Serbrakian v. Talebi CA2/5 ( 2021 )

Filed 4/15/21 Serbrakian v. Talebi CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
HARMIK SERBRAKIAN, B300256
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. NC061497)
v.
MOSTAFA M. TALEBI,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Mark C. Kim, Judge. Affirmed.
Murrin Law Firm, John Owen Murrin, III, for Plaintiff and
Appellant.
Law Office of Christopher J. Gonzales, Christopher J.
Gonzales; Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan, for
Defendant and Respondent.
I. INTRODUCTION
Plaintiff Harmik Serbrakian appeals from an adverse
judgment on his wage and hour claims against defendant
Mostafa M. Talebi, raising numerous challenges based largely on
his conflicting views of the trial evidence. We affirm.
II. FACTUAL BACKGROUND
A. Creation of Somnus
In 2013, Hamid Navarchi incorporated Somnus Sleep
Laboratory, Inc. (Somnus) to conduct business as a sleep
laboratory. Sometime in 2013, defendant loaned money to
Navarchi to help him buy equipment for Somnus and fund its
operation. Defendant, however, did not have a role in the day-to-
day operations of the company, and he had no involvement in
hiring or training plaintiff.
In August and November 2013, unbeknownst to defendant,
Navarchi filed documents with the Secretary of State suggesting
that defendant was a partner in Somnus.1 When defendant
discovered the error in May 2015, he and Navarchi signed an
agreement clarifying that defendant was only an investor in
1 Defendant testified that Navarchi erroneously listed
defendant as the chief executive officer of Somnus and also forged
defendant’s signature on documents filed with the Secretary of
State in 2013.
2
Somnus and that Navarchi was solely responsible for running the
business and satisfying its obligations.2
B. Hiring of Plaintiff
Plaintiff claimed he was hired by Somnus in 2013 on an
hourly-wage basis. He “basically ran [Somnus] from 2013 to 2015
on [his] own.” But Navarchi testified that he hired plaintiff as a
part of management on a salaried basis, initially earning $2,400
per month and, eventually, $2,800.
C. Hiring of Valenzuela
Navarchi hired Doris Valenzuela in 2015 to work at
Somnus. Plaintiff introduced himself to Valenzuela as a doctor
and told her he was Navarchi’s partner. Because she believed he
was an owner, Valenzuela initially took direction from plaintiff.
According to Valenzuela, plaintiff “didn’t really work, he slept
there all the time.” She explained that “[i]t was an every-day
thing. Every morning [she] got [to Somnus], he was sleeping.”
Valenzuela confirmed that Navarchi sometimes issued
paychecks to her and plaintiff that “would bounce.” On those
occasions, she would “pick up . . . cash” the next day from
Navarchi as reimbursement for the bounced checks, including
those to plaintiff.
2 The agreement stated that defendant had previously
loaned over $94,000 to Somnus and that Navarchi was
responsible for paying the loan back monthly.
3
Prior to plaintiff’s termination, Valenzuela did not have
much interaction with defendant. She had never seen defendant
at the sleep lab prior to August 2017.
During 2017, Valenzuela recalled that the sleep lab was not
“getting [many] patients.” In June and July of that year, she did
not recall any sleep studies that were performed. Throughout
that time period, the lab hours were 9:00 a.m. to 3:00 p.m.3 On
approximately two occasions in July 2017, the lab was open until
5:00 p.m.
D. Defendant’s Involvement in Somnus Beginning July 1, 2017
Defendant agreed with Navarchi to take over the operation
of Somnus as of July 1, 2017. The purpose of defendant’s
involvement at that point was to sell Somnus, recoup his
investment in it, and split any remaining proceeds with
Navarchi. Defendant executed a document memorializing his
agreement with Navarchi which provided, in pertinent part:
“From this day on, [defendant] is responsible [for] manag[ing] the
business . . . .” [¶] [He] is not responsible for any taxes [or]
penalties from [federal, state, or local entities,] or [for] any of his
past employees as well as any other invoices or bills due up to
today.”
In July 2017, defendant asked plaintiff to complete an
employment application and to submit a copy of his driver’s
license and his social security number because defendant wanted
3 Defendant testified that, during July 2017, the sleep lab
was open from 9:00 a.m. to 3:00 p.m. on Tuesdays through
Thursdays and from 9:00 a.m. to 5:00 p.m. on Mondays and
Fridays.
