Davis v. Farmers Insurance Exchange (245 Cal. App. 4th 1302, 2016)

Opinion

MANELLA, J.

Appellant William A. Davis brought suit against respondents Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company and Farmers New World Life Insurance Company (collectively, Farmers), contending that as a district manager for Farmers he had been wrongfully classified as an independent contractor rather than an employee, that he had been wrongfully terminated, and that Farmers had failed to pay wages due during and at the termination of his employment.

Appellant asserted a common law claim for wrongful termination in violation of public policy; he did not assert a claim under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA). While the case was pending, the California Supreme Court held in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 [152 Cal.Rptr.3d 392, 294 P.3d 49] (Harris) that where an employee supports a FEHA claim by establishing that an illegitimate criterion was a substantial factor in the adverse employment decision at issue, the employer may avoid liability for damages by establishing that it would have made the same decision without the wrongful motivation. The court held, however, that other remedies might be available to a plaintiff, such as declaratory relief, injunctive relief and attorney fees.

At trial, the court instructed the jury with CACI instructions amended to reflect the holding in Harris. It issued a directed verdict in Farmers’s favor on the wage claim. On the remaining claim for wrongful termination in violation of public policy, the jury first found that appellant was an employee. It further found that his age was a substantial motivating factor in his termination, but concluded that Farmers would have made the same termination decision for legitimate reasons. Accordingly, appellant was awarded no damages. Posttrial, appellant sought declaratory and/or injunctive relief, but the trial court denied his request for multiple reasons, both procedural and substantive. The court rejected appellant’s request for attorney fees under Code of Civil Procedure section 1021.5, concluding he did not meet the applicable criteria.

On appeal, appellant contends the trial court erred in giving instructions based on the holding in Harris. He further contends he was entitled to declaratory relief, injunctive relief and attorney fees. Finally, he asserts the court erred in granting a directed verdict on his wage claim. We conclude the court did not err in giving the Harris instructions or in denying appellant alternative relief when the jury rejected his claim for damages. However, we conclude appellant presented sufficient evidence to allow his wage claim to go to the jury. We, therefore, reverse and remand for partial retrial on that claim. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background Facts

Appellant became an insurance agent for Farmers in 1977. In December 1983, he entered into a “District Manager’s Appointment Agreement” with Farmers. Under the agreement, Farmers appointed appellant district manager of district No. 84, effective December 1, 1983, “and continuing until [the agreement is] terminated or cancelled.” Farmers agreed to pay appellant “an overwrite on all business produced by Agents of, and written by the Exchanges, Mid-Century and Farmers New World Life, in the District . . . in accordance with schedules and rules adopted from time to time by [Farmers] . . . ,” Appellant agreed to “recruit for appointment and train as many agents acceptable to [Farmers] as may be required to produce sales in accordance with goals and objectives established by [Farmers]”; to “actively represent [Farmers] in the conduct of the District”; to “represent no other insurer”; and to “conform to all regulations, operating principles and standards of [Farmers] . . . .”

The agreement stated that it “may be cancelled without cause by either [appellant] or [Farmers] on 30 days’ written notice . . . .” At the time of termination, Farmers could elect to pay “ ‘contract value’ ” to appellant, defined as the service commission overwrite paid to appellant during the six months immediately preceding the cancellation, increased by a multiplier based on the number of years of appellant’s services. In October 2006, Farmers cancelled the appointment agreement, giving 30 days’ notice and thereafter paid appellant a total of approximately $500,000 in a series of payments made between April 2007 and April 2009. Appellant was 57 when the agreement was terminated.

B. The Complaint

In September 2008, appellant filed a complaint naming the entities that were parties to the appointment agreement. The complaint alleged that Farmers exercised control over appellant’s operations and that appellant was an employee of Farmers. The complaint contended that appellant, as well as a number of other district managers whose contracts were terminated at approximately the same time, were wrongfully terminated due to their age.

The complaint asserted claims for wrongful termination in violation of public policy, failure to pay wages under the Labor Code, and unfair business practices under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL). In the cause of action for wrongful termination in violation of public policy, the complaint alleged that California public policy requires employers to treat all persons equally without regard to age. It asserted that defendants violated California public policy by terminating appellant’s employment. It sought compensatory and punitive damages and attorney fees.

The cause of action for failure to pay wages alleged that defendants violated Labor Code section 200 et seq., and that Farmers failed to pay wages owed appellant, including those due immediately after his termination.

In the cause of action for violation of the UCL, the complaint alleged, among other things, that Farmers “intentionally and improperly failed to pay [required] compensation and benefits,” “breached the parties’ contracts and breached their fiduciary duties to [appellant],” and “discriminated against [appellant] based on his age . . . .” In the body of the complaint and prayer for relief, appellant requested restitution of all compensation wrongfully retained by defendants, and “a temporary and permanent injunction requiring [d]efendant[s] to refrain from withholding earned and/or owed money and property from [him].”

The operative complaint at the time of trial was the fifth amended complaint (5th AC). The 5th AC asserted substantially the same claims for failure to pay wages, termination in violation of public policy and violation of the UCL, and sought essentially the same remedies. Farmers answered the 5th AC, including several affirmative defenses. Under those entitled “Unclean Hands,” “Plaintiff’s Own Act,” and “Justification/Privilege,” the answer alleged that appellant failed to recruit and train a sufficient number of agents to meet Farmers’s goals and objectives.

C. Motion to Amend Complaint

In 2010, shortly before the original trial date and after the parties had completed extensive discovery, appellant moved to amend the complaint to add a claim under Labor Code section 2802, which requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer . . . .” (Id., subd. (a).) Appellant contended that the claim had “always been part of the case.” The court denied the motion, stating it was untimely, and that appellant had failed to explain the delay in seeking to amend. Appellant’s subsequent motions to amend also were denied.

