PROOF OF SERVICE BY MAIL, HAND DELIVERY OR TELECOPIER

William R. Hopkins (SBN: 170122)

Law Office

1 Blackfield Drive, No. 344

Tiburon, CA 94920

Telephone: (415) 691-8686Facsimile: (415) 373-3761

Attorney for Plaintiff

IN AND FOR THE SUPERIOR COURT OF CALIFORNIACOUNTY OF MARIN

(Unlimited Jurisdiction)

ROBERT E. AGEE,

Plaintiff,

vs.

WEST CONTRA COSTA UROLOGICAL SURGICAL MEDICAL GROUP INC. a suspended California Corporation, Mark Silvert dba West Urological Surgical Group, and MARK SILVERT, M. D. an individual and as an officer of the corp.

and DOES 1 through 5, inclusive,

Defendants. Case No. CIV 1300981PROOF OF SERVICE TOPLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION OF ISSUES

Date:

Time:

Place: Department L

Before the Honorable Judge Lynn Duryee

Amount in Controversy Exceeds $25,000.00

I. INTRODUCTION

This motion is for summary adjudication of certain causes of action and affirmative defenses and, as set forth in the motion and supporting evidence, there is no triable issue of fact as to those causes of actions and affirmative defenses.

As a matter of Law Defendants WEST CONTRA COSTA UROLOGICAL SURGICAL MEDICAL GROUP INC. (WCCU) and Defendant Mark Silvert dba West Urological Surgical Group, and MARK SILVERT, M. D. an individual, cannot establish the affirmative defense that there was no employment relationship between the parties and overcome the First Four Causes of Action, summary judgment should be granted.

Plaintiff was treated as an employee for the past twenty-one years. Defendants contend now that Plaintiff was never an employee throughout his 21 years of employment.

At least $100,000 has been deducted from Agees bimonthly paycheck during a nineteen year period. If he is not or never has been an employee, then WCCU and Defendant Silvert owes him the full amount of all deductions in addition to paying him for patients seen since October 16, 2010 as well as paying him for his on-call rotation.

Plaintiff Agee has sought in this action recovery of wages due and unpaid. He has bought five causes of action based on his loss wages set forth in his breach of contract cause of action.

The specific causes of action include 1) Breach of Contract 2) Failure to Pay Wages Owed 3) Failure to Furnish Accurate Wage and Commission Statements 4) Unfair Competition /Waiting time penalties 5) Intentional infliction of Emotional Distress. He seeks entry of judgment on all of his four of his five causes of action.

Robert Agee, an Urologist worked for defendants for over twenty-one years since 1992 and was paid as an employee for nineteen of the twenty-one years. In October, 2010, defendants stopped paying his monthly salary. His patient case load decreased because defendants refused to allow him to see new patients.

Until then, Defendants had paid all employment taxes, paid for all license renewals and until 2013, paid his liability insurance premiums.

Defendants defense in this lawsuit is that Plaintiff was never an employee but was given a draw and that his salary ceased because he ceased to make enough income to support further payments to him. Thus, defendants state in discovery that Plaintiff was given the option of either retiring or paying advances for office expenses.

II. PROCEDURAL SUMMARY

The parties have engaged in the exchange of various discovery methods and await resolution of documents via a stipulated protective order. At the Case Management Conference in this matter on August 26, 2013, the parties were sent to mediation. Mediation is to be completed within 90 days.III. STATEMENT OF UNDISPUTED FACTS

Plaintiff worked for Defendants for over twenty-one years as an employee. He is a Board Certified Urologist. (Declaration of Plaintiff, para 1) He was paid the first 19 years bimonthly. Id. (Plaintiffs Dec. para 2) (Exhibit 1)

Defendant Mark Silvert, M.D. also a urologist, owns both West Contra Costa Urological Surgical Medical Group in San Pablo and West Urological Surgical Group, in Vallejo (Employer) where he is the principal agent for both. (Mark Silverts Answer to Form Interrogatory, Exhibit 2, page 3:1-6) He bought the practice from Maurice Sandler in 2001. (Bill of Sale, Exhibit 3) (Plaintiffs Dec. para 3)