4
an accounting firm to issue paychecks for Somnus. On
July 19, 2017, defendant sent plaintiff a follow-up text concerning
his request for information. According to the text, defendant
asked plaintiff on three prior occasions for the information, but
plaintiff failed to respond.
E. Defendant’s Payment to Plaintiff in July 2017
On July 8, 2017, plaintiff met defendant for a lunch
meeting at a restaurant in Long Beach. During the lunch,
defendant gave plaintiff a check for $2,900 written on a personal
trust account. The check noted that $100 was for travel expenses
and $2,800 was for salary. The check also indicated that it
replaced Navarchi’s “NSF” check numbers 2062 and 2065.
F. Termination of Plaintiff
On August 1, 2017, defendant went to the Somnus sleep lab
because he learned plaintiff was living there. He asked plaintiff
to sign a letter acknowledging that he had been sleeping at the
lab and that such behavior was against company policy. When
plaintiff refused to sign the letter, defendant asked him for his
keys to the sleep lab, and the two men then removed defendant’s
personal belongings from the lab and loaded them into his car.
III. PROCEDURAL BACKGROUND
In November 2017, plaintiff filed a complaint against
defendant and Somnus asserting a single cause of action for age
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discrimination and hostile work environment. In May 2018, the
trial court entered a default against Somnus on the complaint.
In September 2018, plaintiff filed a first amended
complaint against defendant and Somnus asserting six causes of
action for: (1) discrimination and hostile work environment in
violation of Government Code sections 12940 and 12965;
(2) failure to pay wages in violation of Labor Code section 204;
(3) failure to provide itemized statements in violation of Labor
Code section 226; (4) unlawful business practices in violation of
Business and Professions Code section 17200 et seq.; (5) violation
of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.); and (6)
aiding and abetting wage and hour violations and discrimination.
On April 8, 2019, the matter proceeded to a bench trial. On
the second day of trial, the court granted defendant’s nonsuit
motion as to the fourth, fifth, and sixth causes of action.4 The
court also ruled that defendant was plaintiff’s employer only from
July 1, 2017 to August 1, 2017. Prior to July 1, 2017, Somnus
was plaintiff’s employer and defendant was only an investor in
Somnus.
Following closing arguments on the third day of trial, the
court found that plaintiff was not a credible witness. The court
also found that plaintiff had been provided meal and rest breaks.
And, the court dismissed the first cause of action because it found
that plaintiff’s termination was not the result of discrimination.
The court then made findings on plaintiff’s remaining claims for
wage and hour violations and failure to provide itemized
4 The record does not include a reporter’s transcript or a
suitable substitute such as a settled or agreed statement of the
hearing on the nonsuit motion.
6
statements and orally pronounced judgment in favor of defendant
on the two remaining causes of action.
On May 30, 2019, the trial court filed its statement of
decision, which included the following findings of fact:
“1. For the time period of June 20, 2013 through
June 30, 2017, [plaintiff’s] employer was Somnus . . . .
[Defendant] had no active involvement in Somnus . . . prior to
July 1, 2017 and was only a passive investor.
[¶] . . . [¶]
“3. [Defendant] was never a person who acted on behalf of
Somnus . . . [within the meaning of Labor Code section 558.1].
“4. [Navarchi] actively managed Somnus . . . .
[¶] . . . [¶]
“6. From July 1, 2017 through August 1, 2017, [plaintiff]
was a de facto employee of [defendant].
“7. [Plaintiff’s] de facto employment with [defendant] . . .
was terminated on August 1, 2017.
[¶] . . . [¶]
“9. From July 1, 2017 to August 1, 2017, [plaintiff] was a
salaried employee of [defendant] and his salary was $2,800 per
month.
“10. The hours of operation for [defendant’s] business from
July 1, 2017 through August 1, 2017 were 9:00 a.m. to 3:00 p.m.
[¶] . . . [¶]
“12. Plaintiff stipulated to waive any evidence of related
claims pertaining to any sleep studies claimed to have occurred in
July 2017.
