Filed 11/19/13 Sanfilippo v. Wells Fargo Advisors CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


DONNA SANFILIPPO,                                                   D062888

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00084954-
                                                                    CU-OE-CTL)
WELLS FARGO ADVISORS, INC. et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.



         Grady and Associates and Dennis M. Grady, Scott L. Zielinski, for Plaintiff and

Appellant.

         Paul, Plevin, Sullivan & Connaughton and E. Joseph Connaughton, Emily J. Fox,

for Defendants and Respondents.
       Plaintiff and appellant Donna Sanfilippo (Sanfilippo) sued defendants and

respondents Wells Fargo Advisors, Inc. (Wells Fargo), her ex-husband, Joe Sanfilippo,1

and three Wells Fargo employees in their individual capacities: Gary Endres, Don

Overbeck and Michael Barnes (collectively respondents). Sanfilippo alleged causes of

action for (1) marital status discrimination under the California Fair Employment and

Housing Act (FEHA; Gov. Code, § 12940 et seq.); (2) gender discrimination under

FEHA; (3) wrongful termination in violation of public policy; (4) interference with

prospective economic advantage; (5) violation of California's unfair competition law

(UCL; Bus. and Prof. Code, § 17200, et seq.); (6) violation of Labor Code section 300;

(7) violation of Labor Code section 2800; (8) conversion and conspiracy to commit

conversion; and (9) fraudulent concealment and conspiracy to defraud.

       Respondents successfully moved for summary judgment on the following

grounds: (1) Sanfilippo failed to state a prima facie case for either claim of

discrimination as she was terminated for a legitimate nondiscriminatory reason; (2) the

wrongful termination cause of action could not be sustained because there was no basis

for the underlying discrimination claims; (3) the cause of action for interference with

prospective economic advantage is barred by the statute of limitations; (4) there was no

statutory violation or wrongful conduct by Wells Fargo to support the UCL cause of

action; (5) Labor Code section 300 does not provide for a private right of action; (6) there



1     Sanfilippo's claims against Joe Sanfilippo in the underlying action were later
dismissed with prejudice.

                                             2
was no Labor Code section 2800 violation because Wells Fargo reimbursed Sanfilippo

for all of her business related losses; and (7) the claims for conversion and fraudulent

concealment were barred by the workers' compensation exclusivity rule and,

alternatively, they were previously adjudicated in the family court.

       Sanfilippo contends the trial court erred because she had established triable issues

of material fact to defeat summary judgment. We conclude there is no basis for that

contention, and therefore affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Starting in the mid-1990's, Sanfilippo and her husband worked jointly as

stockbrokers at Wells Fargo, and following its procedures, split their commissions. At

one point, Sanfilippo received 40 percent of the commissions, and her husband received

60 percent. However, in late 2008, Sanfilippo learned from Endres, a former branch

manager, that the percentage split was changed to 20 percent for her and 80 percent for

her husband. In 2008, the Sanfilippos separated without informing Wells Fargo. In

2009, Sanfilippo filed for divorce.

       In June 2009, Overbeck, a Wells Fargo first vice president, warned Sanfilippo that

she needed to earn $10,000 more in commissions or she would be terminated. He gave

her a second warning in August 2009.

       In December 2009, Sanfilippo was informed by letter that Wells Fargo had

terminated her employment the previous month because she had failed to meet

performance expectations.

       In January 2011, Sanfilippo filed a lawsuit against respondents.

                                             3
       On July 10, 2012, the Sanfilippos reached a dissolution settlement agreement in

family court. Its terms were read into the transcript of the proceedings: "In . . . regard to

the book of business . . . [husband] shall pay [Sanfilippo] the sum of $400,000 in return

for her release of . . . any and all community property claims regarding the accounts [that]

currently or at any other time were managed by [husband] at Wells Fargo or any of its

predecessor firms. . . . [¶] [Sanfilippo] further releases any claims against [husband] for

any interest [she] may or may not have in any alleged book of business." (Capitalization

omitted.)