Plaintiffs over 484 paychecks had all of the standard state and federal deductions, deductions and matching of 6.2 percent for OASDI taxes to pay for Social Security and Medicare benefits and in sum, all employment taxes. (Exhibit 1, samples of Plaintiffs paychecks)(SS, Undisputed Facts 5) Each payroll check shows the standard deductions.Under the terms of the employment agreement (agreement) Plaintiff entered into with Maurice Sandler, M.D. owner of WCC in 1992, before the practice was purchased by Mark Silvert, M. D. in 2001, Plaintiff was promised $100,000 annual salary and commissions. (Plaintiffs Dec. 5), (Exhibit 4 Agreement)

The terms of the agreement were never repudiated. (See also Plaintiffs Dec. para 7) Plaintiff cannot locate the executed contract.

Since the beginning of his employment, defendants paid for Plaintiffs medical license renewal, maintained his malpractice insurance, he had paid vacations and maintained his DEA prescription license renewals. (Plaintiff 9)

In March, 2013, Defendants allowed Plaintiffs malpractice insurance to lapse and ceased paying his medical licenses which risked lapsing. (Plaintiffs Dec. 10) (Exhibit 5, Proof that Plaintiffs malpractice insurance lapsed by defendants failure to pay bill.) Plaintiff for the first time in the history of his employment had to pay his DEA license renewal, medical license renewal, malpractice insurance. (Copy of payments to renew or reinstate Exhibit 5)

Plaintiff also paid his privilege fee for remaining on call with Sutter Solano Medical Center. (See Exhibit 6 copies of Plaintiffs Sutter Agreement 2013) (Plaintiffs Dec. para 11-12)This has been his sole source of income for the past almost 3 years. From on call at Sutter Solano four days a month (cut from 7 days a month by defendant Silvert) Plaintiffs compensation is $300.00 a day or $1440 a month. (Plaintiffs Dec. para 22) Defendant Silvert has the same or a similar agreement with Sutter Solano.

Thought out his employment, Plaintiff was never issued a Form 1099 but was always given a W-2 and W-4 forms as an employee. (Copy of W-2, Exhibit 7) (Plaintiffs Dec. 20) (Copy of 2-4s Exhibit 7)

1. Plaintiff was an employee

Defendants always controlled the number of patients seen by Plaintiff. Defendants employees, Medical Assistant Kimberly Esqueda and Gail Kent made patient appointments for Plaintiff. (Plaintiffs Dec. para 24) Defendants set Plaintiffs office hours. (Dec. para 26). (Esqueda Dec. 4)

a. Employer exercised control over Plaintiff as an employee

Whenever Dr. Agee would see a patient, he was assisted most of the time for 13 years, until June, 2012, by Medical Assistant Kimberly Esqueda. (Esqueda Dec. para 2, 4)

Defendant Silvert assigned Plaintiff on/call rotation duties when office is closed and required him to work out of its San Pablo office unless defendant Silvert was on vacation. (Esqueda Dec. para 17) If so, Plaintiff was assigned to work out of the Vallejo office. (Plaintiffs Dec. para 14, 41) (Esqueda Dec. para22) (See also on-call schedule, Exhibit 8)Defendants WCC and Silvert paid for all of his supplies, test supplies, patient needs and made collections from patients he saw through its office manager, Gail Kent. (See Declaration of Plaintiff, paras 16, 23, 30, 31) Any supplies that Plaintiff needed to practice medicine were supplied by WCCU, this included catheters, saline solutions, swabs, syringes, distilled water and voiding study supplies. (Dec. para 31).

Dr. Silver paid for all supplies. There were no invoices directed to or from Dr. Agee for supplies needed in the performance of his job. (Esqueda Dec. para 6)

b. Employer breached the employment contract

For the five year period prior to June, 2012, Defendant Silver told Kimberly Esqueda not to give Dr. Agee any new patients. (Esqueda Dec. para 8, 13, 14, 16, 19) Approximately three years before Plaintiff filed his lawsuit, defendants diverted patients under his care to follow-up appointments in its Vallejo office. (Plaintiffs Dec. 36, 37 and 38)

Whenever patients are seen at the West Contra Costa Urological Surgical Medical Group in San Pablo, it is the office policy for a staff person, a medical assistant to be present during the doctors visit with a patient. (Esqueda para 11) This avoids allegations of impropriety (Exhibit 12)

