential damages, this matter is stayed as to
[the Smitray corporate defendants] pending the outcome of all pending appeals
currently before the Second District Court of Appeal.” In the meantime, judgment
was entered in favor of the Smitray individual defendants, and Thakar filed a
notice of appeal from that judgment.
D. Motion to Disqualify Conti as Counsel
While the motion for summary adjudication was pending, Thakar filed a
motion to disqualify Conti as counsel for the Smitray defendants. The basis for his
motion was that Conti had a conflict of interest with his clients, the Smitray
defendants, because (1) Conti had a prior relationship with some or all of the New
Jersey defendants, who would be reinstated as defendants in the lawsuit if Thakar
prevailed in his appeal of the order quashing service (that appeal, however, was
unsuccessful);8 and (2) Conti himself would be reinstated as a defendant if
Thakar’s appeal of the order dismissing his claims against Conti was successful
(which it was).
Conti opposed the motion on the grounds that Thakar did not have standing
to bring the motion and that no conflict existed. He submitted a declaration in
support of his opposition stating that he has never had any relationship with any of
the New Jersey defendants and never maintained any kind of fiduciary or
confidential relationship with Thakar.
8
Thakar contended that the New Jersey defendants conceded the existence of a
prior relationship because they did not address his allegation of a relationship in their
respondents’ brief on appeal.
12
The trial court denied the motion, and Thakar filed a notice of appeal from
the order denying the motion.9
DISCUSSION
In his opening brief and supplemental opening brief, Thakar contends the
trial court erred or abused its discretion by: (1) granting the Smitray defendants’
special motion to strike under section 425.16; (2) dismissing Thakar’s invasion of
privacy claim from the first amended complaint; (3) dismissing Thakar’s IIED
claim against the Smitray defendants from the second amended complaint and
denying his motion for reconsideration; (4) denying Thakar’s motion for leave to
file a third amended complaint adding claims for retaliation and wrongful
termination; (5) sustaining without leave to amend the Smitray defendants’
demurrer to Thakar’s interference and conspiracy claims in the third amended
complaint; (6) granting the Smitray defendants’ motion for summary adjudication
as to the remaining cause of action in the third amended complaint; and
(7) denying Thakar’s motion to disqualify Conti.
9
Although the order denying Thakar’s motion to disqualify was entered on a
different date than the judgment in favor of the Smitray individual defendants was
entered, and Thakar filed separate notices of appeal, the appeal from the order and the
judgment were assigned the same case number. On September 27, 2013, Thakar filed an
appellant’s opening brief that addressed only the order denying his motion to disqualify.
Three months later, Thakar filed a motion with this Court, asking us to sever the appeal
from the judgment from the appeal from the order and to assign separate case numbers.
We denied that motion. Thakar then moved to strike his appellant’s opening brief and
allow him to file a new brief addressing all the issues arising in both appeals. We denied
the motion, but granted Thakar leave to file a supplemental brief confined to issues not
addressed in the appellant’s opening brief already filed. Thakar subsequently filed an
appellant’s supplemental opening brief.
13
A. This Court Has No Jurisdiction to Review Any Rulings Regarding the
Smitray Corporate Defendants
As a preliminary matter, we note that throughout his opening briefs, Thakar
generally does not distinguish between the Smitray corporate defendants and the
Smitray individual defendants, referring to all of them collectively as the Smitray
defendants. Thus, in challenging the trial court’s rulings, he appears to challenge
them on behalf of all of the Smitray defendants. However, we have no jurisdiction
to review the trial court’s rulings as to the Smitray corporate defendants because no
final judgment has been entered with regard to them.10 (Jennings v. Marralle
(1994) 8 Cal.4th 121, 126 [“The existence of an appealable judgment is a
jurisdictional prerequisite to an appeal”].) Therefore, we will address Thakar’s
contentions only with respect to the trial court’s rulings as to the Smitray
individual defendants.
