Judge: Robert B. Broadbelt, Case: 22STCV16800, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV16800    Hearing Date: March 15, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Ryder Integrated Logistics, Inc., Ryder Systems, Inc., and Jennifer Levenhagen

RESPONDING PARTY:       Plaintiff Cindy Ramos

Demurrer to Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

BACKGROUND

Plaintiff Cindy Ramos (“Plaintiff”) filed this wrongful termination and retaliation action on May 19, 2022, against defendants Ryder Integrated Logistics, Inc., Ryder Systems, Inc., and Jennifer Levenhagen (“Levenhagen”) (collectively, “Defendants”).  The Complaint alleges four causes of action for (1) whistleblower retaliation (Lab. Code, §§ 1102.5, 1102.6); (2) whistleblower retaliation (Lab. Code, §§ 6310, 6311); (3) wrongful termination in violation of public policy; and (4) intentional infliction of emotional distress.

Defendants now move the court for an order sustaining their demurrer to Plaintiff’s first, second, and fourth causes of action.

DISCUSSION

The court sustains defendant Levenhagen’s demurrer to the first cause of action for whistleblower retaliation (Lab. Code, §§ 1102.5, 1102.6) because it does not state facts sufficient to constitute a cause of action against individual defendant Levenhagen.  (Code Civ. Proc., § 430.10, subd. (e).)

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information,” to government or law enforcement agencies or certain employees “if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation….”  (Lab. Code, § 1102.5, subd. (b).)

Neither Plaintiff nor Defendants have cited binding California authority establishing whether section 1102.5, subdivision (b) applies to causes of action asserted against individual defendants.  Upon consideration of the arguments presented by the parties, the court finds that section 1102.5, subdivision (b) does not apply to individual defendants and therefore sustains the demurrer as to Levenhagen.

First, section 1102.5 itself does not expressly state that it applies to individual defendants.  Although it precludes retaliation against an employee by “[a]n employer or any person acting on behalf of an employer,” nothing in the text of the statute indicates that its purpose is to hold non-employers liable for retaliation.  Section 1102.5 states that, for purposes of that section, “‘employer’ or ‘a person acting on behalf of the employer’ includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.”  (Lab. Code, § 1102.5, subd. (i).)  Neither provision identified by this statute includes individual defendants.  Section 2810.3, subdivision (a) defines a client employer to be “a business entity, regardless of its form, that obtains or is provided workers to perform labor within its usual course of business from a labor contractor.”  (Lab. Code, 2810.3, subd. (a)(1)(A).)  Section 6400, subdivision (b) sets forth various categories of employers to which citations may be issued when there is evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division.  (Lab. Code, § 6400, subd. (b).)

Second, the court notes that Plaintiff has cited and requests the court follow the recent Court of Appeal case, Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809 (“Atempa”).  However, the court finds Atempa is distinguishable from the issue presented here.  Atempa considered the “purely legal issue” of whether, pursuant to Labor Code sections 558, subdivision (a) and 1197.1, subdivision (a), “an individual officer or agent of a corporate employer [could] be personally liable to an employee of the corporate employer for the civil penalties authorized for overtime pay and minimum wage violations,” independent of a finding of an alter ego relationship or acts by the individual officer or agent outside the scope of agency for the corporate employer.  (Atempa, supra, 27 Cal.App.5th at p. 817.)  The Court of Appeal concluded that the language in both of those statutes “is broad enough to unambiguously include” such individuals subject to the civil penalties awarded thereunder.

As noted by Defendants, sections 558 and 1197.1 appear to be governed by different definitions than section 1102.5.  Section 558, subdivision (a) provides—similar to section 1102.5—that “[a]ny employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission” shall be subject to the applicable civil penalties.  However, section 558.1 appears to limit the definition of the term “other person acting on behalf of an employer.”  Subdivision (a) provides that any “other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission” or violates other specified provisions of the Labor Code “may be held liable as the employer for such violation.”  For purposes of that section, “the term ‘other person acting on behalf of an employer’ is limited to a natural person who is an owner, director, officer, or managing agent of the employer….”  (Lab. Code, § 558.1, subd. (b).)  Section 1197.1, subdivision (a) provides that any “other person acting either individually or as an officer, agent, or employee of another person” shall be subject to certain civil penalties.  Thus, the court finds that Atempa does not require the court to interpret the language of section 1102.5 to hold an individual defendant liable for violations thereof.

Third, the court finds persuasive the federal cases cited by Defendants concluding that section 1102.5 does not apply to individuals.  (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 465, fn. 5 [“Federal court decisions applying California law [] are not binding on this court, but may hold persuasive value”]; Toranto v. Jaffurs (S.D. Cal. 2018) 297 F.Supp.3d 1073, 1105.)

The court overrules Levenhagen’s demurrer to the second cause of action for whistleblower retaliation (Lab. Code, §§ 6310, 6311) because it states facts sufficient to constitute a cause of action since Levenhagen has not established that, as a matter of law, these statutes cannot be asserted against an individual defendant.  (Code Civ. Proc., § 430.10, subd. (e).)  As above, Defendants contend that this cause of action fails against Levenhagen because it does not apply to a non-employer individual defendant.  However, the language of Labor Code section 6310 differs from that of section 1102.5.  Section 6310 provides that “[n]o person shall discharge” any employee because the employee has engaged in specified activity.  (Lab. Code, § 6310, subd. (a).)  Thus, the language of section 6310 does not exclude non-employer individual defendants.

The court sustains Defendants’ demurrer to the fourth cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action since (1) Plaintiff has not alleged facts establishing that Defendants’ conduct was “so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community’ ” ’” and therefore has not alleged the element of extreme and outrageous conduct, and (2) this cause of action is based on alleged emotional injuries sustained in the course of Plaintiff’s employment and is therefore preempted by the exclusive workers’ compensation scheme.  (Code Civ. Proc., § 430.10, subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051; Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161-162; Compl., ¶¶ 75-76 [alleging that Defendants caused severe emotional distress “by forcing her into dangerous working conditions,” retaliating against her, and wrongfully terminating her].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)   The court finds that Plaintiff has not met her burden of showing how she can amend her first cause of action to render it sufficient against individual defendant Levenhagen.  The court therefore sustains the demurrer to that cause of action without leave to amend.  The court grants Plaintiff leave to amend the fourth cause of action for intentional infliction of emotional distress.

ORDER

The court sustains defendant Jennifer Levenhagen’s demurrer to plaintiff Cindy Ramos’s first cause of action without leave to amend.

The court overrules defendant Jennifer Levenhagen’s demurrer to plaintiff Cindy Ramos’s second cause of action.

The court sustains defendants Ryder Integrated Logistics, Inc., Ryder Systems, Inc., and Jennifer Levenhagen’s demurrer to the fourth cause of action.

The court grants plaintiff Cindy Ramos 20 days leave to file a First Amended Complaint that amends the fourth cause of action for intentional infliction of emotional distress.

The court orders defendants Ryder Integrated Logistics, Inc., Ryder Systems, Inc., and Jennifer Levenhagen to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 15, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court