Voris v. Lampert

The majority concluded that neither existing case law nor policy considerations warranted extending the tort of conversion to the wage context. The majority observed that the Labor Code already requires prompt payment of a discharged employee ( Lab. Code, § 201 ) and authorizes penalties for noncompliance ( id. , § 203). "[I]f Voris's approach were credited," the Court of Appeal reasoned, "any claimed wage and hour violation would give rise to tort liability for conversion as well as the potential

respect of hours of labor and the compensation to be paid for his labor." ( Moore v. Indian Spring etc. Min. Co. (1918) 37 Cal.App. 370 , 379, 174 P. 378 ( Indian Spring ); see In re Ballestra (1916) 173 Cal. 657 , 161 P. 120 ( Ballestra ).) The end product is what we have described as "a mass of legislation touching upon almost every aspect

stock shares, irrespective of the conversion of tangible stock certificates].) But the law has been careful to distinguish proper claims for the conversion of money from other types of monetary claims more appropriately dealt with under other theories of recovery. Thus, although our law has dispensed with the old requirement that "each coin or bill be earmarked," it remains the case that "money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved." ( Haigler , supra , 18 Cal.2d at p. 681, 117 P.2d 331 ; see PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384 , 395, 58 Cal.Rptr.3d 516 ( PCO ).) "[W]here the money or fund is not identified as a specific thing the action is to be considered as one upon contract or for debt"-or perhaps upon some other appropriate theory-but "not for conversion." ( Baxter v. King (1927) 81 Cal.App. 192 , 194, 253 P. 172 ( Baxter ); see Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229 , 231, 235, 68 Cal.Rptr.2d 31 [rejecting conversion claim where the plaintiff could not identify specific sum but only approximate monetary losses]; PCO , at p. 397, 58 Cal.Rptr.3d 516 [same].)

Equally important, the "specific thing" at issue ( Baxter , supra , 81 Cal.App. at p. 194, 253 P. 172 ) must be a thing to which the plaintiff has a right of ownership or possession-a right with which the defendant has interfered by virtue of its own disposition of the property. This means that "[a] cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff's possessory interest in a specific, identifiable sum"; "the simple failure to pay money owed does not constitute conversion." ( Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267 , 284, 133 Cal.Rptr.3d 774 .) Were it otherwise, the tort of conversion would swallow the significant category of contract claims that are based on the failure to

ownership of the fees in question. ( Weiss v. Marcus (1975) 51 Cal.App.3d 590 , 599, 124 Cal.Rptr. 297 ( Weiss ).)

The dissent sees these cases as functionally indistinguishable from this one; after all, the dissent reasons, all of these cases involve, at some level, a claim to money earned as compensation for performing a service. (See dis. opn., post , 250 Cal.Rptr.3d at pp. 797-798, 446 P.3d at pp. 299-300.) But the employee's claim to earned wages differs from these other claims in the ways that matter for purposes of the law of conversion. The employee's claim is not that the employer has wrongfully exercised dominion over a specifically identifiable pot of money that already

grant of summary judgment in the defendant's favor, apparently accepting DLSE's argument that it had the right to immediate possession of the checks, in its capacity as an agent of the

entitled to

We do not doubt that the threat of liability for consequential, punitive, and emotional distress damages could enhance the deterrence of intentional wage nonpayment. Although existing law already prescribes serious consequences for willful nonpayment-including both civil penalties and criminal sanctions-we agree that additional forms of tort damages could well play some role in preventing intentional misconduct, especially when combined with the strict liability standard and three-year statute of limitations that apply to conversion actions. ( Moore , supra , 51 Cal.3d at p. 144, fn. 38, 271 Cal.Rptr. 146 , 793 P.2d 479 [strict liability standard]; AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631 , 639, 49 Cal.Rptr.3d 493 [statute of limitations].)

But a conversion claim is an awfully blunt tool for deterring intentional misconduct of this variety. As noted, conversion is a strict liability tort. It does not require bad faith, knowledge, or even negligence; it requires only that the defendant have intentionally done the act depriving the plaintiff of his or her rightful possession. ( Moore , supra , 51 Cal.3d at p. 144, fn. 38, 271 Cal.Rptr. 146 , 793 P.2d 479 ; Poggi , supra , 167 Cal. at p. 375, 139 P. 815 .) For that reason, conversion liability for unpaid wages would not only reach those who act in bad faith, but also those who make good-faith mistakes-for example, an employer who fails to pay the correct amount in wages because of a glitch in the payroll system or a clerical error. We see no sufficient justification for layering tort liability on top of the extensive existing remedies demanding that this sort of error promptly be fixed.