B. This Court Has No Jurisdiction to Review the Trial Court’s Ruling on the
Special Motion to Strike
Thakar contends the trial court erred in granting the Smitray defendants’
special motion to strike and dismissing certain claims alleged against them. We do
not have jurisdiction to consider this contention.
“‘An order granting or denying a special motion to strike shall be appealable
under Section 904.1.” (§ 425.16, subd. (i); see generally § 425.16 et seq.) Section
904.1 provides “[a]n appeal . . . may be taken . . . [f]rom an order granting or
denying a special motion to strike under Section 425.16.” (§ 904.1, subd. (a)(13).)
“‘“If a judgment or order is appealable, an aggrieved party must file a timely appeal
10
Thakar appears to argue in his appellant’s reply brief that the trial court’s order
staying the lower court proceedings as to the Smitray corporate defendants allows this
court to address his contentions as to those defendants. It does not.
14
or forever lose the opportunity to obtain appellate review.” [Citations.]’
[Citation.]” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242,
1246-1247.)
Under rule 8.104 of the Rules of Court, to obtain review of the order
granting the Smitray defendants’ special motion to strike, Thakar was required to
file a notice of appeal from the order no more than 180 days after entry of the
order. (Cal. Rules of Court, rule 8.104(a)(1)(C).) Although the record on appeal in
this case does not include the order granting the special motion to strike, it does
include a notice of ruling indicating that the court granted the motion and
dismissed several causes of action on October 21, 2011. Even if Thakar’s notice of
appeal filed in this case on February 22, 2013 -- 16 months after the trial court’s
ruling -- could be construed as an appeal from the granting of the special motion to
strike, it would be untimely. Therefore, we have no jurisdiction to review the trial
court’s order. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather
Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“The time for appealing a judgment is
jurisdictional; once the deadline expires, the appellate court has no power to
entertain the appeal”].)
C. Dismissal of the Invasion of Privacy Claim
In his supplemental opening brief, Thakar includes a heading challenging the
trial court’s dismissal of seven claims in the original complaint. Six of those
claims were subject to the trial court’s ruling on the Smitray defendants’ special
motion to strike, which we have no jurisdiction to review. The seventh claim, for
invasion of privacy, was dismissed on a demurrer.
Although Thakar asserts in the heading that the demurrer was to the original
complaint, the invasion of privacy claim alleged in the original complaint was not
dismissed; instead, the trial court sustained the Smitray defendants’ demurrer to
15
that claim with leave to amend. Thakar then filed a first amended complaint that
included an invasion of privacy claim, and the court sustained the Smitray
defendants’ demurrer to that claim without leave to amend.
As Thakar’s argument in his supplemental opening brief makes clear, his
challenge is to the court’s ruling on the demurrer to the first amended complaint,
rather than the original complaint. That argument, however, contains no legal
analysis. Thakar does not address the elements of an invasion of privacy claim, or
how the allegations of the first amended complaint support those elements.
Instead, he simply notes that the first amended complaint included allegations
regarding the existence of a video surveillance system in the hotel at which he
worked (and lived). Because Thakar failed to provide any legal analysis to show
that these allegations are sufficient to state a cause of action for invasion of
privacy, we need not address his contention that the trial court erred in sustaining
the demurrer without leave to amend. (See, e.g., Tilbury Constructors, Inc. v. State
Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482.)
Even if we were inclined to consider his contention, the contention would
fail because Thakar failed to provide an adequate record. The record on appeal
does not include the Smitray defendants’ demurrer to the first amended complaint,
their points and authorities in support of the demurrer, their reply to Thakar’s
opposition, or the reporter’s transcript of the hearing on the demurrer. “The party
seeking to challenge an order on appeal has the burden to provide an adequate
record to assess error. [Citation.] Where the party fails to furnish an adequate
record of the challenged proceedings, his claim on appeal must be resolved against
him. [Citations.]” (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th
28, 46, citing Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 and Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1140-1141.)
