Judge: Richard Y. Lee, Case: 30-2020-01163039, Date: 2022-12-07 Tentative Ruling
Defendant, U Gym LLC (“Defendant”) moves for an order sustaining a demurrer to the Second and Third Causes of Action for Intentional Infliction of Emotional Distress and Wrongful Termination in Violation of Public Policy of the First Amended Complaint (“FAC”) filed by Plaintiff Abel Lara (“Plaintiff”).
The Court initially notes that the caption on the first page of the FAC setting forth the causes of action identifies the cause of action for Intentional Infliction of Emotional Distress (“IIED”) as the Second Cause Action, and the cause of action for Termination in Violation of Public Policy (“Wrongful Termination”) as the Third Cause of Action; however, the body of the Complaint switches the numbering of these two causes of action. Nevertheless, the causes of action at issue are the Second and Third Causes of Action which consist of the claims for IIED and Wrongful Termination.
Defendant contends that the Second and Third Causes of Action fail to state facts sufficient to state a cause of action because they were filed after the statute of limitations expired and do not relate back to Plaintiff original complaint which only asserted claims under the Private Attorney General Act (“PAGA”). Defendant asserts that Plaintiff cannot cure the time barred defects because he is unable to satisfy the elements of the relation back doctrine as these claims are not based on the same general set of facts, do not seek relief for the same injuries, and do not refer to the same incident.
Plaintiff asserts that new causes of action for wrongful termination and intentional infliction of emotional distress are not time barred because they relate back to the filing of his original complaint and rest on the same general set of facts, involve the same injuries, and instrumentality. Plaintiff requests leave to amend if the Court sustains the demurrer.
Second and Third Causes of Action for Intentional Infliction of Emotional Distress and Wrongful Termination in Violation of Public Policy – Statute of Limitations
Where the complaint discloses that the statute of limitations bars the action, a general demurrer is an appropriate means to assert such a facial defect. (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300 n. 2; Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995; Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.)
Plaintiff does not contest that the Second and Third Causes of Action are barred by the statute of limitations, and thereby implicitly concedes the same. It is axiomatic the failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].)
There is a two-year statute of limitations for the Second and Third Causes of Action under Code of Civil Procedure section 335.1. (Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382 [the statute of limitations on a wrongful termination in violation of public policy claim is 2 years under Code of Civil Procedure section 335.1]; Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 852-853 [intentional infliction of emotional distress has a two-year statute of limitations].)
Here, the FAC alleges that Plaintiff’s employment with Defendant ended on or about January 2, 2020. (Ex. B to Declaration of Lonnie D. Giamela (“Giamela Decl.”), FAC, ¶ 3.) Thus, the statute of limitations for IIED and Wrongful Termination expired on January 2, 2022. As Plaintiff filed the FAC asserting the causes of action for IIED and Wrongful Termination on July 14, 2022, these claims are barred by the two-year statute of limitations unless the relation back doctrine applies. (Giamela Decl., ¶ 6.)
Relation Back Doctrine
“An amended complaint is considered a new action for purposes of the statute of limitations only if the claims do not ‘relate back’ to an earlier, timely-filed complaint.” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276 (“Pointe San Diego”.) “Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts, (2) involves the same injury, and (3) refers to the same instrumentality. [Citations.] An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. [Citations.]” (Id. at pp. 276-277.) The relation-back doctrine does not apply “if the ‘plaintiff seeks by amendment to recover upon a set of facts entirely unrelated to those pleaded in the original complaint.’ [Citation.]” (Id. at p. 277.)
“ ‘The “relation-back doctrine” focuses on factual similarity rather than rights or obligations arising from the facts, and permits added causes of action to relate back to the initial complaint so long as they arise factually from the same injury. [Citations.] A new cause of action rests upon the same set of facts when it involves the same accident and the same offending instrumentality.’ [Citation.]” (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 266.)
“In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading.” (Pointe San Diego, supra, 195 Cal.App.4th at p. 277.) “[I]n applying the relation-back analysis, courts should consider the ‘strong policy in this state that cases should be decided on their merits.’ [Citations.]” (Ibid.) “The requirement that the complaint allege ultimate facts forming the basis for the plaintiff’s cause of action is central to the relation-back doctrine and the determination whether an amended complaint should be deemed filed as of the date of the original pleading. [Citation.]” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) “An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if rests on the same general set of facts and refers to the same ‘offending instrumentalities,’ accident and injuries as the original complaint. [Citations.]” (Ibid.) “The relation-back doctrine, therefore, requires courts to compare the factual allegations in the original and amended complaints.” (Id. at p. 416.)
Here, Plaintiff’s original complaint was filed on October 1, 2020. (Giamela Decl., ¶ 2.) It was brought by Plaintiff “as a representative of the State of California and the Labor and Workforce Development Agency” on behalf of himself and other current and former employees, and asserts six causes of action for violations of the Labor Code based upon PAGA and Defendants’ alleged failure to provide meal periods, failure to provide rest periods, failure to pay overtime wages, failure to reimburse employees for business-related expenses, failure to keep accurate payroll records, and failure to pay waiting time penalties. (Ex. A to Giamela Decl., Complaint, ¶¶ 2-3, 15-22.) The Complaint alleges that “[i]ndividual and Representative Plaintiff” was employed as a non-exempt fitness coach from approximately March 12, 2019 through on or around January 2, 2020.” (Id., ¶¶ 6-7.) The Complaint sought penalties and reasonable attorney’s fees and costs pursuant to the PAGA. (Complaint, Prayer for Relief, ¶¶ 1-2.)
