Silver v. Cast & Crew Production etc. CA2/2

Filed 1/29/21 Silver v. Cast & Crew Production etc. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
CHRISTIAN SILVER, B303863
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19VECV00942)
v.
CAST & CREW PRODUCTION
PAYROLL INC., et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Shirley K. Watkins, Judge. Affirmed.
Christian Silver, in pro. per., for Plaintiff and Appellant.
Kutak Rock and Saundra K. Wootton for Defendants and
Respondents.
_______________________
Christian Silver (Silver), a tax objector, appeals from the
judgment of dismissal in his action seeking to hold Cast & Crew
Production Payroll, Inc., Cast & Crew Production Services, New
Caps LLC, Cast & Crew Entertainment Company, and Talent
Acquisitions, LLC (collectively respondents) liable for
withholding taxes from his paychecks in compliance with
instructions from the Internal Revenue Service (IRS) and
California’s Franchise Tax Board (FTB). He contends that when
the trial court sustained the respondents’ demurrer without leave
to amend, it erroneously determined that they committed no
wrongful acts and, at least in part, were statutorily immune from
liability. We find no error and affirm.
FACTS
The Complaint
The complaint alleged causes of action for (1) negligent
misrepresentation, (2) breach of fiduciary duty, (3) breach of the
standard of care, (4) duress and defamation, (5) violation of
personal rights (Code Civ. Proc., § 52.1), (6) restoration of
property (Civ. Code, § 1712), (7) failure to pay wages (Lab. Code,
§ 218) and waiting time penalties (Lab. Code § 203), and
(8) violation of the right of privacy.
Per the complaint:
Silver works as a studio grip in the film and television
industry and is employed by production companies. He earns
hourly wages, which are paid through the payroll service
provided by respondents. In his withholding allowance
certificate, Silver stated that he was exempt from withholding.
The IRS sent respondents a LTR 2800C, commonly known as a
lock-in letter, and ordered them to withhold Silver’s taxes at the
withholding rate of a single person and with a withholding
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allowance of zero. In addition, the IRS sent respondents a letter
titled “Notice of Levy on Wages, Salary, and Other Income”
(Levy). Separately, the FTB sent them a letter titled “Personal
Income Tax Earnings Withholding Order for Taxes” (Withholding
Order). (Italics omitted.) The lock-in letter, the Levy and the
Withholding Order, which were attached as exhibits to the
complaint, indicated that Silver owed, respectively, $35,828.62
and $34,189.54 in federal and state taxes with respect to unpaid
assessments from 2006 and 2007. Respondents wrongfully
complied with the directions set forth in the lock-in letter, the
Levy and the Withholding Order to withhold money from Silver’s
paychecks.
The Demurrer; The Ruling
Respondents demurred and argued, inter alia: they are
statutorily immune from liability for their lawful compliance with
federal and state orders requiring garnishment of Silver’s wages
to remedy a tax debt pursuant to title 26 United States Code
section 6332(e) and Code of Civil Procedure section 706.154,
subdivision (b);1 and Silver failed to allege any wrongful or illegal
conduct on the part of respondents.
Silver opposed the demurrer.
The trial court sustained the demurrer without leave to
amend.2 In its written order, the trial court determined that
there was no basis to conclude that the lock-in letter was illegal
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2 The trial court later granted Silver’s motion for
reconsideration but then entered an order upholding its prior
decision.
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and that respondents were liable for complying with its terms.
With respect to the Levy and Withholding Order, the trial court
concluded that respondents were immune from liability pursuant
to title 26 United States Code section 6332(e) and section
706.154, subdivision (b).
Silver appeals from the judgment of dismissal
DISCUSSION
We review an order sustaining a demurrer de novo, i.e.,
with no deference to the trial court, and we examine whether, as
a matter of law, the complaint states a cause of action. (Kan v.
Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 740.) “When a
demurrer is sustained without leave to amend, ‘we decide
whether there is a reasonable possibility 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. [Citations.] The burden of proving
such reasonable possibility is squarely on the plaintiff.
[Citation.]’ [Citation.]” (Id. at pp. 740–741.)
I. The IRS Lock-In Letter.
Silver maintains that there is no legal authority for the IRS
to send lock-in letters, and that his withholding exemption
certificate cannot be negated. On this basis, he contends that
respondents can be held liable for complying with the lock-in
letter. We disagree.