D. Trial

1. Motion for Bifurcation

Prior to trial, appellant moved to bifurcate the proceedings, having the jury first determine whether he was an employee or an independent contractor before addressing liability and damages. The trial court granted the motion. During the lengthy discussions of bifurcation, appellant’s counsel never suggested there would be equitable or UCL issues remaining to be tried by the court after the jury reached its verdict.

2. First Phase

In the first phase of trial, the jury heard evidence from appellant and three other former district managers about the level of control Farmers exercised over their duties. After hearing the evidence, the jury found that appellant was Farmers’s employee.

3. Second Phase

a. Evidence Pertinent to Age Discrimination Claim

In support of his claim that he was terminated due to age discrimination, appellant presented evidence that while a district manager, he received multiple awards and commendations up to and including the year he was terminated. In each of the four previous years, the value of the insurance sold from his district went up. Appellant and other witnesses testified that it was not unusual for district managers to fail to achieve specific assigned goals, and that appellant had failed to achieve goals assigned to him in the past without being terminated or threatened with termination. Appellant testified that the goals assigned him by his supervisors — Charles Dabelgott, the Southern California marketing manager, and Elizabeth Stella, the Southern Los Angeles Division marketing manager — in the year prior to his termination were higher than had ever been assigned him before. He was told by the division marketing manager who preceded Stella that it looked like Dabelgott was “out to get [him].”

Appellant presented evidence that the district managers in appellant’s division — the Southern Los Angeles Division — were older, on average, than the district managers of other divisions. Between 2005 and 2007, Farmers terminated six of the division’s district managers, including appellant, most of whom were over 40. In 2006, the year three district managers, including appellant, were terminated or forced to resign, the division won an award for the highest sales and recruiting in California.

Appellant also presented evidence of general comments made by management personnel suggesting age bias. In 2003, the president of Farmers talked about the importance of replacing “old tools” with “new tools.” People in management referred to the Southern Los Angeles Division’s district managers as, the “old guys,” the “old farts” and the “Geritol gang.” In December 2004, a Farmers executive referred to them as a “bunch of old dogs,” and expressed surprise that they were doing so well. At a conference in January 2006, Farmers’s chief marketing officer gave a presentation showing that the median age of the agency force was 51 or 52, and that medical premiums were going up; during the presentation he said he wanted the district managers to recruit younger agents.

In its defense, Farmers presented evidence that the Southern Los Angeles Division was not doing well, that its production figures were down, and that in 2004 and 2005 it was the poorest performing division in California, as well as one of the worst in the country. Farmers established that one of the division’s district managers who had been terminated around the same time as appellant was in his 40’s when he became a district manager and had been a district manager for only a few years prior to his termination. Farmers also presented evidence that a district manager younger than 40 was terminated during that period due to poor performance; that Frederick Howland, an older district manager, had been terminated after sending a salacious e-mail; that Timothy Crawley had been terminated after inflating the policy numbers for less successful agents; that some older district managers were retained; and that multiple individuals remained district managers in Southern California into their 60’s and 70’s.

With respect to appellant’s claim that he was a good performer, Farmers presented evidence that appellant had failed to significantly expand the number of agents in his district between 1991 and 2006, had failed to achieve the goals assigned him for recruiting new agents between 2001 and 2003, and in 2005 had the second worst record among district managers in Southern California for recruiting new agents. With respect to the claim that the goals set for appellant prior to his termination were unrealistic, Farmers presented evidence that other district managers met or exceeded similar goals.

Dabelgott testified that recruitment and development of new insurance agents was a district manager’s most important duty, and that when he became the Southern California marketing manager in 2003, Southern Los Angeles Division’s district managers were not meeting their assigned goals in this area. In 2004, due to appellant’s history of poor performance in recruiting agents, the division’s marketing manager who preceded Stella put appellant on a “performance program” — a program he had to meet to retain his position. Appellant improved his recruiting numbers in 2004. However, three of the five agents appellant had recruited to meet his goals in 2004 resigned or washed out of the program within six months. In the early months of 2005, appellant recruited few new agents, and in September he was put on another performance program. By the early part of 2006, appellant was far short of the assigned goals. In March 2006, Dabelgott asked appellant to resign. Dabelgott testified he saw no reason a younger person would be able to perform the functions of a district manager better than an older person, and that he personally had appointed individuals to district manager positions when they were older than 40.

In June 2006, Stella recommended terminating appellant. She testified her recommendation was based solely on his lack of performance, and denied that appellant’s age had anything to do with her decision. Bernard Shulz, who gave final approval for appellant’s termination, denied considering appellant’s age when making the decision. He denied ever hearing anyone in management express ageist sentiments. Shulz himself was 64 when he retired, and had been asked to stay on.

Stephen Feely, a Farmers vice-president who met with appellant after his termination to discuss the reasons for it, testified that appellant did not complain of having been discriminated against because of his age. Nor did he tell Feely he had heard any managerial personnel make offensive comments. Feely had never heard anyone in management make comments about the age of the district managers in the Southern Los Angeles Division.

b. Evidence Pertaining to Wage Claim Under Labor Code Section 200 et seq.

Appellant presented evidence that he entered into a series of loan agreements with Farmers’s credit union over the years. Farmers allowed him to repay the loans over time, deducting periodic payments from his monthly compensation. When Farmers paid appellant the contract value after he was terminated, it deducted a $293,000 balloon payment to repay the balance due on the loans. The total deducted from the final compensation checks was $302,958. This sum included reimbursement for commissions previously advanced to appellant and his agents by Farmers.

