Opinion
A153336
09-11-2018
SYED NAZIM ALI, Plaintiff and Appellant, v. SOFTSOL TECHNOLOGIES, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HG17856666)
Plaintiff Syed Nazim Ali appeals a judgment entered in favor of defendant Softsol Technologies, Inc. (Softsol) following the entry of an order sustaining without leave to amend Softsol's demurrer to Ali's second amended complaint. Softsol hires independent contractors to provide services to clients of Softsol. Pursuant to a written contract between Softsol and Cybersecurity Associates, Inc. (Cybersecurity), of which Ali is the sole shareholder, Softsol recruited Cybersecurity to provide software engineering services for the State Compensation Insurance Fund (SCIF). Ali alleges that Softsol, knowing that he accepted only assignments of at least one year's duration, made false statements inducing him to enter on behalf of Cybersecurity an assignment with SCIF that lasted only three months, and to turn down offers for other longer assignments. Without including Cybersecurity as a plaintiff, Ali, appearing throughout in propria persona, has alleged causes of action against Softsol for breach of contract, fraud, and certain statutory violations. His pleadings and his appellate briefs are deficient in numerous respects. Nonetheless, we conclude that although the trial court correctly sustained without leave to amend the demurrer to his breach of contract and statutory claims, Ali should have been granted leave to amend his misrepresentation and interference with prospective advantage causes of action.
Factual and Procedural Background
Ali's second amended complaint alleges causes of action for misrepresentation, breach of oral contract, intentional interference with prospective economic advantage, violations of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) and the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), based on failure to accommodate, national-origin discrimination, and retaliation, and a cause of action labeled "negligence" that is based on the alleged failure to accommodate.
The second amended complaint alleges that on August 24, 2016, two Softsol employees, Information Technology Recruiter Santhosh Latikar and Vice-President RK Ghanta, offered "a long-term (minimum 12 month) contract employment opportunity to . . . Ali to provide services to their end-client, [SCIF], for 12 months, renewable up to 3-5 years." Softsol allegedly knew that Ali did not take short-term contracts, and committed only to those lasting 12 months or more. On September 13, Ali, on behalf of Cybersecurity, signed a contract with Softsol to provide services to SCIF. When Ali signed the contract, he had pending offers for long-term employment from the City of Santa Clara and Verizon Consulting. Ali turned down those offers in reliance on Latikar's and Ghanta's statements about the minimum 12 months' duration of the contract to work for SCIF.
The contract, attached to the second amended complaint, is labelled a "contractor services agreement" (the agreement) between Softsol and Cybersecurity. It begins by explaining that Softsol "is in the business of providing professional services to users and vendors of information systems," which it does by using "the services of independent contractors, either individuals or employees of other companies," who have the skills and expertise needed to work on projects for Softsol's clients.
The agreement explains that all of Softsol's projects are of limited duration and that for each project on which Softsol agrees to use Cybersecurity's services for one of Softsol's clients, Softsol and Cybersecurity will execute a "project assignment" defining the terms of the project. Those terms will include the scope of services, "estimated duration of time," and hourly rate. Section 4 authorizes Softsol to "terminate this agreement and the related project assignment upon two weeks written notice" to Cybersecurity. If a client modifies, suspends, cancels, or terminates its contract with Softsol, or changes a project in a way reducing or eliminating the need for the services described in a project assignment, Softsol may immediately terminate or modify the project assignment "as necessary without further notice or further obligations."
The agreement specifies that Cybersecurity's relationship with Softsol "will be that of an independent contractor," and that nothing in the agreement is meant "to create a relationship, joint venture, agency, or employer-employee relationship." Further, "if [Cybersecurity's] staff assigned under this agreement [designated in the project assignment as Ali] do not perform to the satisfaction of Softsol's client, Softsol or its client may choose to remove individual consultants of [Cybersecurity] and/or terminate the services of [Cybersecurity]."
Under the heading "Entire Agreement," an integration clause provides that "This document constitutes the entire agreement of the parties and expressly supersedes any oral or written agreements, negotiations, promises[,] or representations between the parties up to and including the date of execution."
