Stassi v. Indelicato

Defendant to give notice. 17 Stassi v. Before the Court is a motion for summary adjudication filed by Indelicato defendants Nicholas G. Indelicato (Indelicato) and Restaurant Specialists Construction, Inc. (RS Construction)(collectively, Defendants) to the first amended complaint (FAC) filed by plaintiff Timothy Stassi (Plaintiff). For the reasons set forth below, the motion is GRANTED as to the 1st cause of action as to both Indelicato and RS Construction and DENIED as to Indelicato’s motion on the 3rd through 8th causes of action.

1st cause of action (breach of oral contract): The object of a contract must be lawful, i.e., it must not be in conflict with law (express or implied) or public policy. (Civ. Code §§ 1550, 1667; 1 Witkin, Summary of California Law, Contracts (May 2026 Update) § 421.) If the contract has a single object, and that object is unlawful (whether in whole or in part), the entire contract is void. (Civ. Code § 1598; Stockton Morris Plan Co. v. California Tractor & Equipment Corp. (1952) 112 Cal.App.2d 684, 689.)

Whether a contract is illegal or contrary to public policy is a question of law to be determined by the court from the circumstances of each particular case. (Jackson v. Rogers & Wells (1989) 210 Cal.App.3d 336, 349-350.) Defendants have shown the alleged agreement is void as illegal. (FAC ¶¶ 34-36.) Plaintiff readily admits the illegality of the contract. (Stassi Decl. ¶ 9.) While Plaintiff may be entitled to wages and overtime pursuant to the Labor Code, he fails to cite to any authority entitling him to damages on a contract theory.

The motion is thus GRANTED as to this cause of action for both defendants.

3rd to 6th causes of action (wage and hour claims): Plaintiff alleges in the FAC that Indelicato was the alter ego of RS Construction and/or a joint employer with RS Construction who “was directly in charge of Plaintiff’s schedule” and “controlled the hours Plaintiff worked and the conditions of his employment.” (FAC ¶¶ 11, 12, 30, 31.)

Indelicato produced evidence he is not the alter ego of RS Construction. (Mesler v. Bragg Mgmt. Co., 39 Cal. 3d 290, 300 [elements of alter ego]; Defendants’ Separate Statement of Undisputed Material Facts (“DSS”) 1-5, 11-13, 15, 16, 18-21.) However, Indelicato failed to address Plaintiff’s allegation that Indelicato was a joint employer. A joint employer relationship exists when one entity hires and pays a worker, and another entity supervises the work. (Martinez v. Combs (2010) 49 Cal.4th 35, 76.) The term “employ” under the definition of the Industrial Welfare Commission 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.” (Id. at 64.)

Here, while Indelicato produced evidence he was not the Plaintiff’s employer of record (DSS 4, 5, 14-21), Indelicato failed to produce any evidence that he did not exercise control over Plaintiff’s wages, hours or working conditions. Indelicato’s failure to address joint

employer liability is fatal to the motion. (Code of Civ. Proc. § 437c, subd. (b)(1)[a summary judgment motion must show that the “material facts” are undisputed]; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].) Indelicato failed to meet his moving burden. But even assuming arguendo that he did, Plaintiff produced sufficient evidence showing triable issues of fact. (Stassi Decl. ¶¶ 3-13.) Indelicato’s motion is therefore DENIED as to these causes of action.

7th cause of action (whistleblower retaliation): Indelicato argues an individual cannot be held liable under Section 1102.5. However, all of the cases upon which Indelicato rely support the position that a nonemployer corporate agent (a person acting on behalf of the employer) cannot be held personally liable. (See e.g., Tillery v. Lollis (E.D. Cal. 2015) 2015 WL 4873111, at *9; United States v. CardioDx, Inc. (N.D. Cal. 2019) 2019 WL 2163002, at *13; Mewawalla v. Middleman (N.D. Cal. 2022) 601 F.Supp.3d 574, 608; Friedman v.

Jenkins (N.D. Cal. Mar. 19, 2024) 2024 WL 1182878, at *5 and Lapchak v. Paradigm Biopharmaceuticals (USA), Inc. (S.D. Cal. 2025) 2025 WL 437904, at *5-8.) Indelicato fails to cite to any authority that an individual alleged to be a joint employer cannot be held liable under Section 1102.5. As discussed above, Indelicato failed to meet his moving burden that he did not jointly employ Plaintiff. Indelicato’s motion is therefore DENIED as to this cause of action.

8th cause of action (unfair competition): This claim is predicated on the alleged wage and hour violations (FAC ¶ 91), and survives for the same reasons set forth above. Indelicato’s motion is therefore DENIED as to this cause of action.

Counsel for Defendants shall give notice of this ruling. 18 19 20 21