16
D. Dismissal of the IIED Claim and Denial of Motion for Reconsideration
As noted, at the hearing on the Smitray defendants’ demurrer to the SAC the
trial court raised the issue whether Thakar’s IIED was barred by the statute of
limitations, and apparently later dismissed the claim on that ground. The court also
denied Thakar’s motion for reconsideration of that dismissal. On appeal, Thakar
contends the trial court abused its discretion by dismissing the IIED claim and
denying his motion for reconsideration because the statute of limitations was
equitably tolled by his filing of complaints with the California Department of
Industrial Relations, the EEOC, and the DOJ, and by the filing of an overtime
wage complaint in the superior court.
The Smitray defendants contend we should reject Thakar’s challenge to the
court’s demurrer ruling because Thakar failed to include a copy of the court’s order
in the record on appeal; they also argue that in any case, the court did not abuse its
discretion. While they are correct that the record does not include the trial court’s
order, it does include the reporter’s transcript in which the trial court rejected the
Smitray defendants’ grounds for demurrer but expressed its opinion that the IIED
claim was barred by the statute of limitations. The record also includes the
Smitray defendants’ opposition to Thakar’s motion for reconsideration, in which
the Smitray defendants acknowledged that the court ultimately issued a ruling
sustaining the demurrer to the IIED without leave to amend. Therefore, we will
address Thakar’s contention.
The alleged factual basis for Thakar’s IIED claim is set forth in paragraphs
12 through 21 of the SAC. Those paragraphs allege the following conduct: (1) the
Smitray defendants asked Thakar’s coworker to provide grounds to terminate
Thakar; (2) Thakar was the target of “work related hostilities,” threats of
termination, and constant video surveillance; (3) someone was tampering with food
being delivered to him in early 2008; (4) he was fired for taking a vacation;
17
(5) after the Smitray defendants refused to let him stay in the apartment he had
been living in at the hotel once he was fired, he was intimidated by hotel staff and
his car’s windshield was shot at with air gun pellets when he refused to vacate the
apartment; (6) he was served with a restraining order and told to pack up his
belongings, and when he was unable to do so he was taken to jail for half of a day,
and then when he returned to collect his belongings the Smitray defendants called
the police and he was taken to jail again; (7) the Smitray defendants (along with
Conti) submitted manufactured evidence to the EEOC and the Department of Fair
Employment and Housing in defense of Thakar’s complaints; and (8) the Smitray
defendants coached their employees to make malicious false allegations against
him at a hearing before the Deputy Labor Commissioner.
We note that the last two items involve communications made in connection
with official proceedings authorized by law. Those communications are absolutely
privileged under Civil Code section 47, subdivision (b), and cannot give rise to
liability for IIED. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212; Rosenthal v.
Irell & Manella (1982) 135 Cal.App.3d 121, 126.) Thus, we are left with the first
six items, which necessarily occurred during Thakar’s employment or very shortly
after his employment was terminated on April 17, 2008. The statute of limitations
issue arises because Thakar did not file his complaint in this case until May 6,
2011, three years after the conduct occurred, and there is a two-year statute of
limitations for IIED claims. (§ 335.1; Pugliese v. Superior Court (2007) 146
Cal.App.4th 1444, 1450.)
As Thakar correctly observes, a statute of limitations will be equitably tolled
“‘“[w]hen an injured person has several legal remedies and, reasonably and in
good faith, pursues one.”’ [Citations.]” (McDonald v. Antelope Valley Community
College Dist. (2008) 45 Cal.4th 88, 100 (McDonald).) The doctrine of equitable
tolling “is ‘designed to prevent unjust and technical forfeitures of the right to a trial
18
on the merits when the purpose of the statute of limitations -- timely notice to the
defendant of the plaintiff’s claims -- has been satisfied.’ [Citation.]” (Id. at p. 99.)
