Judge Bruce G. Iwasaki, Case 22STCV10912 2023-04-06 Tentative Ruling

Moving Party: Defendants Vie De France Yamazaki, Inc, Yamazaki Baking Co., Ltd, and Reymundo Rodriguez

Tentative Ruling: The Demurrer is sustained without leave to amend as to Plaintiffs’ claims as successors-in-interest in the eighth cause of action. The Demurrer is overruled as to the seventh and eighth causes of action alleged against Defendant Rodriguez.

This is a negligence and discrimination case filed by the successors in interest of Pascual Alvarado Hernandez (Pascual). Maria Martha Alvarado (Maria), Ana Cecilia Alvarado (Ana), and Bryan Alvarado (Bryan) (collectively, Plaintiffs) sued Vie de France Yamazaki, Inc., Yamazaki Baking Co., Ltd., and Reymundo Rodriguez (Rodriguez) (collectively, Defendants) for disability discrimination, failure to provide reasonable accommodation, failure to engage in a good faith interactive process, failure to prevent discrimination, wrongful death from Fair Employment and Housing Act (FEHA) violations, adverse employment action in violation of public policy, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium.

This case centers on the liability of an employer when an employee allegedly contracts the SARS-CoV2 coronavirus (COVID-19) at work and returns home to infect his family. Pascual, an employee of Defendants’ plant in Vernon, California, contracted COVID-19 after the plant manager, Rodriguez, held several large, in-person meetings where social distancing was not possible. Plaintiffs, who are the wife and children of Pascual, allege that he transmitted the virus to the family. In April 2020, Pascual died from the illness.

On December 9, 2022, this Court sustained Defendants’ demurrer to the fifth cause of action for wrongful death from FEHA violations solely as to Defendant Rodriguez, the ninth cause of action for intentional infliction of emotional distress, and the tenth cause of action for loss of consortium. The Court overruled the demurrer to the other causes of action. On January 9, 2023, Plaintiffs filed a Third Amended Complaint. On February 2, 2023, the parties entered into a stipulation for Plaintiffs to file a Fourth Amended Complaint (4AC).

The operative 4AC alleges (1) disability discrimination, (2) failure to provide reasonable accommodation, (3) failure to engage in a good faith interactive process, (4) failure to prevent discrimination, (5) wrongful death from Fair Employment and Housing Act (FEHA) violations, (6) adverse employment action in violation of public policy, (7) negligence, and (8) negligent infliction of emotional distress.

The seventh cause of action is for negligence resulting in injury as to all Plaintiffs individually against Defendants Vie de France Yamazaki, Yamazaki Bakery Co., and Rodriguez. Defendants demur to the claims of Maria, Bryan, and Ana, as individuals, against Defendant Rodriguez.

The eighth cause of action is for negligent infliction of emotional distress (NIED) by Plaintiffs both individually and as successors in interest against all Defendants. Defendants demur to the claims of Maria, Bryan, and Ana – as successors in interest – against all Defendants for NIED, and to the claims of Maria, Bryan, and Ana as individuals – against Mr. Rodriguez – for NIED.

Defendants request judicial notice to be taken of four documents filed in this action: (1) Plaintiff’s Fourth Amended Complaint; (2) this Court’s tentative ruling on the demurrer to the Second Amended Complaint, (3) this Court’s order on the demurrer to the Second Amended Complaint; (4) Defendants’ Notice of Demurrer to Plaintiff’s Second Amended Complaint. Defendants additionally request the Court to take judicial notice of Plaintiffs’ Application to the Workers’ Compensation Appeals Board, Plaintiffs’ Compromise and Release filed with the Workers’ Compensation Appeals Board, and a copy of the Workers’ Compensation Appeals Board’s Order Approving Plaintiffs’ Compromise and Release.

Defendants’ requests are granted pursuant to Evidence Code sections 451 and 452.

Plaintiffs request judicial notice of a copy of the California Court of Appeals Order denying Defendants’ Petition for Writ of Mandate, a press release issued by the Los Angeles County Department of Public Health, and Defendants’ demurrer to Plaintiffs’ Second Amended Complaint.

Plaintiffs’ requests are granted pursuant to Evidence Code sections 451 and 452.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

If the demurrer is sustained and the complaint is amended, no subsequent demurrer can be brought on any grounds that could have been raised by demurrer to the earlier version of the complaint. (Code Civ. Proc. § 430.41(a), (b).) When a demurrer has been sustained as to some causes of action but overruled as to others, and then plaintiff then amends the complaint, it is not clear whether defendant may properly demur to the amended complaint on grounds overruled in the prior demurrer. At least one case holds such demurrers are improper because the court is “foreclosed from rendering a new determination on the viability of those claims” absent a timely motion for reconsideration under Code of Civil Procedure section 1008. (Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.) However, other courts have allowed demurrers to amended pleadings on grounds previously overruled because “[t]he interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings.” (Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420.)

