Sadeghi v. Li CA2/8

Filed 3/6/23 Sadeghi v. Li CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
IMAN SADEGHI, B316405
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC709376)
v.
HAO LI,
Defendant and Respondent.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Lia R. Martin, Judge. Affirmed in part
and reversed in part.
Fernald Law Group, Adam P. Zaffos, Gina M. McCoy and
Brandon C. Fernald for Plaintiff and Appellant.
Law Offices of Benjamin Davidson, Benjamin Davidson,
Bartko Zankel Bunzel & Miller, Charles Griffith Towle and
Ronnie Shou for Defendant and Respondent.
_________________________
INTRODUCTION
This is appellant Dr. Iman Sadeghi’s (Sadeghi) second
appeal in this matter. Both appeals arise from events
surrounding the termination of his employment at Pinscreen, Inc.
(Pinscreen).
Sadeghi’s first appeal, Sadeghi v. Chen (Feb. 23, 2023,
B312596 [nonpub. opn.]) (Sadeghi I), was from a judgment of
dismissal after the trial court sustained a demurrer filed by
Sadeghi’s coemployees—Yen-Chun Chen (Chen), Liwen Hu, and
Han-Wei Kung. In Sadeghi I, this court reversed in part the
judgment of dismissal as to Sadeghi’s claims for battery and
intentional infliction of emotional distress. We affirmed the
judgment in all other respects.
Sadeghi’s second appeal is from a judgment of dismissal
after the trial court sustained a demurrer filed by Pinscreen and
its cofounder and chief executive officer, Dr. Hao Li (Li).
We reverse the judgment of dismissal and underlying order
sustaining the demurrer as to the causes of action for battery and
intentional infliction of emotional distress without leave to
amend. We find the sham pleading doctrine does not apply. We
also find Sadeghi’s claims for battery and intentional infliction of
emotional distress are not preempted by workers’ compensation
exclusivity. We conclude Sadeghi sufficiently pleaded his causes
of action for battery and intentional infliction of emotional
distress.
We also conclude Sadeghi’s invasion of privacy claim fails
on demurrer as does his claim for intentional interference with
contract. We thus affirm the judgment of dismissal and
underlying order sustaining the demurrer as to those causes of
action without leave to amend.
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Finally, while we find Sadeghi did not sufficiently plead his
claims for fraudulent inducement of employment contract via
intentional misrepresentation and via concealment, we conclude
the trial court abused its discretion in denying Sadeghi leave to
amend his complaint, as he adequately showed a reasonable
probability the defect can be cured via amendment. We remand
those two causes of action to the trial court so that Sadeghi can
amend them.
FACTUAL AND PROCEDURAL BACKGROUND
A. Sadeghi’s Complaint
On June 11, 2018, Sadeghi filed a 160-page complaint
against Pinscreen and Li, alleging 17 causes of action, including
fraud and deceit; assault and battery; intentional interference
with contract; invasion of privacy; and intentional infliction of
emotional distress.
The complaint alleged the following:
Sadeghi is an award-winning computer graphics engineer,
who joined Google as a software engineer in 2011 and remained
employed there for years.
In 2016, Li—the chief executive officer, cofounder, and
board member of Pinscreen—solicited Sadeghi to leave Google
and join Pinscreen’s leadership. Li “knowingly misrepresented
Pinscreen’s avatar generation capabilities . . . and concealed its
various illegal practices” from Sadeghi. Li “intended for Sadeghi
to rely on his misrepresentations” so as to “resign from Google,
and join Pinscreen, in order to gain access to Sadegh’s expertise
and experience in digital hair appearance and software
engineering.” On January 22, 2017, when Sadeghi specifically
inquired of Li, in writing, “whether the hair of the presented
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avatars had been automatically generated” by Pinscreen, Li
responded “yes.” On January 23, 2017, Sadeghi—“in reliance on
Li’s fraudulent misrepresentations”—accepted an offer to join
Pinscreen as its Vice President of Engineering. Two days later,
Sadeghi provided his resignation letter to Google.
Sadeghi’s employment at Pinscreen lasted six months—
from February 2, 2017 to August 7, 2017. Sadeghi discovered he
was “deceived” by Li, who “intentionally conceal[ed] that Li and
Pinscreen were involved in data fabrication, academic
misconduct, and unlawful practices that Sadeghi learned about
only after resigning from Google and joining Pinscreen.” Sadeghi
learned Li “would embellish Pinscreen’s technical capabilities in
scientific research submissions and then use deadline pressure to
overwork the employees to achieve his inflated claims, and if the
employees eventually failed, he would order them to fake the
deliverables.” Li discussed ways to “ ‘tweak data to get the
results we want.’ ” Li’s misconduct was “deception of the public,
fraud on company’s actual and potential investors, violation of
scientific code of conduct, and a betrayal to academics.”
On July 22, 2017, Sadeghi confronted Li, stating Pinscreen
“should be truthful to the public and scientific community.” Li,
however, dismissed Sadeghi’s objections and promised to address
Sadeghi’s concerns at a later date. On August 1, 2017, Pinscreen
misrepresented manually prepared hair avatar shapes as
automatic during its public demonstration “in front of thousands
of attendees and online viewers.” On August 6, 2017, Sadeghi
requested a meeting with Li to discuss multiple topics, and a
meeting was scheduled for the following day.
The next day, August 7, 2017, Sadeghi met with Li, who
handed him a notice of termination letter. “In retaliation for
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[Sadeghi’s] . . . whistleblowing regarding Li’s . . . unlawful
practices, Pinscreen illegally terminated Sadeghi . . . within
Sadeghi’s first working hour.” (Italics added.) Sadeghi
“requested to meet Pinscreen’s full board of directors before the
termination decision was final, to which Li responded, ‘sure.’ ”
Before Sadeghi had a chance to read the termination letter, Li
lost his temper, slammed the conference room door open, and
yelled at Sadeghi to leave the room in front of Sadeghi’s
coworkers, “in a humiliating and embarrassing manner.”
Sadeghi attempted to leave Pinscreen’s office but Li
“physically blocked the door of the office” and “demanded
Sadeghi’s work laptop” which was inside the backpack Sadeghi
was wearing. Sadeghi told Li he “intended to return the laptop
before the end of business day” after he “preserved his personal
data” from the work laptop. Sadeghi then left Pinscreen’s office
and headed towards the building elevators. Li “ordered some of
Pinscreen’s employees to follow Sadeghi.”