“[I]t may apply where one action stands to lessen the harm that is the subject of a
potential second action; where administrative remedies must be exhausted before a
second action can proceed; or where a first action, embarked upon in good faith, is
found to be defective for some reason. [Citation.]” (Id. at p. 100.)
Equitable tolling applies when three elements are met.
First, there must be timely notice. (McDonald, supra, 45 Cal.4th at p. 102.)
In other words, the filing of the first claim must be within the statutory period and
“must alert the defendant in the second claim of the need to begin investigating the
facts which form the basis for the second claim. Generally this means that the
defendant in the first claim is the same one being sued in the second.” (Collier v.
City of Pasadena (1983) 142 Cal.App.3d 917, 924 (Collier).)
Second, there must be a lack of prejudice to the defendant. (McDonald,
supra, 45 Cal.4th at p. 102; Collier, supra, 142 Cal.App.3d at p. 924.) In other
words, the facts of the first claim must be similar enough to the facts of the second
claim such “that the defendant’s investigation of the first claim will put him in a
position to fairly defend the second.” (Collier, supra, 142 Cal.App.3d at p. 925.)
The two causes of action need not be absolutely identical; “[t]he critical question is
whether notice of the first claim affords the defendant an opportunity to identify
the sources of evidence which might be needed to defend against the second
claim.” (Collier, supra, 142 Cal.App.3d at p. 925.)
Third, there must be reasonable and good faith conduct on the part of the
plaintiff. (McDonald, supra, 45 Cal.4th at p. 102.) For example, the plaintiff
cannot unreasonably delay in filing the second claim or deliberately mislead the
defendant into believing the second claim would not be filed. (Collier, supra, 142
Cal.App.3d at p. 926.)
19
In this case, when the trial court first raised the statute of limitations at the
hearing on the Smitray defendants’ demurrer to the SAC, Thakar pointed out that
he had filed complaints with various entities that tolled the statute. Although the
SAC included some general references to complaints Thakar had filed with
governmental agencies, it did not describe the allegations of any of the complaints,
and the only evidence he had submitted to the trial court of any such complaint
were two letters from the DOJ, of which he requested the court take judicial notice.
The court denied the request.11
Two days later, Thakar filed a declaration stating that he filed a “Complaint
for Retaliation” with the Department of Industrial Relations on June 3, 2008, and
that the final determination of that complaint was made on April 19, 2011, with an
appeal filed in November 2011. He did not provide any details about his
complaint. He simply stated that the ongoing investigation by the state agency
tolled the statute of limitations.
The absence of any details regarding the factual basis of Thakar’s prior
complaints was critical, because those details were necessary for Thakar to satisfy
the second element required for equitable tolling to apply, i.e., that the facts alleged
in those complaints were similar enough to the facts alleged in the IIED claim such
that the Smitray defendants’ investigation of the earlier complaints would put them
in a position to fairly defend the IIED claim. (Collier, supra, 142 Cal.App.3d at p.
925.) Because the allegations of the SAC demonstrated that the conduct upon
which Thakar’s IIED claim was based occurred more than two years before the
11
Even if the trial court had granted Thakar’s request for judicial notice, the letters
merely stated that the matters that had been submitted to the DOJ did not appear to be
within the jurisdiction of the Civil Rights Division of the DOJ, and that the issues raised
may be within the jurisdiction of the EEOC. There was no description of the matters that
had been submitted.
20
original complaint was filed, and there were no allegations (or judicially noticed
facts) sufficient to show that equitable tolling applied, the trial court did not abuse
its discretion by finding that the IIED claim was time-barred.
