Goonewardene v. ADP, LLC

Opinion

In the underlying action, appellant Sharmalee Goonewardene’s fifth amended complaint asserted claims against respondents ADP, LLC, ADP Payroll Services, Inc., and AD Processing, LLC, for wrongful termination, violations of the Labor Code, and related causes of action, including breach of contract, negligent misrepresentation, and negligence. The trial court sustained respondents’ demurrers relating to the fifth amended complaint without leave to amend. Appellant contends the court abused its discretion in denying her leave to amend, arguing that her proposed sixth amended complaint states claims against respondents. We conclude that the proposed complaint states claims against respondents only for breach of contract, negligent misrepresentation, and negligence. We therefore affirm the trial court’s ruling in part, reverse it in part, and remand with instructions to permit appellant to file a complaint against respondents asserting those claims.

In April 2012, appellant commenced the underlying action. Her initial complaints named as defendants a California corporation and New York corporation bearing the same name—Altour International Inc.—and Alexandre Chemla, who was alleged to be the corporations’ alter ego (collectively, Altour). The complaints asserted claims for wrongful termination, breach of contract, violations of the Labor Code, and related causes of action predicated on allegations that appellant was employed by Altour, which failed to compensate her in accordance with the Labor Code and wrongfully terminated her when she brought that misconduct to its attention.

In March 2015, appellant filed her fourth amended complaint (4AC), which, in addition to the claims previously alleged against Altour, included a single cause of action against respondent ADP, LLC, namely, a claim for unfair business practices under the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.). In connection with that claim, the complaint alleged that ADP, LLC, failed to provide appellant with adequate documentation and records regarding her compensation.

After ADP, LLC, demurred to the 4AC, appellant informed the trial court that she wished to assert additional claims against ADP, LLC. The trial court deferred ruling on the demurrer to permit appellant to submit a motion for leave to file the fifth amended complaint (5AC), which contained claims against all three respondents for wrongful termination, violations of the Labor Code and federal labor laws, breach of contract, unfair business practices, false advertising, negligence, and negligent misrepresentation. The 5AC alleged that respondents entered into a contract with Altour to provide payroll services relating to Altour’s employees. Several claims in the 5AC also effectively asserted or alleged that all respondents acted as appellant’s employer.

In ruling on the pending demurrer to the 4AC and the motion for leave to file the 5AC, the trial court sustained the demurrer to all claims founded on the assumption that ADP, LLC, was appellant’s employer, coemployer, or joint employer. The court denied appellant leave to amend with respect to those claims, and ordered them dismissed with prejudice. The court otherwise permitted appellant to file the 5AC, on the condition that appellant assert only the remaining claims against respondents.

The 5AC nevertheless contained claims predicated on the assumption that ADP Payroll Services Processing, Inc., and AD Processing, LLC, were appellant’s employers. Respondents demurred to the 5AC, contending the

While that order was pending, appellant submitted a motion for reconsideration and a proposed sixth amended complaint (6AC), which materially resembles the 5AC, as originally proposed. The 6AC contains claims similar to those in the original 5AC—including the claims relying on the theory that respondents were appellant’s employers—with additional factual allegations. The motion for reconsideration requested leave to file the 6AC. On August 5, 2015, without expressly denying the motion for reconsideration, the trial court entered a final order sustaining respondents’ demurrer to the 5AC without leave to amend, and a judgment of dismissal in favor of respondents. This appeal followed.

DISCUSSION

Appellant contends the trial court erred in sustaining respondents’ demurrer to the 5AC without leave to amend. As explained below, we agree with the trial court that the majority of appellant’s claims must be dismissed. However, we conclude the proposed 6AC adequately pleads claims for breach of contract, negligent misrepresentation, and negligence based on allegations that respondents performed payroll services for appellant’s benefit in an inaccurate and negligent manner.

A. Standard of Review

“Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court’s discretion, an appellate court employs two separate standards of review on appeal. [Citation.] . . . Appellate courts first review the complaint de novo to determine whether or not the . . . complaint alleges facts sufficient to state a cause of action under any legal theory, [citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law. [Citation.]” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857 , 879 [ 6 Cal.Rptr.2d 151 ], fn. omitted (Cantu).) We do not assess the credibility of the allegations, as “ ‘[i]t is wholly beyond the scope of the inquiry to ascertain whether the facts stated are true or untrue.’ ” (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365 , 375 [ 165 Cal.Rptr. 449 ], quoting Colm v. Francis (1916) 30 Cal.App. 742 , 752 [ 159 P. 237 ].)

“Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether or not the plaintiff could amend the

D. Claims Based on Theory That ADP Was Appellant’s Employer

The 6AC asserts several claims predicated on the theory that ADP was appellant’s employer. Specifically, they allege or suggest (1) that ADP was subject to certain duties to appellant imposed on employers under California and federal law, and (2) that ADP was empowered to terminate appellant’s employment. The claims assert violations of the Labor Code and the Fair Labor Standards Act of 1938 (FLSA) ( 29 U.S.C. § 201 et seq.), racial discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and title VII of the Civil Rights Act of 1964 (title VII) (42 U.S.C. § 2000e et seq.), and wrongful termination in violation of public policy. As explained below, the claims fail for want of sufficient allegations establishing an employee-employer relationship between appellant and ADP.

1. Labor Code Claims

We begin with appellant’s claims under the Labor Code. The 6AC asserts claims against ADP for failure to make timely wage payments (Lab. Code, §§ 201, 201.3, 201.5, 202, 203, 205.5; second cause of action), failure to pay overtime compensation (Lab. Code, § 1194; 10th cause of action), and failure to issue adequate earnings statements (Lab. Code, § 226; 11th cause of action).

ADP’s liability under the claims hinges on whether ADP employed appellant within the meaning of the term “employ” in the applicable IWC wage order, which the 6AC alleges to be IWC wage order No. 4-2001 or IWC wage order No. 9-2001 (Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419 , 1428-1429 [ 119 Cal.Rptr.3d 513 ] (Futrell)). Those wage orders define the term “[e]mploy” as “to engage, suffer, or permit to work.” (Cal. Code Regs., tit. 8, § 11040, subd. 2(E), 11090, subd. 2(D).) That definition incorporates “three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” (Martinez v. Combs (2010) 49 Cal.4th 35 , 64 [ 109 Cal.Rptr.3d 514 , 231 P.3d 259 ] (Martinez).) Generally, “[t]he essence of the common law test of employment is in the ‘control of details.’ A number of factors may be

The application of the IWC’s definition of ‘“employ” to Labor Code claims against a payroll services provider was examined in Futrell. There, the plaintiff initiated a class action against a television commercial production company and its hired payroll services provider, asserting claims under the Labor Code and the applicable IWC wage order for failure to make timely wage payments, issue adequate pay statements, and pay overtime compensation (Lab. Code, §§ 203, 226, 1194), together with claims under the FLSA for failure to pay overtime compensation ( 29 U.S.C. §§ 207 , 216). (Futrell, supra, 190 Cal.App.4th at pp. 1424-1425.) When the payroll services provider sought summary adjudication on the claims, the evidence established that it collected time cards from the plaintiff, placed that information in a computer system to create the plaintiff’s paychecks, and maintained records relating to the plaintiff’s compensation. (Id. at p. 1427.) The trial court granted summary adjudication on the claims, concluding that the payroll services provider was not the plaintiff’s employer. (Id. at pp. 1429-1430.)

Affirming the ruling, the appellate court held that for purposes of the Labor Code claims, no employment relationship existed under the three definitions incorporated in the IWC’s definition of the term “employ[].” (Futrell, supra, 190 Cal.App.4th at pp. 1424-1425.) Regarding the first definition, the court determined that the payroll service provider’s role in generating paychecks established no such relationship: “[W]e conclude that ‘control over wages’ means that a person or entity has the power or authority to negotiate and set an employee’s rate of pay, and not that a person or entity is physically involved in the preparation of an employee’s paycheck. This is the only definition that makes sense. The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make [the preparer] an employer for purposes of liability for wages under the Labor Code wage statutes. The preparation of payroll is largely a ministerial task, albeit a complex task in today’s marketplace. The employer, however, is the party who hires the employee and benefits from the employee’s work, and thus it is the employer to whom liability should be affixed for any unpaid wages. The extension of

The court further determined that no employment relationship existed under the remaining definitions. Regarding the second definition, the court concluded that the payroll service provider did not “ ‘suffer or permit’ ” the plaintiff “ ‘to work,’ ” as there was no evidence it ‘“had the power to either cause him to work or prevent him from working.” (Futrell, supra, 190 Cal.App.4th at p. 1434.) Regarding the third definition, the court concluded that the record reflected no common law employment relationship because the payroll service provider lacked control over the circumstances of the plaintiff’s work. (Id. at pp. 1433-1434.)

We find Futrell persuasive and apply its analysis in assessing the Labor Code claims in the 6AC. In an apparent effort to establish that ADP exercised a type of control over appellant required for an employment relationship, the 6AC alleges that ADP, by ‘“partnering with or attaching itself to Altour’s business and taking over a variety of employer functions, . . . essentially became [appellant’s] employer at least in the area in which it maintained] control . . . .” Because that allegation represents a legal conclusion, we disregard it, and examine whether the facts pleaded in 6AC establish an employment relationship. (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949 , 953 [ 230 Cal.Rptr. 192 ].) As explained below, they do not.

