17-CIV-02075 HERBERT D. TODD VS. AMALGAMATED TRANSIT UNION LOCAL 1574, ET AL.

HERBERT D. TODD AMALGAMATED TRANSIT UNION LOCAL 1574
MICHELLE D. STRICKLAND JEFFREY B. DEMAIN

DEMURRER TENTATIVE RULING:

Defendant’s Request for Judicial Notice is granted as to all matters.

A. First Cause of Action (Breach of Duty of Fair Representation)

Demurrer to the first cause of action is sustained.

1. Settlement Negotiations. On the previous demurrer, the Court ruled that attorney Purtell’s conduct of the pre-arbitration negotiations do not state a DFR claim. The amended pleading does not cure the omisson. Plaintiff fails to allege any injury from the negotiations. The Complaint does not allege that Defendant settled the grievance over Plaintiff’s objection, rejected a settlement offer that Plaintiff would have accepted, or failed to inform the District of a settlement offer on his behalf. Plaintiff concedes having no knowledge whether the District would have offered to reinstate and allow Plaintiff to retire. (Opp. at 7:26-27.)

2. The Choice of Counsel. Nothing in the Complaint alleges, and nothing in Plaintiff’s Opposition argues, that the duty of fair representation requires Defendant to provide counsel for a grievance arbitration. (Hussey v. Operating Engineers Local Union, No. 3 (1995) 35 Cal.App.4th 1213, 1219-20.). The failure to replace Purtell with a different attorney to represent Plaintiff is not arbitrary, discriminatory, or bad faith.

3. Conduct of the Arbitration Proceeding. Plaintiff relies on the same allegations that the Court found to be insufficient on the previous demurrer: Union counsel’s failure to call particular witnesses and make particular arguments. (Opp. at 10-13.) The present complaint continues to lack allegations that Defendant’s (attorney Purtell’s) conduct at the arbitration was arbitrary, discriminatory, or in bad faith. The question of which witnesses to call and which arguments to advance are litigation decisions that are within the “wide range of reasonableness” for the Union to make. (Hussey, 35 Cal.App.4th at 1219 (“union is accorded wide latitude in the representation of its members” in disciplinary and termination proceedings, “and courts are reluctant to interfere with a union’s decisions in representing its members absent a showing of arbitrary exercise of the union’s power.”)

4. Causation. The TAC does not allege facts showing that any conduct by Defendant Union caused the arbitration decision upholding Plaintiff’s termination. Plaintiff’s discharge was sustained by the Arbitrator on two grounds: insubordination and dishonesty. Plaintiff argues that the finding of insubordination stemmed from statements by Peter LeBaron that Plaintiff failed to cooperate in the District’s investigation of the theft, and that LeBaron was found to have lied, and that Purtell’s decision not to call LeBaron at the arbitration is arbitrary. The argument lacks merit. The arbitrator’s finding of insubordination was not based on Plaintiff’s responses to questions by LeBaron. Rather it was based on Plaintiff’s refusal to answer the District’s questions in his January 2011 disciplinary interview. (Arbitrator’s Decision at 4, 14, and 15.) Thus, a failure to call LeBaron to testify did not have an effect on the ground of “insubordination.”

5. Conclusion. The complaint fails to allege facts showing that Defendant’s actions regarding Plaintiff were “arbitrary, discriminatory, or in bad faith.” (Vaca v. Sipes (1967) 386 U.S. 171, 190.) Demurrer to the 1st cause of action is sustained.

B. Second Cause of Action (Breach of Contract) 1. The Pleading Fails to Allege a Breach of Contract.

None of the three CBA provisions cited in the complaint is a provision creating obligations that an individual employee can enforce against Defendant Union. Article 9, Section 2 imposes a legal duty on the District not to discipline without just cause. It does not impose any obligation on Defendant Union. (See TAC ¶¶ 107-08.) Article 8 prohibits racial discrimination. (Id. ¶ 112.) The TAC does not allege that Defendant discriminated against Plaintiff based on race. At most, the TAC alleges that the Union “allowed” Plaintiff to be discriminated against by the District. The pleading does not allege that the Defendant Union violated the anti-discrimination provision. Article 31, section 5 (Id. ¶113) addresses forfeitures of grievances by the Union’s failing to advance them to arbitration or by the District’s failing to provide the Union with a timely response. The TAC does not allege that the Union breached this provision.