Li and three Pinscreen employees entered the elevator with
Sadeghi. After exiting the elevator, Sadeghi “attempted to leave
the building through the lobby” but Li and the three Pinscreen
employees “under Li’s commands,” surrounded Sadeghi,
“grabbed” him and the backpack he was wearing, “violently
restrained him, forcibly opened his backpack and took possession
of Sadeghi’s work laptop.” Sadeghi “believe[d] that without Li’s
orders, the other employees would not have participated in
committing the crime.” As a result, Sadeghi suffered injuries to
his eye and his previously dislocated shoulder, requiring medical
attention and physical therapy. He also suffered severe mental
and emotional distress.
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Sadeghi attached as an exhibit to the complaint a copy of
his employment contract and confidential information agreement
attachment (employment contract) with Pinscreen, signed
January 23, 2017. The employment contract contains a section
entitled “Company Property; Returning Company Documents”
with the following terms: Sadeghi agreed and acknowledged he
has “no expectation of privacy with respect to the Company’s
telecommunications, networking or information processing
systems . . . and that [his] activity and any files or messages on or
using any of those systems may be monitored or reviewed at any
time without notice.” (Italics added.) Sadeghi agreed that “any
property situated on the Company’s premises and owned by the
Company . . . is subject to inspection by Company personnel at
any time with or without notice.” The contract additionally
specified that “at the time of termination of the [work]
[r]elationship, [Sadeghi] will deliver to the Company (and will not
keep in [his] possession . . .) any and all devices, records, data, . . .
equipment, other documents or property . . . belonging to the
Company.”
Sadeghi alleged Li intentionally interfered with Sadeghi’s
employment contract with Google “on behalf of Pinscreen.” He
further alleged Li intentionally interfered with Sadeghi’s
employment contract with Pinscreen “based on personal motives
unrelated to his agency for Pinscreen.” Sadeghi “would not have
resigned from Google . . . if Li did not intentionally conceal that
Pinscreen and Li were involved in data fabrication . . . and other
unlawful practices.” Sadeghi was “fraudulently induced to give
up his employment at Google which income and benefits were
unsubstituted once Sadeghi was retaliated against and
wrongfully terminated from Pinscreen.” (Italics added.) “As a . . .
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result of . . . Li, willfully deceiving Sadeghi to resign from Google
and join Pinscreen, Sadeghi has lost and will continue to lose
income and benefits.” (Italics added.)
B. Sadeghi’s First Amended Complaint
On October 5, 2018, Sadeghi filed a 274-page first amended
complaint (FAC) against Pinscreen, Li, and the three Pinscreen
employees who allegedly assaulted him. The FAC included
15 causes of action, seven of which were pleaded against Li:
(1) fraudulent inducement of employee contract by intentional
misrepresentation; (2) fraudulent inducement of employment
contract by intentional concealment; (3) battery; (4) intentional
interference with contract; (5) intentional infliction of emotional
distress (IIED); (6) breach of constructive bailment; and
(7) invasion of privacy.
The FAC alleged the same facts set out in the original
complaint. It included a copy of the termination letter, which
stated Sadeghi’s last day of employment with Pinscreen is
August 7, 2017, and proposed a severance package in exchange
for a general release by Sadeghi. The letter “remind[ed]” Sadeghi
of his “continuing obligation to uphold the provisions of the
[employment contract].”
C. Demurrer to the FAC and Trial Court’s Ruling
Pinscreen and Li filed a demurrer and a motion to strike
portions of Sadeghi’s FAC. Li presented several arguments as to
why the FAC was insufficient.
At the hearing on April 11, 2019, the trial court ruled: The
FAC “contains 439 paragraphs of allegations, in 74 pages, plus
approximately 200 pages of exhibits. It includes emails, skypes,
diagrams, pictures, policies, conversations, and day-to-day
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actions of parties and non-parties.” The court struck the FAC “as
not drawn in conformity with the laws of the state and rules of
court” and for containing “irrelevant and improper material” (per
Code Civ. Proc., §§ 425.10, subd. (a)(1) & 436, subds. (a), (b)). The
court provided Sadeghi a 20-day window to file an amended
complaint in conformity with Code of Civil Procedure section
425.10.
D. Sadeghi’s Second Amended Complaint
On May 1, 2019, Sadeghi filed a second amended complaint
(SAC) which was substantially shorter in length—35 pages. The
SAC alleged 15 causes of action, six of which were against Li:
(1) fraudulent inducement of employment contract by intentional
misrepresentation; (2) fraudulent inducement of employment
contract by intentional concealment; (3) battery; (4) intentional
interference with contract; (5) invasion of privacy; and (6) IIED.
The SAC did not include the allegation that Sadeghi’s August 7,
2017 termination was stayed until after a meeting with
Pinscreen’s board of directors, per his request to Li. It, instead,
alleged that on August 7, 2017, “Pinscreen terminated Sadeghi
within his first working hour.”
Battery: Li and the three Pinscreen employees committed
battery on Sadeghi via “intentional, non-consensual, offensive,
and harmful physical contact” in that they “intentionally touched
and grabbed Sadeghi and his backpack,” “forcefully restrained
him, physically attacked him, and violently shoved him to the
ground.” The battery “did not fall within the reasonably
anticipated conditions of Sadeghi’s role as the Vice President of
Engineering at Pinscreen” and “was committed outside of
Pinscreen’s premises and outside the course and scope—and
after—Sadeghi’s employment.” The three employees “followed
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Li’s orders” and “were acting within the course and scope of their
employment” when they and Li “physically attacked [Sadeghi]
outside of Pinscreen’s premises and after [his] termination.”
(Italics added.) As a “direct, foreseeable, and proximate result of
[the] battery,” Sadeghi was harmed and suffered injuries to his
left eye and right shoulder, requiring medical attention and
physical therapy. He also sought psychotherapy and suffered
from posttraumatic stress disorder (PTSD).
Invasion of Privacy: Sadeghi had a “reasonable expectation
of privacy in his personal backpack.” Sadeghi told Li he
“intended to return the laptop before the end of business day, on
August 7, 2017, . . . after he preserved his personal data” from
the laptop. Pinscreen “had no policy prohibiting storing personal
data on one’s computer, and no such policy was ever
communicated to Sadeghi.” The three employees “followed Li’s
orders” and “were acting within the course and scope of their
employment” when they, along with Li, “forcefully intruded into
Sadeghi’s personal belongings and violated Sadeghi’s right to
privacy in a manner that is highly offensive to a reasonable
person.” They “intentionally intruded into Sadeghi’s backpack”
and “took his work laptop by force.” The invasion of privacy “did
not fall within the reasonably anticipated conditions of Sadeghi’s
role as the Vice President of Engineering at Pinscreen” and was
committed “outside Pinscreen’s premises and outside the course
and scope—and after—Sadeghi’s employment.” As a result of
this, Sadeghi suffered PTSD and severe distress, and sought
psychotherapy.