The allegations in the 6AC demonstrate only that ADP took over the functions ordinarily assigned to an employer’s internal payroll department, which is not properly regarded as an additional employer. (Futrell, supra, 190 Cal.app.4th at pp. 1424-1434.) Nothing in the 6AC suggests ADP had ‘“the power or authority to negotiate and set [appellant’s] rate of pay.” (Futrell, supra, 190 Cal.app.4th at p. 1432.) On the contrary, the 6AC asserts a claim for breach of contract solely against Altour (fourth cause of action), alleging that appellant entered into written and oral agreements with it, and that from 2005 to 2012, Altour repeatedly breached the agreements ‘“by failing to pay [her] in accord with the agreed upon rate in . . . pay.” (Italics added.) Furthermore, notwithstanding the wrongful termination claim asserted against ADP, the 6AC contains no factual allegations that ADP had the power to hire or fire appellant or control the circumstances of her work. Indeed, in the 6AC and on appeal, appellant asserts only that ADP exercised a specific type of control over the payment of her compensation. As discussed below, that purported control does not render ADP her employer.

Appellant contends ADP undertook an employment relationship with her because the 6AC assigns a broader range of responsibilities to ADP than

Appellant’s contention fails, as ADP’s influence is not reasonably regarded as “ ‘control over wages,’ ” for purposes of IWC’s definition of the term “employ.” That definition refers to “the power or authority to negotiate and set an employee’s rate of pay,” that is, the basic discretionary right to select the rate of pay from a range of potential values. (Futrell, supra, 190 Cal.App.4th at p. 1432.) The allegations of the 6AC fail to establish that ADP had such power. Rather, ADP’s influence arose solely through Altour’s duties under the Labor Code and the applicable wage orders, which specified how appellant’s pay was permissibly calculated once she and Altour agreed upon her rate of pay. Because those duties identify the appropriate lawful “time and manner of paying wages” and “mandatory overtime pay” (Cuadra v. Millan (1998) 17 Cal.4th 855 , 858 [ 72 Cal.Rptr.2d 687 , 952 P.2d 704 ], abrogated on another ground in Samuels v. Mix (1999) 22 Cal.4th 1 , 16, fn. 4 [ 91 Cal.Rptr.2d 273 , 989 P.2d 701 ]), they are not discretionary, but mandatory (Redwood Coast Watersheds Alliance v. State Bd. of Forestry & Fire Protection (1999) 70 Cal.App.4th 962 , 970 [ 83 Cal.Rptr.2d 24 ] [discretionary acts are those regarding which there is no hard-and-fast rule as to the course of conduct that one must or must not take]). Accordingly, in undertaking to determine appellant’s compensation in compliance with those duties, ADP acquired no basic discretionary right to set appellant’s rate of pay. Rather, ADP’s alleged deviations from the lawful determination of appellant’s compensation constituted errors by ADP, not the exercise of a right. ADP’s conduct under its agreement is thus properly characterized as ministerial. (Ibid. [“A duty is ministerial when it is the doing of a thing unqualifiedly required”].) In sum, the 6AC fails to allege the employment relationship required for the Labor Code claims.

2. FLSA Claims

The 6AC asserts two claims against ADP under the FLSA for failure to pay overtime compensation (sixth and 12th causes of action; 29 U.S.C.

The FLSA claims fail in view of Futrell. In affirming summary adjudication of the plaintiffs FLSA claims relating to overtime compensation, the court reasoned that under the economic reality test, the payroll services provider was not the plaintiffs employer, as it merely prepared his paychecks and maintained certain compensation records. (Futrell, supra, 190 Cal.App.4th at pp. 1435-1436.) That rationale applies here. As explained above (see pt. C.l. of the Discussion, ante), according to the facts alleged in the 6AC, ADP acted as Altour’s payroll department; it exercised no material control over appellant’s rate of pay, terms of employment, or circumstances of work. Accordingly, under the “economic reality” test, the 6AC fails to establish an employment relationship sufficient to support the FLSA claims.

3. Discrimination Claims

The 6AC contains claims against ADP for discrimination under FEHA (eighth cause of action) and title VII (ninth cause of action). As these claims assert discrimination relating to appellant’s employment, ADP is liable for the alleged discrimination only if it employed her. (Vernon v. State of California (2004) 116 Cal.App.4th 114 , 123 [ 10 Cal.Rptr.3d 121 ] [FEHA prohibits only employers from engaging in discrimination]; Murray v. Principal Financial Group, Inc. (9th Cir. 2010) 613 F.3d 943 , 944 [plaintiffs may assert tit. VII discrimination claim against entity only if they are its employees].) Although courts have applied a variety of specific tests to determine the existence of an employment relationship under the two statutory schemes, “[t]he common and prevailing principle espoused in all of the tests” directs attention to “the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls

4. Claim for Wrongful Termination in Violation of Public Policy

The 6AC’s claim charging ADP with appellant’s wrongful termination in violation of public policy (fifth cause of action) fails for similar reasons. The claim alleges that when appellant sought the compensation due her, Altour and ADP discharged her, in contravention of public policy incorporated in the Labor Code favoring timely payment of all wages owed. That claim, however, “can only be asserted against an employer.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 , 900 [ 80 Cal.Rptr.3d 690 , 188 P.3d 629 ].) In sum, the claims in the 6AC predicated on the theory that ADP employed appellant are fatally defective, as the allegations establish no employee-employer relationship between appellant and ADP.