(E.g., Lab. Code, §§ 216 [misdemeanor liability], 225.5 [civil penalties].) Moreover, where there is evidence that officers or directors have abused the corporate form, a plaintiff may proceed on a theory of alter ego liability. ( Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523 , 538, 99 Cal.Rptr.2d 824 .) Indeed, in this very case, Voris made alter ego allegations against Lampert. The Court of Appeal noted, in its first opinion, that "Voris's opening brief

mistake. In light of the extensive remedies that already exist to combat wage nonpayment in California, we decline to take that step.

Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389 , 1402, 117 Cal.Rptr.3d 377 , 241 P.3d 870 ( Pineda ); Reyes , supra , 148 Cal.App.4th at p. 612, 56 Cal.Rptr.3d 68 [unpaid wages are " 'vested property rights' " within the meaning of the state Constitution]; Loehr , supra , 147 Cal.App.3d at p. 1080, 195 Cal.Rptr. 576 ["Earned but unpaid salary or wages are vested property rights ...."].) That the unpaid wages may be commingled with the employer's general funds does not disqualify them as property that may be converted, so long as the sum owed is specific and definite. (See maj. opn., ante , 250 Cal.Rptr.3d at pp. 787-788, 446 P.3d at p. 291; Fischer v. Machado , supra , 50 Cal.App.4th at pp. 1072-1073, 58 Cal.Rptr.2d 213 .)

The majority goes to great lengths to marginalize California case law establishing that earned but unpaid wages are, indeed, the worker's property. In their view, Cortez 's characterization of wages as property should be strictly limited to the context of the Unfair Competition Law. (Maj. opn., ante , 250 Cal.Rptr.3d at pp. 789-790, 446 P.3d at pp. 291-292.) But in no way are the significance of worker pay and the urgent need that it be paid in a timely manner logically limited to the four corners of that statutory scheme. Even less convincing is the majority's puzzling criticism of the characterization in Reyes and Loehr as "largely unexplained." (Maj. opn., ante , 250 Cal.Rptr.3d at pp. 789-790, fn. 9, 446 P.3d at p. 293, fn. 9.) To establish the first element of the conversion tort, it's enough to show "plaintiff's ownership or right to possession of personal property." ( 5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 810, p. 1115.) No extensive discourse on its nature as "property" is required. (See ibid .; cf.

where the employee's personal property is at issue and, in any event, all civil litigation is subject to a variety of judicial constraints.

To say in light of these characteristics that conversion simply is not "the right fit for the wrong" (maj. opn., ante , 250 Cal.Rptr.3d at pp. 781-782, 446 P.3d at p. 286), nor "an appropriate remedy" ( id. at p. 797, 446 P.3d at p. 299), is to assume a conclusion about rights, wrongs, and remedies as puzzling as it is difficult to justify. For the workers who aren't being paid what they earned, it hardly matters whether the nonpayment or underpayment was the product of deliberation or mistake -- the financial hit to the worker's income is a heavy burden either way. And to make whole a worker who is forced to sue to recover unpaid wages, there must be an award of interest and attorney fees. (See Civ. Code, § 3336.) The majority seems worried that employers who wrongfully withhold wages could be "held to pay for the value of the converted property and interest, plus the value of the plaintiff's time and money expended in pursuit of the unpaid wages." (Maj. opn., ante , 250 Cal.Rptr.3d at p. 794, 446 P.3d at p. 296.) Yet the possibility of an

a restriction on the tort's scope. No such justification appears.

It's certainly true that the Legislature has been active in this area. But ordinarily legislative action is no basis for casting aside otherwise applicable common law remedies -- and here, the Legislature has also acted with a measure of humility, especially relative to the scope of the problem. The 2015 statutory changes underscore the continuing importance the Legislature assigns to the recovery of unpaid wages. Experience shows, though, that the

of the employer-employee relationship." ( Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 , 178, 164 Cal.Rptr. 839 , 610 P.2d 1330 .) As relevant here, the Legislature has repeatedly acted to ensure employees receive prompt and full compensation for their labor. Recognizing that the problem of wage nonpayment can take a number of forms, the Legislature has responded with a variety of targeted legislative solutions. (See, e.g., In re Trombley (1948) 31 Cal.2d 801 , 809-810, 193 P.2d 734 ( Trombley ) [criminal penalties for willful failure to timely pay wages due]; Ballestra , at pp. 658-659, 161 P. 120 [statutory prohibition on payment of wages using nonnegotiable instruments]; Reid v. Overland Machined Products (1961) 55 Cal.2d 203 , 10 Cal.Rptr. 819 , 359 P.2d 251 [statutory ban on withholding wages as a condition of settling wage disputes].) Underlying each of these enactments has been the recognition that prompt and complete wage payments are of critical importance to the well-being of workers, their families, and the public at large. (E.g., Trombley , at pp. 809-810, 193 P.2d 734 .)

the problem occurs, the lack of authority for a conversion remedy is notable. It is also unsurprising, for the failure to pay wages does not fit easily with the traditional understanding of the conversion tort.

