Case Number: VC066751 Hearing Date: July 24, 2018 Dept: SEC

WISMETTAC ASIAN FOODS, INC. v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS

CASE NO.: VC066751

HEARING: 07/24/18

JUDGE: LORI ANN FOURNIER

#7

TENTATIVE ORDER

Defendants INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 630 and LUIS JAVIER VILLALVAZO’s demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with 15 days leave to amend in part, and SUSTAINED without leave to amend in part. CCP §430.10(e).

Defendants INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 630 and LUIS JAVIER VILLALVAZO’s motion to strike portions of Plaintiff’s FAC is MOOT.

Moving Party to give notice.

This action for creation of a private nuisance, violation of California trespass law, and violation of Cal. Bus. & Prof. Code §17200 et seq. was filed by Plaintiff on November 29, 2017. Plaintiff alleges, in pertinent part: “On or about August 21, 2017 Defendants…without consent or authority and against the will of Plaintiff, entered the property…with at least fifty (50) persons who, acting in a mob like, loud, and boisterous manner, disrupted Plaintiff’s business operations by entering warehouse and office facilities; coercing and intimidating employees of the Plaintiff.” (FAC ¶12.)

A claim is preempted by the NLRA where the alleged conduct is arguably prohibited or protected by Section 7 or 8 of the NLRA. (San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236.) To make this determination, the court must ask “whether the controversy presented to the state court is identical to…or different from…that which could have been, but was not, presented to the Labor Board.” (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1978) 436 U.S. 180, 197.)

Section 7 of the NLRA guarantees employees the right to organize, to form, join or assist labor organizations and to bargain collectively. Section 8 makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. The facts, as alleged, indicate that the gravamen of Plaintiff’s FAC stems from Defendants’ alleged trespass and purported creation of a private nuisance from the exercise of their right to organize.

NLRA preemption does not apply if: “either (1) the Board actually declines to assert jurisdiction over the dispute as it may in cases ‘where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.’ (29 U.S.C.A. §164 (c)(1)), or (2) it is shown by the party seeking to invoke state jurisdiction that the Board would decline to assert jurisdiction if application were made to it.” (Consolidated Theatres, Inc. v. Theatrical Stage Emp. Union, Local 16 (1968) 69 Cal.2d 713, 721-722.) Courts must defer to the exclusive jurisdiction of the NLRB if the subject matter of the litigation is arguably subject to the protections of sections 7 or 8 of the NLRA. (Luke v. Collotype Labels USA, Inc. (2008) 159 Cal.App.4th 1463, 1469.)

As indicated on its ruling to Defendant’s demurrer to Plaintiff’s Complaint, the Court finds that Plaintiff’s FAC involves conduct that is arguably protected by sections 7 or 8 of the NLRA. In the interests of justice, the demurrer to the first, second, and third causes of action is sustained with 15 days leave to amend.

Fourth Cause of Action – Injunctive Relief

“[I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266.) Here, the conduct giving rise to Plaintiff’s fourth cause of action stems from Defendants’ alleged conduct that has already occurred. It is unclear what there is left to enjoin. The demurrer to the fourth cause of action is sustained without further leave to amend.