Judge: Jon R. Takasugi, Case: 21STCV38864, Date: 2023-10-24 Tentative Ruling

Case Number: 21STCV38864    Hearing Date: March 18, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ demurrer is SUSTAINED IN PART, OVERRULED IN PART. Defendants’ demurrer is SUSTAINED, WITH 20 DAYS LEAVE TO AMEND, as to the fifth, eighth, and twelfth causes of action. Defendants’ demurrer is OVERRULED as to the remaining causes of action.

            Defendants’ motion to strike is DENIED.

On 10/21/2021, Plaintiff Chidiebere Njoku (Plaintiff) filed suit against Global Vision Security, Inc. and Jason Arroyo (collectively, Defendants). On 12/28/2021, Plaintiff filed a first amended complaint (FAC) alleging thirteen causes of action. On 5/27/2022, Plaintiff filed a second amended complaint (SAC), alleging: (1) racial harassment; (2) failure to prevent and remedy harassment; (3) racial discrimination; (4) retaliation (FEHA); (5) retaliation (Labor Code section 6310); (6) retaliation (Labor Code sections 98.6 and 1102.5); (7) unpaid overtime; (8) denial of meal/rest breaks; (9) inaccurate wage statements; (10) waiting time penalties; (11) intentional infliction of emotional distress (IIED); (12) assault and battery; and (13) violation of Business and Professions Code section 17200.

            Now, Defendants demur to Plaintiff’s SAC. Defendants also move to strike portions of Defendants’ SAC.

Discussion 

            Defendants argue that Plaintiff’s SAC is uncertain and that each of his claims fails.

            After review, the Court disagrees and agrees in part.

            As for the first cause of action, Plaintiff alleges that Defendant would frequently make racially derogatory comments towards Plaintiff at his worksites, including phrases like stupid Africans,” “stupid Nigerians,” “poor and hungry Nigerians,” and other phrases the Court declines to repeat here. (See SAC ¶ 22.) Plaintiff alleges these comments continued from October 2018 to August 2020, despite that Plaintiff alleges that he informed Defendant Global Vision of Jason Arroyo’s repeated threats. (Id. ¶ 23.) Defendant advances no argument as to how this alleged conduct would constitute personnel actions. Plaintiff’s allegations, accepted as true, are sufficient at the pleading stage to state a claim for racial harassment. Moreover, while Defendant argues that Plaintiff cannot maintain a harassment claim against Arroyo directly, FEHA provides for supervisor liability for harassment. (Cal. Gov’t Code § 12926.) Finally, while Defendant argues that Plaintiff did not include Arroyo in his DFEH Complaint, the DFEH Complaint attached to Defendants’ motion clearly includes Arroyo and the alleged conduct. (See Milligan Decl., Exh. A.)

            As for the second cause of action, this is derivative of the first cause of action and is adequately pled for the same reasons.

            As for the third cause of action, Plaintiff alleges that he was constructively terminated because “Plaintiff had no choice but to resign on or about March 14, 2021, due to the relentless racial harassment, threats of physical harm, and Defendant GLOBAL VISION’s failure to pay him his wages for the last three pay periods.” (SAC ¶ 54.) As such, Plaintiff has alleged that he was a member of a protected class, that he was subjected to an adverse employment action, and that there was a causal connection between the two. (See Yanowitz v. L’Oreal USA, Inc.(2005) 36 Cal. 4th 1028, 1042.) While Defendant argues that “it does not make sense that Defendant would hire and continue to employ Plaintiff if Defendant maintained any race biases,” this is inadequate to show that Plaintiff’s claim is inadequately pled.

As for the fourth cause of action, Plaintiff alleges that as a result of his complaints about his racial harassment and discrimination, Defendants “retaliated against him by subjecting Plaintiff to an adverse work environment and withholding his earned wages.” (SAC ¶ 65.) Plaintiff alleges that he reported Arroyo’s conduct to Defendant, and Defendant failed to take action and instead retaliated against him. While Defendant argues Plaintiff “a disclosure of wrongdoing to the alleged wrongdoer does not constitute whistleblowing,” the fourth cause of action arises out of FEHA, not whistleblower retaliation. (Demurrer, 16: 25-26.) Plaintiff’s allegations are sufficient at the pleading stage to state a claim for retaliation.