       On July 30, 2012, the trial court granted respondents' motion for summary

judgment, ruling Sanfilippo had failed to raise triable issues of material fact regarding the

different claims. Specifically, the court found (1) Sanfilippo did not rebut respondents'

explanation of their reasons for terminating Sanfilippo and there was no showing of

discriminatory animus on respondents' part; therefore, the marital status and gender

discrimination causes of action could not be sustained; (2) absent a showing of

underlying discrimination, the wrongful termination cause of action could not be proved;

(3) the claim for interference with prospective economic advantage was barred by the

statute of limitations; (4) the UCL claim failed because there was no showing that Wells

Fargo violated any law or engaged in unfair conduct; (5) Sanfilippo had admitted in her

deposition that Wells Fargo had reimbursed her for all of her business losses, and the

family court had resolved the financial dispute between the Sanfilippos; therefore, the

claims of Labor Code violations were unsupported by the facts; and (6) the workers'



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compensation exclusivity rule barred the causes of action for conversion and fraudulent

concealment.

                                        DISCUSSION

       Summary judgment may be granted only if there is no triable issue of material fact

and the party is entitled to judgment as a matter of law. (Code Civ. Proc.,2 § 437c, subd.

(c).) A defendant moving for summary judgment has the burden of presenting evidence

that negates an element of plaintiff's claim or evidence that the plaintiff does not possess

and cannot reasonably expect to obtain evidence needed to support an element of the

claim. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460; Saelzler v.

Advanced Group 400 (2001) 25 Cal.4th 763, 768.) If the defendant meets this burden,

the burden shifts to the plaintiff to set forth "specific facts" showing that a triable issue of

material fact exists. (§ 437c, subd. (p)(2).)

       We review de novo the trial court's grant of summary judgment. (Hughes v. Pair

(2009) 46 Cal.4th 1035, 1039; Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201,

206.) We take the facts from the record that was before the trial court when it ruled on

the motion and consider all the evidence set forth in the moving and opposing papers,

except those to which objections were made and sustained. (Lonicki v. Sutter Health

Central, at p. 206; § 437c, subd. (c).) The court does not weigh the parties' evidence;

rather, it must consider all the evidence and "all inferences reasonably deducible from the

evidence." (§ 437c, subd. (c); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540-541;


2      All statutory references are to the Code of Civil Procedure unless otherwise stated.

                                                5
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) However, "any doubts as

to the propriety of granting a summary judgment motion should be resolved in favor of

the party opposing the motion." (Reid v. Google, Inc., at p. 535; Miller v. Bechtel Corp.

(1983) 33 Cal.3d 868, 874.)

       Under FEHA, an employer is prohibited from discriminating against an employee

based on marital status or gender. (Gov. Code, § 12940, subd. (a).) The court applies a

"three-stage burden-shifting test" for discrimination claims. (Guz v. Bechtel National,

Inc. (2000) 24 Cal.4th 317, 354 (Guz); Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th

1028, 1042 (Yanowitz).) At trial, the plaintiff employee bears the initial burden of

establishing a prima facie case of discrimination. If he or she does so, a presumption of

discrimination arises. (Guz, at p. 354; Yanowitz, at p. 1042.) The burden then shifts to

the employer to rebut the presumption by producing admissible evidence that its adverse

employment action was taken for a legitimate, nondiscriminatory reason. (Guz, at pp.

355-356; Yanowitz, at p. 1042.) If the employer succeeds, the burden shifts back to the

plaintiff to "attack the employer's proffered reasons as pretexts for discrimination," or to

offer other evidence of intentional discrimination. (Guz, at p. 356; Yanowitz, at p. 1042.)

       A defendant moving for summary judgment may skip to the second step of the

analysis by demonstrating it has a legitimate business reason, unrelated to marital status,

gender, or other protected classifications. (Guz, supra, 24 Cal.4th at p. 357.) The

plaintiff then has "the burden to rebut this facially dispositive showing by pointing to

evidence which nonetheless raises a rational inference that intentional discrimination

occurred." (Ibid.)

                                              6
                   I. Cause of Action for Marital Status Discrimination

       Sanfilippo contends that in a February 2009 meeting with Endres, she requested

that he restore the Sanfilippos' original commission split that Wells Fargo had altered

without her permission. Endres refused on grounds that she was in the process of

divorcing her husband. Sanfilippo claims Endres's statement provided proof that Wells

Fargo acted out of animus based on her marital status as a separated person. Her

subsequent efforts to get Wells Fargo managers to change the commission split also

failed, and she concludes their inaction was based, at least in part, on her marital status.

