Judge Teresa A. Beaudet, Case BC699489 2022-08-15 Tentative Ruling

candy lopez, Plaintiff, vs. united parcel service, inc., et al. Defendants.	Case No.:	BC699489
	Hearing Date:	August 15, 2022
	Hearing Time: 2:00 p.m. [TENTATIVE] ORDER RE: CROSS-DEFENDANTS TEAMSTERS LOCAL UNION 396 AND RUBEN DURAN’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
AND RELATED CROSS-ACTION

On March 23, 2018, Plaintiff Candy Lopez (“Lopez”) filed this action against Defendants United Parcel Service, Inc. (“UPS”) and Ryan Quon (“Quon”). The Complaint asserts causes of action for (1) Ralph Civil Rights Act (Civ. Code, §§ 51.7, 52), (2) sexual harassment in violation of FEHA, (3) failure to prevent sexual harassment in violation of FEHA, (4) negligent hiring, supervision or retention, (5) stalking (Civ. Code, § 1078.7), (6) intentional infliction of emotional distress, and (7) injunctive relief. Lopez alleges that while working for UPS as a loader, she was subjected to sexual harassment by a co-worker, Quon.

On December 20, 2018, Quon filed a Cross-Complaint against Lopez and UPS. On June 17, 2019, Quon filed a First Amended-Complaint naming, among other cross-defendants, Ruben Duran (“Duran”). On March 16, 2020, Quon filed a Second Amended Cross-Complaint

Local 396 and Duran (jointly, the “Union Defendants”) now move for summary judgment or, in the alternative, summary adjudication as to Quon’s seventh and eighth causes of action and claim for punitive damages.[1] Quon opposes.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid. .)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

A. Seventh Cause of Action for Conspiring with and Soliciting Another to Commit Civil Extortion

Quon’s seventh cause of action is for “conspiring with and soliciting another to commit civil extortion.” In support of this cause of action, Quon alleges that he purchased a 2006 Honda Civic for Lopez’s use. (FACC, ¶ 158.)[2] Quon also purchased “for the parties mutually,” a dog, three guinea pigs, and personal items. (FACC, ¶ 158.) Quon alleges that on or around November 8, 2017, Lopez sent text messages to Quon asking him to meet at or near a UPS facility. (FACC, ¶ 159.) Quon arrived at the meeting place requested by Lopez, but she sent Local 396 “agent” Duran in her place. (FACC, ¶ 159.) Quon alleges that using his authority as a Local 396 officer, Duran demanded that Quon give Lopez the 2006 Honda and its pink slip, an extra key to the vehicle, and the dog, guinea pigs, and personal items. (FACC, ¶¶ 80, 160.) Quon alleges that Duran made threats that if Quon did not give the requested items to Duran that Duran would commit violence against him. (FACC, ¶ 80.) Quon allegedly attempted to leave the area and Duran yelled at him: “I am talking to you mother fucker! Don’t you walk away from me! I will have your job!” (FACC, ¶ 160.) Quon alleges that Lopez intended “to have Duran extort the money and/or personal items from Quon.” (FACC, ¶ 159.)

The Union Defendants first assert that the seventh cause of action must fail because Quon did not suffer any monetary or tangible loss as is required to prevail on a claim for extortion.

The Union Defendants cite to Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426, overruled on other grounds by Silberg v. Anderson (1990) 50 Cal.3d 205, where the Court of Appeal noted that “[i]n their demurrers, defendants contend ‘extortion’ is only a crime and cannot form the basis for a civil action in tort. We disagree. However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution. It is essentially a cause of action for moneys obtained by duress, a form of fraud.” (Internal citations omitted.)[3]

In Fuhrman, the “[p]laintiff’s first cause of action [was] labelled ‘extortion’ and state[d] defendants ‘have, through outrageous conduct, demanded, among other things, sums of money under a threat of apparent civil and criminal prosecution amounting to extortion and blackmail.’” (Id. at p. 425-426.) The Court of Appeal found that “[t]he fatal flaw in plaintiff’s action is that she apparently never paid the money defendants demanded in their letters. The only actual damages plaintiff alleges are her emotional distress and attorney fees.” (Id. at p. 426, emphasis in original.)