The "project assignment" attached to the agreement states that the "estimated period of project assignment" is "[f]rom Sep 26 2016 to Sep 25 2017," with the explicit caveat that Softsol "may change the period of this project assignment or cancel it in accordance with section 4 of the . . . agreement."
Ten days after executing the agreement, Ali began working at SCIF. On two occasions in November, he reported to Softsol's Vice-President Ghanta that SCIF was discriminating against him, failing to accommodate his medical condition (a knee problem), and retaliating against him, but Ghanta and Softsol allegedly ignored his concerns and did nothing. On December 8, while he was home sick, Ali "was terminated." Ali then learned that SCIF had never approved a 12-month service agreement with Softsol, but had given Softsol a three-month service order.
Ali then filed a request for arbitration in accordance with a provision of the agreement, which request Softsol ignored and Ali did not attempt to enforce. In June 2017, after he had filed the initial complaint in this action, Ali filed a complaint with the Equal Employment Opportunity Commission (EEOC). He promptly received a right-to-sue letter.
Softsol demurred to the second amended complaint, contending that the agreement is "the basis for all plaintiff's claims" and that Ali's failure to allege that he as an individual was a party to the agreement "undermin[ed] any viable claims of misrepresentation or breach of contract." Softsol further argued that, because the agreement identifies Ali as an employee of Cybersecurity and not an employee of Softsol, his statutory employment-related causes of action necessarily failed. Softsol argued that the cause of action for intentional interference with prospective economic advantage failed for several reasons, including the complaint's failure to allege that Softsol knew of any other offers when it executed the agreement with Cybersecurity.
Ali, representing himself, insisted that he had signed the agreement on behalf of himself as well as Cybersecurity and that he was a party to the contract because he owns Cybersecurity, which cannot function without him. He did not address Softsol's arguments that, because he was not an employee of Softsol, he could not assert the causes of action under the anti-discrimination statutes, and that his intentional interference claim failed because he had not alleged that Softsol knew of his other offers of work.
While the demurrer was pending, Ali filed a third amended complaint, which the court struck because it had been filed without leave of court. Ali does not challenge that ruling.
The trial court sustained the demurrer without leave to amend as to all causes of action. The breach of contract claim failed because Ali is not a party to the written agreement, which contains an integration clause and thus "superseded any oral contracts between the parties concerning the subject matter of the agreement." And, "[b]ecause plaintiff was not a party to that contract, he has no standing to sue for any damages [Cybersecurity] suffered based on that alleged misrepresentation." The wrongful discharge, disparate treatment, discrimination and retaliation claims were barred because the pleading showed that Ali was not an employee of Softsol. The intentional interference with prospective economic advantage claim failed because the complaint did not "allege facts demonstrating why [Cybersecurity's] contract with defendant would prevent him from pursuing" other contracts and failed "to allege any facts demonstrating that defendant knew that either plaintiff or [Cybersecurity] had a potential economic relationship with the City of Santa Clara or Verizon Consulting." The court concluded its order by noting that it "does not preclude [Cybersecurity] from filing its own lawsuit against [Softsol] for breach of contract or for any other claim," while advising that, as a corporation, Cybersecurity would have to retain counsel to do so.
Ali timely filed a notice of appeal.
Discussion
1. Standard of Review
" 'On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, "i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." [Citation.]' [Citation.] ' " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] . . .' " ' [Citation.] 'We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. [Citations.] We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale.' " (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.) In doing so, "we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If, as here, the trial court sustained the demurrer without leave to amend, we must decide whether there is a reasonable possibility that the plaintiff could cure the defect with an amendment. (Ibid.)
Finally, we may consider documents attached as exhibits to the complaint, and "[i]f recitals in those documents are inconsistent with the allegations of the complaint, the recitals take precedence, and we disregard allegations inconsistent with the unambiguous text of the documents." (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 714, fn. 6, citing 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 392, p. 489.)