       Sanfilippo's contention fails because the primary evidence she relies on to show

animus deals with her version of the February 2009 meeting with Endres. However, the

trial court sustained respondents' objections to that evidence. Sanfilippo does not

challenge the trial court's evidentiary rulings; therefore, we do not rely on those portions

of her contention that restate evidence to which objections were sustained. (Wall Street

Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1181.)

       The other evidence Sanfilippo relies on to support her claim of discriminatory

animus derives from Endres's deposition testimony, in which he was asked whether he

had contemplated reverting the Sanfilippos' commission split to the original percentages.

Endres said no, explaining that at the February 2009 meeting, he told Sanfilippo he would

have to check with Joe Sanfilippo about the matter, given that Endres was just learning

the Sanfilippos were separating or divorcing.




                                              7
       We conclude Wells Fargo met its burden by producing admissible evidence that its

motive for terminating Sanfilippo was unrelated to her marital status. Specifically,

notwithstanding Wells Fargo's warning, Sanfilippo failed to increase her commission to

$10,000 per month. Wells Fargo applied the same standards regarding commission levels

and disciplinary proceedings to all financial consultants, independently of marital status.

       The burden next shifted to Sanfilippo to rebut Wells Fargo's evidence by pointing

to evidence which nonetheless showed that Wells Fargo's decision to terminate her

"[was] actually made on the prohibited basis" of marital status discrimination. (Guz,

supra, 24 Cal.4th at p. 358.) Sanfilippo failed to meet her burden because she provided

no direct evidence that the reasons given for her termination were pretextual. She

likewise provided insufficient circumstantial evidence of pretext, that is, evidence that

was sufficiently " ' "specific" and "substantial" ' " to show that respondents were more

likely motivated by a discriminatory reason. (Morgan v. Regents of University of

California (2000) 88 Cal.App.4th 52, 69.) Therefore, the court did not err in adjudicating

this cause of action in Wells Fargo's favor. "[A]n employer is entitled to summary

judgment if, considering the employer's innocent explanation for its actions, the evidence

as a whole is insufficient to permit a rational inference that the employer's actual motive

was discriminatory." (Guz, at p. 361; fn. omitted.)

                      II. Cause of Action for Gender Discrimination

       In arguing that Wells Fargo discriminated against her because of her gender,

Sanfilippo relies on the same evidence as that regarding her marital status discrimination

claim. Specifically, she asserts: "Given that Endres made gender[-]related comments

                                             8
while informing [her] at this February 2009 meeting that he would not rectify the

compensation structure that [she] learned was incorrect and detrimental to her; and given

that after this February 2009 meeting [she] was subjected to further adverse employment

actions including termination, a jury could have found that these actions were taken

against [her] due to her gender." (Some capitalization omitted.) Sanfilippo adds that

despite her "repeated attempts to ask management to correct the unauthorized

commission split, unauthorized client asset and client reassignation, and wage

reallocation, these issues never were corrected. Instead, [she] was given two separate

warnings . . . , denied access to her clients, given goals with which she could never

comply, and ultimately terminated. . . . In contrast, Mr. Sanfilippo, a male broker with

whom [she] shared a pool of clients, still works for [Wells Fargo] and was allowed to

keep all his client assets, commissions, and bonuses, despite [her allegations]."

       As noted, the trial court excluded evidence related to the February 2009 meeting,

and Sanfilippo does not challenge that evidentiary ruling on appeal; therefore, we do not

consider it. In any event, Wells Fargo's justification for terminating Sanfilippo is

nondiscriminatory and relates to her failure to increase her commission earnings.

Sanfilippo has failed to produce evidence attacking Wells Fargo's proffered reason as a

pretext for discrimination. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Accordingly, we

conclude the trial court did not err in summarily adjudicating this claim.

                      III. Cause of Action for Wrongful Termination

       Sanfilippo's cause of action for wrongful termination is based on the same FEHA

claims of marital status and gender discrimination that we concluded lack merit. "As a

                                             9
result, the wrongful termination claim fails for the same reasons as the FEHA claim[s.]"

(Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 355.)

       IV. Cause of Action for Interference with Prospective Economic Advantage

       Under section 335.1, Sanfilippo was required to bring a lawsuit for interference

with prospective economic advantage within two years after the cause of action accrued.

The limitations period begins when the plaintiff suspects, or should suspect, that she has

been wronged. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1114.) "While resolution

of the statute of limitations issue is normally a question of fact, where the uncontradicted

facts established through discovery are susceptible of only one legitimate inference,

summary judgment is proper." (Id. at p. 1112.)

       Here, application of the discovery rule supports the trial court's judgment.

Sanfilippo concedes in her opening brief that she "learned of a commission change with

Mr. Sanfilippo in or about December 2008." Nonetheless, she contends such knowledge

"does not constitute sufficient notice to satisfy the 'discovery rule' that would begin the

running of the statute of limitations" because "[i]t was only later . . . that [she] learned

many more facts related to the unauthorized alteration of her pay structure, among other

unlawful actions, with [Wells Fargo]." We conclude that in light of the undisputed fact

Sanfilippo learned of the commission change in 2008, she had sufficient information at

that time to know she had been wronged; therefore, she was required to bring her cause

of action by 2010 under the statute of limitations. Accordingly, her claim brought in her

2011 lawsuit was time-barred.



                                              10
                                  V. UCL Cause of Action

       The trial court rejected Sanfilippo's UCL claim, finding she had "failed to create

triable issues of material fact as to an applicable predicate violation of the law or unfair

conduct." On appeal, Sanfilippo's argument challenging the trial court's ruling is

comprised of two paragraphs: one discussing Business and Professions Code section

17200, and the other asserting her substantive argument that "[she] does raise enough

triable issues of material fact related to her eight other causes of action contained in her

complaint to, at very least, defeat the [summary judgment motion]. Thus, this cause of

action was erroneously dismissed."

       Sanfilippo's cursory argument is insufficient to defeat the grant of summary

judgment. " ' " 'Instead of a fair and sincere effort to show that the trial court was wrong,

appellant's brief is a mere challenge to respondents to prove that the court was right.' " '

[Citation.] Therefore, plaintiff's contention that the trial court erred by granting

defendants' motion for summary judgment is deemed waived." (Guthrey v. State of

California (1998) 63 Cal.App.4th 1108, 1115-1116.)

       In any case, as this court noted, a claim under Business and Professions Code

section 17200 is a derivative one. Because all of Sanfilippo's other claims fail, and there

was no showing Wells Fargo engaged in wrongdoing, this UCL claim also fails.

(Aleksick v. 7-Eleven (2012) 205 Cal.App.4th 1176, 1185 ["When a statutory claim fails,

a derivative UCL claim also fails."].)




                                              11
              VI. Cause of Action for Violation of Labor Code Section 300

       Labor Code Section 300 subdivision (b)(2) provides that no assignment of wages

is valid unless "[w]here the assignment is made by a married person, the written consent

of the spouse of the person making the assignment is attached to the assignment."

       The trial court ruled Sanfilippo had failed to present "admissible evidence of an

assignment of her wages/commissions." It also concluded that the Sanfilippos'

dissolution settlement had resolved the issue of the commissions. "The doctrine of

collateral estoppel means that once an issue is litigated and determined, it is binding in a

subsequent action." (Wall v. Donovan (1980) 113 Cal.App.3d 122, 125-126.)

       On appeal, Sanfilippo contends she presented sufficient evidence to support this

cause of action in the form of Endres's declaration, which stated: "The Sanfilippos

worked as a team, maintaining the same pool of clients. They split the commissions on a

percentage basis. Initially, Ms. Sanfilippo received a higher percentage of the

commissions than Mr. Sanfilippo. Over time, Mr. Sanfilippo requested that the

percentage split be changed. First, it was changed to 60 [percent for] Mr. Sanfilippo and

40 [percent for] Ms. Sanfilippo. Later, the commissions were changed to 80 [percent for]

Mr. Sanfilippo and 20 [percent for] Ms. Sanfilippo." Sanfilippo also points to Endres's

deposition testimony in which he states that she told him she had not given her husband

permission to change the commission split.