E. Breach of Contract Claim Predicated on Third Party Beneficiary Theory

The 6AC contains a breach of contract claim against ADP predicated on the theory that appellant and other Altour employees were third party beneficiaries of the agreement between Altour and ADP (18th cause of action). For the reasons discussed below, we conclude the claim is adequately pleaded.

Civil Code section 1559 provides: “A contract, made expressly for the benefit of a third person, may be enforced by him [or her] at any time before the parties thereto rescind it.” Here, “ ‘ “ ‘[e]xpressly[,]’ . . . means ‘in an express manner; in direct or unmistakable terms; explicitly; definitely; directly.’ ” [Citations.] “[A]n intent to make the obligation inure to the benefit of the third party must have been clearly manifested by the contracting parties.” ’ [Citation.]” (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949 , 957-958 [ 23 Cal.Rptr.3d 233 ].) For that reason, the statute “ ‘excludes enforcement of a contract by persons who are only incidentally or remotely benefited by it. [Citations.]’ ” (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127 , 1137 [ 4 Cal.Rptr.3d 583 ] (California Emergency Physicians Medical Group).)

A third party may have enforceable rights under a contract as either a creditor beneficiary or a donee beneficiary. (Lake Almanor Associates L.P. v. Huffman-Broadway Group, Inc. (2009) 178 Cal.App.4th 1194 , 1199 [ 101

Because ‘“[t]hird party beneficiary status is a matter of contract interpretation” (California Emergency Physicians Medical Group, supra, 111 Cal.App.4th at p. 1138), a party alleging a claim for breach of contract based on that status “must plead a contract which was made expressly for his benefit and one in which it clearly appears that he was a beneficiary” (Luis v. Orcutt Town Water Co. (1962) 204 Cal.App.2d 433 , 441 [ 22 Cal.Rptr. 389 ]). The term “ ‘express,’ ” as applied here, is subject to two pertinent qualifications.

First, to be an express third party beneficiary, a person “ ‘need not be named or identified individually,’ ” as it is sufficient that the contract shows he or she “ ‘is a member of a class of persons for whose benefit it was made.’ ” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004 , 1023 [ 90 Cal.Rptr.3d 453 ].) In Soderberg v. McKinney (1996) 44 Cal.App.4th 1760 , 1763 [ 52 Cal.Rptr.2d 635 ] (Soderberg), a mortgage broker engaged in the business of arranging investments in mortgage loans. In order to secure the plaintiff’s investment in a specific loan, the broker arranged for an appraiser to provide the plaintiff with an appraisal of the net value of the pertinent property. {Ibid.) After the investment failed, the plaintiff learned that the property’s true net value was far less than as appraised, and sued the broker and appraiser for breach of contract. (Id. at pp. 1763-1764.) When the trial court ruled that the complaint stated no claim against the appraiser, the plaintiff sought leave to amend to assert a third party beneficiary theory based on an alleged contract between the broker and the appraiser for the preparation of appraisal reports to be given to potential investors. (Id. at p. 1772.) The trial court denied that request, concluding that the alleged contract did not expressly designate the plaintiff as a third party beneficiary. (Id. at p. 1773.) Reversing, the appellate court concluded that the proposed amendment asserted a tenable third party beneficiary theory, even though the alleged contract did not specifically identify the plaintiff as a beneficiary. (Id. at pp. 1772-1774.)

Second, the status of a third party beneficiary does not require a written contract. In Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593 , 606 [ 176 Cal.Rptr. 824 ] (Del E. Webb Corp.), a general contractor asserted a claim for breach of contract against a construction

For a claim of negligent misrepresentation, “[a] plaintiff must prove the following in order to recover[:] ‘[Misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage. [Citation.]’ [Citation.]” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967 , 983 [ 132 Cal.Rptr.2d 635 ], quoting Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277 , 1285 [ 255 Cal.Rptr. 483 ].)

The tort requires a “ ‘ “positive assertion.” ’ ” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835 , 854 [ 68 Cal.Rptr.3d 828 ] (OCM Principal Opportunities Fund), quoting Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288 , 297-298 [ 70 Cal.Rptr.2d 442 ].) The tort thus encompasses “ ‘[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true’ [citation], and ‘[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true’ [citations].” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167 , 174 [ 132 Cal.Rptr.2d 490 , 65 P.3d 1255 ] (Small).) Furthermore, “when the defendant purports to convey the ‘whole truth’ about a subject, ‘ “misleading half-truths” ’ regarding the subject may constitute positive assertions for the purpose of negligent misrepresentation.” (OCM Principal Opportunities Fund, supra, 157 Cal.App.4th at p. 854, quoting Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066 , 1081 [ 60 Cal.Rptr.2d 263 , 929 P.2d 582 ].)