2. Breach of Oral Contract
The trial court properly sustained the demurrer to the breach of oral contract cause of action, and Ali has not suggested how its deficiencies might be corrected by a further amendment. The written agreement incorporated in the pleading makes clear that Ali personally is not a party to that agreement. Ali attempted to circumvent the issue by alleging in the second amended complaint that Softsol breached an oral agreement entered before the written agreement was signed. There is an obvious disconnect between the contention that Softsol orally offered a contract to Ali personally and that he accepted the offer by signing a written contract on behalf of Cybersecurity. More importantly, as the trial court ruled, the agreement's integration clause expressly supersedes any oral contracts between the parties regarding the same subject matter.
The parol evidence rule provides that "Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement." (Code Civ. Proc., § 1856, subd. (a); see also Civ. Code, § 1625; see generally Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1174.) The agreement's integration clause clearly expresses the parties' intent to make that written contract the final expression of their agreement: "This document constitutes the entire agreement of the parties and expressly supersedes any oral or written agreements, negotiations, promises[,] or representations between the parties up to and including the date of execution."
Section 4 of the written agreement, as quoted above, unambiguously states that Softsol may cancel the agreement and the project assignment at any time on two weeks' written notice, or at any time without notice if SCIF has canceled or modified the project. The "project assignment" refers to September 2016-September 2017 as an "estimated period of project assignment," while expressly warning that Softsol "may change the period of this project assignment or cancel it in accordance with Section 4 of the [agreement]." These provisions thus supersede any alleged oral contract between Ali and Softsol providing for a minimum term of one year.
Ali's briefs on appeal do not address the trial court's ruling that the written agreement supersedes any oral contract. Ali cites no authority suggesting that because the written agreement was entered on behalf of Cybersecurity, the parol evidence rule does not bar his personal claim for breach of a preceding oral agreement, and we are aware of no such authority.
As codified in 1872, the parol evidence rule barred the introduction of evidence of oral terms of a written agreement in actions "between the parties and their representatives, or successors in interest"—language that would preclude Ali, as Cybersecurity's representative in executing the agreement, from offering evidence of oral terms contradicting the agreement. (Code Civ. Proc. (1872) § 1856, p. 487, italics added; see 14 Cal. Law Revision Com. Rep. (1978) p. 147; Deering's Ann. Code Civ. Proc. (1967 ed.) § 1856, p. 677.) Although section 1856 has not included that phrase since a comprehensive revision in 1978 (Stats. 1978, ch. 150, § 1), several courts and commentators have stated that the intent of that revision was to broaden the statute's applicability in actions involving third parties, not narrow it. (See Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 350, fn. 8 ["Before 1979, the parol evidence rule did not apply in an action between a contracting party and a stranger to the contract. The Legislature abolished this limitation in 1978 by revising section 1856. Therefore, [a stranger to the contract] is free to object on parol evidence grounds [to evidence of the contracting parties' intent]."], and authorities cited therein.) While the California Supreme Court has left open the question of whether the Legislature intended to broaden section 1856 to permit a stranger to a contract to invoke the parol evidence rule to bar evidence of the parties' prior oral agreements or negotiations (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 526, fn. 2), we know of no authority suggesting that the Legislature intended to narrow the statute to enable a non-party to a contract to contradict the terms of an integrated written agreement with his company based on a contrary oral agreement he had previously entered with the other contracting party.
While not challenging the trial court's parol evidence ruling, Ali argues that if a contract is ambiguous, the plaintiff's interpretation must be accepted as correct on demurrer. While that proposition may be correct, the contract here is in no way ambiguous. The provisions authorizing Softsol to cancel the agreement either on two weeks' notice or without notice are unambiguous and cannot be interpreted to impose a one-year minimum term. Ali also asserts that because the EEOC issued a right-to-sue letter directed to him personally, he must have standing in his individual capacity to assert the causes of action in his complaint. However, the EEOC's issuance of a right-to-sue letter does not imply that he necessarily has a right to assert a breach of contract claim.