As it relates to the cause of action of action for Wrongful Termination, the FAC alleges that the public policy of the State of California is to prohibit employers from retaliating against employees for complaining to the government or to management about violations of the law, and that “[p]rior to the reduction in his work hours, Plaintiff engaged in protected activity, including but not limited to, complaining about Defendant’s failure to pay his earned wages,” and that “Defendant responded by retaliating and reducing Plaintiff [sic] work hours, causing him financial harm.” (Ex. B to Giamela Decl., FAC, ¶¶ 12-14; 40-42.) This cause of action incorporations preceding paragraphs in the FAC which include allegations that Defendant reduced Plaintiff’s work hours in response to him engaging in protected activity and making a formal complaint regarding Defendant’s unlawful conduct related to failing to pay his earned wages. (Id., ¶¶ 34, 35, 39.) The FAC seeks compensatory damages for loss of income and loss of future earning capacity, general damages for physical, emotion, and mental pain, suffer, and distress, and exemplary and punitive damages. (Id., ¶¶ 43-45.)
A comparison of the allegations in the original complaint and the FAC indicates that the cause of action for Wrongful Termination does not relate back to the original complaint. While both pleadings allege the failure to pay earned wages, the cause of action for Wrongful Termination does not rest simply on the failure to pay earned wages but on the alleged reduction of hours arising from Plaintiff’s complaint to his superiors about Defendant’s failure to pay him his earned wages. The incident and wrongful conduct at issue for Plaintiff’s claim for Wrongful Termination is the alleged reduction of Plaintiff’s hours as a result of Plaintiff’s alleged protected activity in complaining to his superiors about the failure to pay earned wages. This differs from the incident at issue in the original complaint which is Defendant’s failure to pay earned wages, pay overtime wages, pay waiting time penalties, and failure to provide meal and rest breaks. Defendant would not have had adequate notice of a claim of Wrongful Termination solely based on the facts alleged in the original complaint. Thus, the Wrongful Termination claim does not rest on the same general set of facts or instrumentality as alleged in the original complaint.
This case is like Kim v. Regents of University of California (2000) 80 Cal.App.4th 160. In that case, the Court of Appeal found that while there was just one employer and one termination, the wrongful conduct described in an age discrimination claim did not arise of the same set of facts that supported the plaintiff’s contractual and overtime claims such that the discrimination claim asserted for the first time in the third amended complaint did not relate back as the first three pleadings did not allege disparate treatment, intentional discrimination, plaintiff’s age or comments or actions related to her age, and no facts alleging replacement hires. (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 168-169.)
Here, like the prior pleadings in Kim which did not contain facts concerning the new claim, the original complaint in this case does not allege any facts concerning protected activity in Plaintiff making a complaint to his superiors about the failure to pay earned wages or retaliation and reduction in hours as a result of Plaintiff’s alleged complaint such that the Wrongful Termination claim does not arise out of the same set of facts that supported Plaintiff’s PAGA claims.
In addition, the Wrongful Termination cause of action does not relate back to the original complaint because it does not arise factually from the same injury. The injury producing conduct is not the failure to pay earned wages, but the reduction in hours and retaliation for Plaintiff’s complaint to his superiors.
Based on the foregoing, the cause of action for Wrongful Termination alleged in the FAC does not relate back to the original complaint as it does not rest on the same general set of facts, involve the same injury, or refer to the same instrumentality.
Similarly, as it relates to the cause of action for IIED, the FAC incorporates the preceding paragraphs, including those alleged for the Wrongful Termination cause of action, and alleges that “Defendant’s [sic] retaliated against Plaintiff by terminating him in response to Plaintiff engaging in protected activity,” which was extreme and outrageous, and for which Plaintiff has “sustained severe emotional distress” and will continue to sustain “emotional, and mental pain and suffering.” (Ex. B to Giamela Decl., FAC, ¶¶ 49-51.) The IIED claim alleges compensatory damages and punitive damages. (Id., ¶¶ 52-53.)
The IIED cause of action alleges and relies largely on the same facts alleged for the Wrongful Termination cause of action, and it does not relate back to the original complaint for the same reasons the cause of action for Wrongful Termination does not relate back to the original complaint. In addition, the original Complaint does not allege facts concerning any extreme and outrageous conduct in terminating Plaintiff in response to Plaintiff engaging in protected activity, or Plaintiff’s alleged severe emotional distress.
Since the causes of action for IIED and Wrongful Termination do not relate back to the original complaint, they are barred by the two-year statute of limitations. In turn, the Court SUSTAINS, without leave to amend, the Second and Third Causes of Action of Plaintiff’s FAC.
Plaintiff requests leave to amend should the Court sustain the demurrer.
“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 39.) “The plaintiff has the burden to demonstrate how he or she can amend the complaint to change the legal effect of the pleading,” and leave to amend should not be granted where amendment would be futile.” (Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal. App. 4th 1094, 1100.)
Here, despite Plaintiff’s request, Plaintiff provides no facts or otherwise demonstrates how the FAC could be amended to cure the deficiency, and it does not appear to the Court that there is a reasonable possibility that the defect can be cured by amendment.
Defendant to give notice.