Silver v. Cast & Crew Production etc. CA2/2

Filed 1/29/21 Silver v. Cast & Crew Production etc. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CHRISTIAN SILVER, B303863

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 19VECV00942)

v.

CAST & CREW PRODUCTION

PAYROLL INC., et al.,

Defendants and

Respondents.

APPEAL from a judgment of the Superior Court of

Los Angeles County. Shirley K. Watkins, Judge. Affirmed.

Christian Silver, in pro. per., for Plaintiff and Appellant.

Kutak Rock and Saundra K. Wootton for Defendants and

Respondents.

_______________________

Christian Silver (Silver), a tax objector, appeals from the

judgment of dismissal in his action seeking to hold Cast & Crew

Production Payroll, Inc., Cast & Crew Production Services, New

Caps LLC, Cast & Crew Entertainment Company, and Talent

Acquisitions, LLC (collectively respondents) liable for

withholding taxes from his paychecks in compliance with

instructions from the Internal Revenue Service (IRS) and

California’s Franchise Tax Board (FTB). He contends that when

the trial court sustained the respondents’ demurrer without leave

to amend, it erroneously determined that they committed no

wrongful acts and, at least in part, were statutorily immune from

liability. We find no error and affirm.

FACTS

The Complaint

The complaint alleged causes of action for (1) negligent

misrepresentation, (2) breach of fiduciary duty, (3) breach of the

standard of care, (4) duress and defamation, (5) violation of

personal rights (Code Civ. Proc., § 52.1), (6) restoration of

property (Civ. Code, § 1712), (7) failure to pay wages (Lab. Code,

§ 218) and waiting time penalties (Lab. Code § 203), and

(8) violation of the right of privacy.

Per the complaint:

Silver works as a studio grip in the film and television

industry and is employed by production companies. He earns

hourly wages, which are paid through the payroll service

provided by respondents. In his withholding allowance

certificate, Silver stated that he was exempt from withholding.

The IRS sent respondents a LTR 2800C, commonly known as a

lock-in letter, and ordered them to withhold Silver’s taxes at the

withholding rate of a single person and with a withholding

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allowance of zero. In addition, the IRS sent respondents a letter

titled “Notice of Levy on Wages, Salary, and Other Income”

(Levy). Separately, the FTB sent them a letter titled “Personal

Income Tax Earnings Withholding Order for Taxes” (Withholding

Order). (Italics omitted.) The lock-in letter, the Levy and the

Withholding Order, which were attached as exhibits to the

complaint, indicated that Silver owed, respectively, $35,828.62

and $34,189.54 in federal and state taxes with respect to unpaid

assessments from 2006 and 2007. Respondents wrongfully

complied with the directions set forth in the lock-in letter, the

Levy and the Withholding Order to withhold money from Silver’s

paychecks.

The Demurrer; The Ruling

Respondents demurred and argued, inter alia: they are

statutorily immune from liability for their lawful compliance with

federal and state orders requiring garnishment of Silver’s wages

to remedy a tax debt pursuant to title 26 United States Code

section 6332(e) and Code of Civil Procedure section 706.154,

subdivision (b);1 and Silver failed to allege any wrongful or illegal

conduct on the part of respondents.

Silver opposed the demurrer.

The trial court sustained the demurrer without leave to

amend.2 In its written order, the trial court determined that

there was no basis to conclude that the lock-in letter was illegal

1 All further statutory references are to the Code of Civil

Procedure unless otherwise indicated.

2 The trial court later granted Silver’s motion for

reconsideration but then entered an order upholding its prior

decision.

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and that respondents were liable for complying with its terms.

With respect to the Levy and Withholding Order, the trial court

concluded that respondents were immune from liability pursuant

to title 26 United States Code section 6332(e) and section

706.154, subdivision (b).

Silver appeals from the judgment of dismissal

DISCUSSION

We review an order sustaining a demurrer de novo, i.e.,

with no deference to the trial court, and we examine whether, as

a matter of law, the complaint states a cause of action. (Kan v.

Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 740.) “When a

demurrer is sustained without leave to amend, ‘we decide

whether there is a reasonable possibility the defect can be cured

by amendment: if it can be, the trial court has abused its

discretion and we reverse; if not, there has been no abuse of

discretion and we affirm. [Citations.] The burden of proving

such reasonable possibility is squarely on the plaintiff.

[Citation.]’ [Citation.]” (Id. at pp. 740–741.)

I. The IRS Lock-In Letter.

Silver maintains that there is no legal authority for the IRS

to send lock-in letters, and that his withholding exemption

certificate cannot be negated. On this basis, he contends that

respondents can be held liable for complying with the lock-in

letter. We disagree.

