Judge: Armen Tamzarian, Case: 22STCV35629, Date: 2023-05-04 Tentative Ruling
Case Number: 22STCV35629 Hearing Date: May 4, 2023 Dept: 52
Defendants West Hollywood Taco Shop
26, Inc.’s and Joshua Pourgol’s Demurrer
Defendants West Hollywood Taco Shop 26,
Inc. and Joshua Pourgol demur to all nine causes of action alleged in plaintiff
Ahmed Ashour’s complaint.
1.
Harassment
Plaintiff does not allege sufficient
facts for this cause of action. The Fair
Employment and Housing Act (FEHA) provides it is unlawful “[f]or an employer …
to harass an employee [or] an applicant” because of his or her membership in a
protected class. (Gov. Code, §
12940(j)(1).) “The law prohibiting
harassment is violated when the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment.” (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 263, internal quotes and
alterations omitted.)
Plaintiff’s harassment claim arises from the
allegation that defendants required him to sign an onboarding agreement in
Spanish despite his “unfamiliarity with the Spanish language.” (Comp., ¶ 66.) Plaintiff declined to “execute either the
English or Spanish Agreement.” (¶
68.) Defendants told him “executing
[the] Agreement is a ‘requirement to be hired’ ” (¶ 69.)
Defendants ultimately hired someone else. (¶ 70.)
Plaintiff alleges requiring him to sign an agreement in Spanish
constituted harassment based on national origin, which includes “linguistic
characteristics associated with a national origin group.” (Cal. Code Regs., tit. 2, §
11027.1(a)(1).)
This allegation does not show an abusive working
environment. In
contrast with discrimination, which
concerns unequal terms and conditions of employment, “harassment focuses
on situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal, physical, or
visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 706.) “[H]arassment consists of a type of conduct
not necessary for performance of a supervisory job. Instead, harassment consists of conduct
outside the scope of necessary job performance, conduct presumably engaged in
for personal gratification, because of meanness or bigotry, or for other
personal motives. Harassment is not
conduct of a type necessary for management of the employer’s business or
performance of the supervisory employee’s job.”
(Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.)
Requiring an applicant or prospective employee to
sign an agreement, whether in in English or Spanish, is not intimidation,
ridicule, or insult. It is unrelated to the
workplace’s social environment. It is part
of the onboarding process, which is necessary for managing the employer’s
business.
2.
Gov. Code § 12964.5
Plaintiff does not allege sufficient
facts for this cause of action. An
employer may not “require an employee to sign a release of a claim or right
under” FEHA as “a condition of employment.”
(Gov. Code, § 12964.5(a)(1)(A)(i).)
“ ‘[R]elease of a claim or right’ includes requiring an individual to
execute a statement that the individual does not possess any claim or injury
against the employer or other covered entity, and includes the release of a
right to file and pursue a civil action or complaint with, or otherwise notify,
a state agency, other public prosecutor, law enforcement agency, or any court
or other governmental entity.” (Id.,
subd. (a)(1)(A)(ii).)
Plaintiff alleges that defendants’
agreement required him to arbitrate disputes.
He argues that constitutes giving up the right to bring a civil action
and therefore violates Government Code section 12964.5(a)(1)(A). That provision, however, does not apply to
waiving any right whatsoever. It applies
to “releasing” claims or rights, meaning giving up someone’s substantive right
to bring a cause of action, rather than the procedural right to bring a cause
of action in a certain forum. Black’s
Law Dictionary defines “release” as “1. Liberation from an obligation, duty, or
demand; the act of giving up a right or claim to the person against whom it
could have been enforced … 2. The
relinquishment or concession of a right, title, or claim.” (Black's Law Dictionary (11th ed. 2019).)
In
contrast, Labor Code section 432.6(a) prohibits waiving the procedural
right to bring a civil action in court.
“A person shall not, as a condition of employment, continued employment,
or the receipt of any employment-related benefit, require any applicant for
employment or any employee to waive any right, forum, or procedure for a
violation of any provision of the California Fair Employment and Housing Act …
or this code, including the right to file and pursue a civil action or a
complaint with, or otherwise notify, any state agency, other public prosecutor,
law enforcement agency, or any court or other governmental entity of any
alleged violation.”