3. Misrepresentation
Ali's first cause of action is for fraud by misrepresentation. "The elements of common law fraud are: '(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.' " (AREI II Cases (2013) 216 Cal.App.4th 1004, 1021-1022.) In addition, "[f]raud actions are subject to strict requirements of particularity in pleading." (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) While hardly a model pleading, we conclude that the second amended complaint, read as a whole, alleges sufficient facts to indicate that Ali may have a meritorious misrepresentation cause of action, even if the court might properly have sustained a demurrer for uncertainty to require expansion or clarification of certain elements of the claim.
The second amended complaint alleges that on August 24, 2016, two Softsol employees offered Ali "a long-term (minimum 12 months) contract employment opportunity . . . to provide services to their end-client [SCIF] for 12 months, renewable up to 3-5 years." Further, "[f]rom August 24 . . . to September 13, 2016, defendant made material misrepresentations to [Ali] stating they had a long term, 12-month long, cont[r]act work order for [Ali] to perform services for SCIF [and] a guarantee that the contract would be renewed for 3-5 years." , when in fact, "[a]t the time defendant communicated the offer to [Ali], defendant only had a three-month contract with SCIF and there was no guarantee [of] renewal [for] 3-5 years." The second amended complaint alleges that Ali did not know that Softsol had only a three-month contract with SCIF, and that "defendant was fully aware" that he "did not take short-term contracts, i.e., less than 12 months." Elsewhere in the second amended complaint, Ali alleges that he "was guaranteed [that] the project would last for 12 months, renewable for 3-5 years," and that he "would be servicing SCIF for 12 months." The second amended complaint alleges that Ali turned down offers for long-term employment from the City of Santa Clara and Verizon Consulting in detrimental reliance on Softsol's misrepresentations.
In sustaining Softsol's demurrer as to this cause of action without leave to amend, the trial court explained that because Ali is not a party to the agreement, "he has no standing to sue for any damages [Cybersecurity] suffered based on [Softsol's] alleged misrepresentation" of its duration. While the trial court was correct that Ali could not assert a claim for damages incurred by Cybersecurity, even if he was indirectly affected by the corporation's loss of profit, it does not follow that Ali could not assert a claim for damages that he directly sustained in reliance on the alleged misrepresentations. The misrepresentations were allegedly made to him with the intent to induce him to execute the agreement on Cybersecurity's behalf, which he did, and in reliance on the misrepresentations he turned down other offers to his detriment.
A person harmed in his or her individual capacity by reliance on a misrepresentation may recover damages personally suffered as a result of that reliance, even if the misrepresentation simultaneously caused harm to a corporation in which the person was a shareholder that can also assert a cause of action based on the misrepresentation. (See Sutter v. General Petroleum Corp. (1946) 28 Cal.2d 525, 530 ["[A] stockholder may sue as an individual where he is directly and individually injured although the corporation may also have a cause of action for the same wrong."].) While Ali may not recover the amount that Cybersecurity would have been paid under the terms of the alleged contract, he may recover earnings he would have received from others had he not relied on the alleged misrepresentations. (Jones v. H.F. Ahmanson & Co. (1969) 1 Cal.3d 93, 107 ["If the injury is not incidental to an injury to the corporation, an individual cause of action exists."]; see also Hilliard v. Harbour (2017) 12 Cal.App.5th 1006, 1012.)
Ali's claim for injury he directly sustained as a result of the alleged misrepresentations is not barred by the parol evidence rule. In Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn., supra, 55 Cal.4th 1169, the California Supreme Court recently re-examined the fraud exception to the parol evidence rule. The court overruled a prior decision that had limited the fraud exception by requiring that any evidence of fraud " 'must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing.' " (Id. at p. 1172.) The Riverisland court held that the parol evidence rule does not bar consideration of evidence that a party to a written contract induced the other party to enter that contract by making false oral promises that contradict the written contract's terms, or misrepresentations about what the written contract provides. (Id. at pp. 1176-1177, 1180-1182.) The Supreme Court noted that " 'cases are not infrequent where relief against a contract reduced to writing has been granted on the ground that its execution was procured by means of [false] oral promises . . . , however variant from the terms of the written engagement into which they were the means of inveigling the party.' " (Id. at p. 1181, citing Fleury v. Ramaccioti (1937) 8 Cal.2d 660, 661 [party could offer evidence that he had signed a note without reading it, in reliance on a false promise that the note included a certain provision].)