Sanowicz , supra , 234 Cal.App.4th at p. 1041, 184 Cal.Rptr.3d 517 .) But to accept this argument would require us to indulge a similar fiction: namely, that once Voris provided the promised services, certain identifiable monies in his employers' accounts became Voris's personal property, and by failing to turn them over at the agreed-upon time, his employers converted Voris's property to their own use.

Voris contends that there is precedent for this view. He points in particular to Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163 , 96 Cal.Rptr.2d 518 , 999 P.2d 706 ( Cortez ), where we said that "earned wages that are due and payable pursuant to section 200 et seq. of the Labor Code are ... the property of the employee who has given his or her labor to the employer in exchange for that property." ( Id. at p. 178, 96 Cal.Rptr.2d 518 , 999 P.2d 706 .) But Cortez is less helpful to Voris's case than he suggests; the language he cites concerned the availability of a restitutionary remedy under the Unfair Competition Law (UCL), which provides equitable relief for unfair business practices ( Bus. & Prof. Code, § 17200 et seq. ), and our holding was expressly limited to that context ( Cortez , at p. 178, 96 Cal.Rptr.2d 518 , 999 P.2d 706 ). We explained that "unlawfully withheld wages are property of the employee within the contemplation of the UCL ," not within the contemplation of the law in general. ( Ibid. , italics added.) Our reasoning, too, was rooted in considerations specific to equitable remedies under the UCL. We reasoned that "equity regards that which ought to have been done as done [citation], and thus recognizes equitable conversion [citation]," and that "restitutionary awards encompass quantifiable sums one person owes to another." ( Ibid .; see Earhart v. William Low Co. (1979) 25 Cal.3d 503 , 511, fn. 5, 158 Cal.Rptr. 887 , 600 P.2d 1344 ["while restitution ordinarily connotes the return of something which one party has 'received' from another, the term may also refer to a broader obligation to pay"].)

Voris also relies on Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592 , 113 Cal.Rptr.3d 498 , 236 P.3d 346 , in which we held that Labor Code section 351 does not provide a private right of action for an employee to recover gratuities withheld by an employer, but ventured that a common law claim such as conversion might lie "under appropriate circumstances" for an employer's misappropriation of gratuities left for employees. ( Lu , at p. 604, 113 Cal.Rptr.3d 498 , 236 P.3d 346 ; see id. at p. 603, 113 Cal.Rptr.3d 498 , 236 P.3d 346 .) But Lu did not purport to decide that question, and the

"public policy in favor of full and prompt payment of an employee's earned wages." ( Smith v. Superior Court (2006) 39 Cal.4th 77 , 82, 45 Cal.Rptr.3d 394 , 137 P.3d 218 .) We today reaffirm the vital importance of this policy. But we are not persuaded that expanding the conversion tort is the right way to vindicate it.

As we have noted, with or without a conversion claim, there already exist extensive remedies for the nonpayment of wages. An employee seeking recovery of a contractual right to payment of wages is, of course,

remedies against individual directors and officers.)

At least as applied to employers (as opposed to individual officers or directors), a conversion claim for unpaid wages would largely duplicate these remedies and, to that extent, would serve little purpose. But Voris argues that a tort remedy has certain advantages the present remedial scheme lacks. For one, it would enhance deterrence of intentional wage nonpayment by authorizing the recovery of consequential, emotional distress, and, most importantly, punitive damages; this enhanced recovery, in turn, would incentivize attorneys to take cases on behalf of wage claimants who otherwise might not have private representation. Perhaps more to the point, Voris argues, a conversion claim would allow him to reach Lampert directly; because Lampert allegedly participated in the companies' deliberate withholding of wages and strategic insolvency, Voris maintains that Lampert can be held personally liable for damages in tort. (See Frances T. , supra , 42 Cal.3d at p. 504, 229 Cal.Rptr. 456 , 723 P.2d 573 .) Voris asserts that the threat of personal liability would deter similar misconduct by corporate officers who participate in their employers' bad-faith avoidance of wage obligations and judgments.

Voris also attempts to soften the blow of expanding conversion liability by emphasizing the procedural hurdles that constrain punitive damage awards. He notes that while punitive damages would generally be available in a conversion suit, they would not be available in cases of good-faith mistake and the like, because punitive damages may be imposed only on "clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." ( Civ. Code, § 3294, subd. (a).) But it is not unusual for juries to find malice supporting punitive damage awards in run-of-the-mill wage suits. (E.g., Brewer v. Premier Golf Properties, LP (2008) 168 Cal.App.4th 1243 , 1250, 86 Cal.Rptr.3d 225 [jury awarded server $195,000 in punitive damages for employer's Labor Code violations].) The possibility of such awards would almost certainly incentivize wage claimants to allege "oppression, fraud, or malice" in such cases. And even if less culpable defendants would not be held liable for punitive damages, they could still be held to pay for the value of the converted property and interest, plus the value of the plaintiff's time and money expended in pursuit of the unpaid wages. ( Civ. Code, § 3336.) In the end, given the nature of the conversion tort, "it would be difficult if not impossible to formulate a rule that would assure that only 'deserving' cases give rise to tort relief." ( Foley , supra , 47 Cal.3d at p. 697, 254 Cal.Rptr. 211 , 765 P.2d 373 .)