The tort is also subject to a limitation applicable to claims against professionals such as auditors, attorneys, architects, engineers, and title insurers, who generally provide reports or opinions to clients on the basis of information supplied by the clients. (OCM Principal Opportunities Fund, supra, 157 Cal.App.4th at p. 856.) In Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370 , 408-415 [ 11 Cal.Rptr.2d 51 , 834 P.2d 745 ] (Bily), our Supreme Court held that an auditor who plays a “secondary” role in the preparation of a financial report for a client—that is, who relies entirely on information provided by its client, and is subject to the client’s “primary control of the financial reporting process”—is liable only to a limited class of third parties for negligent representations contained in the financial report, viz., the class delimited in section 552, subdivision (2), of the Restatement Second of

ADP also suggests that the 6AC contains no allegations establishing justifiable reliance. We disagree. Generally, to plead a claim for negligent misrepresentation, a plaintiff must allege with sufficient particularity that he or she actually relied on the misrepresentation, as well as that such reliance was justifiable. (Daniel v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150 , 1166-1168 [ 201 Cal.Rptr.3d 390 ].) Reliance may be predicated on a theory of forbearance, that is, “the decision not to exercise a right or power . . . .” (Small, supra, 30 Cal.4th at p. 174.) Under such a theory, the plaintiff should ordinarily allege “actions, as distinguished from unspoken and unrecorded thoughts and decisions, that would indicate that the plaintiff actually relied on the misrepresentations.” (Id. at p. 184.) Additionally, to allege justifiable reliance under any theory, the plaintiff “must set ‘forth facts to show that his or her actual reliance on the representations was justifiable, so that the cause of the damage was the defendant’s wrong and not the plaintiff’s fault.’ ” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039 , 1066 [ 141 Cal.Rptr.3d 142 ], quoting 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 732, p. 153.) Reliance is justifiable when the “ ‘circumstances were such to make it reasonable for [the] plaintiff to accept [the] defendant’s statements without an independent inquiry or investigation.’ [Citation.] The reasonableness of the plaintiff’s reliance is judged by reference to the plaintiff’s knowledge and experience. [Citation.]” (OCM Principal Opportunities Fund, supra, 157 Cal.App.4th at p. 864, italics omitted, quoting Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324 , 1332 [ 231 Cal.Rptr. 355 ].)

Aside from alleging in general terms that appellant reasonably relied on the earnings statements, the 6AC asserts that after appellant began her employment in 2005, she was paid twice monthly, and received earnings statements from ADP. In 2010, she noticed disparities between her own records and her hours worked as reflected on her paychecks. She then made her own wage

G. Professional Negligence Claim

The 6AC contains a claim for professional negligence against ADP (14th cause of achon) predicated on allegations that ADP, as a payroll services provider, breached a duty of care owed to appellant, resulting in the underpayment of her compensation. Generally, “there are four essential elements of a professional negligence claim: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulhng injury; and (4) actual loss or damage resulting from the professional’s negligence. [Citations.]’ ” (Osornio v. Weingarten (2004) 124 Cal.App.4th 304 , 319 [ 21 Cal.Rptr.3d 246 ], quoting Budd v. Nixen (1971) 6 Cal.3d 195 , 200 [ 98 Cal.Rptr. 849 , 491 P.2d 433 ].) Here, the key question regarding appellant’s claim is whether the 6AC adequately alleges that ADP owed a duty of care to her.

Privity of contract is required for the existence of such a duty of care, absent special circumstances. (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133 , 1137 [ 114 Cal.Rptr.3d 724 ] (Giacometti).) Biakanja v. Irving (1958) 49 Cal.2d 647 [ 320 P.2d 16 ] is the leading case regarding those circumstances. There, a notary public prepared a will for a client, but negligently failed to have it properly attested. (Id. at p. 648.) Following the client’s death, the primary beneficiary under the will asserted a claim for negligence against the notary. (Ibid.) After the beneficiary secured a judgment in his favor, our Supreme Court examined whether the notary owed a duty of care to the beneficiary, notwithstanding the absence of a contract between them. (Id. at pp. 648-651.) The court stated: “The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the