Initially before defendant Silvert cut Plaintiffs ability to see new patients, he worked Mondays, Tuesdays, Thursdays and Fridays. (Esqueda para 12) After Defendant Silvert reassigned the San Pablo support staff from San Pablo to Vallejo, Plaintiff. Agee was only able to see patients on Mondays and Tuesdays. (Esqueda para 12, 13, 14, 15 and 19)

Plaintiff has continued to see patients during the past three years without salary when called by the office to inform him that he had patients on that date. (Plaintiffs Dec.-35-36) During the past two years Plaintiff saw at least 800 patients who paid WCC for his services. (Plaintiffs Dec. 36)

This generated income was kept by defendants WCCU and Silvert. (Plaintiffs Dec., 17) Plaintiff has not been paid for seeing any patients since October, 2010 and continuing through the present time. (Plaintiffs Dec., 34, 41) (Esqueda para 19, 20, 21, 23, 9, 10) Before October, 2010, Silvert had paid plaintiff a salary of $2250 every two weeks. (Exhibit 1, and Dec. para 19)

Silvert has refused to continue paying him. (See Plaintiffs Dec., para 34) Plaintiff has continued to see patients. (Exhibit 9, sealed to provide confidentiality)

c. Plaintiffs pay status establishes his classification as an employee

Plaintiff Agee was never told that he was to receive a draw against business that he maintained. Agee was never told that he was not an employee. (See also Agees declaration, para 13). Plaintiff was paid for yearly vacations and paid for sick leave. (See Defendants Vacation policy, a page from its Personnel Manuel) Plaintiff was out for four weeks from having two surgeries and defendants continued his pay. (Plaintiffs Dec. para 21) The last sick leave was in 2010. (Plaintiffs Para 21.) If he incurred any expenses for office use, he would be reimbursed. The exception was that he paid his own on-call expenses including travel expenses. (Plaintiffs Dec. para 30).

Defendants have stated that they advised Plaintiff to resign or start paying for his office expenses as a reason for ceasing keeping him on pay-roll. (Defendants Response to Form Interrogatories, (Exhibit 2, page 9:10-17) He was never told this. (Plaintiffs Dec. para 41)

IV. ARGUMENT

A. Applicable Legal Standards Plaintiff has moved for summary judgment and summary adjudication based on the fact that defendants have no defense to four of his five causes of action and many of defendants affirmative defenses are without merit. CCP section 437 c (c ) requires a trial court to grant summary judgment if all the papers and affidavits submitted together with all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Once that burden is met, the burden shifts to defendant to show the existence of a triable issue of one or more material facts with respect to that defense. See Smith vs. Maldonado (1999) Cal App 1st Distr5) 72 Cal App 4th 637, 85 Cal Rptr. 2d 397, 1999 Cal App LEXIS 530.

A motion for summary judgment shall be granted if all the papers submitted show there are no triable issues as to any material facts and the moving party is entitled to judgment as a matter of law. CCP section 437 c. To be material, for purposes of summary judgment proceeding, a fact must relate to claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. Zavala v. Arce (1997) 58 Cal. App. 4th 915, 926, 68 Cal. Rptr. 3d 571. Agee bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 107 Cal Rtpr. 2d 841, 24 P3d 493, 2001 Cal. LEXIS 3758. This burden does not shift, only the burden of production shifts. Aguilar.

In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden of establishing that there is no genuine issue of material fact in dispute will be satisfied if he or she can point to an absence of evidence to support an essential element of the non-moving party's claim. However, in moving for summary judgment on an issue on which the movant One who makes a motion before a court. The applicant for a judicial rule or order.

Generally, it is the job of the movant to convince a judge to rule, or grant an order, in favor of the motion. bears the burden of proof at trial, the movant must make a strong showing. The showing must be sufficient for the court to hold that no reasonable trier of fact trier of factn. the judge or jury responsible for deciding factual issues in a trial. If there is no jury the judge is the trier of fact as well as the trier of the law. ..... Click the link for more information.could find other than the moving party. On a motion for summary judgment, the court draws all reasonable inferences in the light most favorable to the party opposing the motion.The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Aquilar (2001) Aguilar describes how clarified 437c works. The burden on the moving party is the "burden of persuasion" to show there is no triable issue of material fact. Further, "there is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof."