Voris's more fundamental aim in this case is, of course, to reach individual officers who are responsible for their companies' evasion of their established wage obligations. But Voris fails to explain why his proposed conversion claim is a necessary or appropriate response to this problem. For one thing, although many of the existing remedies for wage nonpayment authorize recovery from employers and not individual officers, that is not true of all; corporate officers and managing agents do face statutory liability for their willful misconduct pertaining to wage nonpayment.

V.

We agree with Voris on this critical point: The full and prompt payment of wages is of fundamental importance to the welfare of both workers and the State of California. The Legislature has so recognized by crafting extensive remedies to ensure that employees are paid in full, and in penalizing employers that fail to live up to their obligations. This court has so recognized in upholding the Legislature's authority to adopt new solutions to combat the problem. (E.g., Trombley , supra , 31 Cal.2d at p. 801, 193 P.2d 734 ;

somehow peters out, because it's just "not the right fit." ( Id . at pp. 781-782, 446 P.3d at p. 286.)

what the courts have determined he is owed - and no one disputes this.

Where unpaid wages diverge from garden-variety contractual promises to pay a debt is in the fundamental importance of earned wages to workers, their families, and the public. Our case law has repeatedly highlighted and enforced that distinction. In Cortez , supra , 23 Cal.4th 163 , 96 Cal.Rptr.2d 518 , 999 P.2d 706 , for example, we declared that "[o]nce earned, those unpaid wages became property to which the employees were entitled." ( Id . at p. 168, 96 Cal.Rptr.2d 518 , 999 P.2d 706 .) Indeed, they are "as much the property of the employee who has given his or her labor to the employer in exchange for that property as is property a person surrenders through an unfair business practice" ( id . at p. 178, 96 Cal.Rptr.2d 518 , 999 P.2d 706 ) - the latter being the type of property that could surely form the basis of a conversion action. It is the exchange of labor for money - and the pivotal role of worker wages - that cause unpaid wages to become the worker's property even when those funds are still in the employer's possession. (See

who could not be located. One part of the court's analysis upholding the conversion cause of action focused, as the majority does, on the role of the Division of Labor Standards Enforcement (DLSE) as a trustee of these sums under the settlement agreement. ( UI Video Stores , at p. 1096, 64 Cal.Rptr.2d 457 .) But the court went on to uphold the conversion action on a second basis -- one independent of the settlement agreement. In that passage, the court explained that "the DLSE need not possess legal title to the property at issue to support a cause of action for conversion. A person without legal title to property may recover from a converter if the plaintiff is responsible to the true owner, such as in the case of a bailee or pledgee of the property." ( Ibid .) The DLSE had precisely such an interest, the court concluded, because it was empowered "to collect and deposit unpaid benefits." ( Ibid .; see Lab. Code, § 96.7, subd. (a) ["The Labor Commissioner shall act as trustee of all such collected unpaid wages or benefits, and shall deposit such collected moneys in the Industrial Relations Unpaid Wage Fund"].) In other words, the DLSE could have brought a conversion action for unpaid wages because it was empowered to collect such sums on behalf of the affected employees. (See Sims v. AT&T Mobility Services LLC (E.D.Cal. 2013) 955 F.Supp.2d 1110 , 1120 ( Sims ) ["The Blockbuster decision alone is sufficient authority to find that a cause of action for conversion of unpaid wages is viable"].)

I have difficulty understanding why a state agency may sue for conversion of unpaid wages on behalf of the workers who earned those wages, but (in the majority's view) those workers are barred from asserting that conversion cause of action directly. So far as

Falk v. Children's Hospital Los Angeles (2015) 237 Cal.App.4th 1454 , 1458, 188 Cal.Rptr.3d 686 [claim for "[c]onversion and theft of labor" for failure to timely pay wages]; On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079 , 1082, 57 Cal.Rptr.3d 698 [conversion claim for unpaid wages]; Dunlap v. Superior Court (2006) 142 Cal.App.4th 330 , 333, 47 Cal.Rptr.3d 614 [claim for "conversion and theft of labor"]; Stark v. CVS Pharmacy (Super.Ct. L.A., 2012, No. BC476431) 2012 Cal.Super. LEXIS 13832, *1-*3 [trial court order overruling demurrer to conversion claim for unpaid wages]; accord, Sims , supra , 955 F.Supp.2d at pp. 1119-1120 ["there is clear authority under California law that employees have a vested property interest in the wages that they earn, failure to pay them is a legal wrong that interferes with the employee's title in the wages, and an action for conversion can therefore be brought to recover unpaid wages"].)