In Bily, the Supreme Court concluded that under the multi-factor test set forth in Biakanja, auditors playing a ‘“secondary” role in preparing financial reports for a client owe no duty of care to third parties not in privity of contract with the auditors. (Bily, supra, 3 Cal.4th at pp. 402, 396-407.) As the court explained, auditors acting in that role are ultimately dependent upon the information supplied by their client, and have little or no control over to whom the client distributes their reports. (Id. at p. 400.) The court determined that three considerations conclusively weighed against the imposition of a duty of care: (1) that recognition of such a duty exposed an auditor to ‘“potential liability far out of proportion to its fault,” in view of its ‘“secondary ‘watchdog’ role”; (2) that the ‘“generally more sophisticated class of plaintiffs in auditor liability cases (e.g., business lenders and investors) permit [ted] the effective use of contract rather than tort liability to control and adjust the relevant risks”; and (3) that the imposition of tort liability was likely to increase the costs and reduce the availability of auditing. (Id. at p. 398.) Regarding item (3), the court concluded that the imposition of liability would not yield greater accuracy ‘“without disadvantage,” in view of the ‘“labor-intensive nature of auditing,” which creates a report through ‘“a complex process involving discretion and judgment on the part of the auditor at every stage.” (Id. at pp. 404, 400.) In view of that complexity, the court noted, few audits are immune from criticism. (Id. at p. 400.) Greater vulnerability to litigation was therefore likely to reduce the availability of auditing services. (Id. at p. 404.)

The court thus held that ‘“an auditor’s liability for general negligence in the conduct of an audit of its client[’s] financial statements is confined to the client, i.e., the person who contracts for or engages the audit services. Other persons may not recover on a pure negligence theory.” (Bily, supra, 3 Cal.4th at p. 406.) Nonetheless, in a footnote accompanying that holding, the court stated: ‘“In theory, there is an additional class of persons who may be the practical and legal equivalent of ‘clients.’ It is possible the audit engage ment contract might expressly identify a particular third party or parties so as to make them express third party beneficiaries of the contract. Third party beneficiaries may under appropriate circumstances possess the rights of parties to the contract. [Citations.]” (Id. at pp. 406-407. fn. 16.) Noting the case presented no third party beneficiary issue, the court declined to further address the issue. (Ibid.)

In view of appellant’s status as a creditor beneficiary, she is reasonably regarded as “the practical and legal equivalent” of a party to the contract between Altour and ADP. (Bily, supra, 3 Cal.4th at p. 406, fn. 16.) Generally, creditor beneficiaries may enforce the terms of the contract made for their benefit to the extent the promissee is authorized to do so. (Mercury Casualty Co. v. Maloney (2003) 113 Cal.App.4th 799 , 802 [ 6 Cal.Rptr.3d 647 ] [“Á person who is not a party to a contract may nonetheless have certain rights thereunder, and may sue to enforce those rights, where the contract is made expressly for her benefit”]; Johnson v. Holmes Tuttle Lincoln-Merc. (1958) 160 Cal.App.2d 290 , 297 [ 325 P.2d 193 ] [“While the contract remains unrescinded, the relations of the parties are the same as though the promise had been made directly to the third party [beneficiary]”].) Accordingly, to the extent the contract obligated ADP to discharge Althour’s preexisting wage-related duties to appellant, she is authorized to enforce that contractual obligation against ADP.

Furthermore, the Biakanja factors weigh in favor of recognizing a duty of care. The contract between Altour and ADP was intended to affect all Altour employees, including appellant, and harm to them was manifestly foreseeable upon ADP’s alleged failure to determine their wages in accordance with applicable laws. For the reasons discussed above (see pt. E. of the Discussion, ante), appellant’s injuries were certain and closely connected with ADP’s alleged conduct, as ADP was engaged both to calculate her earnings and to provide earnings statements reflecting the wages due; her failure to receive the compensation owed her was attributable to ADP’s own alleged errors. That underpayment must be regarded as significant, as “ ‘[i]t has long been recognized that . . . because of the economic position of the average worker . . . , it is essential to the public welfare that he receive his pay when it is due.” (Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319 , 326 [ 19 Cal.Rptr. 492 , 369 P.2d 20 ], quoting In re Trombley (1948) 31 Cal.2d 801 , 809-810 [ 193 P.2d 734 ].) Furthermore, recognizing a duty of care encourages accurate payment of wages. (See Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104 ,

The FAL makes it unlawful for any person or corporation, acting with the intent to perform a service or “induce the public to enter into any obligation relating” to that service, to disseminate a statement by means of advertising that is “untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading .. . .” (Bus. & Prof. Code, § 17500.) Claims under the FAL, like claims under the UCL, are subject to the requirements imposed under Proposition 64, which the voters of California approved in November 2004. (Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223 , 227 [ 46 Cal.Rptr.3d 57 , 138 P.3d 207 ].) Proposition 64 amended the FAL and the UCL to limit standing to assert claims to any “ ‘person who has suffered injury in fact and has lost money or property as a result of’ ” a violation of the FAL or the UCL. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310 , 321 [ 120 Cal.Rptr.3d 741 , 246 P.3d 877 ] (Kwikset).)

“To satisfy these requirements at the pleading stage a plaintiff must allege facts showing that he or she suffered an economic injury caused by the alleged violation. [Citation.] Because ‘reliance is the causal mechanism of fraud’ [citation], this requires pleading facts showing actual reliance, that is, that the plaintiff suffered economic injury as a result of his or her reliance on the truth and accuracy of the defendant’s representations. [Citation.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217 , 228 [ 162 Cal.Rptr.3d 864 ].)

