Employer's Accountants Not Liable to Employees for Inaccurate W-2 Forms

In Giacometti v. Aulla, LLC (August 25, 2010) 187 Cal.App.4th 1133, the plaintiffs were waiters at Ago Restaurant in Los Angeles, owned in part by actor Robert DeNiro. They alleged that the restaurant required them to pool 40 percent of their tips and that the restaurant managers improperly allocated a percentage of the tips to themselves. The employees sued the restaurant, its managers, and its accountants, alleging accounting malpractice in preparing tax reporting forms that did not account for the tip sharing and thus over-reported their income, resulting in IRS audits.

The trial court (LASC, Jones) sustained the accountants' demurrer with prejudice and dismissed them from the case. The Court of Appeal affirmed, holding that the accountants owed no duty to the plaintiffs to verify the figures given to them by the restaurant.

To summarize, the scope of the accountants' employment by the restaurant in this case was to prepare year-end financial documents, including W-2 forms. There are no allegations in the charging complaint that the accountants knew that the restaurant's representation of employees' income was wrong at the time they prepared these documents, and there are no allegations that the accountants were hired to calculate, or in fact did calculate, employees' income for purposes of year-end reporting. The accountants did not owe the employees a duty of care under the negligence theory alleged in the second amended complaint. The trial court properly sustained the demurrer to this cause of action without leave to amend.

Slip op. at 5. The full text of the opinion is available here.