As for the fifth cause of action, Plaintiff’s claim is based on the same facts that support the fourth cause of action. California Labor Code Section 6310 concerns employees who report violations of workplace safety, and provides that no person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.

(2) Instituted or caused to be instituted any proceeding under or relating to their rights or has testified or is about to testify in the proceeding or because of the exercise by the employee on behalf of themselves, or others of any rights afforded to them.

(3) Participated in an occupational health and safety committee established pursuant to Section 6401.7.

(4) Reported a work-related fatality, injury, or illness, requested access to occupational injury or illness reports and records that are made or maintained pursuant to Subchapter 1 (commencing with Section 14000) of Chapter 1 of Division 1 of Title 8 of the California Code of Regulations, or exercised any other rights protected by the federal Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.), except in cases where the employee alleges they have been retaliated against because they have filed or made known their intention to file a workers’ compensation claim pursuant to Section 132a, which is under the exclusive jurisdiction of the Workers’ Compensation Appeals Board.

Here, Plaintiff alleges that Jason Arroyo threated Defendant with a gun on numerous occasions. However, Plaintiff does not allege that he made any oral or written complaint to the Division of Occupational Safety and Health, or any governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his employer, or his representative falling under the statute. (See Labor Code §6310(a)(1).) Accordingly, Plaintiff has not alleged sufficient facts to support this claim. Plaintiff will be afforded an opportunity to allege additional facts which could show that he made a complaint that fell within the scope of section 6310.

As for the sixth cause of action, Labor Code §98.6 provides that no employer shall discharge or discriminate against any employee because that employee engaged in conduct protected under the Labor Code. Labor Code section 1102.5 provides that “(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”

Here, Plaintiff alleges:

On or about September 2018, Defendant GLOBAL VISION was under investigation by the Department of Labor for various wage and hour violations. During the investigation, Plaintiff’s supervisor, CAM MARINER (hereinafter “MARINER”) pushed Plaintiff and other GLOBAL VISION employees to lie to the Department of Labor. Specifically, GLOBAL VISION offered to pay Plaintiff and other GLOBAL VISION employees’ money to lie and say “yes” if the Department of Labor asked them if they were paid on time, were provided sick hours, of if they received general employee benefits.

Plaintiff refused to lie to the Department of Labor, as advised by MARINER. Specifically, Plaintiff told Defendants that lying to the Labor Board is illegal.

Immediately after Plaintiff refused to lie to the Labor Board, Defendants began to retaliate against Plaintiff. Specifically, Defendants reduced Plaintiff’s hours, delayed his paychecks, reduced his pay, and removed Plaintiff from the schedule. Plaintiff was taken off the schedule for up to a week at a time. Eventually, Defendants completely removed Plaintiff from the schedule.

            (SAC ¶¶ 80-82.)

            These allegations are sufficient at the pleading stage to support this claim, given that they could show that Defendant retaliated against Plaintiff for refusing to participate in an activity that would result in a violation of state law.

            As for the seventh cause of action, Plaintiff alleges that he regularly worked overtime that he was not paid for. Defendant argues that Plaintiff’s claim is improperly supported because “the SAC does not set forth the amount of wages allegedly due or a means of easily calculating these sums.” (Demurrer, 19:6-7.) The Court disagrees. Plaintiff’s SAC sets forth sufficient facts to put Defendant on notice of the supporting facts of the claim, and the particulars are contemplated by the discovery process. 

            As for the eighth cause of action, Plaintiff alleges that for the entirety of his employment he was not allowed to take meal or rest breaks. (SAC ¶ 105) While the Court disagrees with Defendant that these allegations “provide no details” about the instances in which he was denied meal or rest breaks, the Court agrees that Plaintiff must allege some facts that could show how and when he was prevented from taking such rest and meal breaks. Plaintiff will be afforded leave to amend to allege these additional facts.