Here, the 6AC contains no allegations establishing the requisite reliance. The 6AC alleges that ADP disseminated many untrue or misleading statements by means of advertising and the Internet. According to the 6AC, those statements related to ADP’s provision of payroll tools and services to employers and employees to ensure compliance with applicable laws, and ADP’s partnership or joint venture with the Altour defendants for the purpose of handling its payroll, maintaining its records, and safeguarding confidential employee information. The 6AC describes ADP’s purportedly misleading statements, but does not allege that appellant actually saw them. Although the 6AC asserts that appellant “logged directly into an ADP system to track her earnings,” it contains no allegations that she was exposed to the misleading statements through that system (or in some other way) or that they affected her conduct. In the absence of such allegations, the 6AC’s assertion that the misrepresentations caused injury to appellant are insufficient to plead reliance.

Appellant contends those allegations are inessential to her claim. Pointing to Kwikset, she argues that the phrase “as a result of,” as employed in the

In our view, appellant’s contention reflects a misapprehension of Kwikset. There, in the context of examining a false advertising claim under the UCL, our Supreme Court discussed the meaning of the phrase “ ‘as a result of,’ ” for purposes of the FAL and the UCL. (Kwikset, supra, 51 Cal.4th at pp. 326-327.) After noting that in Hall v. Time Inc. (2008) 158 Cal.App.4th 847 , 855 [ 70 Cal.Rptr.3d 466 ] (Hall), the appellate court construed that phrase to require “ ‘a showing of a causal connection or reliance on the alleged misrepresentation,’ ” the court in Kwikset set forth the “controlling” analysis, which it attributed to its prior decision in In re Tobacco II Cases (2009) 46 Cal.4th 298 [ 93 Cal.Rptr.3d 559 , 207 P.3d 20 ] (Tobacco Cases II). (Kwikset, supra, at p. 326.)

The court in Kwikset stated: “Recognizing that ‘reliance is the causal mechanism of fraud’ [citation], we held that a plaintiff ‘proceeding on a claim of misrepresentation as the basis of his or her UCL action must demonstrate actual reliance on the allegedly deceptive or misleading statements, in accordance with well-settled principles regarding the element of reliance in ordinary fraud actions’ [citation].” (Kwikset, supra, 51 Cal.4th at pp. 326-327, quoting Tobacco Cases II, supra, 46 Cal.4th at pp. 306, 326.) In a footnote, the court explained: “ ‘Reliance’ as used in the ordinary fraud context has always been understood to mean reliance on a statement for its truth and accuracy. [Citation.] It follows that a UCL fraud plaintiff must allege he or she was motivated to act or refrain from action based on the truth or falsity of a defendant’s statement, not merely on the fact it was made. [Citation.]” (Kwikset, supra, 51 Cal.4th at p. 327, fn. 10.)

The court pointed with approval to Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350 , 1363-1364 [ 108 Cal.Rptr.3d 682 ] (Durell), which involved a UCL class action against a hospital predicated on a fraudulent business practice. (Kwikset, supra, 51 Cal.4th at p. 327.) The class plaintiff’s complaint alleged that the hospital’s Web site and services agreement contained misrepresentations regarding the fees charged uninsured patients for medical services. (Durell, supra, 183 Cal.App.4th at pp. 1361-1362.) Although the complaint alleged that the plaintiff had suffered damages as a “ ‘proximate result’ ” of the misrepresentations, it contained no allegation that he ever saw them or relied on them. (Id. at p. 1363.) After a demurrer to the complaint was sustained without leave to amend, the appellate court affirmed. (Id. at pp. 1362-1364.) In so concluding, the court rejected a contention based on Hall that a simple allegation of causation sufficed for a UCL claim, stating that Tobacco Cases II required an allegation of reliance. (Durell, at pp. 1363-1364.)

The 6AC contains two claims under the UCL against ADP, one of which (15th cause of action) relies on the misconduct alleged in connection with the claims for negligent misrepresentation, negligence, and violations of the FAL, and the other of which (16th cause of action) relies on the misconduct alleged in connection with the claims based on the theory that ADP was appellant’s employer. Generally, the UCL defines “unfair competition” broadly to include “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) Under the UCL, damages cannot be recovered, and plaintiffs are generally limited to restitution and injunctive relief. (Clark v. Superior Court (2010) 50 Cal.4th 605 , 610 [ 112 Cal.Rptr.3d 876 , 235 P.3d 171 ].) As explained below, the allegations in the 6AC fail to adequately state these claims.

First, we conclude that the 6AC alleges no unlawful or unfair business practice. Generally, “[b]y proscribing ‘any unlawful’ business practice, ‘[the UCL] “borrows” violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable. [Citation.] [¶] However, the law does more than just borrow. The statutory language referring to ‘any unlawful, unfair or fraudulent’ practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163 , 180 [ 83 Cal.Rptr.2d 548 , 973 P.2d 527 ] (Cel-Tech).)