Despite this history, though, no party or amicus curiae has pointed us to evidence of any ill effects. Nor have they identified any adverse effects arising from the recognition of wage conversion claims in other jurisdictions. (See maj. opn., ante , 250 Cal.Rptr.3d at pp. 785-786, fn. 6, 446 P.3d at p. 289, fn. 6.) What we do know is that the nonconversion remedies in existence at the time Voris filed suit were inadequate. Despite "the considerable body of statutory law that is specifically designed to directly punish and deter employers that fail to satisfy wage judgments" (maj. opn., ante , 250 Cal.Rptr.3d at p. 794, 446 P.3d at p. 297), it is still "difficult and rare for workers in California to recover stolen wages." (Sen. Jud. Com., analysis of Sen. Bill No. 588, as amended Apr. 20, 2015 (2015-2016 Reg. Sess.) p. 15.) According to a 2013 report by the National Employment Law Project and the UCLA Labor Center, only 17 percent of prevailing wage claimants before the DLSE between 2008 and 2011 recovered any payment at all . (Cho et al.,

award that compensates an employee for everything the employee has lost as a result of the defendant's failure to pay in full and on time is precisely the point of allowing such an action to proceed: a feature, not a bug.

True: A conversion cause of action does raise the prospect of punitive damages. But only in cases where the plaintiff can establish malice, fraud, or oppression by clear and convincing evidence. (See Civ. Code, § 3294, subd. (a).) And it is not enough merely to "allege" malice, fraud, or oppression. (Maj. opn., ante , 250 Cal.Rptr.3d at p. 795, 446 P.3d at p. 297.) Our pleading rules require a plaintiff to allege the requisite elements of a punitive damages claim in more than "conclusionary terms." ( Cyrus v. Haveson (1976) 65 Cal.App.3d 306 , 317, 135 Cal.Rptr. 246 ; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159 , 166, 203 Cal.Rptr. 556 ["Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim"].) In any event, the majority does not explain why punitive damages should be available when an employer acts with malice, fraud, or oppression in withholding compensation in the form of, say, stock or commissions but must be barred when the same employer converts employees' unpaid wages to its own use. (Cf.

problem is unlikely to disappear entirely even under the most optimistic scenarios and even assuming aggressive enforcement and implementation of Senate Bill No. 588 (2015-2016 Reg. Sess.). (See, e.g., Gollan, California Regulators Aren't Taking Action Against Care Homes That Ignore Wage Theft Judgments (May 20, 2019) The Center for Investigative Reporting < www.revealnews.org/article/california-regulators-arent-taking-action-against-care-homes-that-ignore-wage-theft-judgments/> [as of Aug. 13, 2019].) The most reasonable inference is that these legislative remedies were " 'meant to supplement, not supplant ... , existing ... remedies, in order to give

For a little more than a year, Brett Voris worked alongside Greg Lampert to launch three start-up ventures, partly in return for a promise of later payment of wages. But after a falling out, Voris was fired and the promised compensation never materialized. Voris sued the companies and won, successfully invoking both contract-based and statutory remedies for the nonpayment of wages. He now seeks to hold Lampert personally responsible for the unpaid wages on a theory of common law conversion. Voris claims that by failing to pay the wages, the companies converted his personal

property to their own use and that Lampert is individually liable for the companies' misconduct. The question before

$70,782 in damages. The jury also found in Voris's favor against Liquiddium on the claims for breach of contract and conversion of stock. The jury awarded $100,218, including an award of $2,500 in punitive damages on the stock conversion claim. Voris's claims against PropPoint proceeded to a bench trial. PropPoint did not enter an appearance, and the court ruled in Voris's favor on the claims for breach of contract, quantum meruit, failure to pay wages in violation of the Labor Code, and conversion of stock and wages. The court awarded Voris $171,951 in damages, plus prejudgment interest, costs, and attorney fees.

Although Voris prevailed against all three companies, he alleges that his efforts to collect on the judgments have been frustrated due to the companies' lack of funds and assets. Voris has therefore now

To place the question before us in its proper context, we begin with a brief overview of existing law governing the payment of workers' wages. The employment relationship, we have explained, is "fundamentally contractual," meaning it is governed in the first instance by the mutual promises made between employer and employee. ( Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 , 696, 254 Cal.Rptr. 211 , 765 P.2d 373 ( Foley ); see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 , 352, 100 Cal.Rptr.2d 352 , 8 P.3d 1089 .) The promise to pay money in return for services rendered lies at the heart of this relationship. Historically, when that promise has been broken, the "usual remedy" has been an action for breach of contract. ( Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328 , 343, 124 Cal.Rptr. 513 , 540 P.2d 609 , citing Elevator Operators etc. Union v. Newman (1947) 30 Cal.2d 799 , 808, 186 P.2d 1 , and cases cited therein.) Even in the absence of an explicit promise for payment, the law will imply one, and thus authorize recovery, when circumstances indicate that the parties understood the employee was not volunteering his or her services free of charge. (E.g., Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453 , 458, 9 Cal.Rptr.3d 693 , 84 P.3d 379 [describing principle of quantum meruit].)