IIED: Li’s and the three employees’ “extreme and
outrageous actions caused Sadeghi to suffer severe mental and
emotional distress due to . . . being brutally battered, forcefully
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invaded, and physically injured.” Their conduct was outrageous
because they “acted intentionally and unreasonably with the
recognition that their actions are likely to cause Sadeghi mental
and emotional distress.” Sadeghi was diagnosed with PTSD as a
result of the battery and invasion of his privacy. Sadeghi’s PTSD
and physical injuries to his right shoulder “are of such
substantial and enduring quality that no reasonable person in
civilized society should be expected to endure them.” Sadeghi
sought psychotherapy as a result.
Intentional Interference with Contract: Sadeghi’s claim for
intentional interference with contract no longer alleged that Li
intentionally interfered with Sadeghi’s employment contract with
Google, nor did it allege Li’s intentional interference was on
behalf of Pinscreen. It now alleged that Li intentionally
interfered with Sadeghi’s employment contract with Pinscreen
“based in part on personal motives unrelated to his agency for
Pinscreen, and based in part for reasons that did not benefit
Pinscreen.” Li “feared Sadeghi would expose Li’s scientific
misconduct, data fabrication, fraud on investors, and performing
of work [by Li’s wife, Chen] without a proper work visa,” all of
which would cause Li to incur “most serious professional risks.”
Elsewhere in the SAC, it was alleged that each of the defendants
“were the agent, principal, employee, or alter ego of one or more
of the other defendants and acted with the other defendants’
knowledge, consent and approval.”
Fraudulent Inducement of Employment: Sadeghi’s claims
for fraudulent inducement of employment contract by intentional
misrepresentation and intentional concealment alleged the
following damages: Sadeghi was “damaged by being fraudulently
induced to give up his employment at Google . . . and thus lost
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income and benefits.” As a result of “Pinscreen, through Li,
willfully deceiving Sadeghi . . . to resign from Google and join
Pinscreen, Sadeghi lost and continues to lose income and
benefits; suffered and continues to suffer severe mental and
emotional distress; and required and continues to seek
psychotherapy . . . in an amount to be determined at trial.”
The SAC also alleged Li “refused to produce the security
camera footage of the incident during the discovery” that was
“later obtained from Pinscreen’s building security.” The SAC
included a link to the security footage.1
E. Demurrer to the SAC and the Trial Court’s Ruling
On June 5, 2019, Li and the three Pinscreen employees
jointly filed a demurrer to the SAC. The demurrer was heard on
November 21, 2019.
The court ruled: “The original complaint alleges the
retrieval [of the work laptop] occurred after Li agreed to having
the full board weigh in on the adverse action, and on the
premises. In the [FAC] he alleged that this occurred in the
building during his termination. The [SAC] alleges that it
occurred off the premises after he was terminated.” The court
cited to the “sham pleading doctrine” and reasoned that
allegations in an original pleading that rendered it vulnerable to
demurrer or other attack cannot simply be omitted without
explanation. The court referred to the fact that Li’s demurrer to
1 Pinscreen, Inc. office building security camera footage
attached to the second amended complaint:
[as of March 11, 2023], archived at
https://perma.cc/2UBH-STNC.
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the FAC argued that Sadeghi’s claims were barred under the
exclusivity of workers’ compensation. The court held Sadeghi’s
“allegations cannot be changed as to time and location [in the
SAC] to avoid Workers Compensation, without explanation.” It
sustained Li’s demurrer to the causes of action for battery,
invasion of privacy, and IIED without leave to amend.
As for the cause of action for intentional interference with
contract, the court ruled: “Representatives of contracting parties,
including corporate agents, cannot be liable for intentional or
negligent interference with their principals’ contracts, and there
is no individual-advantage exception to the rule, as it
distinguishably applies to the agent-immunity rule and
conspiracy.” It sustained Li’s demurrer to the cause of action for
intentional interference with contract without leave to amend.
The court further ruled: Sadeghi has not pleaded
“cognizable damages” as to his causes of action for fraudulent
inducement of employment contract by intentional
misrepresentation and intentional concealment. As for Li’s
argument that “he cannot be liable . . . as he was speaking on
behalf of Pinscreen; and only Pinscreen can be liable,” the trial
court disagreed and held “[w]hile employees are not liable for
certain personnel management decisions, that does not apply to
fraud.” It sustained Li’s demurrer to the causes of action for
fraudulent inducement of employment contract by intentional
misrepresentation and by intentional concealment and granted
leave to amend.
F. Sadeghi’s Third Amended Complaint
On December 6, 2019, Sadeghi filed a third amended
complaint (TAC) against Pinscreen and Li. The TAC included six
causes of action, two of which involved Li: fraudulent inducement
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of employment contract by intentional misrepresentation and
fraudulent inducement of employment contract by intentional
concealment.
Fraudulent Inducement of Employment Contract by
Intentional Misrepresentation: Li—“on his own behalf and in his
capacity as co-founder and CEO of Pinscreen”—knowingly
misrepresented Pinscreen’s avatar generation capabilities to
Sadeghi and concealed its avatar fabrication and scientific
misconduct. Li “personally directed and participated in a willful
deception of Sadeghi by intentional misrepresentation” to induce
him to resign from Google and join Pinscreen in order to gain
access to Sadeghi’s expertise in digital hair appearance and
software engineering. On January 22, 2017, while Sadeghi was
still employed at Google, Li sent a written Facebook message to
Sadeghi, confirming that the avatars’ hairs were autogenerated
by Pinscreen; this was false, as they were “manually prepared
and Li intentionally misrepresented them as autogenerated to
Sadeghi.” Li knew of the falsity of his representations “since he
was orchestrating the avatar fabrications himself” and “knew the
presented avatars were manually prepared.” After “months of
Li’s continuous solicitation,” Sadeghi resigned from Google on
January 25, 2017, and joined Pinscreen relying on Li’s fraudulent
misrepresentations. Sadeghi would not have resigned from
Google and joined Pinscreen if he knew about the intentional
misrepresentation of material facts. Because Li was also an
assistant professor of computer science at the University of
Southern California (USC), the allegations of data fabrication
against him would have grave consequences as he violated “core
ethical commitments of his profession” and would incur “most
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serious professional risks.” Sadeghi reasonably relied on Li’s
misrepresentations because of Li’s professor position at USC.
“Sadeghi’s damages of his lost Google income and benefits
started after February 1, 2017 when he was fraudulently induced
to leave Google and were temporarily substituted by his Pinscreen
income and benefits from February 2, 2017 to August 7, 2017.
