Arakelian v. Conquest 12/2/03 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B161037

Case Date: 03/03/2004

Preview:Filed 12/2/03 Arakelian v. Conquest CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE REEMA D. ARAKELIAN et al., Plaintiffs and Appellants, v. RON CONQUEST et al., Defendants and Respondents. B161037 (Los Angeles County Super. Ct. No. PC026575)

APPEAL from orders of the Superior Court of Los Angeles County, Howard Schwab, Judge. Reversed in part and affirmed in part. Hacker, Kanowsky & Braly and Carl J. Kanowsky for Plaintiffs and Appellants. Gust T. May and Cassandra Stubbs for Bet Tzedek Legal Services as Amicus Curiae on behalf of Plaintiffs and Appellants. William G. Hoerger for California Rural Legal Assistance, Inc. as Amicus Curiae on behalf for Plaintiffs and Appellants. White O'Connor Curry & Avanzado, Andrew M. White, James E. Curry and Mary Catherine Woods for Defendant and Respondent John Gehron. Fonda & Fraser, Todd E. Croutch and Daniel K. Dik for Defendants and Respondents Ron Conquest, Frank Wood, Andy Schuon and Robert Buziak.

INTRODUCTION Plaintiff employees appeal orders of dismissal after the sustaining of demurrers to their complaint against the president of their corporate employer and against members of the corporate employer's board of directors. The complaint alleged seven causes of action seeking payment of unpaid wages owed to plaintiff employees for work they performed in their final weeks of employment. We conclude that plaintiffs have not satisfactorily alleged that these individual defendants were their employers, and that the trial court correctly sustained demurrers as to causes of action for breach of contract, negligence per se, and their action for unpaid wages based on Labor Code statutes. Plaintiffs have not shown that these individual defendants owed them a fiduciary duty, and therefore they cannot state a cause of action for breach of fiduciary duty. Plaintiffs' failure to make argument on appeal waives their claim of error as to a statutory cause of action for failure to pay wages and as to their negligence cause of action. Plaintiffs fail to show their complaint stated a cause of action for tortious breach of contract. The complaint alleged two fraud causes of action. The complaint alleges no representations made by four defendants who were members of the board of directors, and therefore fails to allege causes of action for misrepresentation, concealment, and deceit or for negligent misrepresentation. As to the defendant who was president of the corporate employer, however, the complaint alleges specific representations made to employees which satisfy the requirements of these causes of action, and we reverse the order of dismissal as to both fraud causes of action. We hold that as the president of the corporate employer, the order of dismissal sustaining demurrers to the fifth cause of action for fraud and the sixth cause of action for negligent misrepresentation must be reversed. As to all the other causes of action, the orders of dismissal are affirmed.

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APPEALABILITY OF ORDERS The notice of appeal identifies four orders from which plaintiffs appeal. The notice of appeal, construed liberally, is proper as to three of these orders. The appeal from a post-judgment order denying a motion for reconsideration is dismissed. 1. Liberally Construed, the Appeal Is Properly Taken from Orders of Dismissal The notice of appeal identifies three orders sustaining demurrers without leave to amend: (1) a February 27, 2002, minute order sustaining defendant Gehron's demurrer to the second cause of action in the first amended complaint; (2) a May 24, 2002, order sustaining Gehron's demurrer to the second amended complaint; and (3) a May 24, 2002, order sustaining the demurrer of defendants Ron Conquest, Frank Wood, Andy Schuon, and Robert Buziak to the second amended complaint. Orders sustaining demurrers are not appealable orders. (Dubins v. Regents of University of California (1994) 25 Cal.App.4th 77, 80, fn. 1.) Nonetheless this court construes the notice of appeal liberally in favor of its sufficiency. (Cal. Rules of Court, rule 1(a); LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 333, fn. 1; Setliff v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1533.) Therefore a notice of appeal erroneously purporting to appeal from orders sustaining a demurrer will be deemed sufficient if a judgment of dismissal was entered, there is no doubt as to the ruling appellants seek to have reviewed, and the respondents could not have been misled to their prejudice. (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780.) We therefore deem the notice of appeal to have been taken from the orders of dismissal filed on June 13, 2002, as to Conquest, Wood, Schuon, and Buziak and on June 25, 2002, as to Gehron. 2. A Post-Judgment Order Denying a Motion for Reconsideration Is Not Appealable, and That Part of the Appeal Must Dismissed The notice of appeal purported to appeal from a July 12, 2002, order denying plaintiffs' motion for reconsideration of its May 24, 2002, order sustaining demurrers of Conquest, Wood, Schuon, Buziak, and Gehron without leave to amend. Signed orders of dismissal entered as to these defendants on June 13 and June 25, 2002, were final 3

judgments. (Code. Civ. Proc.,

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