The IRS has the authority to instruct an employer

regarding how many withholding exemptions, if any, that an

employee can claim. (26 C.F.R. § 31.3402(f)(2)-1, (g)(2)(i) [the IRS

“may notify the employer in writing that the employee is not

entitled to claim a complete exemption from withholding or more

than the maximum withholding allowance number of withholding

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exemptions specified by the IRS in the written notice”];

Stonecipher v. Bray (9th Cir. 1981) 653 F.2d 398, 402–403

(Stonecipher) [the IRS can review withholding certificates and

W-4 Forms and declare them invalid].) Of course, if withholding

exemptions are disallowed, the employee will have more federal

income taxes withheld from his or her paycheck. A tax payer is

not entitled to a hearing prior to a determination that he or she

cannot claim some or all the desired withholding exemptions.

“The prompt collection of taxes is necessary for the nation’s

continued existence and is an important governmental interest

that justifies postponing notice and opportunity for a hearing.

[Citation.]” (Id. at p. 403.) If a taxpayer objects to his or her tax

liability, he or she can either contest the liability in tax court

prior to paying the disputed tax or sue for a refund. (Ibid.)

We easily conclude that instructions in the form of a lock-in

letter are lawful. Thus, the complaint fails to allege liability

related to the lock-in letter. All Silver’s arguments to the

contrary are incomprehensible and/or insufficiently supported by

legal citations and cogent analysis. “‘When an appellant fails to

raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as

waived. [Citations.]’” (Nelson v. Avondale Homeowners Assn.

(2009) 172 Cal.App.4th 857, 862.)

II. The Levy.

Per Silver, the trial court erred when it concluded that

respondents are immune from liability for their compliance with

the Levy. Once again, we disagree.

“Any person in possession of (or obligated with respect to)

property or rights to property subject to levy upon which a levy

has been made who, upon demand by the Secretary, surrenders

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such property or rights to property (or discharges such obligation)

to the Secretary (or who pays a liability under subsection (d)(1))

shall be discharged from any obligation or liability to the

delinquent taxpayer and any other person with respect to such

property or rights to property arising from such surrender or

payment.”3 (26 U.S.C., § 6332(e).)

This statute immunized respondents’ actions, and Silver

has failed to establish otherwise. Though he offers plethora

arguments to attack the trial court’s ruling, these arguments are

disjointed and lack proper legal footing. We need not recount

them here. Suffice it to note that Silver has not adequately

developed his arguments, and it is not our responsibility to fill in

the gaps. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100

Cal.App.4th 1190, 1206, fn. 11.)

III. The Withholding Order.

California, like the federal government, provides immunity

to respondents. An earning withholdings order for taxes is

authorized by the chapter in the Code of Civil Procedure

pertaining to wage garnishment. (§§ 706.021 & 706.072.) The

chapter provides: “[A]n employer who complies with any written

order or written notice which purports to be given or served in

accordance with the provisions of [the chapter on wage

garnishment] is not subject to any civil or criminal liability for

such compliance unless the employer has actively participated in

a fraud.” (§ 706.154, subd. (b).)

3 The term “Secretary” means “the Secretary of the Treasury

or his delegate.” (26 U.S.C. § 7701(a)(11)(B).)

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The Withholding Order was fully authorized by statute,

and the trial court properly concluded that respondents are

immune from liability.

To avoid this immunity, Silver contends that the chapter on

wage garnishment, including its immunity provision, only applies

to public sector employees and therefore does not apply to him

because he is a private sector employee. This is a patently

frivolous argument built on a card house of legal gibberish.

Suffice it to point out that “employee” is defined to mean “a public

officer and any individual who performs services subject to the

right of the employer to control both what shall be done and how

it shall be done.” (§ 706.011, subd. (e).) The statute undeniably

defines an employee as, inter alia, any individual who performs

services subject to an employer’s right of control. There is no

public/private qualifier. We need not comment on Silver’s

arguments any further.

Next, Silver contends that the trial court’s interpretation of

the wage garnishment statutes renders the whole chapter

unconstitutional. We decline to go down this legal rabbit hole

because the argument is nonsensical, Silver has not explained

why the immunity provision is unconstitutional and, finally, he

has not explained how his argument results in respondents being

liable.

IV. Denial of Leave to Amend.

Silver requests that we remand the matter to allow him the

opportunity to amend his pleading if we do not reverse the order

sustaining the demurrer. But he has not explained how he can

successfully amend, so he has not established that the trial court

abused its discretion.

All other issues are moot.

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DISPOSITION

The judgment of dismissal is affirmed.

Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

_______________________, J.

HOFFSTADT

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