Sadeghi’s damages of his lost Google income and benefits
pertaining to after August 7, 2017 are unsubstituted.” (Italics
added.) He also suffered from mental and emotional distress and
sought psychotherapy.
Fraudulent Inducement of Employment Contract by
Intentional Concealment: “Pinscreen, through Li on his own
behalf and as in his capacity as the CEO of Pinscreen,
intentionally concealed Pinscreen’s avatar fabrication, fraud on
investors, scientific misconduct, [and] public deception” from
Sadeghi and induced him to resign from Google and join
Pinscreen. “Li, on behalf of Pinscreen, as its co-founder and CEO,
personally directed and participated in a willful deception of
Sadeghi by intentional concealments” in order to induce his
resignation from Google and to gain access to Sadeghi’s expertise
in digital hair appearance. Li intentionally concealed that the
avatars he presented to Sadeghi on January 22, 2017 were
manually prepared. Li also intentionally concealed that
Pinscreen was involved in scientific misconduct, public deception
through publicly presenting fabricated avatars, and fraud on its
investors and prospective investors. Sadeghi did not know about
Li’s concealments until after joining Pinscreen and would not
have resigned from Google had Li not concealed these material
facts. “Li, on behalf of Pinscreen, had a duty to disclose
Pinscreen’s transgressions to Sadeghi” and breached said duty
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and actively concealed Pinscreen’s avatar fabrication. Li’s duty
arose from the relationship between employer Pinscreen and
prospective employee Sadeghi, entering into an employment
contract. Li knew of and had an active role in Pinscreen’s
transgressions; his concealments were done “on his own behalf
and as in his capacity as co-founder and CEO of Pinscreen.”
Sadeghi was “damaged by being fraudulently induced to
give up his employment at Google by intentional concealment and
thus lost income and benefits he had been earning at Google.”
His “lost Google income and benefits started after February 1,
2017 when he was fraudulently induced to leave Google and were
temporarily substituted by his Pinscreen income and benefits
from February 2, 2017 to August 7, 2017. Sadeghi’s damages of
his lost Google income and benefits pertaining to after August 7,
2017 are unsubstituted.” (Italics added.)
G. Demurrer to the TAC and the Trial Court’s Ruling
On February 7, 2020, Li and Pinscreen filed a demurrer to
the TAC. On October 2, 2020, the trial court heard oral
argument and sustained the demurrer as to both causes of action
and denied Sadeghi leave to amend.
The court ruled: “The prior demurrer to these causes of
action were sustained . . . for the failure to state cognizable
damages.” The court recited the damages allegations in the TAC
and found it “is merely another way of stating his previous
allegations, that his damages were caused by his termination
from Pinscreen, not by leaving employment with Google.” The
court cited to case law for the principle that “damages for a
fraudulent inducement to change employment are caused when
the new employment is for less compensation than promised
and/or less than obtained from the prior employer,” and held the
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TAC does not allege as such. The TAC alleged that Sadeghi “lost
his compensation when he was terminated from Pinscreen after
complaining of activities engaged in by Pinscreen, not when he
left Google.” The court denied leave to amend because “none of
the four versions of the complaint has [Sadeghi] alleged that his
compensation at Google was greater than his compensation at
Pinscreen as a basis for the fraud claims, or that he was misled
as to the compensation he would receive from Pinscreen.”
On September 8, 2021, the trial court entered dismissal of
the action with prejudice as to Li, as there were no causes of
action remaining against him.
This appeal followed.
DISCUSSION
Sadeghi argues the trial court committed prejudicial error
by sustaining (1) the demurrer to the SAC without leave to
amend as to the claims for battery, invasion of privacy, IIED, and
interference with contract; and (2) the demurrer to the TAC
without leave to amend as to the claims for fraudulent
inducement of employment contract via intentional
misrepresentation and intentional concealment. He contends the
SAC and TAC alleged facts sufficient to support the respective
claims and argues the workers’ compensation exclusivity rule
does not bar his claims.
A. Standard of Review
“In reviewing a judgment of dismissal after a demurrer is
sustained without leave to amend, we assume the truth of all
properly pleaded facts. We examine the complaint’s factual
allegations to determine whether they state a cause of action on
any available legal theory regardless of the label attached to a
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cause of action. [Citation.] We do not assume the truth of
contentions, deductions, or conclusions of fact or law, and may
disregard allegations that are contrary to the law or to a fact that
may be judicially noticed.” (Fischer v. Time Warner Cable Inc.
(2015) 234 Cal.App.4th 784, 790.) We review de novo a trial
court’s ruling on a demurrer and examine the operative
complaint to determine whether it alleges facts sufficient to state
a cause of action under any legal theory. (King v. CompPartners,
Inc. (2018) 5 Cal.5th 1039, 1046 (King); Dudek v. Dudek (2019)
34 Cal.App.5th 154, 163 (Dudek).) “We will affirm an order
sustaining a demurrer on any proper legal ground whether or not
the trial court relied on that theory or it was raised by the
defendant.” (Fischer, at p. 790.)
In addition, “ ‘[w]hen a demurrer is sustained without leave
to amend, “we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.” ’ ” (Dudek, supra,
34 Cal.App.5th at p. 163, italics added.) Here, Sadeghi shoulders
the burden to show a reasonable possibility the operative
complaint can be amended to state a cause of action. (Id. at
pp. 163–164; King, supra, 5 Cal.5th at p. 1050.) He can make
this showing in the first instance to the appellate court. (Roman
v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.)
B. Applicable Law
As mentioned, this is the second appeal in this matter. We
incorporate by reference the applicable law cited to and
summarized in the companion appeal, Sadeghi I, as to
demurrers, workers’ compensation exclusivity, and the sham
pleading doctrine.
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C. The Sham Pleading Doctrine Does Not Apply
Mirroring the arguments made by the three Pinscreen
employees in Sadeghi I, Li argues the SAC omitted or altered
certain relevant allegations that were pleaded in the original
complaint and the FAC as to the battery claim. He contends
Sadeghi shifted the timing and location of the alleged battery to
avoid application of the exclusive remedy rule of workers’
compensation.
We disagree, for the same reasons provided in Sadeghi I,
and we incorporate by reference and adopt our analysis from
Sadeghi I. We are not persuaded that the sham pleading
doctrine should or must be applied.