As the previous demurrer to these causes of action was overruled as to the Second Amended Complaint (SAC), and Defendant did not put forward these specific arguments in the previous demurrer motion, and the Court did not rule on these arguments, the Court addresses Defendants’ demurrer on the merits.

Defendants demur to Plaintiffs’ individual claims for negligence and NIED against Defendant Rodriguez, arguing that these claims are barred by the workers’ compensation exclusive remedy, and Defendant Rodriguez did not owe Plaintiffs a duty of care.

In Defendants’ previously filed demurrer, the Court sustained the demurrer as to the Fifth Cause of Action for wrongful death based on the FEHA violation as to Defendant Rodriguez. The Court noted that “[t]he negligence and tort-based causes of action are also alleged against Rodriguez, but Defendants’ arguments are not directed towards those claims.” (See 12/09/22 Ruling on the Demurrer to the Second Amended Complaint pg. 4 fn. 1.) Thus, the Court did not rule as to Defendant Rodriguez’s liability for the negligence claims.

Defendants argue that the claims against Defendant Rodriguez are barred by Labor Code section 3601. They also argue that Defendant Rodriguez owed no duty to Pascual, Plaintiff’s predecessor, because he was a co-employee, and any duty alleged to be owed to Plaintiff is tethered to his employment relationship.

Labor Code section 3601 sets forth the exclusive remedy against a co-employee except for circumstances inapplicable here: “Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation…the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases: (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee. (2) When the injury or death is proximately caused by the intoxication of the other employee.”

However, Labor Code section 3601 only applies when the Workers’ Compensation exclusivity remedy applies. Although, Workers’ Compensation is also ‘the exclusive remedy for certain third party claims deemed collateral to or derivative of the employee’s injury,” as discussed in the previous demurrer to the SAC, Defendants’ argument that the derivative injury rule should bar Plaintiffs’ individual claims was rejected in See’s Candies v. Superior Court (2021) 73 Cal.App.5th 66, 84-85. (See 12/09/22 Ruling on Demurrer to SAC p. 5-6.)

Defendants cite to no other authority to show that the Worker’s Compensation exclusive remedy should bar Plaintiffs’ individual claims against Defendant Rodriguez. Accordingly, Plaintiffs’ claims are not preempted under the Workers’ Compensation Act.

Defendants also argue that Rodriguez did not have a duty to Plaintiffs because any duty alleged to be owed to Plaintiffs is tethered to his employment.

“California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.” (Civ. Code § 1714, subd. (a).) Civil Code section 1714, subdivision (a), provides in relevant part: ‘Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.’”

The 4AC alleges that Defendant Rodriguez owed a duty to exercise ordinary care to prevent the spread of COVID-19 both to and among the employees he managed and from the employees he managed to those employees’ at-home families and households. (4AC ¶ 157.) The 4AC also alleges that Defendant Rodriguez required every employee to come to work, even if they had a positive COVID-19 test result, that he failed to provide protective equipment, and did not implement a policy for protecting the workers. (4AC ¶¶ 51-53.) Additionally, the 4AC alleges that Defendant Rodriguez required all employees to attend large in-person meetings in small spaces where employees could not socially distance, even when employees were visibly sick. (4AC ¶¶ 57-61.) Further, the 4AC alleges that Defendant Rodriguez’s actions which caused “Mr. Alvarado to continue to work without protection and in close proximity to sick colleagues at that time would be dangerous and severely frightening – not only for him but also for his spouse and children at home.” (4AC ¶ 170.)

Defendants cite to no authority showing that Defendant Rodriguez did not have a general duty of care to prevent Plaintiffs from contracting COVID. Although in the previous demurrer, Defendants successfully argued that one could not bring a discrimination claim against a supervisor, (see Janken v. GM Hughes Electronics 46 Cal.App.4th 55, 64), Defendants cite to no authority that Defendant Rodriguez cannot be liable for negligence. In their current reply, Defendants argue that Defendant Rodriguez is distinct from the doctor in Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 45, because there is a particularly special relationship between doctors and the third parties that their patients interact with. This argument does not exempt Defendant Rodriguez from liability for negligence.