[¶] . . . [¶]
“15. Any and all wage claims due from [defendant] to
[plaintiff] were satisfied in full due to [defendant’s] payment of
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$2,900 to [plaintiff] pursuant to check number 7268, dated
July 8, 2017 [(Ex. 31)]. The [c]ourt makes a finding of fact that
the July 8, 2017 check from [defendant] made out to [plaintiff] for
$2,900 constituted a payment to cover any earned wages due, as
well as any expenses incurred by [plaintiff] on behalf of
[defendant] from July 1, 2017 to August 1, 2017.”
On June 19, 2019, the trial court entered a judgment in
favor of defendant from which plaintiff timely appealed.
IV. DISCUSSION
A. Standard of Review
Although couched in different terms, most, if not all, of
plaintiff’s challenges to the judgment are based on the sufficiency
of the evidence in support of the trial court’s various adverse
factual findings. We review such claims under the substantial
evidence standard of review. “‘In reviewing the evidence on . . .
appeal all conflicts must be resolved in favor of the [prevailing
party], and all legitimate and reasonable inferences indulged in
to uphold the [finding] if possible. It is an elementary, but often
overlooked principle of law, that when a [finding] is attacked as
being unsupported, the power of the appellate court begins and
ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted, which will support the
[finding]. When two or more inferences can be reasonably
deduced from the facts, the reviewing court is without power to
substitute its deductions for those of the trial court.’ [Citation.]”
(Western States Petroleum Assn. v. Superior Court (1995) 9
Cal.4th 559, 571.)
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“‘[I]f the circumstances reasonably justify the [trier’s]
findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a
contrary finding.’ [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citation.]” (People v. Guerra
(2006) 37 Cal.4th 1067, 1129.)
To the extent plaintiff raises any challenge based solely on
questions of law and undisputed facts, we apply a de novo
standard of review. (Boling v. Public Employment Relations Bd.
(2018) 5 Cal.5th 898, 912–913.)
B. Sufficiency Challenges
1. Assumption of Liability
Plaintiff contends that substantial evidence supported a
finding that defendant not only took control of Somnus, but also
assumed its outstanding liabilities, including its alleged liability
to plaintiff for any past wages due. Plaintiff’s contention, that
substantial evidence supported findings in his favor,
misapprehends the standard of review. Contrary to plaintiff’s
contentions, we do not reweigh the evidence or make independent
evaluations of witness credibility. We also disregard conflicts in
the evidence and do not substitute our deductions for those of the
trial court. Plaintiff therefore has failed to raise a cognizable
sufficiency claim on appeal.
Even if we construed plaintiff’s contention as a challenge to
the sufficiency of the evidence in support of the trial court’s
findings that prior to July 1, 2017, defendant was a “passive
investor” in Somnus who did not actively participate in its
9
management or otherwise act on its behalf, we would affirm.
Defendant testified that he was only an investor in Somnus and,
prior to July 1, 2017, he did not have any role in its management
or day-to-day operations, a role that, according to defendant,
Navarchi fulfilled. He also explained that any indications in the
incorporation documents to the contrary were erroneous, an
explanation corroborated by his 2015 agreement with Navarchi.
In addition, Valenzuela, whom the trial court found credible,
testified that she did not see defendant at the sleep lab from the
time she started work there in 2015 until August 1, 2017, the day
plaintiff was terminated. And, to the extent plaintiff testified
that defendant assumed responsibility for any of the past wages
due from Somnus, the court found that he was not a credible
witness. This evidence supported a reasonable inference that
defendant was not a person who acted on behalf of Somnus prior
to July 2017 or who otherwise assumed its liabilities.
2. Work Hours
Plaintiff also asserts that substantial evidence supported a
finding that he worked during July 2017 from 8:00 a.m. to
6:00 p.m. and during all overnight sleep studies conducted during
that month. Plaintiff’s assertion that his evidence on the
disputed issue of his hours-worked during July was more
compelling than defendant’s evidence again misconstrues the
standard of review. Because we do not reweigh the evidence or
reassess credibility, and must disregard conflicting evidence, we
do not address this claim on appeal.
Even if plaintiff asserted a direct challenge to the
sufficiency of the evidence in support of the trial court’s findings
10
that (1) the hours of defendant’s business from July 1 to
August 1, 2017, were 9:00 a.m. to 3:00 p.m.; and (2) plaintiff
waived any claim for hours allegedly worked during sleep studies
conducted in July, we would affirm. Valenzuela testified that the
business was usually open during July 2017 from 9:00 a.m. to
3:00 p.m., and defendant generally corroborated that testimony.