Appellant also presented evidence that the policy guide the district managers were obliged to follow required them to have a computer connected to Farmers’s network. Appellant testified he was not free to buy his own computer equipment but was required to use, and incur a monthly fee for, equipment supplied by Farmers. All the data about his customers and agents was on Farmers’s network, and appellant used the computer equipment for nothing other than communications with Farmers and its network. Farmers set up a Web site for appellant’s office, for which it charged him a regular service fee. Appellant further testified that he was expected to buy a certain number of leads and order a certain number of promotional mailings from Farmers, and to pay a contribution toward Farmers’s lobbying efforts. He also was required to order stationery designed and approved by Farmers for business letters. Farmers deducted the cost of these items from his regular compensation checks, as well as the cost of advertising for the district and its agents in the telephone book, on the radio and on the Internet. It also deducted the premiums for appellant’s errors and omissions insurance policy.

c. Farmers ’s Motion for Directed Verdict

At the close of the second phase of trial, Farmers moved for a directed verdict on the wage claim. Farmers contended that appellant had proffered no evidence to support his claim that Farmers had failed to pay any compensation due him, or that any of the deductions taken from his compensation were improper or unauthorized. Farmers further contended that appellant’s wage claim represented a backdoor attempt to insert a Labor Code section 2802 claim into the case.

Appellant argued that his wage claim was distinct from the Labor Code section 2802 claim he had sought unsuccessfully to add to his complaint. He contended that under California law, any deductions taken from his compensation checks not specifically permitted by law were presumed improper, and that he had presented evidence establishing that deductions not permitted by law had been taken from his compensation. He cited Barnhill v. Robert Saunders & Co. (1981) 125 Cal.App.3d 1 [177 Cal.Rptr. 803] (Barnhill) for the specific proposition that it is improper for an employer to deduct a balloon loan repayment from an employee’s wages when the employee is terminated.

The court granted the motion for directed verdict, taking the wage claim from the jury’s consideration. The court concluded that in the absence of a claim under Labor Code section 2802, appellant was precluded from contending that amounts were improperly deducted from his wages to pay business expenses. The court distinguished Barnhill as involving a low wage earner, whose paycheck was eviscerated by the employer’s loan repayment deduction, and pointed out that although little evidence had been presented about the loans, there was no dispute that appellant had borrowed money and agreed to pay it back.

d. Pertinent Jury Instructions

To guide their deliberations on appellant’s remaining claim for age discrimination, the jurors were instructed in accordance with the post-Harris version of CACI No. 2430 that to establish a claim of discharge in violation of public policy due to age, “plaintiff must prove . . . that [his] age was a substantial motivating reason for [his] discharge.” In line with CACI No. 2507, “substantial motivating reason” was defined for the jurors as “a reason that actually contributed to plaintiff’s termination,” that “must be more than a remote or trivial reason,” but “does not have to be the only motivating reason.” The court also gave CACI No. 2512: “If you find that age discrimination was a substantial motivating reason for plaintiff’s discharge, you must then consider defendants’ stated reason for the discharge. [¶] If you find that plaintiff’s poor job performance also was a substantial motivating reason, then you must determine whether the defendants have proven that it would have discharged plaintiff anyway based on poor job performance, even if they had not also been substantially motivated by age discrimination. [¶] . . . [¶] If you find that defendants discharged plaintiff only for a discriminatory reason, you will be asked to determine the amount of damages he is entitled to recover. [¶] If, however, you find that defendants would have discharged plaintiff anyway for a non-discriminatory reason, then plaintiff will not be entitled to reinstatement, back pay or damages.”

e. Jury’s Special Verdict

The jury returned the following special verdict: Asked if appellant’s age was “a substantial motivating reason” for his discharge, the jury answered, “Yes.” Asked if appellant’s poor job performance also was “a substantial motivating reason” for the discharge, the jury answered, “Yes.” Asked if Farmers would have “discharged [appellant] anyway based on [his] poor job performance had [it] not also been substantially motivated by discrimination,” the jury again answered, “Yes.” Accordingly, the jury awarded appellant no damages.

E. Posttrial Motions

After the jury returned its verdict, Farmers lodged a proposed judgment, claiming to be the prevailing party and entitled to costs. Appellant filed an objection, contending he had prevailed, in view of the jury’s finding that he was misclassified as an independent contractor and that age-based discrimination was a substantial cause of his termination. He claimed entitlement to costs under Code of Civil Procedure section 1032 and attorney fees under Code of Civil Procedure section 1021.5. Appellant further contended that entry of judgment was premature, as there had been no resolution of his claim for equitable relief under the UCL, and that under Harris, he was entitled to “declaratory and injunctive relief permanently restraining and enjoining [Farmers] from engaging in further unlawful discrimination based on age.” Appellant filed an application for an order setting a hearing or bench trial to determine whether he was entitled to equitable relief under either his claim for wrongful termination or his UCL claim.

Farmers responded to appellant’s objections to its proposed judgment, asserting that because appellant had not prevailed on any cause of action tried to the jury, he could not be deemed the prevailing party. Farmers opposed appellant’s request for a further hearing, contending that appellant had forfeited his right to assert the UCL claim by failing to raise any issue concerning the claim during the trial or trial setting, and by failing to ask the trial court to resolve it before presenting his legal claims to the jury under the general rule that equitable claims are to be tried before legal claims. Farmers also contended that to the extent the UCL claim was based on failure to pay wages, it was rendered moot by the directed verdict. Finally, Farmers contended that appellant was not entitled to attorney fees because he had not asserted a FEHA claim and did not meet the criteria for an award of fees under Code of Civil Procedure section 1021.5.

The court denied appellant’s request to adjudicate further claims. The court concluded that because appellant’s claim was not premised on a statutory violation of FEHA, he was not entitled to “declaratory relief, injunctive relief, [or] attorney fees and costs on the basis of [Harris].” With respect to the UCL claim, the court observed that appellant had not attempted to pursue that claim until after the trial ended, and concluded the jury’s findings were insufficient to support a UCL claim. It found the jury’s determination that Farmers would have discharged appellant based on his poor job performance precluded any potential for injunctive relief.