2. Breach of Implied Covenant of Good Faith.

Plaintiff impliedly argues that the second cause of action alleges a claim for breach of implied covenant of good faith and fair dealing. An intended third-party beneficiary to a contract may have standing to enforce the implied covenant of good faith and fair dealing. (See Schwartz v. State Farm Fire & Cas. Co. (2001) 88 Cal. App. 4th 1329, 1337.) In contrast, an incidental third party beneficiary has no such standing. (See Jones v. Aetna Cas. & Sur. Co., (1994) 26 Cal. App. 4th 1717, 1724.) Here, Plaintiff is not a party to the CBA, and he does not allege that he is an intended third-party beneficiary. Rather, Plaintiff is a mere incidental third party beneficiary; he is a member of a class of persons (union members) who benefit from the collective bargaining agreement. (See Opp. at 14:1-4.) Plaintiff does not allege any standing to assert a claim for breach of implied covenant of good faith and fair dealing.

Absent Defendant’s affirmative legal obligation in the CBA, which is intended to be enforceable by individual employees, the only duty a union owes its members with regard to the grievance and arbitration process is the duty of fair representation. (Steelworkers v. Rawson (1990) 495 U.S. 362, 372–373 (only duty union owes its members is duty of fair representation); Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal. App. 4th 1213, 1219 (same).) 3. Conclusion

Demurrer to the second cause of action is sustained. C. Third Cause of Action (IIED) Demurrer to the third cause of action is sustained.

When the allegedly wrongful conduct is within the context of traditional employer/employee relations, there is no claim for intentional infliction of emotional distress. (See, e.g., Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155 (allegations of harassment involving unjustified institution of disciplinary proceedings, demotion, and attempting to force employee’s retirement fell within constituted conduct normally occurring in workplace and thereby preempted by worker’s compensation); Janken v. GM Hughes Elecs. (1996) 46 Cal. App. 4th 55, 80 (managing personnel is not outrageous conduct beyond bounds of human decency; pleading of personnel management activity is insufficient to support claim of intentional infliction of emotional distress, even if improper motivation is alleged).) The TAC alleges personnel management labor relations involving termination, grievance, and arbitration, none of which give rise to an IIED claim. Demurrer is sustained. D. Leave to Amend Is Granted Plaintiff is granted leave of court until October 22, 2018, to file and serve a Fourth Amended Complaint addressing the deficiencies set forth in this ruling.

The Court reminds Plaintiff that a properly pleaded complaint should set forth only the ultimate facts constituting the cause of action; it need not set forth the evidence by which the plaintiff proposes to prove those facts. (Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal. App. 4th 1367, 1376; see also Civ. Proc. Code sect. 425.10 (pleading should be in “concise language”).) One of the difficulties in evaluating the Third Amended Complaint is that the pleading is packed with unnecessary evidentiary allegations rather than just ultimate facts. As a result, Plaintiff’s ultimate facts are hidden among unnecessary evidentiary allegations, making it more difficult to discern the cause of action.

The previous pleading was a reasonable 16 pages consisting of 57 paragraphs. The present pleading is now 32 pages consisting of more than 150 paragraphs (including subparagraphs). More is not necessarily better. The ruling on this demurrer is that the present allegations do not state a cause of action. In drafting a Fourth Amended Complaint, Plaintiff should keep in mind that merely adding more facts and enlarging the complaint does not necessarily cure the defects. The amendment should allege facts other than the ones the Court has determined fail to state a breach of the duty of fair representation, breach of contract, and IIED.