Beginning more than a century ago, the Legislature began to supplement existing contract remedies with additional worker protections designed to "safeguard" the worker "in his relations to his employer in

Conversion is an "ancient theory of recovery" with roots in the common law action of

expended in pursuit of the property." ( Civ. Code, § 3336 ; see also 5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1906, p. 1357.) Punitive damages are recoverable upon a showing of malice, fraud, or oppression. ( Civ. Code, § 3294, subd. (a) ; accord, Haigler v. Donnelly (1941) 18 Cal.2d 674 , 681, 117 P.2d 331 ( Haigler ); Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664 , 192 Cal.Rptr. 793 .) And the Courts of Appeal have held that emotional distress damages are also recoverable by the victim of conversion in appropriate circumstances. ( Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208 , 221, 7 Cal.Rptr.3d 597 ; Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464 , 476, 65 Cal.Rptr.2d 473 .)

The particular question before us concerns the applicability of the conversion tort to a claim for money. Although the question was once the matter of some controversy, California law now holds that property subject to a conversion claim need not be tangible in form; intangible property interests, too, can be converted. ( Payne v. Elliot (1880) 54 Cal. 339 , 342 ( Payne ) [recognizing conversion claim related to ownership interests and monetary value represented by

satisfy " 'mere contractual right[s] of payment.' " ( Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027 , 1041, 184 Cal.Rptr.3d 517 ( Sanowicz ); see Imperial Valley L. Co. v. Globe G. & M. Co. (1921) 187 Cal. 352 , 353-354, 202 P. 129 .) Contractual provisions may, of course, determine whether the plaintiff has a possessory right to certain funds in the defendant's hands. (See, e.g., Fischer v. Machado (1996) 50 Cal.App.4th 1069 , 1072-1074, 58 Cal.Rptr.2d 213 ( Fischer ) [agency agreement established principal sellers' legal entitlement to converted commissions].) But

belongs to the employee-in other words, the sort of wrong that conversion is designed to remedy. Rather, the employee's claim is that the employer failed to reach into its own funds to satisfy its debt. Indeed, in some cases of wage nonpayment, the monies out of which employees would be paid may never have existed in the first place. Take, for example, a failed start-up that generates no income and thus finds itself unable to pay its employees. Because the business accounts are empty, there would not be any identifiable monies for the employer to convert. No one would dispute that the start-up is indebted to its employees. But only in the realm of fiction could a court conclude that the business, by failing to earn the money needed to pay wages, has somehow converted that nonexistent money to its own use.

Here, Voris claims a right to money that did once exist, but which he believes was squandered. At least in such cases, Voris argues, the nonpayment of wages should be treated as a conversion of property, not as a failure to satisfy a " 'mere contractual right of payment.' " (

The reasoning of Cortez does not translate readily to this context: While UCL awards may "encompass quantifiable sums one person owes to another" ( Cortez , supra , 23 Cal.4th at p. 178, 96 Cal.Rptr.2d 518 , 999 P.2d 706 ), conversion claims do not. To extend the reasoning of Cortez to the tort context would collapse the well-established distinction between a contractual obligation to pay and the tortious conversion of monetary interests. Cortez certainly does not contemplate such a result. Nothing in Cortez compels the conclusion that unpaid wages constitute property to which an employee

answer would not control here in any event, for an employer's misappropriation of gratuities is not the same as an employer's withholding of promised wages. When a patron leaves a gratuity for an employee (or employees), it arguably qualifies as a specific sum of money, belonging to the employee, that is capable of identification and separate from the employer's own funds; indeed, the employee (or employees) for whom it was left has ownership of the gratuity by statute. ( Lab. Code, § 351 [gratuity is "sole property of the employee or employees to whom it was paid, given, or left for"].) Unpaid wages are different in each of these respects.