The court analyzed appellant’s entitlement to attorney fees under Code of Civil Procedure section 1021.5, focusing on the three factors supporting an award of attorney fees under that provision: (a) a significant benefit, pecuniary or nonpecuniary, conferred on the general public or a large class of persons; (b) the necessity and financial burden of private enforcement; and (c) a finding that in the interest of justice, fees should not be paid out of the recovery. The court stated that the “primary effect” of appellant’s discrimination claim had been the vindication of his “personal rights and economic interest,” rather than those of any broader class of persons. The court further found that appellant “brought the instant action for his own economic benefit, as [he] asked the jury for damages of $3,994,790 for past economic losses; $3,212,829 for future economic losses; $1,000,000 to $2,000,000 for past emotional distress; and $500,000 for future emotional distress. [Citation.]” Accordingly, the court concluded that “an award of fees under section 1021.5 would be improper.” The court further found that Farmers, not appellant, was the prevailing party for purposes of recovering costs.

Judgment was entered. Farmers was awarded costs of $181,356.79. This appeal followed.

DISCUSSION

Appellant’s primary contention on appeal is that the trial court misinterpreted and misapplied the California Supreme Court’s decision in Harris, supra, 56 Cal.4th 203. Appellant contends that Harris should be limited to FEHA claims, and that a plaintiff/employee asserting a claim for the common law tort of wrongful discharge in violation of public policy should be permitted to recover if he or she establishes that an improper motive formed any part of the decision, even if the employer establishes that the plaintiff’s poor job performance alone would have led to termination. Alternatively, appellant contends that if Harris applies to common law wrongful discharge claims, he was entitled to declaratory and/or injunctive relief and attorney fees because he successfully persuaded the jury that his age was a substantial motivating factor in connection with the discharge. As explained below, we disagree.

Additionally, appellant appeals from the trial court’s grant of a directed verdict on his wage claim, contending he presented sufficient evidence to allow the claim to go to the jury. With this contention we agree, and reverse the grant of a directed verdict.

A. Harris Instructions in Common Law Wrongful Discharge Claims

In Harris, the plaintiff sued under FEHA, claiming she had been terminated from her employment with the defendant city because she was pregnant. (Harris, supra, 56 Cal.4th at p. 211.) She did not pursue a common law wrongful discharge claim. At trial, the court refused a defense instruction informing the jurors that if they found “a mix of discriminatory and legitimate motives, the City could avoid liability by proving that a legitimate motive alone would have led it to make the same decision to fire her”; the jury was instead instructed, pursuant to CACI former No. 2500, that the plaintiff was entitled to judgment if she proved that her pregnancy “was a ‘motivating factor/reason for the discharge.’ ” (Harris, supra, at pp. 211, 213.) The jury found that the plaintiff’s pregnancy was a motivating factor in her discharge and awarded substantial damages. The trial court awarded the plaintiff attorney fees under Government Code section 12965, subdivision (b). (Harris, supra, at pp. 211, 213.)

The California Supreme Court held the trial court had erred in instructing the jury that an employee could prevail merely by proving that an illegitimate criterion was “a motivating factor.” (Harris, supra, 56 Cal.4th at p. 232; see id. at pp. 214-224, 231-232.) Focusing on FEHA’s prohibition against adverse employment actions taken “ ‘because of’ ” a person’s race, sex, disability, sexual orientation, or other protected characteristic, the court held that to establish a claim of employment discrimination under FEHA, the employee must instead “ ‘produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision ....’” (Harris, supra, 56 Cal.4th at pp. 231, 232, quoting Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 278 [104 L.Ed.2d 268, 109 S.Ct. 1775] (conc. opn. of O’Connor, J.).) The court explained that FEHA does not prohibit “discrimination ‘in the air’ ” or permit an employee to recover based on “bigoted thoughts or beliefs” or “ ‘stray remarks’ ” {Harris, supra, at p. 231), but “prohibits discrimination that causes an employer ‘to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment’ ” (id. at p. 231, quoting § 12940, subd. (a)). “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” (Harris, supra, at p. 232.) The court further held that once a plaintiff has shown discrimination was a substantial motivating factor in the employment decision, the employer may avoid liability for damages, backpay or an order of reinstatement “by proving that a legitimate motive alone would have led it to make the same decision,” absent the discrimination. (Id. at p. 211.)

Following the California Supreme Court’s decision in Harris, the Judicial Council amended CACI No. 2500, applicable to claims of disparate treatment under FEHA. It now states that to establish a claim of disparate treatment, the plaintiff must prove that the improper criterion was “a substantial motivating reason” for the employer’s decision to discharge or take other adverse employment action, rather than simply “a motivating . . . reason.” The Judicial Council also amended CACI No. 2430, applicable to common law claims of wrongful discharge in violation of public policy; it now similarly states that to establish such a claim, the plaintiff must prove that the subject violation of public policy was “a substantial motivating reason” for the plaintiff’s discharge. In line with these amendments, the Judicial Council amended CACI No. 2507 to define a “substantial motivating reason” as “more than a remote or trivial reason.” In addition, the Judicial Council added CACI No. 2512, to be given when the employer presents evidence of a legitimate reason for the adverse employment action, informing the jurors that even if they find that discrimination was a substantial motivating reason for the adverse action, if the employer establishes that the adverse action nonetheless would have been taken for legitimate reasons, “then [the plaintiff] will not be entitled to reinstatement, back pay, or damages.”

As discussed, the CACI instructions, amended to conform to Harris, were given here. The jury found in favor of appellant on the question whether age discrimination was a substantial motivating reason for his discharge. However, it also found that Farmers would have discharged him in any event, based on his poor job performance. Appellant contends that the holding in Harris should be confined to FEHA claims and not be applied to claims of wrongful discharge in violation of public policy.