B.Summary Adjudication can be entered as to Plaintiffs First Cause of Action as it is undisputed that the evidence shows that defendants breached a valid contract or contractual relationship. Plaintiff alleges in his First Cause of Action in relevant paragraphs that:

In early 2010, defendants ceased all payments for Plaintiffs work that was owed pursuant to Plaintiffs Employment Contract, under the terms of his written agreement, custom, habit and practice constituting his oral contract. (Plaintiffs Dec. para 2, 9) That in essence, Defendants purposefully diverted patients assigned to him in order to avoid paying Plaintiff his salary. Defendants admit that they wanted Plaintiff to retire and in sum, he was being forced out of a job. (Exhibit 2, Defendants Answers to Form Interrogs with RFA, page 8)

Under the terms of Plaintiffs employment contract, both written and oral, Plaintiff as an employee is entitled to compensation for all past wages due and all commissions earned. Thus, as Plaintiffs complaint alleges, by failing to pay Plaintiff, Defendants breached his oral and/or written employment agreement.

CACI, 303 [Breach of Contract - Essential Factual Elements] provides as follows:

To recover damages from defendants for breach of contract, plaintiff must prove all of the following:

1. That plaintiff and defendant entered into a contract;

2. That plaintiff did all, or substantially all, of the significant things that the contract required him to do or that he was excused from doing those things;

3. That all conditions required by the contract for Plaintiffs performance had occurred/or were excused;

4. That defendants failed to do something that the contract required it to do; and/or4. (is repeated as such in CACI) That defendants did something that the contract prohibited it from doing; and

5. That plaintiff was harmed by that failure.

1. Plaintiff and defendants entered into a valid contract.

A valid contract requires that the parties have a legal capacity to contract, mutual consent, a lawful objective and sufficient consideration. 1 Witkin, Summary of California Law (10th ed. 2005), Contacts, sections 1, 4, 9, 202, 203, 204, 205, 314. (BAJI 10.55) A contract may be express or implied in fact or implied in law. In an implied contract, the existence and terms of the contract are inferred from the conduct of the parties. Both types are based upon the express or apparent intention of the parties. See BAJI 1.70 and 10.71.

To determine mutual consent, conduct alone is not effective as an expression of consent, unless that person intends to engage in the conduct and knows or has reason to know that the other party may infer consent from such conduct. BAJI 10.60.2. That plaintiff did all, or substantially all of the significant things that the contract required him to do or that he was excused from doing those things:

Since the date that he was hired, Plaintiff worked diligently for West Contra Costa Urological Surgical Medical Group (WCC). (Plaintiffs para 2). He is requested to see patients and still sees patients at the WCC San Pablo office. (Plaintiffs Dec. para 11). He was always treated as an employee. (Para 13) There is no blemish on his record. No medical malpractice claims or lawsuits. The same cannot be said of his boss, Mark Silvert.

Defendant Silvert still assigns plaintiff on call rotation schedule to cover for him, defendant Silver. (Plaintiffs Dec. Para 14). Plaintiff did not work for other urologist during this entire 21 year period. (Id. Para 17) In exchange for working for WCC, plaintiff was paid a salary, vacation and sick leave. (Id. para 21). He saw patients according to the employers assignments of his schedule. (Id. para 24). He adhered to office hours as assigned. (Id. para 26). He has continued to see patients almost three years without being paid. (Plaintiffs Dec. para 35).Plaintiff was accorded paid vacations and paid sick leave. ( See Dec. para 21 and Exhibit 11)

3. Defendants performance is not excused.

Plaintiff never consented to working without pay.

4. That defendants failed to do something that the contract required it to do; and/or that defendants did something that the contract prohibited it from doing.

In this case, for nineteen years the West Contra Costa provided Agee with a bimonthly salary with withholdings, paid his mal practice insurance, and make social security deposits and all required state and federal deductions. (See Exhibit 1, copy of some paychecks and Exhibit 7 W-2s and W-4s )At least $100,000 has been deducted from Agees paycheck. If he is not an employee, then West Contra Costa owes him the full amount of all deductions in addition to payment for almost three past years of patient care. An independent contractor gets to make his own tax choices.