The trial court also did not abuse its discretion by denying Thakar’s motion
for reconsideration. Not only was the motion untimely, having been filed almost a
month after the court sustained the demurrer to the IIED claim, but it failed to
supply those critical facts necessary to show that equitable tolling applied. Instead,
Thakar simply listed the various complaints he had filed with various
governmental agencies and courts: a “Complaint for Retaliation” filed with the
California Department of Industrial Relations, an “EEOC Charge,” a “Complaint
for overtime Wages,” a “Complaint with USDOJ,” a “Civil Complaint in Superior
Court . . . Appeal[ing] from Dismissal of (overtime) Wage Complaint,” and
another “Civil Complaint in Superior Court” (the precursor to this case) which was
filed on December 30, 2010 (more than two years after he was terminated),
removed to federal court, and then dismissed after the present lawsuit was filed.
There was no further description of those complaints.
Thakar’s supplemental opening brief on appeal suffers from the same
infirmity. The brief merely quotes from the motion for reconsideration in
describing the complaints Thakar contends tolled the statute of limitations. He
provides no other description, and does not cite to (nor have we found) any part of
the appellate record showing what facts were alleged in those complaints, or even
who the defendants were in each complaint. In short, Thakar failed to demonstrate
any error by the trial court in finding that his IIED claim was time-barred.
E. Denial of Leave to Add Retaliation and Wrongful Termination Claims
Thakar contends the trial court abused its discretion by denying his motion
for leave to file a third amended complaint adding claims for retaliation and
21
wrongful termination. The court denied the motion on the ground that it had
already sustained without leave to amend a demurrer to those claims. Thakar
argues that the court was mistaken in its belief that it had sustained the demurrer on
substantive grounds, and that in fact the court had dismissed the claims from the
first amended complaint because Thakar had not sought leave to add those claims
before filing the amended complaint.
We cannot determine if Thakar’s assertion is correct because, as noted in
Section C., ante, the reporter’s transcript from the hearing on the Smitray
defendants’ demurrer to the first amended complaint is not included in the record
on appeal, and the court’s minute order from that hearing simply states that the
demurrer to those claims was sustained without leave to amend. In any event, we
conclude the trial court did not abuse its discretion because, based upon the record
before the trial court and this court, the claims would be barred by the statute of
limitations. (See, e.g., Yee v. Mobilehome Park Rental Review Bd. (1998) 62
Cal.App.4th 1409, 1429 [trial court properly denied leave to amend complaint to
add claims that were barred by statute of limitations].)
Like Thakar’s claim for IIED, claims for retaliation and wrongful
termination are governed by the statute of limitations governing personal injury
claims, i.e., the two-year limitation set forth in section 335.1. (Barton v. New
United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1206.) The statute
begins to run upon the termination of employment, which in this case was alleged
to be April 17, 2008. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479,
501.) Thus, even if the claims related back to the filing of the original complaint
on May 6, 2011, the claims would be time-barred.12
12
We note that Thakar did not raise equitable tolling with regard to these claims in
the trial court or in his briefs before this court. Even if he had, as discussed in Section D.,
ante, Thakar has not shown that equitable tolling would apply.
22
F. Dismissal of Interference and Conspiracy Claims
Thakar contends the trial court erred in sustaining without leave to amend
the Smitray defendants’ demurrer to the intentional interference with prospective
economic advantage and conspiracy to interfere with prospective economic
advantage claims alleged in the SAC. In making this contention in his
supplemental opening and reply briefs on appeal, Thakar does not address the
elements of these causes of action or explain how the allegations of the SAC met
those elements. Instead, he discusses the standard for ruling on a demurrer and
concludes: “Lower Court clearly did not construe Appellant’s claims liberally in
contrast to applicable standards described above.”
We could reject Thakar’s contention on the ground that he failed to provide
any legal analysis to show that the allegations of his complaint were sufficient to
state causes of action for interference with prospective economic advantage and
conspiracy. (Tilbury Constructors, Inc. v. State Comp. Ins. Fund, supra, 137
Cal.App.4th at p. 482.) Nevertheless, we will address the merits of the trial court’s
ruling.
