Judge: Melissa R. Mccormick, Case: "Zavala v. Coastal Press, Inc.", Date: 2022-11-10 Tentative Ruling

Defendants Coastal Press, Inc. and Frank Archuleta’s Demurrer to Second Amended Complaint

Defendants Coastal Press, Inc. and Frank Archuleta demur to plaintiff Sergio Zavala’s second amended complaint.  For the following reasons, defendants’ demurrer is sustained in part and overruled in part.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.

Plaintiff alleges he is “a Hispanic man over the age of 40 who began employment with Defendants performing the duties of machine operator and was employed for five years.”  SAC ¶ 6.  Plaintiff alleges Archuleta discriminated against plaintiff “because of his race, national origin, ethnicity, color.”  Id.  Plaintiff alleges he “was prohibited from taking rest and meal [sic],” and that Archuleta “pressured him to the point of preventing [plaintiff] from going to the bathroom.”  Id. ¶ 7.  Plaintiff alleges Archuleta commented on plaintiff’s restroom use and “would wait outside the bathroom for Plaintiff to come out.”  Id.  Plaintiff contends that “[a]s [a] consequence of being prohibited to go to the bathroom Plaintiff started to have problems with bowel movement, anxiety, high blood pressure, and other medical conditions.”  Id. ¶ 8.

Plaintiff alleges he “complained and opposed the discriminatory and harassing conduct,” and in response “was subjected to retaliation and harassment, including but not limited to denying safety equipment such as goggles and breathing masks.”  Id.  Plaintiff also alleges Archuleta “pressured Plaintiff to quit with statements, ‘If you are not happy, tell me.’”  Id.  Plaintiff alleges he “complained and opposed the demands of Defendants against other Hispanic employees.”  Id.  Plaintiff further alleges that in retaliation, defendants required him to work under unsafe conditions, including “demand[ing] that Plaintiff produce more work at the risk of injury of Plaintiff and risk that Plaintiff produce lesser quality but more volume in production causing Plaintiff to perform below the standard to justify a pretextual termination of Defendants [sic] against Plaintiff.”  Id.  Plaintiff alleges defendants “demanded completion of work by 12 noon and from 5:00 a.m. to 12 noon,” and forced plaintiff to sign false documents to receive his wages.  Id. ¶¶ 8-9.  Plaintiff alleges defendants “employed White or Caucasian employees who were not subject to harassment or discriminated [against] like Plaintiff because of his race, national origin, ethnicity, color.”  Id. ¶ 9.  “White and Caucasian employees were paid properly, were allowed to take rest and meals and were allowed to use the bathroom.”  Id.

Based on the above allegations, plaintiff alleges discrimination based on race, national origin, ethnicity, and color in violation of the FEHA against Coastal Press (first cause of action); retaliation in violation of the FEHA against Coastal Press (second cause of action); failure to provide meal and rest breaks against Coastal Press and Archuleta (third cause of action); unlawful business practices “and invalid waiver” against Coastal Press and Archuleta (fourth cause of action); intentional infliction of emotional distress against Coastal Press and Archuleta (fifth cause of action); and “wrongful constructive termination” in violation of public policy against Coastal Press (sixth cause of action). 

Plaintiff alleges he is Hispanic of Mexican descent and a national of Mexico.  SAC ¶ 12(c).  The first cause of action for discrimination based on race, national origin, or ethnicity alleges defendants discriminated against plaintiff by prohibiting rest periods, denying plaintiff the ability to use the bathroom, and pressuring plaintiff to perform above and beyond a normal amount of work.  Id.  The second amended complaint further alleges “Defendants developed a system wherein Plaintiff and the similarly situated employees of Hispanic descent and nationals of Mexico who worked in the labor department, were required to sign a false waiver in order for them to receive compensation of wages.  Plaintiff and similarly situated employees of Hispanic descent and of Mexican nationality, were categorized to work in hard labor department and white and Caucasian employees worked in the office, administrative, or supervisory roles.”  Id.  Plaintiff alleges he was constructively discharged.  SAC ¶ 12(e).

“The specific elements of a prima facie case [of discrimination based on race or national origin] may vary depending on the particular facts,” but a plaintiff generally must show that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.”  Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355, 100.

Plaintiff does not allege the second element above, i.e., that plaintiff was performing competently in the position he held.  The demurrer to the first cause of action is sustained with leave to amend.

The second cause of action alleges plaintiff demanded:  (1) “equal treatment with respect to law abiding hours, wages, rest, bathroom use, normal amount of work, treatment with respect as other employees who were not Hispanic, Mexican descent, born and raised in Mexico, as Plaintiff”; (2) requested rest periods and meal breaks; (3) requested payment of wages without having to sign an allegedly false waiver regarding received rest periods; (4) requested bathroom use, and (5) requested work that was normally assigned to one worker.  SAC ¶¶ 19(a), (b).  The second amended complaint further alleges defendants responded to plaintiff’s requests with threats of termination, denial of safety equipment, and harassment.  Id. ¶ 19(c).  Plaintiff alleges defendants constructively terminated him.  Id. ¶ 19(e).