The answering service at WCC when the office is closed, has a recording identifying Plaintiff as on call. Defendant Silvert made the on call schedule (Agee Dec. para 14) making certain that Agee conferred on him the benefit of working all major holidays so that defendant Silvert could be off. (Exhibit 8) The office manager has continued until August, 2013 calling Agee to come in to see patients. (Agee Dec. para 35) When those patients pay for his services, the money is maintained by defendant Silvert. Id. This is sufficient consideration because it has value to the employer. BAJI 10.61

It is well settled that a promise to pay given in return for the performance of work or services constitutes an enforceable unilateral contract. (Los Angeles Transition Co. v. Wilshire (1902) 135 C.654, 658, 67 P. 1086. The continuing services of an employee, whether in public or private employment are consideration for any employers promise to pay a pension in the future. (Kern v. Long Beach (1947) 29 C. 2d 848, 855, 179 P. 2d 799) Hunter v. Sparling (1948) 87 C.A. 2d 711, 723, 197 P2d 807 [private employer].)

5. That plaintiff was harmed by that failure:

In October, 2010, defendants ceased all payments for Plaintiffs work. (Plaintiffs Dec. para 9, 34) Defendants caused Plaintiffs malpractice Insurance to lapse in 2013. (Exhibit 5) (Plaintiffs Dec. para 10). Yet, Plaintiff is still called upon to see patients plus pay his own license renewals for the first time in his employment history. (Id. Dec. para 10-13, Exhibits 5,6). He is assigned on-call rotation schedule when the office is closed. And the patients that he sees, defendants keep the payment from these patients. (Exhibit 6) (Plaintiffs Dec. para 13, 14, 15, 34, 35)

Defendants have placed plaintiff in a quandary. He cannot simply stop seeing his patients and risk lawsuits for medical malpractice. Defendants know that Plaintiff cannot simply stop seeing patients thus they continue to call him weekly to see patients and use him on call when Defendant Silvert refuses to see patients. Moreover, at least $100,000 has been deducted from Agees paycheck. If he is not an employee, then West Contra Costa owes him the full amount of all deductions in addition to his salary for the past two years, reimbursement for letting his insurance lapse this year and his share of revenues generated from the patients that he treated in 2011 and 2012 up to the present.

Defendants should be estopped from denying liability for wages to plaintiff.

1: Summary Adjudication can be entered as to defendants Eleventh Affirmative Defense as it is undisputed that the evidence shows that defendants and Plaintiff was in an employee/employer relationship:

This court should look at the totality of the circumstances that establish the employer/employee relationship. The court then can conclude, after considering all the factors, that no reasonable jury weighing the evidence could conclude that the totality of the factors supports an independent contractor status. It seems settled that courts held that the key consideration in determining employment status is the right to control the manner and means of how the worker performed duties. a. Standards to decide if the relationship is as employee/employer or independent contractor.

This standard is well settled in the matter of Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1404 (Angelotti), the existence of an employment relationship is a question for the trier of fact, but can be decided by the court as a matter of law if the evidence supports

only one reasonable conclusion. The pivotal inquiry looks at the control of details - i.e., whether the principal has the right to control the manner and means of accomplishing the result desired. . . . (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350.)

The key is the right to control, rather than the amount of control which was exercised. (Ibid.) Varisco v. Gateway Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1103 (Varisco) Control is the principal factor in determining whether an individual worker is an employee or an independent contractor. An independent contractor is one who renders service in the course of an independent employment or occupation, following his employer's desires only in the results of the work, and not the means whereby it is to be accomplished, wrote the Varisco court, quoting prior cases.

In Varisco, Gateway hired Varisco as an independent contractor to work on assignment with the Los Angeles Unified School District as a certified project inspector. After about 11 months, Gateway offered Varisco a new contract, which he refused to sign. Gateway terminated Varisco, and he sued for wrongful termination. Varisco was a construction inspector, and his job was to ensure that the project met the requirements set out in the California Code of Regulations. Gateway entered into an agreement with him, paid him, and sent him to the job site so that he could exercise his skill and accomplish the result, but that is all that Gateway did. All of Varisco's reports were to the LAUSD, often on LAUSD forms. If an inspection revealed a problem, Varisco reported it to the LAUSD, not Gateway. If he had a question, he asked the architect, not Gateway. Gateway, which did not have a representative at the job site, does not even seem to have known the details of Varisco's work, and certainly could not have controlled them.