Liability for unlawful and unfair practices is subject to a restriction traceable to Cel-Tech, which involved UCL claims relating to the marketing of consumer goods and services. The court concluded that for purposes of the type of UCL claim presented to it, the public policy necessary to establish an unfair practice must be closely tied to a statute. (Cel-Tech, supra, 20 Cal.4th at p. 187.) Following Cel-Tech, at least one appellate court has concluded that in any UCL action, the public policy underlying an alleged unfair practice “must be ‘tethered’ to specific constitutional, statutory or regulatory provisions.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845 , 854 [ 128 Cal.Rptr.2d 389 ].)

In Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176 [ 140 Cal.Rptr.3d 796 ], the appellate court applied that limitation to a UCL claim arising in circumstances closely resembling those presented here. There, a franchisor of

Likewise, the 6AC fails to allege an unlawful or unfair practice. As explained above (see pt. D. of the Discussion, ante), the labor laws and wage orders identified in the 6AC are not applicable to ADP. For that reason, the alleged misconduct by ADP does not violate the public policy underlying them.

Additionally, we conclude that the 6AC alleges no fraudulent practice entitling appellant to relief under the UCL. To the extent the UCL claims rely on the alleged false advertising attributed to ADP in connection with the FAL claim, the UCL claims fail for the same reason as the FAL claim, namely, insufficient allegations of reliance. Furthermore, to the extent the UCL claims rely on the misrepresentations in appellant’s earnings statements, as alleged in connection with the negligent misrepresentation claim, the claims fail for want of any allegation that ADP derived a benefit from the misrepresentations supporting a restitutionary recovery.

In Bradstreet v. Wong (2008) 161 Cal.App.4th 1440 , 1444 [ 75 Cal.Rptr.3d 253 ], abrogated on another ground in Martinez, supra, 49 Cal.4th at page 50, footnote 12, three corporations hired an accountant to perform bookkeeping and payroll work for them. When the corporations failed to pay wages owed their employees, litigation ensued in which two employees and other parties asserted a UCL claim against the corporation’s owners and the accountant. (Bradstreet, supra, 161 Cal.App.4th at pp. 1444-1448.) When the accountant secured a judgment in her favor on the claim, the appellate court affirmed, concluding there was no basis for a restitutionary recovery against her because she derived no benefit from the unpaid wages. (Id. at pp. 1458-1463.) That rationale applies here, as the 6AC contains no allegation that ADP derived a benefit from appellant’s unpaid wages for which she may seek restitution. In sum, the 6AC states no UCL claim.

J. Aiding and Abetting Claim

Appellant contends she is entitled to assert a claim for aiding and abetting against ADP. Although her opening brief discusses that theory of joint

Appellant has failed to show that she can state an aiding and abetting claim against ADP with respect to unpaid wages. Generally, aiding and abetting requires the commission of an underlying tort. (Nasrawi, supra, 231 Cal.App.4th at p. 343, fn. 7.) Although her briefs refer to two potential torts—namely, conversion and “theft”—the 5AC and 6AC assert no such claims against Altour, and she offers no argument (with citation to legal authority) that the misconduct alleged in them constitutes those torts.

Appellant also has forfeited any contention that she can state an aiding and abetting claim against ADP with respect to the alleged wrongful termination, as her briefs contain no argument in support of that claim. We also point out that an aider and abettor must “ ‘provide[] assistance that was a substantial factor in causing the harm suffered’ ” (American Master Lease, supra, 225 Cal.App.4th at p. 1476, quoting Neilson v. Union Bank of California, N.A. (C.D.Cal. 2003) 290 F.Supp.2d 1101 , 1135). Thus, “ ‘causation is an essential element of an aiding and abetting claim . . . .’ ” (American Master Lease, supra, at p. 1476, quoting Neilson, supra, at p. 1135 .) However, as neither the 5AC nor the 6AC contains specific allegations describing how ADP assisted in or encouraged her termination, appellant has failed to plead the requisite causation. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86 , 97 [ 60 Cal.Rptr.3d 810 ] [aiding and abetting claim fails for want of specific factual allegations showing substantial assistance or encouragement].) In sum, appellant had failed to demonstrate a tenable aiding and abetting claim.

DISPOSITION

The judgment is reversed to the extent the trial court denied appellant leave to file an amended complaint asserting claims against respondents limited to breach of contract, negligent misrepresentation, and negligence, as set forth in our opinion (see pts. E., E & G. of the Discussion, ante). The judgment is affirmed in all other respects. The parties shall bear their own costs on appeal.

Epstein, P. J., and Willhite, J., concurred.

A petition for a rehearing was denied November 29, 2016, and the opinion was modified to read as printed above. Respondents’ petition for review by the Supreme Court was granted February 15, 2017, S238941.