Softsol undoubtedly will contend that any reliance on its alleged misrepresentations was unreasonable, given the express terms of the agreement. If so, Ali may not recover, but this defense cannot be determined on demurrer. (See, e.g., Charnay v. Cobert (2006) 145 Cal.App.4th 170, 186 [whether plaintiff's reliance on misrepresentations "was reasonable under the circumstances is not a question properly resolved on demurrer"]; Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [" 'Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a question of fact.' "].)
There are, to be sure, respects in which the trial court properly may insist that Ali improve his pleading before proceeding further. The general allegations section of the second amended complaint refers to "Defendant's employees IT Recruiter Santhosh Latikar and Vice President RK Ghanta (collectively referred to as 'Defendant')," but the misrepresentation cause of action refers to "Defendant" without specifying whether it was Latikar, Ghanta, or both who made the alleged misrepresentations, and who knew that Ali accepted only 12-month contracts. Further specificity is required to plead a cause of action for fraud. (E.g., Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 21, disapproved on another ground in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The second amended complaint alleges that Ali sustained "a lost future earnings total of $192,000," which is the amount that Cybersecurity allegedly would have received for one year of performance. The allegation apparently assumes an incorrect measure of damages, since Ali is not entitled to recover the corporation's loss. The complaint fails to allege the proper measure, i.e., the amount that Ali would have received had he accepted one of the other offers that he allegedly rejected in reliance on the claimed misrepresentations.
None of these shortcomings, however, is fatal on demurrer. There is no indication in the pleadings that Ali cannot correct these deficiencies in a further amended complaint. So long as a complaint's allegations establish an injury to the plaintiff, "[w]hether the precise and correct measure of damages was pleaded is not important in the face of a general demurrer." (Sutter v. General Petroleum Corp., supra, 28 Cal.2d at p. 534; accord, Eatwell v. Beck (1953) 41 Cal.2d 128, 136 ["[W]here 'the facts stated in the complaint show that the plaintiff is entitled to damages of some sort, it is not a fatal error that the pleader has mistaken the rule by which such damages should be determined.' "].)
In this case, Ali may amend the second amended complaint to allege the facts noted above, so as to seek damages equal to the personal income he would ultimately have earned from one of the alternative opportunities with the City of Santa Clara or Verizon, had Softsol not fraudulently induced him to execute the agreement on Cybersecurity's behalf, precluding him from accepting other beneficial opportunities.
4. Intentional interference with prospective economic advantage
To state a cause of action for intentional interference with prospective economic advantage (intentional interference), a plaintiff must allege " ' "(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." ' " (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) The intentional acts required for the third element must be " 'wrongful by some legal measure other than the fact of interference itself.' " (Ibid.)
In sustaining the demurrer to the cause of action for intentional interference with prospective economic advantage, the trial court explained, "Assuming arguendo that plaintiff (and not [Cybersecurity]) had pending offers to perform work for the City of Santa Clara and Verizon Company, he does not allege facts demonstrating why [Cybersecurity]'s contract with [Softsol] would pre[v]ent him from pursuing those contracts." However, the second amended complaint does allege that he "had other contracts offered which he would have to refuse" as a result of entering the agreement. Moreover, the allegation that under the agreement he expected to receive $192,000 for a year's work at $90 per hour (thus working more than 2,100 hours) certainly suggests why other employment would not have been possible. In all events, if the court considered this allegation to be insufficient, it could easily be corrected by amendment.
The third amended complaint that Ali filed while the demurrer was pending, and which the trial court struck, alleged that Softsol's misrepresentation persuaded him "to sign the contract which meant that he was prevented from taking other similar jobs." (Italics added.)