The Varisco Court determined the following factors which it labeled secondary factors.In addition to the primary element of control, case law has identified secondary indicia of the nature of the relationship. These are:

- whether the one performing services is engaged in a distinct occupation or business;

- the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

- the skill required in the particular occupation;

- whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

- the length of time for which the services are to be performed;

- the method of payment, whether by the time or by the job;

- whether or not the work is a part of the regular business of the principal; and

- whether or not the parties believe they are creating the relationship of employer-employee.

This court like the Court in Varisco should consider the following factors:

The absolute control defendants had over Plaintiff which including setting appointments, setting his work schedule and billing patients and providing supplies. Furthermore, Plaintiff Agee received benefits, vacation paid, payment for license renewals and malpractice insurance, just to name a few. It is clear from his Declaration and long term relationship that he considered himself an employee and was treated as such. And a critical fact is that Plaintiff was maintained on the payroll for over 19 years.

2. West Contra Costa held itself out as Plaintiffs employer

An independent contractor agreement is not dispositive of the issue of whether a doctor is an independent contractor or an employee of the hospital. (See Powell v. Fuentes, 34,666 (La. App. 2 Cir. 5/9/01), 786 So.2d 277. In deciding this issue, the courts look to the degree of control exercised over the doctor's activities. Id. Whether an employee/employer relationship or an independent contractor relationship exists is a factual determination to be decided on a case-by-case basis. Id. West Contra Costa Urological Surgical Medical Group Inc. held itself out as Agees employer. (See policies given to patients, Exh. 10)C. Summary Adjudication can be entered as to the Second Cause of Action for Unlawful Failure to Pay Vested Wages and Commissions Owed (California Labor Code 200 et. seq.) because it is undisputed that the evidence shows that defendants breached its agreement by its failure to pay vested wages.

Under California Labor Code 200, wages are defined to include salary, bonuses and commissions. Defendants failed to pay Plaintiff compensation at all as promised for the past almost three years and failed to pay Plaintiff in full for his entire employment period.

Plaintiffs complaint alleges as follows:

Para 31. Defendants also failed to pay Plaintiffs commission he accrued.

Para 32. Defendants thereby violated California law, which prohibits employees from taking wages from employees by refusing to pay for services as rendered.

Para 33. As a result of Defendants conduct, Plaintiff has been denied vested commissions due quarterly as well as denied wages.

Para 34. At all times relevant, Defendants failed to pay Plaintiff wages when due and in so doing, violated the Labor Code.

Para 35. By violating California Labor Code 200 et. seq. Defendants are liable in full for all unused vacation accrued by Plaintiff , plus interest thereon, and for attorneys fees and costs under California Labor Code 218.5.

Para 36. As a result of Defendants conduct, Plaintiff was forced to retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable attorneys fees and costs.

Defendants contend that Plaintiff owes them money and thus, they ceased paying him. Plaintiff was told he was not bringing in enough income to pay his expenses, and advances were stopped. (Silverts Supp. Response to Form Interrogs, RFA No. 12, page 8:10-12. Exhibit 2)

Plaintiff was not owed a monthly salary within the last 24 months. Plaintiff received more than his net income considering money from Sutter Solano medical Center (SSMC) he kept and his expenses, including advances to pay his malpractice insurance, computer (EMR and billing), etc. ( Id. Exhibit 2, page 8:15-18) The amount in question from Sutter Solano is approximately $14,400 annually or $1600 a month ($300 a day x 4 days each month). Plaintiffs sole source of income since October 16, 2013. ( See also Exhibit 6, On Call contract and Para 22 of Plaintiffs Dec.)

In sum, it is defendants position that they ceased paying plaintiff a salary because he owed them money. (Exh. 2, page 8) It is well settled that an employer is not entitled to a setoff of debts owing it by an employee against any wages due that employee. See Barnhill v. Robert Saunders & Co. (1981, 1st Dist) 125 Cal App 3d 1, 177 Cal Rptr. 803, 1981 Cal App LEXIS 2293. In fact, even deduction without consent is in violation of various labor code provisions, Lab Code sections 201,202, 216, 221 et seq. and CCP section 487.020.