Finally, Voris directs our attention to the Court of Appeal's decision in Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084 , 64 Cal.Rptr.2d 457 ( UI Video Stores ). There, in a brief two-paragraph discussion, the court approved a conversion action brought by the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations. DLSE had sued Blockbuster on behalf of Blockbuster employees to recover money that was unlawfully deducted from their paychecks to pay for uniforms, in violation of the applicable wage order. The parties settled, and as part of the settlement agreement Blockbuster mailed individual checks to the employees in the amount of the wrongful deductions. But a number of checks were returned as undelivered, and DLSE ordered Blockbuster to deposit those checks in California's unpaid wage fund. When Blockbuster refused, DLSE filed a second complaint, alleging that Blockbuster's refusal amounted to an unlawful conversion of the checks to its own use. The Court of Appeal reversed a

claims accrued; as discussed below, the Legislature has since enacted additional

Voris argues that "well-settled principles of tort law" would appropriately cabin a newly recognized conversion claim. But he offers no principle that would limit conversion liability to only those bad actors he has in mind. He points to the "case by case consideration" of factors that inform this court's recognition of tort duties, such as the foreseeability of harm and the nexus between the defendant's conduct and the plaintiff's injury. ( J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799 , 808, 157 Cal.Rptr. 407 , 598 P.2d 60 .) But he fails to explain how these factors would impose any meaningful limits in the context of a claim for wage nonpayment, which invariably and directly injures employees. (See Trombley , supra , 31 Cal.2d at pp. 809-810, 193 P.2d 734 .)

Ballestra , supra , 173 Cal. at p. 658, 161 P. 120 ; see also Indian Spring , supra , 37 Cal.App. at pp. 380-381, 174 P. 378 .) We express no views here on whether additional, appropriately tailored remedies are called for. We hold only that a conversion claim is not an appropriate remedy. For that reason, we decline to supplement the existing set of remedies for wage nonpayment with an additional tort remedy in the nature of conversion.

We affirm the judgment of the Court of Appeal.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

GROBAN, J.

Dissenting Opinion by Justice Cuéllar

In exchange for promised compensation in the form of wages and stock, plaintiff Brett Voris worked with defendant Greg Lampert in a series of start-up ventures. After Voris discovered what he believed to be financial misconduct in the management of these entities, he was fired. He successfully sued the three ventures, obtaining awards that totaled nearly $350,000. But because Lampert allegedly ran down the companies' accounts and mismanaged the startups into insolvency, Voris has been unable to collect on these judgments. In this proceeding he seeks to recover against Lampert, who (he claims) either directed or participated in the start-ups' failure to pay him the compensation he had earned. He relies on common law conversion - a tort that is often used to recover compensation that has been earned yet has not been paid.

The majority opinion acknowledges but then sidesteps this crucial feature of California tort law: that numerous plaintiffs have successfully sought compensation for their labor through the tort of conversion. (See maj. opn., ante , 250 Cal.Rptr.3d at pp. 788-789, 446 P.3d at pp. 291-292.) Under settled case law, Voris could properly invoke conversion to recover money due if Lampert, his partner in a joint venture, had exercised dominion and control over, say, his share of real estate commissions. (See Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027 , 1042, 184 Cal.Rptr.3d 517 .) He could use conversion if Lampert, as his agent, had failed to pay Voris the proceeds from the sale of consigned goods. (See Fischer v. Machado (1996) 50 Cal.App.4th 1069 , 1073-1074, 58 Cal.Rptr.2d 213 .) The majority likewise concedes that a worker may assert conversion to recover money owed for the worker's efforts if the worker happens to be an attorney seeking to recover fees from a client's award. (See Weiss v. Marcus (1975) 51 Cal.App.3d 590 , 599, 124 Cal.Rptr. 297 .) Indeed, Voris successfully invoked conversion in this case to recover the component of his compensation that consists of stock. (See maj. opn., ante , 250 Cal.Rptr.3d at p. 783, 446 P.3d at pp. 287-288.) Only when wages - the common way by which workers make their way in the world - are sought does the majority suddenly decide that the tort of conversion

That's a conclusion I cannot embrace. Unlike the majority, I wouldn't close the courthouse door when a worker invokes the conversion tort to recover earned but unpaid wages. In California, unpaid wages are the employee's property once they are earned and payable. (See Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163 , 178, 96 Cal.Rptr.2d 518 , 999 P.2d 706

slowing local economies and decreasing tax revenue for state and local governments. And employers who fail to pay wages in full and on time create an uneven playing field in which law-abiding businesses are unable to compete. What happened to Voris, in effect, leads to a badly distorted and fundamentally unfair marketplace for both labor and consumers. Even if Voris's plight does not precisely resemble the kind of wage theft too often afflicting lower-income workers, Voris has not been paid

Welco Electronic, Inv. v. Mora (2014) 223 Cal.App.4th 202 , 215, 166 Cal.Rptr.3d 877 , fn. omitted ["Although the parties have not cited any authority that expressly covers the facts here, our application of the tort of conversion in this case is consistent with existing legal principles"].)

