Judge Thomas D. Long, Case 22STCV35930 2023-05-09 Tentative Ruling

On November 14, 2023, Plaintiff Jorge Rodriguez filed this action against Defendants Whole Foods Market California Inc., Mrs. Gooch’s Natural Food Markets Inc., and Keith Manbeck, arising from his employment with Defendants.

On January 9, 2023, the parties filed a stipulation for Plaintiff to dismiss Whole Foods Market California Inc. and Keith Manbeck. They did not file a proposed order for the Court’s signature, nor did Plaintiff separately file Requests for Dismissal. Accordingly, on its own motion, the Court now ORDERS Whole Foods Market California Inc. and Keith Manbeck dismissed from the Complaint without prejudice.

On January 19, 2023, Mrs. Gooch’s Natural Food Markets Inc. (“Defendant”) filed a demurrer and motion to strike. Defendant also filed a motion to stay Plaintiff’s claim under the Private Attorney General Act (“PAGA”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Defendant demurs to the thirteenth (negligence), fourteenth (negligent infliction of emotional distress), and fifteenth (negligent hiring, supervision, and retention) causes of action on the ground that they are preempted by the exclusive remedy provisions of the Workers’ Compensation Act. Generally, the workers’ compensation system provides the sole and exclusive remedy for injuries sustained by employees arising out of and in the course of the employment when the misconduct attributed to the employer is a normal part of the employment relationship. (See Lab. Code, §§ 3600-3602; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)

Plaintiff sustained a shoulder injury “[b]ecause of the nature of his job involving heavy physical duties,” and he “believes that his shoulder injury was a significant factor that led to his termination.” (Complaint ¶¶ 13-14; see Complaint ¶¶ 20 [“DEFENDANTS took adverse employment actions against PLAINTIFF because PLAINTIFF had sustained injuries while on the job, made complaints about the work-related injuries, and sought an accommodation due to the injuries and disability.”], 28, 42-43.) Plaintiff alleges that Defendant breached its duty “to provide a safe, non-discriminating and non-retaliatory work environment, to make sure that its supervisors take action against employees practicing workplace discrimination and retaliation, to make sure supervisors and managers look after the safety of employees during their watch, to pay employees proper wages when due, and to provide them with proper wage statements.” (Complaint ¶¶ 96, 101.) Plaintiff was harmed due to these breaches. (Complaint ¶¶ 98-99, 103-104.) Plaintiff was also harmed by his supervisors’ unfitness and incompetence, which Defendant knew about. (Complaint ¶¶ 106-110.)

Plaintiff’s negligence claims are therefore rooted in his FEHA claims for discrimination and retaliation. When “a plaintiff's emotional distress claim is premised upon his employer’s violation of a fundamental public policy of this state, such misconduct lies outside of the exclusive remedy provisions of the Labor Code.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 113.) This includes emotional distress caused by wrongful termination in violation of public policy. (Id. at p. 112.) “Discrimination in employment is not a normal incident of employment.” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347.) “The Legislature . . . did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. [Citations.] Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer’s illegal discriminatory practices.” (Id. at p. 352.)

Both parties acknowledge that Plaintiff’s emotional distress damages were caused by his allegedly unlawful termination. (Motion at p. 7 [“Plaintiff alleges that his emotional distress damages were caused by his termination, e.g., in the ordinary course of his employment.”]; Opposition at p. 5 [“It was not Plaintiff’s shoulder injury but rather the fact that Plaintiff was terminated due to Defendant’s disability discrimination stemming from Plaintiff’s shoulder injury that leads to his damages in this case.”].)

The demurrer is overruled. Defendant is ordered to file and serve and answer within 10 days.

The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)

Defendant moves to strike paragraphs 23, 30, and Prayer for Relief paragraph 9, all relating to punitive damages. “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) Plaintiff’s allegations of “malice, fraud and oppression” are conclusory and do not allege specific facts.

Additionally, a corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) There are no such allegations here. The limited allegations that Defendant “knew or should have known of PLAINTIFF’s supervisors became unfit and incompetent to perform the work, and PLAINTIFF’s supervisors created a particular risk to others” are conclusory and insufficient.

Defendant moves to stay Plaintiff’s twelfth cause of action for penalties under PAGA pending the resolution of the PAGA claims in Poledouris v. Mrs. Gooch’s Natural Food Markets, Inc., Los Angeles Superior Court Case No. 19STCV10444, and Hersh v. Mrs. Gooch’s Natural Food Markets, Inc., Los Angeles Superior Court Case No. 19STCV26728. Defendant’s request for judicial notice of pleadings and orders in Poledouris and Hersh is granted.