In the previous ruling on the demurrer to the SAC, the Court extensively discussed the analogous duty of employers to plaintiff families who are exposed to asbestos in the workplace, citing to Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142-1143. The Court then discussed the Rowland factors and found that the Defendants owed a general duty of care to Plaintiffs. (See 12/09/22 Ruling on the Demurrer to the SAC.) This analysis applies to Defendant Rodriguez’s duty, and Defendants offer no persuasive authority that suggests otherwise.

The 4AC pleads Defendant Rodriguez’s duty. Defendants cite to no additional case law or statute that provides that negligence claims cannot be asserted against Defendant Rodriguez for the failure to exercise due care in this circumstance.

Thus, Defendants’ demurrers to the seventh and eighth causes of action – individual claims for negligence and NIED against Defendant Rodriguez – are overruled.

Eighth Cause of Action for NIED alleged by Plaintiffs as Successors-in-Interest

Defendants demur to the negligent infliction of emotional distress claims alleged by Plaintiffs as successors in interest, arguing that the successors-in-interest claim for NIED is barred by the Workers’ Compensation exclusive remedy. The Court agrees.

Plaintiffs’ negligence claim is not alleged by Plaintiffs as successors-in-interests; however, the cause of action for NIED is alleged by Plaintiffs individually and as successors-in-interest. “The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213.)

When an employee is covered by workers’ compensation pursuant to Labor Code section 3600, it is the sole and exclusive remedy. (Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 876, citing Labor Code, § 3602.) Workers’ compensation imposes liability “against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death.” (Labor Code, § 3600, subd. (a).) “The phrase ‘arising out of’ refers to the origin or cause of the injury, while the phrase ‘in the course of employment’ refers to the time and place of the injury.” (Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229.) “To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer's enterprise.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008 (Torres).) Diseases contracted in the course of employment are compensable under the workers’ compensation statutes. (Cal. Lab. Code § 3208; see City and County of San Francisco v. Industrial Acc. Commission (1920) 183 Cal.273 [permitting a compensation award for the death of a hospital employee who contracted influenza in the course of employment].)

“So long as the basic conditions of compensation are otherwise satisfied (Lab. Code § 3600), and the employer’s conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship, an employee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.” (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754.)

A cause of action that survives the death of a person passes to the decedent’s successor in interest and is enforceable by the decedent’s successor in interest. (Code Civ. Proc. § 377.30.) Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent but rather is a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. (Brenner v. Universal Health Services of Rancho Springs, Inc. (2017) 12 Cal.App.5th 589.)

It appears from the 4AC that Plaintiffs are attempting to assert a survival action as successors in interest for the negligent infliction of emotional distress that decedent Pascual experience prior to his death. The 4AC asserts that “Mr. Alvarado also lived in fear that the Defendants… would make him sick or kill him and simultaneously make him a conduit for the virus.” (4AC ¶ 175.)

In their opposition, Plaintiffs appear to concede Defendants’ argument, stating: “Plaintiffs concede that if Plaintiffs were employees of VDFY and YBC, then Defendant Rodriguez would be their co-employee, and they could not bring a claim against him for their own work-related injuries. Plaintiffs also concede that if Plaintiffs’ injuries were derivative of Pascual’s work-related injury, then they would be barred from bringing negligence claims against any of the three Defendants for those injuries.” (Opposition p. 13:4-8.) “The Fourth Amended Complaint, however, does not omit either VDFY or YBC from the negligence causes of action. What is omitted is any negligence claim against Defendants brought by Plaintiffs as successors-in-interest to Pascual.” (Opposition p. 8:8-10.)

On this reasoning, Plaintiffs’ successors-in-interest claim for NIED fails. As successors-in-interest, Plaintiffs stand in the shoes of Decedent and bring the cause of action on his behalf. Thus, for purposes of the successors-in-interest claim, Plaintiffs are in the same legal position as Decedent was when the cause of action accrued: an employee of Defendants. Thus, Worker’s Compensation is the exclusive remedy for the emotional distress that arose out of decedent’s employment, and Plaintiffs cannot bring a cause of action for NIED as successors-in-interest.

As discussed previously, Plaintiffs’ individual claims for NIED still stand, as they are not necessarily derivative from Decedent’s work-related injuries. (See See’s Candies v. Superior Court (2021) 73 Cal.App.5th 66, 84-85; 12/09/22 Ruling on Demurrer to SAC p. 5-6.)

Defendants’ demurrer to the 4AC as to Plaintiffs’ successor-in-interest claim as to the eighth cause of action for negligent infliction of emotional distress is sustained without leave to amend.

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