As explained in Phillips v. Gemini Moving Specialists (1998 2d Dist) 63 Cal. App 4th 563, 74 Cal Rtpr 2d 29, 1998 Cal App LEXIS 367, there is a fundamental and substantial public policy protecting an employees wages and that protection includes freedom from set offs such as the one the employee in Phillips alleged in his complaint. Defendants admit that one of the reasons that they ceased paying plaintiff was because he owed them money. (See Exhibit 2, page 8) Defendants further admit that they were trying to force him to retire. (See page 8, Exhibit 2)

D. Summary Adjudication can be entered as to plaintiffs Third Cause of Action for Failure to Furnish Accurate Wage and Commission Statements because it is undisputed that the evidence shows that defendants have no excuse for their behavior

Defendants contend that it did not provide any records because of inadvertent and/or clerical error. Defendants have refused to provide records for almost three years. Noncompliance with any Labor Code provision constitutes a violation]; see Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961. Brewer v. Premier Golf Properties (2008) 168 Cal.App.4th 1243, 1249 [statutory requirement was violated; substantial evidence supported jury finding that employer did not pay employee wages for all of the hours that she actually worked and thus did not give her accurate itemized wage statements];When proven, Labor Code violations give rise to civil penalties. (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1195.) For employers who violate section 226(a), civil penalties are assessed as provided in section 226.3. As relevant to this appeal, that provision states: In enforcing this section, the Labor Commissioner shall take into consideration whether the violation was inadvertent, and in his or her discretion, may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake. (226.3, italics added.) Defendants cannot meet that standard. There is no evidence of inadvertent or clerical error in not providing wage statements or producing inaccurate statements. Dispute the demand to produce enough information to determine if Plaintiff is owed a commission in the past four years, defendants refuse.1. Defining the Term Inadvertent for Purposes of Section 226.3

As the Heritage Residential Care, Inc. vs. Division of Labor Standards Enforcement Court reasoned, the word inadvertent is not defined in the Labor Code, nor are we aware of any cases discussing its meaning in the context of section 226.3. In the absence of a statutory definition, and there is none, or in the absence of an adjudicated definition, and we have found none, we must turn to the general principle that in the construction of a statute, words or phrases are construed according to the context and approved usage of language. (Goodhew v. Industrial Acc. Commission (1958) 157 Cal.App.2d 252, 256.) Cited in Heritage Residential Care, Inc. v. Division of Labor Standards Enforcement et. al. Id.

We thus give the statutory term its plain and commonsense meaning. (Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1103.)

2. The Ordinary Meaning of Inadvertent as Reflected in Dictionary Definitions

As dictionary definitions reflect, the ordinary meaning of inadvertent is unintentional or not deliberate. The Merriam-Webster Online Dictionary defines inadvertent as unintentional. (Merriam-Websters Online Dict. (2011). According to that same source, antonyms include deliberate and intentional while near antonyms include knowing and willful (or wilful). (Ibid.) Appeals courts adopt the ordinary, commonplace meaning of inadvertent reflected in these dictionary definitions. (Wasatch Property Management v. Degrate, supra, 35 Cal.4th at pp. 1121-1122; Manson v. Shepherd, supra, 188 Cal.App.4th at p. 1262.) Therefore the Heritage Court concluded that the word inadvertent, as used in section 226.3, means unintentional, accidental, or not deliberate.

The statutes companion phrase, clerical error. ( 226.3 [Labor Commissioner has discretion to reduce penalty in case of a clerical error or inadvertent mistake].) Like inadvertence, clerical error denotes behavior that is accidental, not deliberate. (See People v. Ramirez (1972) 27 Cal.App.3d 660, 666 [Legislature made a clerical error in enacting statute by mistakenly omitting a comma]; In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 852 [a court makes a clerical error when the form of a judgment does not coincide with its substance].) Inadvertence thus denotes no particular mental state.