Moreover,
to the extent Government Code section 12964.5(a)(1)(A) applies to waiving the
right to jury trial by signing an arbitration agreement, the Federal
Arbitration Act preempts it for the same reasons discussed below with respect
to Labor Code section 432.6.
3
& 4. Government Code § 12953 and Labor Code § 432.6
These
causes of action fail because they rely on Labor Code section 432.6, which is preempted
by the Federal Arbitration Act (FAA). Labor
Code section 432.6(a) prohibits employers from requiring employees to “waive
any right, forum, or procedure for a violation of” FEHA or the Labor Code as a
condition of employment. The Ninth
Circuit held this provision “is preempted by the FAA” because “it ‘specially
impede[s] the ability of [employers] to enter into arbitration agreements’ and ‘flout[s]
the FAA’s command to place those agreements on an equal footing with all other
contracts.’ ” (Chamber of Commerce of
the United States of America v. Bonta (9th Cir. 2023) 62 F.4th 473, 490.)
5.
Retaliation
Plaintiff fails to allege sufficient
facts for this cause of action. In it,
plaintiff alleges retaliation under Labor Code sections 98.6 and 432.6(b), and
Government Code section 12940(h). As
discussed above, the FAA preempts Labor Code section 432.6, so it cannot serve
as a basis for a cause of action. The
other two provisions do not apply because the complaint does not allege
plaintiff engaged in any protected activity.
Under
Labor Code section 98.6(a), protected activities are when an “employee or applicant
engaged in any conduct delineated in this chapter,” “filed a bona fide
complaint or claim or instituted or caused to be instituted any proceeding
under or relating to his or her rights that are under the jurisdiction of the
Labor Commissioner, made a written or oral complaint that he or she is owed
unpaid wages,” “initiated any action or notice pursuant to Section 2699, or has
testified or is about to testify in a proceeding pursuant to that section,” or
the “exercise … of any rights afford him or her.”
Meanwhile,
under Government Code section 12940(h), protected activity is “oppos[ing] any
practices forbidden under this part,” meaning FEHA.
Plaintiff
alleges two forms of complaints or protected activity. First, he alleges defendants retaliated
against him for refusing to sign the arbitration agreement. But that would only constitute exercise of a
right afforded to plaintiff or a practice forbidden under FEHA via Labor Code
section 432.6 and Government Code section 12953. Because the FAA preempts those statutes,
plaintiff’s refusal to sign the arbitration agreement or his complaint about it
was not exercise of a right afforded to him or opposition of a practice
forbidden under FEHA.
Second,
plaintiff alleges protected activity of filing a complaint with the Retaliation
Complaint Investigation Unit of the California Labor Commissioner’s Office on
March 18, 2022. (Comp., ¶¶ 26-31.) Plaintiff does not, however, allege any
adverse action or retaliation against him because of that complaint. Defendants terminated plaintiff’s onboarding
process on March 9, 2022, before he complained to the Labor Commissioner. (¶ 18.)
Plaintiff alleges no later adverse action that could constitute
retaliation for his complaint.
6.
Labor Code § 201 & Wage Order 5
Plaintiff does not allege sufficient
facts for this cause of action. Labor
Code section 201(a) provides, “ If an employer discharges an employee, the
wages earned and unpaid at the time of discharge are due and payable
immediately.” Plaintiff alleges he is
entitled to reporting time pay because he reported at defendants’ specified
location and time on March 8, 2022, for onboarding. (Comp., ¶¶ 154-155.)
This cause of action fails because
plaintiff does not allege facts showing defendants were his “employer” and
plaintiff was an “employee.” The
Industrial Welfare Commission’s Wage Order 5 provides, “Each workday an
employee is required to report for work and does report, but is not put to work
or is furnished less than half said employee’s usual or scheduled day’s work,
the employee shall be paid.” (§ 5(A).)
Wage
Order 5 further provides, “ ‘Employer’ means any person” who “employs or
exercises control over the wages, hours or working conditions of any person.” (§ 2(H).)
“‘Employ’ means to engage, suffer, or permit to work.” (§ 2(E).)
“ ‘Employee’ means any person employed by an employer.” (§ 2(F).)