The Union Defendants assert that Quon acknowledges that he did not turn over any of the property Duran allegedly sought to extort, and that Quon accordingly did not suffer any actual loss. They note that Quon testified that he remembers Duran demanding that Quon “give the pink slip to the car, the extra key, the guinea pig, and any effects or personal items that Lopez had at my home by a certain time.” (Barth Decl., ¶ 3, Ex. B (Quon Depo., Vol. 2) at pp. 506:18-506:21.) Quon was then asked, “[a]nd then did you ever return the items, apart from the car?” to which Quon responded “No.” (Id. at p. 510:13-15.) Quon also testified that he never turned over ownership of the car to Duran or Lopez, and that he “sold it to another UPSer and it is gone from my possession.” (Barth Decl., ¶ 4, Ex. C (Quon Depo., Vol. 3) at pp. 590:25-591:11.) In addition, Quon testified that he did not turn over the pink slip of the car to Lopez or Duran. (Id. at p. 590:20-24.) Lastly, Quon testified as to the alleged “personal items” he purchased for Lopez, and when asked if he gave Lopez anything as a result of the meeting he had with Duran, Quon responded “I did not.” (Barth Decl., ¶ 4, Ex. C (Quon Depo., Vol. 3) at pp. 605:20-606:12.)

In the opposition, Quon contends that “[e]ssentially, the Union argues that Duran and the Teamsters cannot be found liable because the end result did not occur. In other words, no harm no foul. This is a fundamental misunderstanding of conspiracy. The wrongful act occurs as soon as the co-conspirators take a substantial step toward the commission of the act.” (Opp’n at p. 21:8-10.)[4] But as the Union Defendants note, “[c]onspiracy is not an independent tort.” (Weinbaum v. Goldfarb (1996) 46 Cal.App.4th 1310, 1317; (see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511, “[s]tanding alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.”)[5]

In addition, as set forth above, the seventh cause of action is based upon the allegation that “Duran demanded that Quon give Lopez the 2006 Honda and its pink slip, extra key, dog, guinea pigs and personal items. Quon attempted to leave the area and Duran yelled at him: ‘I am talking to you mother fucker! Don’t you walk away from me! I will have your job!’” (FACC, ¶ 160.) Quon also alleges that Duran made threats that if Quon did not give the requested items to Duran, that Duran would commit violence against him. (FACC, ¶ 80.)

The Union Defendants provide evidence that in the November 8, 2017 conversation between Duran and Quon, Duran did not threaten violence against Quon. (UMF No. 10.) This is undisputed by Quon. (Response to UMF No. 10.) In addition, during the November 8, 2017 conversation, Duran did not threaten Quon’s job, or suggest that he would take any action to jeopardize Quon’s employment. (UMF No. 11.) Although Quon purports to “dispute” that Duran did not threaten Quon’s job, Quon fails to cite any evidence in support of the “dispute.” (See Response to UMF No. 11.) As the Union Defendants note, Code of Civil Procedure section 437c, subdivision (b)(3) provides, “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed…Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Emphasis added.)

In light of the foregoing, the Court finds that the Union Defendants have met their burden of showing that the seventh cause of action is without merit, and that Quon has failed to demonstrate that a triable issue of material fact exists as to this cause of action.[6]

B. Eighth Cause of Action for Aiding and Abetting Conspiracy and Attempted Extortion

Quon’s eighth cause of action is for “aiding and abetting conspiracy and attempted extortion.” In support of this cause of action, Quon alleges that cross-defendants knew Duran had threatened Quon that he would “have his job” if he did not transfer items of personal property to Lopez. (FACC, ¶ 164.) Quon alleges that cross-defendants “provided substantial assistance or encouragement to Lopez and Duran by directing subordinate UPS staff to launch and substantiate investigations resulting in carrying out Duran and Lopez’ threat to ‘have Quon’s job,’ discrediting/dismissing/rejecting Quon’s claims and then terminating Quon’s employment.” (FACC, ¶ 165.)

As an initial matter, the Court agrees with the Union Defendants that the eighth cause of action is difficult to decipher as to the Union Defendants; this cause of action appears directed to other cross-defendants. In any event, the Union Defendants first assert that they are entitled to judgment as a matter of law on this cause of action because it is preempted by the National Labor Relations Act (“NLRA”). They note that Section 7 of the NLRA provides in part that, “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations…and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” (29 U.S.C. section 157.) “If employee conduct is protected under § 7, then state law which interferes with the exercise of these federally protected rights creates an actual conflict and is pre-empted by direct operation of the Supremacy Clause.” (Brown v. Hotel & Rest. Employees & Bartenders Int'l Union Local 54 (1984) 468 U.S. 491, 501.)