D. The Trial Court Erred in Sustaining the Demurrer to the
Battery Cause of Action
1. Workers’ Compensation Exclusivity Does Not Bar the
Battery Claim
We again incorporate by reference and adopt our analysis
from Sadeghi I, and add the following:
“An employer’s intentional misconduct in connection with
actions that are a normal part of the employment relationship,
such as demotions and criticism of work practices, resulting in
emotional injury is considered to be encompassed within the
compensation bargain, even if the misconduct could be
characterized as ‘manifestly unfair, outrageous, harassment, or
intended to cause emotional disturbance.’ [Citation.] Workers’
compensation ordinarily provides the exclusive remedy for such
an injury.” (Singh v. Southland Stone, U.S.A., Inc. (2010)
186 Cal.App.4th 338, 367 (Singh); see also Miklosy v. Regents of
University of California (2008) 44 Cal.4th 876, 902.)
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However, there are “certain types of intentional employer
conduct which bring the employer beyond the boundaries of the
compensation bargain, for which a civil action may be brought.”
(Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 713–714 (Fermino).)
Conduct in which an employer steps out of its “ ‘proper role’ ” as
an employer or conduct of “ ‘questionable relationship to the
employment,’ ” “however, . . . is not encompassed within the
compensation bargain and is not subject to the exclusivity rule.”
(Id. at pp. 713, 717–718, 722–723; Singh, supra, 186 Cal.App.4th
at p. 367; see Shoemaker v. Myers (1990) 52 Cal.3d 1, 16
(Shoemaker).) Labor Code2 section 3602, subdivision (b)(1)
provides that an employee may bring an action at law for
damages against the employer, as if the workers’ compensation
exclusivity rule did not apply, where “the employee’s injury . . . is
proximately caused by a willful physical assault by the
employer.”
The SAC alleged facts that sufficiently meet the exception
set forth in section 3602, subdivision (b)(1). Li—chief executive
officer, cofounder, board member of Pinscreen, and the person
who solicited and hired Sadeghi on behalf of Pinscreen—
“forcefully restrained him, physically attacked him, and violently
shoved him to the ground.” This attack was “intentional” and not
consented to by Sadeghi. As a result of this attack, Sadeghi was
harmed and suffered injuries to his left eye and right shoulder,
requiring medical attention and physical therapy. Workers’
compensation exclusivity rule does not bar tort remedies
resulting from intentional acts that fall outside the risks
encompassed within the compensation bargain; this is an
2 Undesignated statutory references are to the Labor Code.
19
example of conduct where the employer stepped out of its proper
role. (See Fermino, supra, 7 Cal.4th at pp. 713–714.) Requesting
Sadeghi’s work laptop after providing notice of termination is
understandable; but to follow Sadeghi and surround, restrain,
and physically attack him in an effort to retrieve his work laptop
(and instruct three Pinscreen employees to do the same) is not a
scenario that falls within a normal part of the employment
relationship, and a civil action lies against the employer if the
employee’s injury was caused by the employer’s willful physical
assault. (§ 3602, subd. (b)(1); see Gunnell v. Metrocolor
Laboratories, Inc. (2001) 92 Cal.App.4th 710, 723–728; Fretland
v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1486–1489
(Fretland).) Li’s physical attack on Sadeghi falls within “those
classes of intentional employer crimes against the employee’s
person by means of violence and coercion . . . [which] violate the
employee’s reasonable expectations and transgress the limits of
the compensation bargain.” (Fermino, at p. 723, fn. 7.)
Additionally, the allegations of the SAC confirm Sadeghi’s
injury was proximately caused by the “willful” physical act of
aggression of Li (and the other three employees). (§ 3602,
subd. (b)(1).) Li argues Sadeghi did not allege a “willful intent to
injure” in his SAC. We disagree. The SAC provides Li
“intentionally touched and grabbed Sadeghi and his backpack,”
“forcefully restrained him, physically attacked him, and violently
shoved him to the ground.” In situations where one commits
violent, injurious acts against an employee, the trier of fact could
reasonably infer an intent to injure to take the actions outside
the exclusivity rule’s protection. (See Torres v. Parkhouse Tire
Service, Inc. (2001) 26 Cal.4th 995, 1009 (Torres).) The
information alleged amounts to “conduct intended to convey an
20
actual, present, and apparent threat of bodily injury.” (Id., at
p. 1005.)
The allegations in the SAC adequately met the section
3602, subdivision (b) exception to workers’ compensation
exclusivity.
We also address another exception applicable here.
Section 3601, subdivision (a)(1) provides that workers’
compensation exclusivity does not apply in cases where “the
injury or death is proximately caused by the willful and
unprovoked physical act of aggression of the other employee.” If
an employee brings a lawsuit against a coemployee based on the
exception set forth in section 3601, subdivision (a)(1), the
employer is generally not held liable, directly or indirectly, for
damages awarded against, or for a liability incurred by the other
employee. (Torres, supra, 26 Cal.4th at pp. 1001–1002; Fretland,
supra, 69 Cal.App.4th at pp. 1486–1489 [employee may not
invoke respondeat superior to bring civil action against employer
for assault by coemployee].) However, if an employee has been
assaulted by a coemployee, the injured employee may sue the
employer if the employer ratified the assault and/or did nothing
to discipline the assaulting employee. (Hart v. National Mortgage
& Land Co. (1987) 189 Cal.App.3d 1420, 1432 (Hart).)
Where the employer ratifies the assailant’s conduct, the
exclusivity doctrine does not apply. (Hart, supra, 189 Cal.App.3d
at p. 1432; see also Civ. Code, § 2307 [“An agency may be created,
and an authority may be conferred, by a precedent authorization
or a subsequent ratification”].) “Ratification is the voluntary
election by a person to adopt in some manner as his own an act
which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if
21
originally authorized by him. [Citations.] [¶] A purported agent’s
act may be adopted expressly or it may be adopted by implication
based on conduct of the purported principal from which an
intention to consent to or adopt the act may be fairly inferred,
including conduct which is ‘inconsistent with any reasonable
intention on his part, other than that he intended approving and
adopting it.’ ” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73,
italics added.) “[A]n agent’s originally unauthorized act may be
ratified by implication where the only reasonable interpretation
of the principal’s conduct is consistent with approval or adoption.
[Citation.] For example, an employer’s failure to discharge an
employee after learning of the employee’s misconduct may be
evidence of ratification.” (Allied Mutual Ins. Co. v. Webb (2001)
91 Cal.App.4th 1190, 1194.) “The theory of ratification is
generally applied where an employer fails to investigate or
respond to charges that an employee committed an intentional
tort, such as assault or battery. [Citations.] Whether an
employer has ratified an employee’s conduct is generally a factual
question.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169–
170.)
In Sadeghi I, we found that the section 3601, subdivision
(a)(1) exception applied because the three coemployees’ physical
attack of Sadeghi qualified as a willful and unprovoked physical
act of aggression. We further find Sadeghi’s allegation of
ratification is sufficient to show Li intended and approved or
adopted the three coemployees’ actions. First, the SAC states
that the three employees “followed Li’s orders” when they
“physically attacked” Sadeghi. Second, there is no allegation that
Li did anything to prevent the battery or interfere with the
altercation, despite the fact that he was present. In fact, the
22
allegations provide that Li also physically restrained and
attacked Sadeghi along with the three employees.