This issue whether Harris’s reasoning applies where the sole claim is for wrongful termination in violation of public policy was addressed in Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334 [166 Cal.Rptr.3d 720], where the plaintiff claimed retaliatory termination for reporting sexual harassment, but abandoned his statutory FEHA claim before the case was submitted to the jury. (See Mendoza v. Western Medical Center, supra, at p. 1341.) Over defense objection, the court instructed the jury that the plaintiff was required to prove his report was a “ ‘motivating reason’ ” for his discharge, rather than “ ‘a substantial motivating reason.’ ” (Id. at p. 1340.) The Court of Appeal concluded this was error. Acknowledging that “[t]he directions for use included with the current version of CACI No. 2430 state that ‘[wjhether the FEHA standard [(as explicated in Harris)] applies to cases alleging a violation of public policy has not been addressed by the courts,’ ” the court concluded: “It would be nonsensical to provide a different standard of causation in FEHA cases and common law tort cases based on public policies encompassed by FEHA. [That the plaintiff] abandoned his statutory FEHA claims before the case was submitted to the jury[,] ... is a distinction without a difference for purposes of crafting appropriate jury instructions.” (Mendoza v. Western Medical Center, supra, atp. 1341; accord, Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758] (Alamo) [where plaintiff asserted both a FEHA claim and a claim for termination in violation of public policy, trial court erred in giving older version of CACI No. 2430, requiring plaintiff to prove only that her pregnancy or pregnancy leave was “ ‘a motivating reason’ ” rather than “ ‘a substantial motivating reason’ ” for her discharge].)

We agree with the Mendoza and Alamo courts that the reasoning of Harris applies to claims of wrongful termination in violation of public policy as well as FEHA claims. The two claims are analogous, and unless one is barred by a failure to exhaust administrative remedies or the statute of limitations, they are likely to be pursued jointly. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 908 [66 Cal.Rptr.2d 888, 941 P.2d 1157] [common law wrongful discharge claim, “provides another legal theory on which employees may pursue remedies comparable in all relevant respects to those . . . available to them under the FEHA” and “does not afford any different or expanded penalties for discriminatory conduct beyond those already available under the FEHA”].) Although the California Supreme Court in Harris focused on the statutory language of FEHA, the claim that a termination violates public policy must be “tethered to fundamental policies that are delineated in constitutional or statutory provisions.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 [4 Cal.Rptr.2d 874, 824 P.2d 680], overruled in part on another point in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 [78 Cal.Rptr.2d 16, 960 P.2d 1046].) The California Supreme Court has said that “a common law tort claim based on the public policy against age discrimination articulated in the FEHA is subject to the FEHA’s limitations on the nature and scope of the statutory prohibition against age discrimination.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 272 [121 Cal.Rptr.2d 203, 47 P.3d 1069].)

Moreover, on multiple occasions, the California Supreme Court has held that where a wrongful termination claim would not be cognizable under the provisions of FEHA, the conduct at issue cannot offend fundamental public policy. (See, e.g., Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1108-1109 [119 Cal.Rptr.2d 698, 45 P.3d 1162] [where employee of religious hospital terminated for discussing another religion in the workplace was barred from pursuing FEHA claim due to statutory exemption for religious corporations, hospital could not be held liable under theory of wrongful termination in violation of public policy]; Jennings v. Marralle (1994) 8 Cal.4th 121, 134-135 [32 Cal.Rptr.2d 275, 876 P.2d 1074] [FEHA exemption for employers who employ fewer than five persons precluded tortious wrongful discharge claim based on public policy].) If claims for wrongful termination in violation of public policy must track FEHA, it necessarily follows that jury instructions pertinent to causation and motivation must be the same for both. Accordingly, we conclude the trial court did not err in giving the instructions set forth in the CACI model jury instructions.

B. Remedy for the Jury’s Mixed Motive Finding

As discussed, the jury found that appellant’s age was a substantial motivating reason for his discharge, but that Farmers would have discharged appellant in any event, based on his poor job performance. The court in Harris addressed the relief available where the employee meets the burden of showing that discrimination was a substantial factor motivating the adverse employment decision, but the employer shows that “it would have made the same decision in any event.” (Harris, supra, 56 Cal.4th at p. 232.) The court rejected the suggestion that a plaintiff under these circumstances might be entitled to an order of reinstatement or backpay: “In the context of an allegedly unlawful termination, an order of reinstatement or backpay would not ‘redress the adverse effects of [discriminatory] practices on aggrieved persons’ [citation] if legitimate, nondiscriminatory reasons would have led the employer to terminate the employee in any event. Although such remedies might help to ‘prevent and deter unlawful employment practices’ [citation], they would do so only at the cost of awarding plaintiffs an unjustified windfall and unduly limiting the freedom of employers to make legitimate employment decisions. Curtailing employers’ prerogatives in this way — that is, forcing an employer to retain someone when it had sufficient and legitimate reasons not to do so — would cause inefficiency and would thus tend to ‘deprive^ the state of the fullest utilization of its capacities for development and advancement,’ contrary to the FEHA’s purposes. [Citation.]” (Harris, supra, at pp. 232-233, quoting Gov. Code, §§ 12920, 12920.5.)

The court held that for similar reasons, the plaintiff should not be awarded damages for economic loss: “Such an award would provide the plaintiff with an unjustified windfall.” (Harris, supra, 56 Cal.4th at p. 233.) The court reached the same conclusion with respect to monetary damages for noneco-nomic loss: “When an employee is fired, and when discrimination has been ' shown to be a substantial factor but not a ‘but for’ cause, we believe it is a fair supposition that the primary reason for the discharged employee’s emotional distress is the discharge itself. Such distress is not compensable under the FEHA — indeed, compensation for such distress would be a windfall to the employee — if the employer proves it would have fired the employee anyway for lawful reasons.” (Id. at pp. 233-234.) In short, “a termination decision substantially motivated by discrimination is not com-pensable in damages under [Government Code] section 12940(a) when an employer makes a same-decision showing.” (Id. at p. 234.)