            As for the ninth cause of action, Plaintiff alleges he was not provided a compliant wage statement. While Defendant argues this claim is barred because Plaintiff did not file a claim within a year of the 10/25/2019 instance in which he was allegedly paid cash instead of a paycheck, Plaintiff’s claim is not limited to this allegation. Rather, it is also derivative of Plaintiff’s overtime claim. Accordingly, the Court finds this claim to be adequately pled at this time.

            As for the tenth cause of action, this claim is derivative of Plaintiff’s other wage claims and thus is sufficiently pled. To the extent that Defendant contends a good faith dispute exists as to whether or not the amount was owed, this is a factual determination not contemplated at the pleading stage.

            As for the eleventh cause of action, Plaintiff has sufficiently alleged discrimination, retaliation, and Labor Code violations. Whether or not this conduct, in fact, rises to the level of extreme and outrageous conduct is a factual dispute not properly considered at this time.

            As for the twelfth cause of action, the elements of assault are: (1) defendant acted to cause harmful or offensive contact, contacted, or threatened to touch Plaintiff in a harmful or offensive manner; (2) Plaintiff reasonably believed he was about to be touched in a harmful or offensive manner, or it appeared to Plaintiff that defendant was about to carry out the threat; (3) Plaintiff did not consent to Defendant’s conduct (4) Plaintiff was harmed; and (5) Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (See So v. Shin (2013) 212 Cal. App. 4th 652, 668-669.)

The elements of a battery claim are similar: (1) defendant touched Plaintiff or caused Plaintiff to be touched, with intent to harm or offend Plaintiff; (2) Plaintiff did not consent to the touching; (3) Plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in Plaintiff’s position would have been offended by the touching. (See So v. Shin (2013) 212 Cal. App. 4th 652, 669.)

            Here, Plaintiff’s claims are based on two instances: one in October 2018 when Plaintiff was allegedly threatened, and in August 2019, when Plaintiff was allegedly battered and assault. However, pursuant to CCP section 335.1, an action for assault, battery, or injury to an individual caused by the wrongful act or neglect of another must be brought within two (2) years. Given that Plaintiff did not file this action until October 21, 2021, Plaintiff’s claim appears to be time-barred on its face. Plaintiff will be afforded leave to amend to allege facts which could show that this claim is not time-barred, keeping in mind the sham-pleadings doctrine.

            Finally, as for the thirteenth cause of action, this claim for violation of Business and Professions Code section 17200 is derivative of Plaintiff’s Labor Code claims, some of which are sufficiently pled. As such, this claim is necessarily supported with sufficient facts to support a claim.

            Based on the foregoing, Defendants’ demurrer is sustained and overruled in part. Defendants’ demurrer is sustained, with 20 days leave to amend, as to the fifth, eighth, and twelfth causes of action. Defendants’ demurrer is overruled as to the remaining causes of action.

Motion to Strike

            Defendants argue that Plaintiff improperly seeks Labor Code § 226(e) penalties, punitive damages, and attorneys’ fees.

            The Court disagrees.

            As for punitive damages, Plaintiff has alleged sufficient facts to support his discrimination, retaliation, and Business and Professions Code section 17200 claims. Accordingly, Plaintiff has alleged facts which could show “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).)

            As for the claims against Jeff Arroyo, Plaintiff has alleged that Arroyo repeatedly called him racial slurs and threatened him with a gun. Accordingly, Plaintiff has alleged facts which could support individual liability against Jeff Arroyo.

            Finally, as for attorney fees, Plaintiff’s claims for rest break violations, waiting time penalties, and failure to issue accurate itemized wage statements are "claims for nonpayment of wages" entitle a prevailing plaintiff to an award of attorney fees under California Labor Code § 218.5. Betancourt v. OS Rest. Servs., LLC (2022) 83 Cal. App. 5th 132, 140.) As set forth above, Plaintiff has allege sufficient facts to support his wage statement and waiting time claims. 

            Based on the foregoing, Defendants’ motion to strike is denied.

It is so ordered.

Dated:  March    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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