The trial court also stated that the second amended complaint did not allege facts showing that Softsol knew of Ali's other offers. However, the second amended complaint alleges facts necessarily implying that Softsol knew that Ali had potential economic relationships with third parties who had made outstanding offers to employ him. The second amended complaint alleges that Softsol "intended to lure [Ali] away from the two pending offers so he could service SCIF under their contract" (italics added) and that Softsol made its misrepresentations while "knowing" that he "had other contracts offered which he would have to refuse" (italics added). While the pleading does not allege that Softsol knew the identity of the other offerors, such knowledge is not necessary to establish the interference claim. Some 30 years ago, the Fourth Appellate District was "not persuaded [that] knowledge of the injured party's specific identity or name is a prerequisite to recovery" for intentional interference either with contract or with prospective economic advantage. (Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1133; see also Altera Corp. v. Clear Logic, Inc. (9th Cir. 2015) 424 F.3d 1079, 1092 [applying California law "[w]hen the defendant performs the act that causes the interference, the defendant need not know exactly who is a party to the contract, so long as he knows he is interfering with a contractual relationship"].)
Accordingly, the demurrer to the intentional interference cause of action should not have been sustained without leave to amend.
5. Statutory Causes of Action
Three causes of action in the second amended complaint allege statutory violations: the third, for failure to accommodate disabilities in violation of the Americans with Disabilities Act and Fair Employment and Housing Act (FEHA); the fourth, for discrimination based on national origin in violation of FEHA; and the fifth, for retaliation in violation of FEHA based on Ali's complaints about SCIF's alleged failure to accommodate and discrimination. The sixth cause of action, labeled "negligence," essentially duplicates the third cause of action for failure to accommodate.
The trial court held that all four counts fail to state causes of action for the same reason: They "all presuppose the existence of an employment relationship" between Ali and Softsol, yet the agreement specifies that Cybersecurity is an independent contractor, creating no employer-employee relationship with Softsol, and further shows that Ali was an employee of Cybersecurity, not of SCIF or Softsol. The court's reasoning was sound. (See, e.g., Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631 ["[T]he key legal issue . . . is whether Mendoza was an 'employee' of the Town, and as such, protected from wrongful termination and employment discrimination under the FEHA."]; Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842 ["In order to recover under the discrimination[-]in[-]employment provisions of the FEHA, the aggrieved plaintiff must be an employee."]; Wojewski v. Rapid City Regional Hosp., Inc. (8th Cir. 2006) 450 F.3d 338, 342 ["While the [Americans with Disabilities Act] protects 'employees,' the Act does not protect independent contractors."].)
Ali's opening brief does not address this issue or the reason for which the trial court rejected these claims. And in neither the trial court nor this court has he suggested additional facts he could allege that would enable him to state a cause of action under the Americans with Disabilities Act or Fair Employment and Housing Act. In his reply brief, Ali for the first time obliquely seems to suggest that Softsol may have incurred liability under these statutes as an employment agency. While employment agencies are covered by these statutes (42 U.S.C., § 12111(2); Cal. Code Regs., tit. 2, § 11008, subds. (e)-(f)), Ali has failed to articulate the facts that he would contend bring Softsol within this definition. There is no justification for permitting him to raise such an undeveloped theory for the first time in his appellate reply brief. There is no basis to hold that the trial court abused its discretion in denying Ali leave to amend these statutory causes of action. (People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112.)
In the opening summary in his reply brief, Ali asserts: "Appellee has duty to protect and secure the Appellant Federal and State Employment Right as being employer agency who brought the Appellee into employment work offer and in relationship to work at Appellee and Appellee end-client pr[e]mises, 40 hours a week under sole control of Appellee and Appellee end-client at their premises and utilizing their equipment, tools and software, does [sic] considered employee of the Appelle[e] and Appellee [sic] under the IRS rule of looking Independent Contractor vers[us] Employee clear definition." Ali does not further address this issue in the body of the reply brief. --------
Disposition
The judgment is reversed and the matter remanded with instructions to enter an order sustaining the demurrer with leave to amend as to the first cause of action for fraud, sustaining the demurrer without leave to amend as to the second through sixth counts for breach of oral contract and violations of the Americans with Disabilities Act and/or Fair Employment and Housing Act, and sustaining the demurrer to the seventh cause of action for intentional interference with prospective economic advantage with leave to amend. Ali shall recover his costs incurred on appeal.
Pollak, J. We concur: Siggins, P.J.
Jenkins, J.