Plaintiff does not allege defendants ever engaged, suffered, or
permitted him to work. The gravamen of
this action is that defendants never hired him to work at all. Though defendants specified where plaintiff
must report for onboarding, that was not for work. It was a meeting to fulfill various
administrative prerequisites before engaging or permitting plaintiff to work. Plaintiff therefore was also not “required to
report for work” such that he would be entitled to reporting time pay. (Wage Order 5, § 5(A).)
Plaintiff’s reliance on Price v.
Starbucks Corp. (2011) 192 Cal.App.4th 1136 is misplaced. There, the court stated, “If an employee is
not scheduled to work or does not expect to work his usual shift, but must
report to work for a meeting, the employee falls into the regulatory category
of those employees called to work on their day off for a scheduled meeting.” (Id. at p. 1146.) The case is distinguishable because there, it
was undisputed that the business employed the plaintiff as an employee. He “worked at Starbucks as an entry-level
barista for approximately 13–scheduled shifts before he was fired.” (Id. at p. 1138.) The scheduled meeting was not to facilitate
hiring of prospective employees. It was
a meeting for existing employees.
7.
Breach of Implied Covenant & Contract
Plaintiff does not allege sufficient
facts for this cause of action because he does not allege he entered an
enforceable contract with defendants. “It
is essential to the existence of a contract that there should be: 1. Parties
capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A
sufficient cause or consideration.” (Civ.
Code, § 1550.) “Consent is not mutual,
unless the parties all agree upon the same thing in the same sense.” (Civ. Code, § 1580.) Consideration is “[a]ny benefit conferred, or
agreed to be conferred, upon the promisor, by any other person, to which the
promisor is not lawfully entitled, or any prejudice suffered, or agreed to be
suffered, by such person, other than such as he is at the time of consent
lawfully bound to suffer, as an inducement to the promisor, is a good
consideration for a promise.” (Civ.
Code, § 1605.)
Plaintiff
alleges defendants breached the opt-out provision in the arbitration
agreement: “Arbitration is not a
mandatory condition of your employment at the company, and therefore you may
opt out and not be subject to this agreement.
If you decide to opt out as provided in this paragraph, please provide
written notice of your election to Montana Coffee Shop 26, Inc., a California
corporation, Attention: Human Resources, 10250 Constellation Boulevard, Suite
100, Los Angeles, California 90067. You
will not be subject to any adverse employment action as a consequence of that
decision.” (Comp., Ex. H, p. 3.)
As
discussed above, this action arises from plaintiff’s refusal to sign the
agreement. Plaintiff alleges he
exercised the opt-out provision (though not by sending written notice to the
specified address), and as a result, defendants subjected him to the adverse
employment action of terminating the onboarding process and not hiring
him. (Comp., ¶¶ 168-171.)
Even
assuming both parties “agreed” to this provision, it was not an enforceable
contract because plaintiff did not agree to anything. If plaintiff had sent written notice of
opting out to the specified address, that would constitute communicating he did
not agree to the contract or offer defendants proposed. That is the opposite of consenting to its
terms. Moreover, there would be no
consideration for any agreement by plaintiff.
Opting out means he did not agree to be bound to do anything.
8.
Unfair Business Practices
Plaintiff does not allege sufficient
facts for this cause of action. This
claim relies on the other causes of action to constitute “unlawful business
acts or practices.” (Comp., ¶ 182.) Because plaintiff’s other causes of action
fail, so does his claim for unfair business practices.
9.
West Hollywood Municipal Code § 5.130
Plaintiff does not allege sufficient
facts to state a cause of action for violating this provision. West Hollywood Municipal Code section
5.130.020(b)(2)(B) provides, “On January 1, 2022, employers with fifty
employees or more shall pay employees no less than the hourly wage of fifteen
dollars fifty cents ($15.50) per hour.”
Plaintiff alleges, “Defendants proposed a
minimum wage of $15/hr in their Craiglist advertisement for positions at the
West Hollywood Venue.” (Comp., ¶ 199.) West Hollywood’s Municipal Code does not
prohibit employers from advertising wages below the minimum. Plaintiff does not allege defendants paid him
less than minimum wage. As discussed
above, plaintiff does not allege defendants ever employed him or suffered or
permitted him to work such that he would be entitled to any wages.
Disposition
Defendants West Hollywood Taco Shop 26,
Inc.’s and Joshua Pourgol’s demurrer to
the entire complaint is sustained with 20 days’ leave to amend.