Thus, because Li intended and approved or adopted the
three employees’ actions—and, in fact, joined in on the physical
attack of Sadeghi—he “ratified” the physical attack.
The workers’ compensation exclusivity does not apply to
preempt Sadeghi’s battery claim.
2. The SAC Alleged Sufficient Facts to Constitute
Battery
The elements of a cause of action for civil battery are:
“(1) defendant intentionally performed an act that resulted in a
harmful or offensive contact with the plaintiff’s person;
(2) plaintiff did not consent to the contact; and (3) the harmful or
offensive contact caused injury, damage, loss or harm to
plaintiff.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516,
526–527.)
The pleading alleges a harmful or offensive physical contact
by Li grabbing Sadeghi and his backpack, forcefully restraining
him, physically attacking him, and violently shoving him to the
ground. Sadeghi alleged the contact was intentional and “non-
consensual.” He also alleged he was harmed by the altercation
and suffered injuries to his left eye and right shoulder, requiring
medical attention and physical therapy. He sought
psychotherapy and suffered from PTSD.
Based on the foregoing, the demurrer to the SAC’s battery
claim should have been overruled.
23
E. The Trial Court Properly Sustained the Demurrer to the
Invasion of Privacy Cause of Action
We incorporate by reference and adopt our analysis from
Sadeghi I, which applies here verbatim. We, again, find workers’
compensation exclusivity does not bar Sadeghi’s claim. We
further find Sadeghi has not adequately alleged that he had an
objectively reasonable expectation of privacy in the contents of
the work laptop. Thus, Sadeghi did not adequately plead facts to
state an invasion of privacy claim and fails on demurrer.
F. The Trial Court Erred in Sustaining the Demurrer to the
IIED Cause of Action
We note that because we concluded Sadeghi did not plead
sufficient facts to establish invasion of privacy, his cause of action
for emotional distress fails to the extent it is tethered to the
invasion of privacy claim. We address his IIED claim as a
derivative of the battery claim.
We incorporate by reference and adopt our analysis from
Sadeghi I, which applies here. We, again, find that workers’
compensation exclusivity does not bar Sadeghi’s IIED claim. We
also find the elements of IIED are adequately pleaded in the
SAC. Accepting the SAC’s allegations as true, the SAC
sufficiently states a cause of action for IIED against Li.
G. The Trial Court Properly Sustained the Demurrer to the
Intentional Interference with Contract Cause of Action
California recognizes a cause of action against
noncontracting parties who interfere with the performance of a
contract. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd.
(1994) 7 Cal.4th 503, 513 (Applied Equip.).) “[A] stranger to a
contract may be liable in tort for intentionally interfering with
24
the performance of the contract.” (Pacific Gas & Electric Co. v.
Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) The elements
necessary to state a cause of action for intentional interference
with contractual relations are: (1) a valid contract between
plaintiff and a third party; (2) defendant’s knowledge of this
contract; (3) defendant’s intentional acts designed to induce a
breach or disruption of the contractual relationship; (4) actual
breach or disruption of the contractual relationship; and
(5) resulting damage. (Mintz v. Blue Cross of California (2009)
172 Cal.App.4th 1594, 1603 (Mintz).)
It is settled that “corporate agents and employees acting for
and on behalf of a corporation cannot be held liable for inducing a
breach of the corporation’s contract.” (Shoemaker, supra,
52 Cal.3d at pp. 24–25 [where the defendants were agents of the
employer who were “vested with the power to act for the
employer (rightly or wrongly),” they “stand in the place of the
employer, because the employer . . . cannot act except through
such agents”]; cf. Applied Equip., supra, 7 Cal.4th at p. 512, fn. 4
[under “agent’s immunity rule,” agents and/or employees of a
corporation “ ‘cannot conspire with their corporate principal or
employer where they act in their official capacities on behalf of
the corporation and not as individuals for their individual
advantage’ ”; this rule “ ‘derives from the principle that ordinarily
corporate agents and employees acting for or on behalf of the
corporation cannot be held liable for inducing a breach of the
corporation’s contract’ ”].)
Sadeghi argues on appeal that Li is not automatically
immune from liability for interfering with Sadeghi’s employment
contract with Pinscreen. He argues the “issue is not so clear cut”
as the trial court made it out to be, and the agent’s immunity rule
25
does not apply because Li had “ownership or control interests” in
the company whose contract is at issue.
Sadeghi primarily relies on and cites to three cases, two of
which are depublished and not citeable. The rule relied upon by
two of the cases, Rosenfeld, Meyer & Susman v. Cohen (1983)
146 Cal.App.3d 200 and Shapoff v. Scull (1990) 222 Cal.App.3d
1457, was rejected by our Supreme Court in Applied Equip. as it
“illogically expands the doctrine of civil conspiracy by imposing
tort liability for an alleged wrong—interference with a contract—
that the purported tortfeasor is legally incapable of committing”
and “obliterates vital and established distinctions between
contract and tort theories of liability . . . .” (Applied Equip.,
supra, 7 Cal.4th at pp. 510–511, 513–514, 521, fn. 10.)
The third case Sadeghi relies on, Woods v. Fox
Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344 (Woods), is
inapposite as it did not involve an agent acting for and on behalf
of a contracting principal. The court expressly acknowledged the
rule that “corporate agents could not be liable for inducing their
employer to breach a contract.” (Id. at p. 352.) The court in
Woods permitted a claim for inducing a breach of contract against
a shareholder who “allegedly interfere[d] in a contract between
the corporation whose shares it owns and some other person or
entity.” (Id. at p. 353.) Woods distinguished the shareholder-
defendant from an agent-defendant and found the shareholder in
that case was not a contracting party nor its agent. (Ibid.)
The allegations in the SAC do not provide that Li was a
mere shareholder like the defendant in Woods. Instead, the SAC
alleges Li was the chief executive officer, cofounder, and board
member of Pinscreen. The SAC also alleges Li, was “the agent,
principal, employee, or alter ego” of Pinscreen and “acted with the
26
other defendants’ knowledge, consent, and approval.” Because
the representative of a contracting party may not be held liable
for the tort of interfering with its principal’s contract, Sadeghi
cannot state a cause of action against Li for intentional
interference with contract rights. (Mintz, supra, 172 Cal.App.4th
at p. 1607.)