As the Smitray defendants note in their respondents’ brief, the “elements for
intentional interference with prospective economic advantage are: (1) an
economic relationship between the plaintiff and some third party, with the
probability of future economic benefit to the plaintiff; (2) the defendant’s
knowledge of the relationship; (3) intentional acts on the part of the defendant
designed to disrupt the relationship; (4) actual disruption of the relationship; and
(5) economic harm to the plaintiff proximately caused by the acts of the
defendant.” (Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.) It appears from the
allegations of the SAC that Thakar misunderstands the elements of the cause of
action, because the SAC did not identify any existing relationship between Thakar
23
and a third party with which the Smitray individual defendants interfered, let alone
a relationship with a probability of future economic benefit. Instead, the SAC
alleged that the Smitray defendants interfered with Thakar’s attempt to rehabilitate
his medical career and thereby create a relationship with the probability of future
economic benefit.
Because Thakar did not allege, and does not appear to be able to allege, an
existing relationship with which the Smitray individual defendants purportedly
interfered, the trial court properly sustained without leave to amend the demurrer to
the interference claim. And since Thakar did not, and cannot, allege a cognizable
interference claim, the trial court properly sustained the demurrer to the claim for
conspiracy to interfere with prospective economic advantage as well. (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 [“‘“A civil
conspiracy, however atrocious, does not per se give rise to a cause of action unless
a civil wrong has been committed resulting in damage”’”].)
G. Summary Adjudication of Breach of Contract Claim
As noted, the Smitray defendants requested the following four adjudications
related to the sole claim alleged against them, for breach of contract: (1) that the
Smitray individual defendants are entitled to judgment on the grounds that they are
immune from liability for breach of the contract at issue; (2) that Thakar cannot
recover compensatory damages on his breach of contract claim; (3) that Thakar
cannot recover punitive damages; and (4) that Thakar’s damages, if he prevails, are
limited to wages and housing for the 30-day notice period set forth in the contract.
On appeal, Thakar challenges the trial court ruling in favor of the Smitray
defendants on all four adjudications, although we will address only the first
adjudication because it is dispositive with regard to the Smitray individual
defendants.
24
Thakar puts forth three arguments in support of his contention that the trial
court erred in granting the first adjudication. First, he argues there was a disputed
issue as to whether the Smitray individual defendants were parties to the contract
that was breached. Second, he argues the trial court’s ruling was inconsistent with
its prior ruling overruling the Smitray defendants’ demurrer to the breach of
contract claim. Third, he argues the court should have denied the motion under
section 437c, subdivision (h) because the Smitray defendants gave completely
evasive discovery responses.
The second and third arguments require little discussion. The second
argument fails because the overruling of a demurrer does not preclude the granting
of a summary adjudication, even on the same legal issue, since they are two
different motions. (See, e.g., Community Memorial Hospital v. County of Ventura
(1996) 50 Cal.App.4th 199, 205 [“To hold that a trial court is prevented in a
motion for summary judgment or adjudication from revisiting issues of law raised
on demurrer is to condemn the parties to trial even where the trial court’s decision
on demurrer was patently wrong”].) The third argument fails for two reasons.
First, section 437c, subdivision (h) applies only if the party opposing the summary
adjudication motion submits an affidavit indicating “that facts essential to justify
opposition may exist but cannot, for reasons stated, then be presented.” (§ 437c,
subd. (h).) The affidavit “must show: (1) the facts to be obtained are essential to
opposing the motion; (2) there is reason to believe such facts may exist; and (3) the
reasons why additional time is needed to obtain these facts.” (Wachs v. Curry
(1993) 13 Cal.App.4th 616, 623.) Thakar did not file the requisite affidavit in this
case. Second, even though Thakar did not file any affidavit meeting the
requirements of the statute, the trial court continued the original hearing on the
summary judgment motion to allow the parties to resolve the discovery disputes,
and the Smitray defendants provided substantive responses to Thakar’s discovery
25
requests before the continued hearing. Therefore, the trial court actually gave
Thakar the relief required under section 437c, subdivision (h).