To state a prima facie retaliation claim under the FEHA, a plaintiff must plead: (1) he engaged in “protected activity,” (2) the employer subjected him to an “adverse employment action,” and (3) there is a “causal link” between the protected activity and the employer’s action.  Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.

Plaintiff alleges sufficient facts to state a retaliation cause of action.  The demurrer to the second cause of action is overruled.

The third cause of action for failure to provide meal and rest periods alleges “Defendants prohibited Plaintiff from taking uninterrupted rest and meal periods during the times wherein Plaintiff performed work for Defendants, which began approximately five years prior to the wrongful termination and/or constructive termination.”  SAC ¶ 32(b).

California law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday.  See Cal. Lab. Code §§ 226.7, 512.  An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the employee’s total work period per day is no more than six hours, the meal period may be waived by mutual consent of the employer and employee.  Cal. Labor Code § 512(a).  No employer may require an employee to work during any mandatory meal or rest period.  Cal. Labor Code § 226.7.  An employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.  Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.

The second amended complaint alleges Archuleta “managed and controlled and supervised the work of Plaintiff” and that Archuleta was “the direct supervisor and manager for defendant Coastal Press, Inc.”  SAC ¶¶ 3, 12(b).  Plaintiff alleges sufficient facts to state the third cause of action against Archuleta.  See Cal. Lab. Code § 558.1; Seviour-Iloff v. LaPaille (2022) 80 Cal.App.5th 427, 445.

The second amended complaint alleges sufficient facts to state this claim against both defendants at this pleading stage.  The demurrer to the third cause of action is overruled.

The fourth cause of action for unfair business practices alleges defendants failed to provide meal breaks and rest periods and violated employment laws by demanding plaintiff falsely acknowledge he was provided with the required meal breaks and rest periods.  SAC ¶¶ 32(b), 40, 41.  The second amended complaint alleges violations of Business & Professions Code section 17200 based, in part, on the Labor Code violations alleged in the third cause of action.  A complaint sufficiently pleads a violation of section 17200 based on “borrowing” of another statute when it alleges facts indicating the predicate statute has been violated.  People v. McKale (1979) 25 Cal.3d 626, 635; see Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.  In addition, “persons” under the UCL are those who engage in unfair competition or unfair business practices.  Bus. & Prof. Code §§ 17203-17205; see also id. § 17200 (“person” means natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons). 

As discussed above, plaintiff’s third cause of action alleges sufficient facts to state a claim against both defendants for failure to provide meal breaks and rest periods and, thus, sufficiently alleges a cause of action for unfair business practices.  The demurrer to the fourth cause of action is overruled.

The fifth cause of action for intentional infliction of emotional distress alleges Archuleta threw things at plaintiff, including large molds and molds with sharp “knives.”  SAC ¶ 44(a).  The second amended complaint also alleges Archuleta drove the pallet jack at fast speeds while aiming at plaintiff, prevented plaintiff from using the bathroom, harassed plaintiff about plaintiff’s bathroom use, forced plaintiff to sign a meal break and rest period waiver, threatened plaintiff with termination, and forced plaintiff to perform work alone that required more than one person to perform.  SAC ¶ 44.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege:  (i) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (ii) the plaintiff’s suffering severe or extreme emotional distress; and (ii) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.  Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.  “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’  And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’”  Id.  In addition, “[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.  The intensity and duration of the distress are factors to be considered in determining the severity.”  Fletcher v. Western Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.  “Discomfort, worry, anxiety, upset stomach, concern, and agitation” as the result of a defendant’s conduct do not constitute emotional distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” Hughes, 46 Cal.4th at 1051.

The second amended complaint does not allege specific facts establishing severe emotional distress.  The demurrer to the fifth cause of action is sustained with leave to amend.

The sixth cause of action for wrongful termination alleges defendants prevented plaintiff from using the bathroom, harassed plaintiff in connection with his bathroom use, forced plaintiff to sign a meal break and rest period waiver, threatened plaintiff with termination, and forced plaintiff to perform work alone that required more than one person to perform.  SAC ¶ 50.

“[T]o establish a constructive discharge, an employee must plead and prove . . . that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.”  Turner v. Anheuser–Busch, Inc. (1994) 7 Cal.4th 1238, 1251, overruled in part on another ground by Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479.

The second amended complaint alleges sufficient facts to state a cause of action for wrongful constructive termination.  The demurrer to the sixth cause of action is overruled.

Plaintiff’s requests to strike portions of defendants’ memorandum of points and authorities and the exhibits attached to the Dib Declaration are denied.

Should plaintiff desire to file an amended complaint addressing the issues in this ruling, plaintiff must file and serve it by November 21, 2022. 

The trial remains scheduled for March 13, 2023 at 9:00 a.m. in Department C13.

Defendants to give notice.