Judge: Anne Richardson, Case: 22STCV25013, Date: 2023-02-16 Tentative Ruling

Case Number: 22STCV25013    Hearing Date: February 16, 2023    Dept: 40

Andy Castillo (“Plaintiff”) filed a complaint against his former employer Donut Friend, Mark Trombino, and Tracy Trombino on August 3, 2022. Plaintiff alleged 8 different causes of action:

1.      Wrongful Termination

2.      Failure to Pay Meal and Rest Period Compensation

3.      Failure to Pay Earned Wages

4.      Failure to Pay Reporting Time Wages

5.      Failure to Reimburse for Necessary Expenditures Incurred During Discharge of Work Duties

6.      Failure to Furnish Compliant Wage Statements

7.      Waiting Time Penalties

8.      Unfair Competition

Defendants now bring this Demurrer to the first cause of action for wrongful termination only. To date, no opposition by Plaintiff has been filed. (See Notice of Plaintiffs Non-Opposition to Defendant’s Demurrer filed on February 8, 2023).

After review, the Court SUSTAINS the Demurrer because the Court’s jurisdiction is precluded by the National Labor Relations Act.

            Regarding the first cause of action for wrongful termination, Plaintiff alleges that Management threatened him with a demotion and eventual termination if he were to try to organize or join a union. (See Complaint, ¶ 28-29). Subsequently, Plaintiff was terminated by Defendants in retaliation for engaging in protected activity. (Ibid.) Plaintiff then filed a complaint against Defendants on August 3, 2022. This Demurrer followed on September 20, 2022.       

Defendant cites to San Diego Bldg. Trades Unions v. Garmon (1959) 359 U.S. 236, 244-245, which holds that “state jurisdiction must yield” when it is “clear, or may fairly be assumed that the activities which a State purports to regulate are protected by…” Section 8 of the National Labor Relations Act (Id. at 244). Even if the allegations made by Plaintiff are legally sufficient, Garmon is controlling and counsels against any regulation of activity that falls so squarely within the ambit of the NLRB.

Leave to Amend –

“Leave to amend must be allowed where there is a reasonable possibility of successful amendment.” (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

            Here, the only amendment possible would be an amendment to remove the cause of action from the scope of the NLRA. As this is not possible unless Plaintiff alleges a completely different cause of action that is not governed by the NLRA, the Court will not grant leave to amend.

 Conclusion

Therefore, the Demurrer of Defendant Donut Friend, Mark Trombino and Traci Trombino to the first cause of action in Plaintiff’s Complaint is SUSTAINED without leave to amend.