Poledouris and Hersh have been consolidated into a single complaint, filed on August 13, 2021 in Case No. 19STCV1044. (RJN, Ex. D.) The eighth cause of action seeks PAGA penalties for violations of (1) Labor Code sections 510, 1198, and the applicable IWC wage order for overtime violations; (2) Labor Code sections 1182.12. 1194, 1197, 1197.1, 1198, and the applicable IWC wage order for minimum wage violations; (3) Labor Code sections 226.7, 512, 1198, and the applicable IWC wage order for meal period violations; (4) Labor Code sections 226.7, 1198, and the applicable IWC wage order for rest period violations; (5) Labor Code sections 226(a), 1198, and the applicable IWC wage order for wage statement violations; (6) Labor Code sections 1174(d), 1198, and the applicable IWC wage order for payroll records violations; (7) Labor Code sections 201-204 for wage payment violation; (8) Labor Code section 2802 for reimbursement violations; and (9) Labor Code section 2810.5(a)(1)(A)-(C) for failure to provide written notice of information material. (RJN, Ex. D at ¶ 119.)

Here, Plaintiff’s twelfth cause of action seeks PAGA penalties for violations of (1) Labor Code sections 512 and the applicable IWC wage orders for meal break violations; (2) applicable IWC wage orders for rest break violations; (3) Labor Code sections 226 and 226.3 for wage statement violations; (4) Labor Code sections 216 and 225.5 for wage payment violations; and (5) Labor Code section 203 for waiting time penalties. (Complaint ¶¶ 55-56, 58-59, 66-70, 72, 77, 86.)

Plaintiff argues that Poledouris does not allege violations of Labor Code sections 226.3, 216, and 225.5. (Opposition at pp. 3-4.) Labor Code section 226.3 sets for the civil penalty available for violations of section 226, subdivision (a), which is a basis for the penalties sought in Poledouris. Labor Code section 216 states that in addition to other penalties, the willful refusal to pay wages may constitute a misdemeanor. Labor Code section 225.5 states that in addition to other penalties, a willful withholding of wages in violation of sections 212, 216, 221, 222, or 223 shall be subject to additional penalties. These are not additional violations; rather, they are additional penalties for other underlying violations. Additionally, under Labor Code section 2699.5, subdivision (a), a plaintiff may bring a PAGA action for civil penalties based on violations that are listed in section 2699.5. Section 2699.5 does not list sections 216, 225.5, or 226.3.

Plaintiff also argues that Poledouris applies only to supervisors and managers, and his action applies to all employees. (Opposition at p. 4.) However, under PAGA, an “aggrieved employee” is “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Lab. Code, § 2699, subd. (c).) Poledouris is brought on behalf of all aggrieved employees. (See RJN, Ex. D at ¶¶ 41-43, 118-119.)

Accordingly, both the Poledouris/Hersh consolidated complaint and the Complaint in this action seek PAGA penalties for the same violations.

The Poledouris PAGA period appears to be from January 18, 2018 to the present. (See Motion at p. 5; RJN, Ex. D at ¶ 36.) The PAGA period here is from June 9, 2021 to the present. (See Complaint ¶ 16.) Accordingly, Plaintiff is a member of the “aggrieved employees” in Poledouris, and both the Poledouris/Hersh consolidated complaint and the Complaint in this action seek PAGA penalties for the same time period.

There is a “general rule that a court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.” (People v. Bell (1984) 159 Cal.App.3d 323, 329.) A resolution of the first-filed Poledouris/Hersh action will resolve the same PAGA allegations in this action and will preclude subsequent PAGA claims for the same violations and time period. (Robinson v. Southern Counties Oil Company (2020) 53 Cal.App.5th 476, 482-483.) Additionally, the parties in Poledouris/Hersh have already engaged in significant discovery, including written discovery and depositions. (Drye Decl. ¶ 3.) In contrast, this action is less than six months old, and it is in the very early stages of litigation.

Having considered the various facts, the Court finds that it is appropriate to stay Plaintiff’s PAGA claim in this action. Accordingly, the motion to stay is GRANTED.

The stay of the twelfth cause of action will remain in place until a party moves to lift the stay after the resolution of the PAGA claim in Poledouris/Hersh.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court