Employer on Hook for Paycheck Intercepted, Cashed by Forger

Wednesday, March 13, 2002

Page 3

Employer on Hook for Paycheck Intercepted, Cashed by Forger—Appellate Division

By KENNETH OFGANG, Staff Writer/Appellate Courts

An employee whose paycheck was apparently intercepted and cashed by an unauthorized third party has not been paid as a matter of law and remains entitled to his or her wages, the Los Angeles Superior Court Appellate Division has ruled.

The court’s published opinion in favor of the widow of security guard Felix Villafuerte, handed down in January, was made public yesterday after this district’s Court of Appeal declined to transfer the case to itself.

Villafuerte worked for Inter-Con Security Systems, Inc. He filed a complaint with the Division of Labor Standards Enforcement in 1999, claiming that he wasn’t paid for 80 hours of work at the rate of $8.50 per hour.

Inter-Con responded that it had mailed Villafuerte a check, at a home address in West Covina reflected by company records. Villafuerte denied ever receiving the check.

Inter-Con produced a cancelled check. Villafuerte insisted the endorsement was not his, and noted that the endorser misspelled his first and last names.

A labor commissioner’s hearing officer found for Villafuerte, but Inter-Con exercised its right to a trial de novo in Superior Court. Villafuerte died before the trial, but his widow continued the litigation with legal assistance furnished by DLSE.

Los Angeles Superior Court Judge Teresa Sanchez-Gordon found that the endorsement on the check was not Villafuerte, but found in favor of Inter-Con on the wage claim.

But Judge Charles Lee, writing for the Appellate Division, said the plaintiff was entitled to judgment as a matter of law because there was no substantial evidence that Villafuerte received his wages.

The judge explained:

“Normally, an obligation to pay money requires that the payor tender or deliver payment to the payee…In this case, there was no evidence before the court that the check was ever delivered to Villafuerte….Although respondent contends the check was mailed to Villafuerte’s most current address, it never proved this assertion. Even if respondent had proven this mailing, where a check is sent by mail without the assent of the intended recipient and is not received by him, it remains the property of the sender.”

Thomas S. Kerrigan of DLSE represented the plaintiff. Avigal Horrow represented Inter-Con.

The case is Villafuerte v. Inter-Con Security Systems, Inc., 02 S.O.S. 1336.