Although Thakar’s first argument requires more discussion, it too fails. The
Smitray defendants contended in their summary adjudication motion that the
Smitray individual defendants were entitled to judgment on the breach of contract
claim because they were not parties to the contract and Thakar did not allege they
were alter egos of Smitray, Inc., the entity that entered into the contract.
Moreover, to the extent the breach of contract claim could be interpreted as
alleging that the individual defendants induced Smitray, Inc. to breach the contract,
they contended the individual defendants could not be held liable due to
managerial privilege. (See, e.g., Halvorsen v. Aramark Uniform Services, Inc.
(1998) 65 Cal.App.4th 1383, 1391, 1396 [manager’s actions in inducing a breach
of employment contract of at-will employee is absolutely privileged under the
manager’s privilege].) They supported their contentions by citing to the
employment agreement, which was attached as an exhibit to the complaint, and to
allegations in the third amended complaint that Dahya is a manager for the
corporate entity that employed Thakar and Patel is a “dominant owner” of the
corporation. They also submitted, as a supplement to their moving papers,
Dahya’s declaration stating that he is the vice president and corporate secretary,
and Patel is the president, of both Smitray corporate defendants, and that they
terminated Thakar’s employment due to Thakar’s decision to take a month-long
vacation with almost no notice as well as other misbehavior by Thakar during his
employment.
Thakar purported to dispute that the Smitray individual defendants were not
parties to the contract by pointing to the allegations of the complaint, which state
that he was employed by the “Smitray Defendants.” These allegations are
insufficient to raise a triable issue of fact because they are contrary to the contract,
26
which identifies “Days Inn Airport Center” as the employer and was signed by
Dahya as general manager/secretary for “Days Inn Airport Center/Smitray Inc.”
(See Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767-768
[facts appearing in exhibits attached to complaint are given precedence over
contrary allegations in complaint]; Dollinger DeAnza Associates v. Chicago Title
Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145 [“a party ‘cannot avoid
summary judgment by asserting facts based on mere speculation and conjecture,
but instead must produce admissible evidence raising a triable issue of fact’”].)
Thakar also purported to dispute that Dahya is “only” a manager of the
corporation, pointing to allegations in the second amended complaint that Dahya
and Patel also were owners of the Smitray corporate defendants that employed
him. Even if those allegations were sufficient to establish that Dahya and Patel
were owners of the corporations, that “fact” would not be sufficient to hold them
individually liable for breach of a contract signed by one of those corporations
because that “fact” does not establish that the individuals were alter egos of the
corporation. (See, e.g., Auer v. Frank (1964) 227 Cal.App.2d 396, 405-411
[ownership of corporation alone does not render individual liable for obligation
owed by corporation without evidence indicating the corporation is the owner’s
alter ego].)
This purported disputed fact also is not relevant to the Smitray individual
defendants’ contention that they could not be held liable for allegedly inducing a
breach of the employment contract. Whether an owner of an entity can be held
liable for inducing the entity to breach a contract depends upon whether the owner
was acting to protect the interests of the entity. (Wanland v. Los Gatos Lodge, Inc.
(1991) 230 Cal.App.3d 1507, 1522.) “[T]he owner of an entity enjoys a qualified
privilege to terminate a contract to which the entity is a party, provided that the
owner’s predominant purpose in inducing the breach is to further the entity’s
27
interests. [Citation.]” (Ibid.) In this case, the Smitray individual defendants
submitted evidence -- Dahya’s declaration -- that they terminated Smitray, Inc.’s
employment contract with Thakar due to Thakar’s misbehavior on the job, i.e., to
protect the interests of Smitray, Inc. Although Thakar asserts they had a different
motive for terminating the contract
-- i.e., “to sabotage his Financial, Residential, physical, emotional and
psychological wellbeing” -- he submitted no evidence sufficient to raise a disputed
issue regarding their motive. As we noted, “a party ‘cannot avoid summary
judgment by asserting facts based on mere speculation and conjecture, but instead
must produce admissible evidence raising a triable issue of fact.’” (Dollinger
DeAnza Associates v. Chicago Title Ins. Co., supra, 199 Cal.App.4th at pp. 1144-
1145; see also Arteaga v. Brink’s Inc. (2008) 163 Cal.App.4th 327, 344 [triable
issue must rest on admissible evidence].)
