Judge: Mark H. Epstein, Case: 23SMCV04465, Date: 2024-01-24 Tentative Ruling

Case Number: 23SMCV04465    Hearing Date: March 27, 2024    Dept: I

This is a demurrer brought by defendants against plaintiff’s complaint.  The major thrust of the demurrer is that the complaint alleges violations of the California Fair Employment and Housing Act as well as various California wage and hour violations, but that those laws do not apply to this case.  The court SUSTAINS the demurrer as to those theories WITH LEAVE TO AMEND. 

Plaintiff Asha Daniels brought suit against Big Grrrl Big Touring (BGBT), Melissa Jefferson (aka Lizzo), Carline Gugliotta, and Amenda Nomura, although the matter was dismissed as to Nomura.  The first amended complaint (which oddly is reflected on the docket as “Received” but not yet filed—it is hereby deemed filed) claims that in January 2023, Daniels was hired to do work on the wardrobe during a tour.  While so employed, Daniels asserts that she experienced discrimination and other inappropriate abuse.  Further, Daniels claims she was injured on the job and that the injury was deliberately made worse by Namura.  And Daniels asserts that Lizzo and Gugliotta were aware of the problem but either encouraged it or did nothing.

Defendants demur to the first through eighth and tenth through fourteenth causes of action.  The first seven causes of action concern FEHA.  But, defendants note, plaintiff is a New York citizen—not a Californian.  Defendants also state that the alleged misconduct all took place in Europe—or at least not in California.  Thus, defendants argue, FEHA simply has no application.  The court agrees as a general matter that FEHA, as well as its legislative history, demonstrates that it was not intended to have extraterritorial application, at least with regard to non-Californian plaintiffs.  (Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850.)  It is true that the complaint never actually alleges that the misconduct occurred in Europe, but at least some of the allegations are Europe-centric.  And the timing is such that it would at least appear that the tour in question was the European tour.  Because plaintiff will be given leave to amend, if the court is wrong and the conduct took place in California, plaintiff need only so allege.

The eighth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action all allege violations of the California Labor Code.  Like FEHA, there is no reason to believe that California meant for its Labor Code to govern extraterritorially.

The court recognizes that the foregoing is a bit simplistic.  A California employee who is on a business trip in New York and is subjected to discrimination while there by the employer can surely sue under California law.  And if that employee is an hourly employee required to work overtime under California’s wage and hour laws, the court believes that the failure to do so would be a violation of California law.  So the court is certainly not holding that any violation beyond California’s borders is immune from California labor law.  But the problem here is that, at least according to the defense, there is no nexus at all between California and the allegations at all to warrant imposition of California law.  Plaintiff is not a Californian; she is a New Yorker.  And none of the work seems to have occurred here, let alone the violations.  At first blush, then, defendants raise a good point.

Plaintiff’s opposition just misses the mark.  She asserts that CAPS is a joint employer and it is a California entity.  Maybe, but that does not change things.  First, it is a payroll company.  There is no allegation that it did anything wrong or is responsible for any of the ills of which plaintiff complains.  Second, it does not matter.  The Walt Disney Company is a California entity (its principal place of business is here).  But if it hired a wardrobe coordinator to be in charge of wardrobe for shows at Disney World in Florida, presumably Florida law would govern.  True, there may be many aspects of the law that are the same—it would hardly surprise the court to learn that racial discrimination is unlawful in both jurisdictions, for example.  But it would nonetheless be the Florida prohibition that governed, not FEHA.  So here, even if CAPS had some nexus to any of the causes of action, that would not change the fact that the employment simply was not here.  For the same reason, claiming that Lizzo and Gugliotta are joint employers adds nothing.  That might be true (although the court is far from so holding); but it does not change where the violations took place or the lack of a nexus to California.  (Ironically, plaintiff states that BGBT has its principal place of business in Delaware.  The court doubts it.  BGBT probably has a mail box there because it was probably incorporated there.  But the court would be surprised to learn that Delaware is really the major place where it does business.)

Plaintiff’s citation to California Code of Regulations, tit. 2, sec. 11008, subd. (d)(1)(C) is also of no help.  That regulation discusses how to count the number of employees for purposes of seeing if an employer is covered.  It states that one counts all employees—not just those in California.  But that does not compel the broad application of California law.  The second sentence of that regulation is of more moment.  It says that an employee located outside of California would not be covered under FEHA unless the allegedly unlawful conduct was ratified by a decision-maker or participant located in California acting in California.  (Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850.)  (The court notes, as the defense points out, that Campbell was referred to as support for the regulation upon which plaintiff relies.)  But the court does not see that sentence as robust enough to allow California to export its law to other jurisdictions, especially when the actual alleged ratification or approval took place beyond California’s borders.  To give an example, California law requires that there be an iterative process to attempt to accommodate a disability.  That might not be required in other states.  It is hard to say that if the employer complies with the laws of the state in which the employment takes place, it is still a tort because California’s requirements were not met, even if the head of HR is located here.  And any other rule would raise very serious constitutional questions, at least in the court’s mind.

Because the court agrees that California labor law does not apply directly, the court need not address the other arguments defendants raise as to these causes of action.  The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Leave to amend need not be limited to showing a reason why California law would apply.  Plaintiff may also amend to allege that the law of another jurisdiction applies and that defendants violated that law.  After all, the demurrer is not based on a lack of personal jurisdiction or even inconvenient forum.  Thus, it could well be that a different law applies to this case and plaintiff can sue here for a violation of that statute.  Of course, other motions might then be brought, and nothing herein should be viewed as a hint of how the court might view such a motion.

Plaintiff has 30 days’ leave to amend.  The court notes that there was no demurrer as to the ninth cause of action, which was for assault.  The court notes that the parties may re-raise the extraterritoriality argument by way of a subsequent demurrer perhaps with a bit more case law analysis.