There is no basis for a mitigated penalty nor is there any evidence of inadvertency in failing to provide records in violation of LC section 200 and 226.E. SUMMARY ADJUDICATION CAN BE ENTERED AS TO THE FOURTH CAUSE OF ACTION FOR UNFAIR COMPETITION BECAUSE IT IS UNDISPUTED THAT DEFENDANT BREACHED THE EMPLOYMENT CONTRACT

Business and Professions Code 17200

A section 17200 suit may concern a breach of an employment contract (oral or written) or company policies. It is possible to combine other claims with Labor Code violations. Violations of the Labor Code may be unfair business practices under California Business and Professions Code 17200. Indeed, the California Supreme Court has affirmed the use of this statute in wage and hour violations.

As the foregoing evidence shows, defendants and plaintiff were in an employee/employer relationship and defendants breached Plaintiffs employment contract. For at least the last five years before June 2013, staff was told at West Contra Costa not to give Plaintiff Agee any new patients. (Esqueda para(s) 8, 9, 10, 11). Staff necessary to assist Plaintiff with seeing patients was diverted from the San Pablo office to Dr. Silverts Vallejo office. (Esqueda Dec. 12, 13, 14, 16). Plaintiff Agee was kept on call but not paid in order for Defendant Silvert to be covered when Silvert needed a vacation. (Esqueda Dec. para 21, 23 and Exhibit 8) Dr. Silvert would not even allow Plaintiff to triage the many surgical patients. (Esqueda Dec. , para 9) When Plaintiff assisted any other surgeons after 2010, Dr. Silvert kept the money from each such assist. (Esqueda para 10) Yet Plaintiff is required to still see his patients. (Plaintiffs Dec. para 11) Defendants claim that Plaintiff was told to retire or begin paying to continue to be an employee. (page 8, Exhibit 2) Defendants at the same time they ceased paying Plaintiff still included him on an on-call rotation. Plaintiff is 76 years old. Courts have found lesser conduct as sufficient for a cause of action for unlawful practices under B & P section 17200. Although Plaintiff Agee does not have to prove the element of a tort, he must show that the public was likely to be deceived.

In deciding what this Court should look for, the case of Brokaw v. Qualcomm Inc. (2002, SD Cal) 2002 US Dist LEXIS 27808 is informative. (2005) 126 S. Ct. 364, 163 L. Ed. 2d 71. 74 U.S.L.W. 3202. Brokaw sued Qualcomm alleging among other claims, unfair business practices based on Qualcomms fraudulent promises of compensation, that the employee took away his rights to stock option compensation, that the employer terminated employees based on age and that the employer required older employees to waive civil rights in order to receive compensation. This general description of alleged wrongful conduct, according to the Brokaw court, lacked sufficient specificity to conclude that Qualcomms practices constituted unfair business practices. However, Plaintiff Agees complains about far more specific wrongful and unlawful conduct on the part of defendants.

Plaintiff is still required to remain on call allowing West Contra Costa to cover its patients needs even when the business is closed. Plaintiff is required to see patients but is not compensated for seeing patients. Breach of contact may form the predicate for a claim pursuant to B & P section 17200 provided it also constitutes conduct that is unlawful, or unfair, or fraudulent Nat Rural Telecoms Coop v. DIRECT TV, Inc. (2003, CD Cal) 319 F. Supp. 2d 1059, 2003 U Dist. LEXIS 25374.

Defendants have placed plaintiff in a quandary. He cannot simply stop seeing his patients and risk lawsuits for medical malpractice. Defendants know that Plaintiff cannot simply stop seeing patients thus they continue to call him weekly to see patients and use him on call when Defendant Silvert refuses to see patients. V. CONCLUSION

Based on the foregoing, and in the interest of justice, Plaintiff respectfully request that Summary Judgment be granted on his First Cause of Action as summary adjudication of certain of his issues in this motion resolves the entire action.

Dated: September 6, 2013

By: _______________________________

WILLIAM R. HOPKINS

Attorney for Plaintiff Robert Agee

A copy of the draft contract is attached to the complaint.

Unless otherwise indicated, para refers to

Plaintiffs Dec.

This argument is more fully developed under summary adjudication of Defendants Twelfth Affirmative Defense

The full text of section 226.3 reads as follows: Any employer who violates subdivision (a) of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226. The civil penalties provided for in this section are in addition to any other penalty provided by law. In enforcing this section, the Labor Commissioner shall take into consideration whether the violation was inadvertent, and in his or her discretion, may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake.

111Plaintiffs PROOF OF SERVICE