The court went on to state, however, that the unavailability of damages or an order of reinstatement or backpay need not make a finding of unlawful discrimination an “empty gesture.” (Harris, supra, 56 Cal.4th at p. 234.) Citing Code of Civil Procedure section 1060, the court stated that proof that an adverse employment decision was substantially motivated by' discrimination “may warrant a judicial declaration of employer wrongdoing,” which in the appropriate circumstances “may serve to reaffirm the plaintiff’s equal standing among [his or] her coworkers and community, and to condemn discriminatory employment policies or practices. [Citation.].” (Harris, at p. 234.) The court added that “upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices.” (Harris, at p. 234; see Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131 [87 Cal.Rptr.2d 132, 980 P.2d 846].) Finally, quoting Government Code section 12965, subdivision (b), the court stated: “[W]hen a plaintiff has proven unlawful discrimination, the plaintiff may be eligible for ‘reasonable attorney’s fees and costs.’ ” (Harris, supra, at p. 235.)

1. Declaratory and Injunctive Relief

Citing the California Supreme Court’s discussion of available remedies in Harris, appellant contends he was entitled to declaratory and injunctive relief under the facts presented and the jury’s findings. We conclude that appellant failed to properly raise or preserve issues pertaining to these remedies, and that in any event, no effective alternative relief was available.

In order for a party to pursue an action for declaratory relief, the grounds for such relief must be specifically pleaded in the complaint. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513-514 [156 Cal.Rptr.3d 912], disapproved in part on another ground in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 [199 Cal.Rptr.3d 66, 365 P.3d 845], citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [124 Cal.Rptr.2d 519, 52 P.3d 695]; accord, American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 741 [102 Cal.Rptr.3d 759].) Appellant did not plead a claim for declaratory relief. Neither his original complaint nor the operative 5th AC contained a cause of action for declaratory relief, nor did he include a request for declaratory relief in the prayer. Although appellant asked for injunctive relief in connection with his UCL cause of action, the only such relief sought was “a temporary and permanent injunction requiring [d]efendant[s] to refrain from withholding earned and/or owed money and property from [him].” Appellant’s failure to seek declaratory or injunctive relief relevant to his wrongful termination claim precluded him from obtaining such relief. (See Griffin Dewatering Corp. v. Northern Ins. Co. of New York (2009) 176 Cal.App.4th 172, 210 [97 Cal.Rptr.3d 568] [plaintiff must recover on causes of action set out in the complaint or obtain permission to amend to include omitted claims].)

Further, although Harris was decided in February 2013, almost a year prior to the trial of this matter, appellant made no attempt to amend his complaint to add a claim for declaratory relief or to expand his request for injunctive relief to include relief relevant to his discrimination claim. Prior to trial, when the parties discussed the bifurcation motion and the order of trial, appellant neither asked the court to resolve any equitable issues first, nor suggested he intended to seek a court trial on any equitable claim following the jury trial. To the contrary, he took the position that Harris had no application to the issues at trial because he had not asserted a statutory claim under FEHA. In short, appellant did nothing to suggest he intended to seek injunctive relief in connection with his wrongful termination claim.

Finally, even had the trial court addressed appellant’s UCL claim, the record did not support an award of injunctive relief. In order to grant injunctive relief under the UCL, “there must be a threat that the wrongful conduct will continue. ‘Injunctive relief will be denied if, at the time of the order of judgment, there is no reasonable probability that the past acts complained of will recur . . . ” (Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 702 [38 Cal.Rptr.3d 36]; accord, Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1012 [36 Cal.Rptr.3d 592] [“ ‘[A]n injunction must seek to prevent harm, not to punish the wrongdoer.’ ”]; Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 464-465 [30 Cal.Rptr.3d 210] [“ ‘Conjunctive relief ... is not a remedy designed to right completed wrongs. [Citations.]’ ”].) The injuries appellant suffered at the hands of Farmers are all in the past. Neither at trial nor on appeal has appellant identified any threat of real and immediate future injury to himself as a result of Farmers’s employment practices. He is not employed by Farmers, and there is no reasonable likelihood he will be at any time in the future or will otherwise be in a position to be harmed by Farmers’s actions.

Appellant claims an injunction is required to prevent Farmers from engaging in age discrimination against current employees. “[I]njunctive relief under the UCL is an appropriate remedy where a business has engaged in an unlawful practice of discriminating against older workers.” (Herr v. Nestlé U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789, 787 [135 Cal.Rptr.2d 477], italics added [affirming trial court orders enjoining Nestlé from discriminating on the basis of age in promoting employees, and directing company to issue repudiation of its earlier memorandum recommending “ ‘hiring, identifying and developing young people to have in the long-term enough resources for future management’ ”].) Appellant contends there was “ample evidence” that Farmers “engaged in a pattern of discrimination against older District Managers,” but cites nothing in the record to support that contention. Our review of the record reveals that one other district manager, Glenn Smith, was terminated under circumstances suggestive of age discrimination — some five years after appellant was terminated. The jury made no finding that age played a part in any other employment decision by Farmers, and its verdict represents, at best, a determination that appellant’s age played a non-pivotal role in his discharge. On this record, there was insufficient evidence to support issuance of an injunction forbidding Farmers from engaging in age discrimination.