Further, because plaintiff agreed to waive any claim for overtime
based on hours allegedly worked during July 2017 overnight
sleep studies, his testimony about such overtime hours was
irrelevant. Substantial evidence therefore supported the trial
court’s findings on the issue of the hours worked during July
2017.
3. Compensation for July 1 through August 1, 2017
Plaintiff next argues that, contrary to the trial court’s
findings, substantial evidence supported a finding that he was
not paid for hours worked during the period July 1 through
August 1, 2017. Plaintiff again asserts that his evidence on the
issue should have been accorded more weight and credibility than
any conflicting evidence. For the reasons we discuss above, we
reject this contention.
In any event, the trial court’s findings that (1) plaintiff’s
monthly salary from July 1 to August 1, 2017, was $2,800; and
(2) defendant fully satisfied plaintiff’s claim for wages due during
that period by tendering the July 8, 2017, payment of $2,900,
were supported by substantial evidence. Navarchi testified that
plaintiff was hired as a salaried employee and that his highest
monthly salary during his employment with Somnus was $2,800.
That evidence, together with evidence that defendant was not
11
plaintiff’s employer prior to July 1, 2017, supported a finding that
the $2,900 payment on July 8, 2017, satisfied defendant’s
obligation to pay plaintiff for wages earned from July1 through
August 1, 2017.5
C. Other Challenges
1. Failure to Provide Itemized Payroll Statements
Plaintiff contends that the trial court erred, as a matter of
law, by concluding that, as a salaried employee, he was not
entitled to itemized wage statements as required by Labor Code
section 226, subdivision (a).6 According to plaintiff, he was
5 In a separate point heading, plaintiff contends that there
was substantial evidence showing that he was entitled to
payment for the hours he worked on August 1, 2017. According
to plaintiff, “[i]t was undisputed” that he worked that day. In
support of this contention, plaintiff cites to his own testimony,
which the trial court found to be not credible. Defendant, on the
other hand, testified that the sleep lab was closed on
August 1, 2017, and that defendant went to the lab only to have
plaintiff sign some documents, which he refused to do. The trial
court credited defendant’s testimony, finding that defendant did
not owe plaintiff any wages for August 1, 2017, because plaintiff
did not work that day. Substantial evidence thus supported the
court’s finding that defendant paid plaintiff all amounts he was
due for hours worked through and including August 1, 2017.
6 Subdivision (a) provides, in pertinent part: “An employer,
semimonthly or at the time of each payment of wages, shall
furnish to his or her employee . . . an accurate itemized statement
in writing showing (1) gross wages earned, (2) total hours worked
12
entitled to Labor Code section 226, subdivision (e)7 penalties
based on defendant’s failure to provide him itemized statements.
Plaintiff further contends that defendant also is liable for a $750
penalty under section 226, subdivision (f)8 for failing to allow him
to inspect his employment records following his demand.
by the employee, . . . (4) all deductions . . . , (5) net wages earned,
(6) the inclusive dates of the period for which the employee is
paid, (7) the name of the employee and only the last four digits of
his or her social security number or an employee identification
number other than a social security number, (8) the name and
address of the legal entity that is the employer . . . , and (9) all
applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate by the
employee . . . .”
7 Labor Code section 226, subdivision (e)(1) provides: “An
employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a)
is entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in
a subsequent pay period, not to exceed an aggregate penalty of
four thousand dollars ($4,000), and is entitled to an award of
costs and reasonable attorney’s fees.” (Italics added.)
8 Subdivision (f) provides: “A failure by an employer to
permit a current or former employee to inspect or receive a copy
of records within the time set forth in subdivision (c) entitles the
current or former employee or the Labor Commissioner to recover
a seven-hundred-fifty-dollar ($750) penalty from the employer.”
13
a. Background
The third cause of action of the operative complaint alleged
that defendant violated Labor Code section 226, subdivision (a)
by failing “to properly and accurately itemize the number of
hours worked by [p]laintiff at the effective regularly hourly rates
of pay and the effective overtime rates of pay” and that defendant
“knowingly and intentionally failed to comply with Labor Code
[section] 226, causing damages to [p]laintiff . . . .” Although
plaintiff briefly referenced this claim in closing argument, he
failed to specify any actual damages he suffered from the alleged
failure to comply with the itemized statement requirement of
subdivision (a).