H. The Trial Court Properly Sustained the Demurrer to the
Causes of Action for Fraudulent Inducement of Employment
Contract by Intentional Misrepresentation and by
Concealment
Claims for fraudulent inducement of employment contract
based on intentional misrepresentation vs. intentional
concealment derive from a similar set of elements. “The elements
of a cause of action for fraudulent inducement to an employment
contract are (1) that the employer misrepresented or concealed a
material fact during the hiring process, (2) knowledge of the
falsity of the fact or lack of reasonable grounds for believing it to
be true, (3) an intent to induce reliance, (4) justifiable reliance by
the employee, and (5) resulting damages.” (Garamendi v. Golden
Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 470, italics added.)
Only the first element differs, in that plaintiff must show that
defendant made a false representation, rather than concealed or
suppressed a material fact.
“Fraud must be pleaded with specificity, to provide the
defendants with the fullest possible details of the charge so they
are able to prepare a defense to this serious attack. To withstand
a demurrer, the facts constituting every element of the fraud
must be alleged with particularity, and the claim cannot be
salvaged by references to the general policy favoring the liberal
27
construction of pleadings.” (Goldrich v. Natural Y Surgical
Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)
Sadeghi argues the TAC alleged sufficient facts to state a
cause of action as to both fraudulent inducement claims. We
analyze the TAC to determine whether it has pleaded sufficient
factual allegations to meet the elements of the two fraud claims.
1. Misrepresentation and Concealment of Material Fact
Fraudulent inducement of employment contract by
intentional misrepresentation, or promissory fraud, is a
subspecies of the action for fraud and deceit. Lazar v. Superior
Court (1996) 12 Cal.4th 631, 638 (Lazar).) An action for
promissory fraud may lie where a defendant fraudulently induces
the plaintiff to enter into a contract. (Ibid.)
Here, Sadeghi alleged in the TAC that Li, “on his own
behalf and as in his capacity as co-founder and CEO of
Pinscreen,” intentionally misrepresented Pinscreen’s avatar
generation capabilities to him and concealed its avatar
fabrication and scientific misconduct. Li “intentionally concealed
Pinscreen’s avatar fabrication, fraud on investors, scientific
misconduct, [and] public deception” from Sadeghi. Li made
misrepresentations and concealed material facts to induce
Sadeghi to resign from Google and join Pinscreen.
The particularity requirement necessitates pleading facts
which show how, when, where, to whom, and by what means the
representations were tendered. (Lazar, supra, 12 Cal.4th at
p. 645.) In the TAC, Sadeghi alleged that on January 22, 2017,
Li sent a written Facebook message to Sadeghi (who was still
employed at Google), confirming that the avatars’ hairs were
autogenerated by Pinscreen; this was false, as they were
“manually prepared” and Li “misrepresented” them as
28
“autogenerated” to Sadeghi. The next day, on January 23, 2017,
Sadeghi accepted the offer to join Pinscreen.
Sadeghi also alleged the same example in the concealment
context. The TAC included allegations that Li intentionally
concealed that the avatars he presented to Sadeghi on January
22, 2017 were manually prepared. Li also intentionally concealed
that Pinscreen was involved in scientific misconduct, public
deception through publicly presenting fabricated avatars, and
fraud on its investors and prospective investors.
In determining whether Li concealed or suppressed a
material fact, we must also determine whether Li was under a
duty to disclose that fact to Sadeghi. (See Burch v. CertainTeed
Corp. (2019) 34 Cal.App.5th 341, 348.) With respect to
concealment, there are four circumstances in which nondisclosure
or concealment may constitute actionable fraud: (1) when the
defendant is in a fiduciary relationship with the plaintiff;
(2) when the defendant had exclusive knowledge of material facts
not known to the plaintiff; (3) when the defendant actively
conceals a material fact from the plaintiff; and (4) when the
defendant makes partial representations but also suppresses
some material facts. (Id. at p. 349.) We find the third instance
was sufficiently pleaded. The TAC alleged: “Li, on behalf of
Pinscreen, had a duty to disclose Pinscreen’s transgressions to
Sadeghi” and breached said duty and actively concealed
Pinscreen’s avatar fabrication—a material fact. Li’s duty arose
from the relationship between employer Pinscreen and
prospective employee Sadeghi, entering into an employment
contract.
29
Li argues the pleading reflects that Sadeghi’s termination
was caused by the alleged whistleblowing and not by any
fraudulent inducement by Li occurring six months prior. Not so.
Here, Li’s alleged misrepresentation as to Pinscreen’s
autogeneration of avatars via the Facebook communication was
not made in the course of Sadeghi’s termination, but rather, is
separate from his termination. The misrepresentation Sadeghi
alleges was not intended to effect his termination at Google but
was intended to induce him to accept an offer of employment at
Pinscreen. In fact, the TAC alleged that the day after receiving
the misrepresented information that Pinscreen autogenerated
the avatars’ hair or concealed the material fact that the avatars’
hair was fabricated and manually prepared, Sadeghi accepted the
offer of employment at Pinscreen. Misrepresentation not
intended to effect termination of employment, but instead
designed to induce the employee to alter detrimentally his or her
position in some other respect, such as resigning from their place
of employment to accept employment with a different employer,
might form a basis for a valid fraud claim even in the context of a
wrongful termination. (Lazar, supra, 12 Cal.4th at p. 640.)
Fraud recovery is precluded “only where ‘the result of [the
employer]’s misrepresentation is indistinguishable from an
ordinary constructive wrongful termination.’ ” (Id. at p. 643.)
2. Knowledge of Falsity
The TAC alleged Li’s misrepresentation and concealment of
Pinscreen’s avatar fabrication was knowingly done. Li knew of
the falsity of his representations “since he was orchestrating the
avatar fabrications himself” and “knew the presented avatars
were manually prepared.” Li knew of and had an active role in
Pinscreen’s transgressions; his concealments were done “on his
30
own behalf and as in his capacity as co-founder and CEO of
Pinscreen.” This is sufficient.
3. Intent to Induce Reliance
The TAC alleged Li “personally directed and participated in
a willful deception of Sadeghi” to induce him to resign from
Google and join Pinscreen in order to gain access to Sadeghi’s
expertise in digital hair appearance and software engineering.
This is sufficient.
4. Justifiable Reliance by Sadeghi
The TAC alleged that after “months of Li’s continuous
solicitations,” Sadeghi resigned from Google on January 25, 2017,
and joined Pinscreen relying on Li’s fraudulent
misrepresentations. He would not have resigned from Google
and joined Pinscreen if he knew about Li’s concealments and
misrepresentation of material facts. He further believed Li’s
representations because Li was an assistant professor of
computer science at USC, and any allegation of data fabrication
would have had grave consequences for Li because of the “core
ethical commitments of his profession.” This is sufficient.