The Union Defendants note that Local 396 is a local labor union that has “Business Agents” who are responsible for, inter alia, assisting union members with workplace disputes, including situations where a member is being harassed or mistreated by other employees. (UMF Nos. 1, 2.) Lopez was employed at a UPS facility located in Bell, California (“Bell Facility”) and covered by a collective bargaining agreement between Local 396 and UPS. (UMF No. 4.) Duran was the Business Agent assigned to the Bell Facility and, accordingly, was responsible for providing union representation to Lopez. (UMF No. 5.) The Union Defendants contend that Quon’s assertion that Duran encouraged UPS to terminate his employment is based solely on (a) his belief that Duran used poor “etiquette” in reporting Lopez’s complaints about Quon to UPS’s labor relations manager Mary Misloski; and (b) the fact that Duran accompanied Lopez to a November 13, 2017 investigatory meeting with HR supervisor Mark Gonzalez. (UMF No. 23.)

The Union Defendants contend that this conduct is protected activity under the NLRA.

In the opposition, Quon does not address the Union Defendants’ argument that the eighth cause of action is preempted by the NLRA. In addition, Quon again asserts that he “disputes” the Union Defendants’ UMF No. 23, but cites to no evidence in support of the purported dispute.

The Union Defendants also assert that even if the eighth cause of action is not preempted, the Union Defendants are still entitled to judgment as a matter of law on this cause of action. The Court agrees. Liability may “be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 324 [internal reference to [Citations.] omitted.)

The Union Defendants assert that they had no knowledge of UPS’ allegedly unlawful treatment of Quon. They assert that Duran’s only participation in the relevant events involved conveying Lopez’s complaints to UPS and representing Lopez at an investigatory meeting in his capacity as her union representative. (UMF Nos. 14, 16, 18-19.) Duran indicates that he did not play any role or participate in UPS’ decision to terminate Quon’s employment, and never participated in any discussions with UPS’ employees, agents or representatives regarding the termination of Quon’s employment or other adverse employment actions against him. (Duran Decl., ¶ 9.) Quon does not address these points in the opposition. Moreover, Quon again indicates that certain of the foregoing facts are “disputed,” but fails to cite to any evidence in his separate statement in support of the purported dispute. (See Response to UMF Nos. 16, 18-22.)

In light of the foregoing, the Court finds that the Union Defendants have met their burden of showing that the eighth cause of action is without merit, and that Quon has failed to demonstrate that a triable issue of material fact exists as to this cause of action.

Lastly, the Union Defendants assert that Quon is not entitled to punitive damages because he cannot demonstrate by clear and convincing evidence that the Union Defendants are guilty of oppression, fraud, or malice. Because the Court finds that the Union Defendants have shown that they are entitled to summary adjudication as to the seventh and eighth causes of action, the Court finds that the motion for summary adjudication as to punitive damages is moot.

For the foregoing reasons, the Union Defendants’ motion for summary judgment is granted. The Court orders the Union Defendants to file and serve a proposed judgment within 10 days of the date of this Order.

[1]The only causes of action alleged against the Union Defendants in the FACC are the seventh and eighth causes of action.

[2]Quon alleges he was hired by UPS on January 17, 2005, and that Lopez was hired by UPS in November 2016 as a temporary seasonal employee. (FACC, ¶¶ 19, 20.)

[3]The Union Defendants assert that extortion is thus a species of fraud, and accordingly subject to heightened pleading and proof requirements. They note that “[f]raud without damage furnishes no ground for action…” (Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 810, footnote 2 (internal quotations omitted).)

[4]In support of this assertion, Quon cites to two criminal cases and California criminal jury instructions. (Opp’n at p. 21:11-12.) However, Quon’s seventh cause of action is for “conspiring with and soliciting another to commit civil extortion.” (FACC, p. 28:17, emphasis added.)

[5]Quon also purports to dispute the Union Defendants’ Undisputed Material Fact (“UMF”) No. 13, that Quon never turned over to Duran or Lopez any of the property Quon alleges they attempted to extort. However, Quon fails to cite to any evidence in support of this “dispute.” (Response to UMF No. 13.)

[6]Because the Court finds that the Union Defendants have demonstrated their entitlement to summary adjudication of the seventh cause of action per the foregoing, the Court finds it unnecessary to consider the merits of Union Defendants remaining arguments as to this cause of action.

Superior Court of California

County of Los Angeles

Department 50