The IRS has the authority to instruct an employer
regarding how many withholding exemptions, if any, that an
employee can claim. (26 C.F.R. § 31.3402(f)(2)-1, (g)(2)(i) [the IRS
“may notify the employer in writing that the employee is not
entitled to claim a complete exemption from withholding or more
than the maximum withholding allowance number of withholding
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exemptions specified by the IRS in the written notice”];
Stonecipher v. Bray (9th Cir. 1981) 653 F.2d 398, 402–403
(Stonecipher) [the IRS can review withholding certificates and
W-4 Forms and declare them invalid].) Of course, if withholding
exemptions are disallowed, the employee will have more federal
income taxes withheld from his or her paycheck. A tax payer is
not entitled to a hearing prior to a determination that he or she
cannot claim some or all the desired withholding exemptions.
“The prompt collection of taxes is necessary for the nation’s
continued existence and is an important governmental interest
that justifies postponing notice and opportunity for a hearing.
[Citation.]” (Id. at p. 403.) If a taxpayer objects to his or her tax
liability, he or she can either contest the liability in tax court
prior to paying the disputed tax or sue for a refund. (Ibid.)
We easily conclude that instructions in the form of a lock-in
letter are lawful. Thus, the complaint fails to allege liability
related to the lock-in letter. All Silver’s arguments to the
contrary are incomprehensible and/or insufficiently supported by
legal citations and cogent analysis. “‘When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived. [Citations.]’” (Nelson v. Avondale Homeowners Assn.
(2009) 172 Cal.App.4th 857, 862.)
II. The Levy.
Per Silver, the trial court erred when it concluded that
respondents are immune from liability for their compliance with
the Levy. Once again, we disagree.
“Any person in possession of (or obligated with respect to)
property or rights to property subject to levy upon which a levy
has been made who, upon demand by the Secretary, surrenders
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such property or rights to property (or discharges such obligation)
to the Secretary (or who pays a liability under subsection (d)(1))
shall be discharged from any obligation or liability to the
delinquent taxpayer and any other person with respect to such
property or rights to property arising from such surrender or
payment.”3 (26 U.S.C., § 6332(e).)
This statute immunized respondents’ actions, and Silver
has failed to establish otherwise. Though he offers plethora
arguments to attack the trial court’s ruling, these arguments are
disjointed and lack proper legal footing. We need not recount
them here. Suffice it to note that Silver has not adequately
developed his arguments, and it is not our responsibility to fill in
the gaps. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100
Cal.App.4th 1190, 1206, fn. 11.)
III. The Withholding Order.
California, like the federal government, provides immunity
to respondents. An earning withholdings order for taxes is
authorized by the chapter in the Code of Civil Procedure
pertaining to wage garnishment. (§§ 706.021 & 706.072.) The
chapter provides: “[A]n employer who complies with any written
order or written notice which purports to be given or served in
accordance with the provisions of [the chapter on wage
garnishment] is not subject to any civil or criminal liability for
such compliance unless the employer has actively participated in
a fraud.” (§ 706.154, subd. (b).)
3 The term “Secretary” means “the Secretary of the Treasury
or his delegate.” (26 U.S.C. § 7701(a)(11)(B).)
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The Withholding Order was fully authorized by statute,
and the trial court properly concluded that respondents are
immune from liability.
To avoid this immunity, Silver contends that the chapter on
wage garnishment, including its immunity provision, only applies
to public sector employees and therefore does not apply to him
because he is a private sector employee. This is a patently
frivolous argument built on a card house of legal gibberish.
Suffice it to point out that “employee” is defined to mean “a public
officer and any individual who performs services subject to the
right of the employer to control both what shall be done and how
it shall be done.” (§ 706.011, subd. (e).) The statute undeniably
defines an employee as, inter alia, any individual who performs
services subject to an employer’s right of control. There is no
public/private qualifier. We need not comment on Silver’s
arguments any further.
Next, Silver contends that the trial court’s interpretation of
the wage garnishment statutes renders the whole chapter
unconstitutional. We decline to go down this legal rabbit hole
because the argument is nonsensical, Silver has not explained
why the immunity provision is unconstitutional and, finally, he
has not explained how his argument results in respondents being
liable.
IV. Denial of Leave to Amend.
Silver requests that we remand the matter to allow him the
opportunity to amend his pleading if we do not reverse the order
sustaining the demurrer. But he has not explained how he can
successfully amend, so he has not established that the trial court
abused its discretion.
All other issues are moot.
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DISPOSITION
The judgment of dismissal is affirmed.
Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
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