2. Attorney Fees

Appellant contends the California Supreme Court’s decision in Harris supports an award of attorney fees. In Harris, the court stated that when a plaintiff in a FEHA action has proven that an adverse employment decision was substantially motivated by discriminatory intent, he or she may be eligible for attorney fees under Government Code section 12965, subdivision (b). (Harris, supra, 56 Cal.4th at p. 235.) Section 12965, subdivision (b) provides that “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney fees and costs.” (Italics added.) Appellant did not bring an action under FEHA, and nothing in Harris suggests its fee provision should be expanded for use outside that context. However, courts have held that Code of Civil Procedure section 1021.5 may permit an award of attorney fees if a claim is for wrongful discharge under the appropriate circumstances. (Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 828-829 [133 Cal.Rptr.3d 751] [assistant sheriff’s suit for wrongful termination “inure[d] to the benefit of the citizens and taxpayer of the [c]ounty by lessening the probabilities of abuse and corruption in the sheriff’s office”]; Jabola v. Pasadena Redevelopment Agency (1981) 125 Cal.App.3d 931, 936 [178 Cal.Rptr. 452], disapproved in part on another ground in Cranston v. City of Richmond (1985) 40 Cal.3d 755 [221 Cal.Rptr. 779, 710 P.2d 845] [services of petitioner’s counsel fell within meaning of private attorney general statute where proceeding not only benefitted petitioner, but also “serve[d] as a decision of general import, applicable to agencies and employees generally”]; see Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 76 [49 Cal.Rptr.2d 348] [recognizing principle, but affirming order denying fee award]; Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 29 [267 Cal.Rptr. 618] [same].) The trial court considered and rejected appellant’s request for an award of attorney fees under Code of Civil Procedure section 1021.5. We review that determination for abuse of discretion. (Satrap v. Pacific Gas & Electric Co., supra, 42 Cal.App.4th at p. 77; Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355 [188 Cal.Rptr. 873, 657 P.2d 365].)

Under Code of Civil Procedure section 1021.5, “a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest. . . .” It provides “explicit statutory authorization for a ‘private attorney general’ attorney fee award” where the litigant vindicates a public policy resting on “Constitution or statute.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 931 [154 Cal.Rptr. 503, 593 P.2d 200].) “[Eligibility for section 1021.5 attorney fees is established when ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary[,] has been conferred on the general public or a large class of persons[,]” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.” ’ ” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214 [117 Cal.Rptr.3d 342, 241 P.3d 840], quoting Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 935.) The purpose of an award of attorney fees pursuant to section 1021.5 is to encourage suits that enforce “common interests of significant societal importance, but which do not involve any individual’s financial interests to the extent necessary to encourage private litigation to enforce the right. [Citation.]” (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114 [212 Cal.Rptr. 485].)

The trial court’s conclusion that the underlying litigation did not meet the criteria for an award of attorney fees under Code of Civil Procedure section 1021.5 was a reasonable one. The jury’s verdict did not result in the enforcement of an important right affecting the public interest. Nor did it confer a significant benefit, pecuniary or nonpecuniary, on the general public or a large class of persons. Appellant established that in his position as district manager, he was treated by his managers as an employee, rather than the independent contractor Farmers claimed him to be, and that his age was a substantial motivating factor in his termination. These findings were not significant to the general public or demonstrably applicable to any other district manager or Farmers’s employee. (See Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at pp. 939-940 [in adjudicating motion for attorney fees under Code Civ. Proc., § 1021.5, trial court should take into consideration “significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case”].)

Assessment of the final factor — the necessity and financial burden of private enforcement — further supports the court’s finding. Appellant’s reasonable expectation of financial benefits from the litigation was sufficient to motivate him to pursue the litigation. “The financial burden of private enforcement requirement means that an award of attorney fees under section 1021.5 of the Code of Civil Procedure is only appropriate when the cost of the claimant’s legal victory transcends his or her personal interest — i.e., when the necessity for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his or her individual stake in the matter.” (Luck v. Southern Pacific Transportation Co., supra, 218 Cal.App.3d at p. 30.) “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (Beach Colony II v. California Coastal Com., supra, 166 Cal.App.3d at p. 114.) “Private attorney general fees are not intended to provide insurance for litigants and counsel who misjudge the value of their case, and vigorously pursue the litigation in the expectation of recovering substantial damages, and then find that the jury’s actual verdict is not commensurate with their expenditure of time and resources.” (Satrap v. Pacific Gas & Electric Co., supra, 42 Cal.App.4th at pp. 79-80.) The relevant issue is “ ‘ “the estimated value of the case at the time the vital litigation decisions were being made.” ’ ” (Id. at p. 79, quoting Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1414 [1 Cal.Rptr.2d 459].)

As the trial court observed, appellant sought over $10 million in damages for his allegedly wrongful discharge. In addition, he expected to recover hundreds of thousands of dollars for improper wage deductions. On this record, it was reasonable for the court to find that at every critical juncture appellant expected a substantial financial recovery, and that this was sufficient motivation to pursue the case. In view of appellant’s failure to meet the criteria for attorney fees under Code of Civil Procedure section 1021.5, the trial court did not abuse its discretion in rejecting appellant’s request.

C. Failure to Pay Wages

Farmers treated appellant as an independent contractor, deducting from his compensation premiums for his errors and omissions insurance, as well as the cost of supplies and equipment, along with other expenses incurred in operating an insurance business. In addition, when it terminated him, it deducted a balloon payment to repay the loans it had made to him over the years and the commissions advanced. However, appellant established in the first phase of trial that he was Farmers’s employee, not an independent contractor, as Farmers claimed. As an employee, appellant was entitled to the benefit of wage laws requiring an employer to promptly pay all wages due, and prohibiting the employer from deducting unauthorized expenses from the employee’s wages, deducting for debts due the employer, or recouping advances absent the parties’ express agreement. (See Cotter v. Lyft, Inc. (N.D.Cal. 2015) 60 F.Supp.3d 1067, 1073-1074 [“Whether a worker is classified as an employee or an independent contractor has great consequences. California law gives many benefits and protections to employees; independent contractors get virtually none.”]; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 15 [64 Cal.Rptr.3d 327] [drivers wrongly treated as independent contractors entitled to recover as employees under Lab. Code for business expenses paid out of pocket during their employment]; Zaremba v. Miller (1980) 113 Cal.App.3d Supp. 1, 6 [169 Cal.Rptr. 688] [mistaken belief that employee was independent contractor did not free employer from obligations of Lab. Code provision imposing penalty for failing to pay wages immediately upon discharge].) As explained below, we conclude appellant presented evidence sufficient to establish a prima facie case that deductions from the compensation Farmers paid appellant in his final years and after his termination were precluded by California law. Accordingly, the trial court erred in granting a directed verdict on his claim for unpaid wages.