In short, Thakar failed to submit evidence in opposition to the Smitray
defendants’ motion for summary adjudication sufficient to raise a triable issue with
regard to the first adjudication. Therefore, the trial court properly granted the
Smitray defendants’ motion for summary adjudication with regard to that
adjudication and entered judgment in favor of the Smitray individual defendants.
H. Denial of Motion to Disqualify Conti
Thakar contends the trial court erred in denying his motion to disqualify
Conti as attorney for the Smitray defendants because the Rules of Professional
Conduct prohibit an attorney from representing clients whose interests potentially
or actually conflict without the informed written consent of each client, or where
the attorney represents a client in a matter adverse to a former client. He contends
those rules apply in this case because Conti is a defendant and is representing his
co-defendants, the Smitray defendants, and he had a prior relationship with former
28
co-defendants, the New Jersey defendants. The Smitray defendants contend
Thakar had no standing to seek Conti’s disqualification because Thakar has never
been a client of Conti’s and has never had any fiduciary or confidential relationship
with him. The Smitray defendants are correct.
Before a complaining party can bring a motion to disqualify an attorney, the
complaining party must have or have had an attorney-client relationship with that
attorney, or some sort of confidential or fiduciary relationship must exist or have
existed, and there is a threat of disclosure of the complaining party’s confidential
information. (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th
1347, 1356-1357; see also Blue Water Sunset, LLC v. Markowitz (2011) 192
Cal.App.4th 477, 485.) Thakar does not contend that he has ever had an attorney-
client relationship with Conti, or that he had any kind of confidential or fiduciary
relationship with him.
Nevertheless, relying upon language from a federal district court case and a
California appellate case, Thakar argues a party may move to disqualify an
opposing attorney “where the ethical breach is manifest and glaring and so infects
the litigation that it impacts the moving party’s interest in a just and lawful
determination of the case.” (Italics omitted.) (Citing Colyer v. Smith (C.D.Cal.
1999) 50 F.Supp.2d 966, 971-972; Kennedy v. Eldridge (2011) 201 Cal.App.4th
1197, 1203-1204.) Even if Thakar is correct, and even if it were found that Conti
breached his ethical duties by representing co-defendants without obtaining the co-
defendants’ written consent (although there is no evidence of such a breach), he
has failed to show that any alleged breach would have any impact on the just and
lawful determination of Thakar’s claims.
To the extent there is a conflict of interest arising from Conti’s
representation of both himself and the Smitray defendants, that conflict affects
only Conti and the Smitray defendants. Similarly, even if there had formerly been
29
an attorney-client or other confidential relationship between Conti and the New
Jersey defendants (although Conti stated under penalty of perjury no such
relationship ever existed), any conflict of interest that would arise from that former
representation or relationship and Conti’s representation of himself or the Smitray
defendants would affect only Conti, the Smitray defendants, and the New Jersey
defendants. In any event, any of those potential conflicts of interest could be
waived by the parties to the conflict. In other words, Thakar is not injured by the
concurrent or successive representations. Therefore, the trial court properly denied
Thakar’s motion to disqualify Conti.
DISPOSITION
The judgment in favor of Dahya and Patel is affirmed. The order
denying Thakar’s motion to disqualify Conti is affirmed. Dahya, Patel, and Conti
shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P.J.
We concur:
MANELLA, J. COLLINS, J.
30