5. Resulting Damages
“ ‘Fraud actions are subject to strict requirements of
particularity in pleading.’ ” (Furia v. Helm (2003)
111 Cal.App.4th 945, 956 (Furia).) Fraud, without damages, is
not actionable because it fails to state a cause of action. (Ibid.)
Future lost income is recoverable on a promissory fraud
theory if the damages are not speculative or remote. (Helmer v.
Bingham Toyota Isuzu (2005) 129 Cal.App.4th 1121, 1130.)
Damages may properly be considered as part of the “benefit of the
31
bargain.” (Id. at p. 1130.) When an employer made a false
promise to induce an act by an employee who otherwise would
have stayed in his former job, the employer “bargained” to obtain
an employee who already had steady employment with another
company; it is only fair to compensate the employee for the
damages he suffered as a result of leaving that steady
employment. (Id. at pp. 1130–1131.) In addition, “a fraudulently
hired employee . . . may incur a variety of damages ‘separate from
the termination’ itself, such as the expense and disruption of
moving or loss of security and income associated with former
employment.” (Lazar, supra, 12 Cal.4th at p. 646.)
The TAC alleged Sadeghi’s “damages of his lost Google
income and benefits started after February 1, 2017 when he was
fraudulently induced to leave Google and were temporarily
substituted by his Pinscreen income and benefits from February
2, 2017 to August 7, 2017.” (Italics added.) Sadeghi was
“damaged by being fraudulently induced to give up his
employment at Google by intentional concealment and thus lost
income and benefits he had been earning at Google.” “Sadeghi’s
damages of his lost Google income and benefits pertaining to
after August 7, 2017 are unsubstituted.” (Italics added.)
Sadeghi failed to sufficiently plead that as a result of
resigning from Google and beginning employment at Pinscreen,
he suffered damages in the form of future lost income. Nowhere
in the TAC did Sadeghi allege he earned more at Google than the
amount of income/salary he received from Pinscreen. The
phrasing that his lost Google income/benefits were “temporarily
substituted” from February 2, 2017 to August 7, 2017, and
“unsubstituted” after August 7, 2017 is confusing and does not
32
meet the strict requirements of particularity necessary for fraud
actions. (Furia, supra, 111 Cal.App.4th at p. 956.)
That Sadeghi’s wrongful termination is also mentioned
within the fraud allegations is irrelevant, as the damages
Sadeghi alleged arose from fraudulent inducement to resign from
his current employment and accept a position at new place of
employment, Pinscreen. The damages Sadeghi alleged do not
result from the termination itself, but from Li’s
misrepresentations via Facebook that caused Sadeghi to resign
from Google and accept a position at Pinscreen—
misrepresentations which allegedly came to light after Sadeghi
began working at Pinscreen. Moreover, absent Li’s
misrepresentations, Li/Pinscreen would not have been in the
position to terminate Sadeghi because Sadeghi would not have
resigned from Google and consented to the employment contract
with Pinscreen in the first place.
The TAC did not sufficiently allege the damages element
with the requisite particularity needed. For this reason,
Sadeghi’s claims for fraudulent inducement of contract via
misrepresentation and concealment fails.
I. Leave to Amend
As we are reversing as to the battery and IIED claims, the
only claims remaining to be amended are the causes of action for
invasion of privacy, intentional interference with contract,
fraudulent inducement of employment contract via intentional
misrepresentation and intentional concealment.
33
Code of Civil Procedure section 430.41, subdivision (e)(1)
provides that a complaint “shall not be amended more than three
times, absent an offer to the trial court as to such additional facts
to be pleaded that there is a reasonable possibility the defect can
be cured to state a cause of action. The three-amendment limit
shall not include an amendment made without leave of the
court.” (Ibid., italics added.) Generally, leave to amend is
warranted when the complaint is in some way defective, but
plaintiff has shown in what manner the complaint can be
amended and “ ‘how that amendment will change the legal effect
of [the] pleading.’ ” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.) Sadeghi shoulders the burden to show a reasonable
possibility the defect can be cured by amendment; if it can, the
trial court abused its discretion in sustaining the demurrer
without leave to amend. (Dudek, supra, 34 Cal.App.5th at
pp. 163–164.)
Sadeghi has not proposed an amendment that would cure
the defects as to the claims for invasion of privacy and intentional
interference with contract. The issue is forfeited as to those
claims. (Ewald v. Nationstar Mortgage, LLC (2017)
13 Cal.App.5th 947, 948; Nielsen v. Gibson (2009)
178 Cal.App.4th 318, 324.) However, Sadeghi has in fact
proposed an amendment that would cure the defect as to the
TAC’s claims for fraudulent inducement to an employment
contracted via intentional misrepresentation and intentional
concealment.
34
In his September 21, 2020 opposition to Li’s demurrer to
the TAC, Sadeghi explained to the trial court that the “issue
appears to be with Sadeghi’s use of the terms ‘unsubstituted’ and
‘temporarily substituted’ in his pleadings” and admitted that “the
more accurate allegation is that Sadeghi’s Google earnings were
‘temporarily partially substituted’ by his Pinscreen earnings.”
Sadeghi then specified his “average earnings from Google was
around $23,819/month while his average earnings from Pinscreen
was around $15,183/month resulting in damages of $8,636/month
in lost earnings immediately after leaving Google.” He concluded
that he “incurred at least $53,543 in monetary damages before
his wrongful termination as a result of his fraudulent
inducement.” He requested that he be given leave to amend the
TAC so that these “specific monetary amounts . . . can be added
in [as] an amendment.”
He repeats this argument on appeal and argues the trial
court abused its discretion by not allowing him to amend its
complaint to allege that his compensation at Google was greater
than his compensation at Pinscreen.
We are persuaded. He has adequately shown a reasonable
probability the defect can be cured via amendment. The trial
court’s finding otherwise amounted to an abuse of discretion.
(Dudek, supra, 34 Cal.App.5th at p. 163.) Sadeghi is entitled to
another opportunity to amend these causes of action.
35
DISPOSITION
We reverse the judgment of dismissal and underlying order
as to causes of action for battery and intentional infliction of
emotional distress. We conclude Sadeghi sufficiently pleaded his
causes of action for battery and intentional infliction of emotional
distress.
We conclude the trial court abused its discretion in denying
Sadeghi leave to amend his causes of action for fraudulent
inducement of employment contract via intentional
misrepresentation and via intentional concealment and direct the
trial court on remand to permit Sadeghi to file an amended
complaint as to these two causes of action.
In all other respects, we affirm.
Appellant Sadeghi shall recover costs incurred on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
36