The wages an employer owes its employees are accorded “a special status” under California law. (Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, 325 [19 Cal.Rptr. 492, 369 P.2d 20] (Kerr’s Catering).) Full and prompt payment of wages due an employee “is a fundamental public policy of this state.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147 [37 Cal.Rptr.2d 718].) “This public policy has been expressed in the numerous statutes regulating the payment, assignment, exemption and priority of wages.” (Kerr’s Catering, supra, 57 Cal.2d at p. 325.) The chapter of the Labor Code governing compensation and payment of wages includes provisions requiring immediate payment of wages upon discharge, layoff or resignation (Lab. Code, §§201, 202), requiring regular payment of wages (Lab. Code, § 204), and prohibiting an employer from insisting an employee execute a release of a claim before paying wages due (Lab. Code, § 206.5). The Labor Code’s protections are “designed to ensure that employees receive their full wages at specified intervals while employed, as well as when they are fired or quit” (On-Line Power, Inc. v. Mazur (2007) 149 Cal.App.4th 1079, 1085 [57 Cal.Rptr.3d 698]), and are applicable not only to hourly employees, but to highly compensated executives and salespeople. (See, e.g., ibid.; Sciborski v. Pacific Bell Directory (2012) 205 Cal.App.4th 1152, 1166 [140 Cal.Rptr.3d 808]; Lindell v. Synthes USA (E.D.Cal. 2016) 155 F.Supp.3d 1068.) The statutes governing the employer/employee relationship are “remedial in nature” and must be liberally construed, “with an eye to promoting the worker protections they were intended to provide.” (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 227 [64 Cal.Rptr.3d 407, 165 P.3d 133] (Ralphs Grocery Co.).)

Of particular pertinence here are Labor Code sections 221 and 224, which make it “unlawful for any employer to collect or receive from any employee any part of wages theretofore paid by said employer to said employee” (Lab. Code, § 221), but permit employers to “withhold or divert” a portion of an employee’s wages when “required or empowered so to do by state or federal law or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital or medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute . . . .” (Lab. Code, § 224.) Where, as here, no collective bargaining agreement or statute is at issue, these provisions prohibit an employer from “collecting or receiving wages that have already been earned by performance of agreed-upon requirements,” unless they are (1) expressly authorized in writing by the employee and (2) do not amount to a rebate or deduction from the standard wage set forth in the parties’ agreement. (Steinhebel v. Los Angeles Times Communications, LLC (2005) 126 Cal.App.4th 696, 707 [24 Cal.Rptr.3d 351].) Appellant’s testimony appeared to concede that he agreed to at least some of the deductions taken from his compensation over the years. That fact, however, is not dispositive: “The one tool that is not available to [the employer] ... is an employment agreement by which [it] requires its employees to consent to unlawful deductions from their wages.” (Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109, 1124 [41 Cal.Rptr.2d 46], italics omitted (Hudgins).)

Under the 1983 appointment agreement, appellant’s compensation was to be based on a certain percentage of the commissions earned by the salespeople working in his district. Under California law, the obligation to pay a commission may be contingent on events that occur after the sale (such as the customer returning the merchandise), and amounts advanced to the salesperson may be deducted at a later date if the contingencies are not satisfied. (See Ralphs Grocery Co., supra, 42 Cal.4th at pp. 239-240, and cases cited therein.) The employer also may deduct expenses directly related to a sale, such as free shipping or free products offered by the salesperson to induce the sale. (See Aguilar v. Zep (N.D.Cal., Aug. 27, 2014, No. 13-cv-00563-WHO) 2014 U.S.Dist. Lexis 120315, p. *49.) However, the preconditions to earning the commission must be “clearly expressed[,] . . . generally ... in writing,” “must relate to the sale,” and “cannot merely serve as a basis to shift the employer’s cost of doing business to the employee.” (Sciborski v. Pacific Bell Directory, supra, 205 Cal.App.4th at p. 1171; see Marr v. Bank of America, N.A. (9th Cir. 2013) 506 Fed. Appx. 661, [“Deductions from . . . commissions are permitted . . . when (1) the deductions are tied to the employee’s sales rather than general business expenses, and (2) the employee agrees to the deductions by contract.”]; Aguilar v. Zep, supra, 2014 U.S.Dist. Lexis 120315 at p. *49 [“Even if a contract exists ... , an employer cannot shift the cost of doing business to an employee .... [Where] routine business expenses that shift the cost of doing business to the employee [are deducted from the employees’ commission-based compensation,] . . . [t]he fact that the [employees] consented to the practice is irrelevant.”].)

This principle was first propounded by the California Supreme Court in Kerr’s Catering. There, the employer promised a commission of 15 percent on all sales in excess of a certain minimum to the employees who sold food items from its lunch trucks, but deducted cash shortages resulting from the failure to properly charge for the sold items. The court held the deductions were improper, observing that “some cash shortages, breakage and loss of equipment are inevitable in almost any business operation” and should be borne as a “business expense,” rather than deducted from a promised commission. (Kerr’s Catering, supra, 57 Cal.2d at p. 329.) This holding was applied to managerial employees in Quillian v. Lion Oil Company (1979