In any event, one can find such an analysis in UI Video Stores , supra , 55 Cal.App.4th 1084 , 64 Cal.Rptr.2d 457 - a decision that Lampert urges us to overrule but that the majority evidently reads "differently." (Maj. opn., ante , 250 Cal.Rptr.3d at p. 791, fn. 10, 446 P.3d at p. 294, fn. 10.) There, the Court of Appeal sustained a conversion action brought by the Department of Industrial Relations against Blockbuster Video for Blockbuster's failure to comply with the terms of a settlement agreement requiring it to deposit into the state's unpaid wage fund sums that had been wrongfully withheld from employees

The majority finds it "notable" that no precedential California decision has yet recognized a conversion claim based on withholding of wages. (See maj. opn., ante , 250 Cal.Rptr.3d at p. 786, 446 P.3d at pp. 289-290.) More conspicuous, to my mind, is the absence of any precedential decision refusing to recognize a conversion claim in these circumstances. For some time, plaintiffs in wage cases have routinely included a claim for conversion. (See, e.g., Gentry v. Superior Court (2007) 42 Cal.4th 443 , 455, fn. 3, 64 Cal.Rptr.3d 773 , 165 P.3d 556 [conversion claim for unpaid overtime];

Hollow Victories: The Crisis in Collecting Unpaid Wages for California's Workers (Mar. 2015) Nat. Employment Law Project, p. 2 < https://www.nelp.org/wpcontent/uploads/2015/03/Hollow-Victories-Unpaid-Wages-Report.pdf> [as of Aug. 13, 2019].) Those who did prevail managed to recover, on average, only 15 cents on the dollar. ( Ibid .) Conversion actions - like the one here - offer the possibility of recovery in situations where the relevant corporate entity is insolvent, and would increase the financial consequences of withholding an employee's earned wages or other personal property. But there's no reason to think such actions would spur litigation beyond circumstances

Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 , 176, fn. 10, 164 Cal.Rptr. 839 , 610 P.2d 1330 ["[employer] cites no instance in which tort liability has been denied in an entire class of cases on the ground that punitive damages would be available in aggravated circumstances"].)

Indeed, such a distinction - which is fundamental to the majority's conclusion - seems entirely illusory. As we have recognized, stock issued to an employee as compensation "also constitute[s] a wage." ( Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610 , 619, 101 Cal.Rptr.3d 2 , 218 P.3d 262 .) So do commissions. ( Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 , 804, 85 Cal.Rptr.2d 844 , 978 P.2d 2 [commissions can constitute " ' "wages" ' "].) Yet under the majority's ruling, Voris ends up being able to assert conversion of one part of his wages (stock), but not the remainder of his wage compensation. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97 , 125, 55 Cal.Rptr.3d 621 ["We see no sound basis in reason to allow recovery in tort for one but not the other"].) For the vast majority of California workers, who are not offered stock incentives, today's decision risks relegating them to second-class status.

What's particularly odd about the majority's reasoning is its unwillingness to see conversion for what it is: an action that applies to "every species of personal property." ( Payne v. Elliot (1880) 54 Cal. 339 , 341.) Nor, when confronted with particular types of property that are closely analogous to those in prior conversion cases, do courts ask, at every turn, whether a purportedly limited tort should be expanded. Provided that the analogy is sufficiently close - which I believe is true here - the question properly becomes whether something in the legislative scheme (or in the common law itself) justifies

employees the maximum opportunity to vindicate their ... rights." ( Rojo v. Kliger (1990) 52 Cal.3d 65 , 74-75, 276 Cal.Rptr. 130 , 801 P.2d 373 .)

In this case, Voris claims he can allege that Lampert, as controlling officer or director of these ventures, was entrusted with Voris's wages. Lampert is also one of the persons who could have been sued individually for unpaid wages, had Senate Bill No. 588 been in effect at the time. Recognizing the availability of a tort claim of conversion, as a complement to the legislative scheme, seems consistent with the tort's broad scope under California law and with the manner in which state legislative remedies and the common law traditionally interact. (See Fischer v. Machado , supra , 50 Cal.App.4th at pp. 1074-1075, 58 Cal.Rptr.2d 213 [recognizing a conversion cause of action despite the existence of state and federal statutory remedies]; see generally City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 , 1156, 77 Cal.Rptr.2d 445 , 959 P.2d 752 ["When courts enforce a common law remedy despite the existence of a statutory remedy, they are not 'say[ing] that a different rule for the particular facts should have been written by the Legislature.' [Citation.] They are simply saying that the common law 'rule' coexists with the statutory 'rule' "].) This may also help victims of wage theft and society as a whole by better aligning employers' incentives with the full extent of the individual and social costs associated with the conversion of unpaid wages. (See generally Pound, The Spirit of the Common Law (1921) p. 174 [the common law "is and must be used, even in an age of copious legislation, to supplement, round out and develop the enacted element"].)

The Court of Appeal unanimously sustained Voris's stock conversion claim but, in a split decision, affirmed the trial court's ruling granting judgment on the pleadings on the wage conversion claim. I find no principled reason to distinguish between these two components of Voris's compensation. Because the majority holds otherwise, I dissent with respect.

I Concur:

LIU, J.