       Sanfilippo claims the commission split issue was not fully resolved in the family

court, noting that she and her husband separated in September 2008, but Wells Fargo

notified her about her termination in December 2009. She claims her wages earned

                                             12
between those dates were not considered community property for family court purposes.

We conclude that in the family court settlement, Sanfilippo completely disclaimed any

interest in Joe Sanfilippo's book of business and all commissions arising from it. The

resolution of this matter in the family court barred its relitigation in the underlying action.

In several cases, "courts have made it clear that family law cases 'should not be allowed

to spill over into civil law.' " (Burkle v. Burkle (2006) 144 Cal.App.4th 387, 393; Askew

v. Askew (1994) 22 Cal.App.4th 942, 965 ["[F]iling a separate civil action was

duplicative of the family law action."].)

                      VII. Labor Code Section 2800 Cause of Action

       The court found as a factual matter that Wells Fargo had paid Sanfilippo all

monies owed. At her deposition, defense counsel asked Sanfilippo whether she had

incurred any business expenses that Wells Fargo had not reimbursed her. She replied, "I

don't recall."

       Labor Code Section 2800 states: "An employer shall in all cases indemnify his

employee for losses caused by the employer's want of ordinary care." On appeal,

Sanfilippo argues that the statute's scope extends beyond simply reimbursable expenses.

She specifically claims Wells Fargo caused her significant losses by its lack of ordinary

care in failing to obtain her "written (or verbal) authorization before giving her earned

commissions and accounts to Mr. Sanfilippo, denying her a bonus, refusing to return the

percentage commission splits to the point at which [she] agreed, denying [her] access to

her clients, denying her an office space, putting her on a [Performance Improvement

Plan], putting her on a 'draw,' requiring her to average $10,000 in monthly commissions

                                              13
or she would [be] terminated even though she had no clients or assets to manage,

terminating her, and asking her to pay [Wells Fargo] a $5,894.01 'retention' bonus."

       As noted, this matter involving the commission split was resolved in the family

court; therefore, under the doctrine of collateral estoppel, the claim could not be litigated

a second time. Accordingly, the trial court did not err in summarily adjudicating this

claim against Sanfilippo.

          VIII. Causes Of Action for Conversion And Fraudulent Concealment

       Sanfilippo bases her claims of conversion and fraudulent concealment on the

commission split. The trial court found she had not produced admissible evidence that

Wells Fargo had converted her property or fraudulently concealed the commission split

from her. The trial court ruled these causes of action were barred by the workers'

compensation cause exclusivity rule and, alternatively, there was no evidence Wells

Fargo knew of the Sanfilippos' separation, or changed the commission split in

contravention of the Sanfilippos' pooling agreement.

       Sanfilippo argues on appeal, "[Wells Fargo], through its manager Endres, denied

Sanfilippo her wages by changing her compensation structure without her knowledge or

consent." (Some capitalization omitted.)

       To state a cause of action for conversion, a plaintiff need only allege his or her

" ' "ownership or right to possession of the property at the time of the conversion; the

defendant's conversion by a wrongful act or disposition of property rights; and

damages." ' " (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507.)



                                             14
       We conclude Sanfilippo failed to raise a triable issue of material fact regarding

this claim because in her deposition she disclaimed that anybody at Wells Fargo held

income owed to her. She was asked, "Do you believe anyone possessed income that you

should have received instead of you?" She named only Joe Sanfilippo. Also, defense

counsel asked her in a deposition, "You'll agree with me that all of the commissions that

what I'll call the Sanfilippo team were owed were ultimately paid; correct? Your

contention is about to whom those should have been paid. Right?" Sanfilippo replied in

the affirmative. Sanfilippo admitted Wells Fargo did not withhold monies owed to her

and her husband. Further, the family court resolved all matters involving the commission

split, thus barring relitigation of the issue. Therefore, we conclude the trial court did not

err in granting summary adjudication of these claims.




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                                   DISPOSITION

        The judgment is affirmed. Respondents are entitled to costs on appeal.


                                                                        O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


AARON, J.




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