The trial court’s statement of decision included conclusion
of law number 25, which stated that, “as a salaried employee
[plaintiff] is not entitled to itemized statements and . . . there was
otherwise insufficient evidence to establish [p]laintiff’’s claim.”
In his objections to the court’s proposed statement, plaintiff
objected to this conclusion of law, claiming that defendant’s
failure to comply with the itemized statement requirement made
it more difficult and costly to prove his case. He also asserted
that “[t]he court did not make any findings about the lack of
record keeping and pay stubs required by Labor Code [section]
226.” Finally, he argued that defendant was subject to a $750
penalty under Labor Code section 226, subdivision (f) for
separately failing to allow plaintiff to inspect his employment
records.
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b. Analysis
Even if we assume the trial court erred by concluding that
plaintiff was not entitled to itemized statements as a salaried
employee, plaintiff fails to demonstrate any resulting prejudice.
Although injury is presumed from a violation of subdivision (a),
to establish entitlement to penalties under Labor Code section
226, subdivision (e) for presumed injury, plaintiff was required to
prove that defendant knowingly and intentionally failed to give
him the itemized statements mandated by subdivision (a) for the
July 1 to August 1, 2017, pay periods. The only evidence in the
record on that issue, however, supported an inference that
defendant was prevented from providing itemized wage
statements due to plaintiff’s failure to provide timely and
accurate information in connection with his job application. On
this record, plaintiff cannot demonstrate that he was prejudiced
by the claimed error.
Plaintiff’s alleged entitlement to an additional penalty
under Labor Code section 226, subdivision (f) appears to relate to
a claim that he did not plead, namely, a claim that defendant
failed to allow him to inspect his employment records. Plaintiff’s
third cause of action alleged only that defendant failed to provide
itemized statements as required by subdivision (a). There is no
record of plaintiff moving to amend the complaint to allege the
claim he now pursues on appeal. (Phillippe v. Shapell Industries
(1987) 43 Cal.3d 1247, 1256 [“the general rule is that a party may
not for the first time on appeal change his theory of recovery”];
Wittenberg v. Borenstein (2020) 51 Cal.App.5th 556, 565 [same].)
We therefore find no error in the court’s failure to award any
penalties under Labor Code section 226, subdivision (f).
15
2. Misclassification of Plaintiff
Plaintiff also maintains that the trial court erred by failing
to find defendant liable for “effectively characteriz[ing]” plaintiff
as an independent contractor. The record, however, does not
reflect that plaintiff asserted a cause of action based on this
alleged conduct.9 Instead, it appears that this is an issue that
was raised, if at all, in plaintiff’s objections to the statement of
decision. Because plaintiff has failed to demonstrate that he
adequately raised this claim in the trial court by way of a proper
pleading or amendment, we do not address it further on appeal.
(See, e.g., Wittenberg v Borenstein, supra, 51 Cal.App.5th at
p. 565.)
3. Aiding and Abetting
In a “backup argument,” plaintiff alleges that the trial
court erred by failing to find that defendant aided and abetted
the wage and hour violations allegedly committed by Somnus or
Navarchi. As an initial matter, during trial, the court dismissed
plaintiff’s aiding and abetting cause of action in a hearing that
was not transcribed; and plaintiff has not appealed from that
ruling. In addition, the court did not make a ruling on any wage
and hour violations by Somnus or Navarchi. Thus, there were no
9 Plaintiff suggests that this claim was embraced within his
fourth cause of action for violation of Business and Professions
Code section 17200 et seq. The fourth cause of action, however,
was dismissed during trial based on defendant’s nonsuit motion.
We have no record of the basis for that ruling because the
hearing on that motion was not transcribed; and plaintiff does
not separately appeal from that ruling in any event.
16
adjudicated violations that defendant could have aided and
abetted. (See Richard B. LeVine, Inc. v. Higashi (2005) 131
Cal.App.4th 566, 574 [aiding and abetting liability in civil context
depends upon the actual commission of the underlying tort].)
4. Damages Calculations
Plaintiff’s last argument on appeal deals with his
calculations of the damages and penalties to which he would be
entitled in the event the judgment is reversed. Because we
affirm the judgment, we do not address these matters further.
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V. DISPOSITION
The judgment is affirmed. Defendant is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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