Case Number: VC066777 Hearing Date: February 20, 2020 Dept: SEC

CUEVA v. PACIFIC AMERICAN FISH CO.

CASE NO.: VC066777

HEARING: 02/20/2020

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Defendant PACIFIC AMERICAN FISH CO’s unopposed Motion for Summary Judgment is GRANTED. Defendant PACIFIC AMERICAN FISH CO’s alternative Motion for Summary Adjudication is MOOT.

Moving Party to give Notice.

Defendant’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not as to any hearsay statements contained therein. Cal. Ev. Code §452.

No Opposition filed as of February 18, 2020. The Court notes that Plaintiff MIGUEL ANGEL CUEVA is a pro se litigant.

This action for wrongful termination was filed by Plaintiff MIGUEL ANGEL CUEVA on December 8, 2017. The relevant facts are as follows: “Plaintiff began his employment with the Defendant as a driver, on October 20, 2014.” (SAC ¶15.) “During Plaintiff’s employment with Defendant, Plaintiff was not provided rest periods for work periods of four (4) hours or more, and was not provided with meal periods for work days in excess of five (5) and/or ten (10) hours, and was not compensated a one (1) hour wage in lieu of said rest and/or meal periods.” (SAC ¶20.) “Plaintiff was constantly harassed by his supervisors and other employees. Plaintiff was called insulting and derogatory names such as ‘psycho Mexican,’ ‘retarded,’ ‘crack head,’ ‘fuckin wet-back,’ and other demeaning and insulting comments based on his national origin and his personality.” (SAC ¶27.) “Plaintiff’s employment was terminated on July 20, 2016, after being involved in an accident with a work truck on or about July 12, 2016. Approximately two days prior to the accident, Plaintiff complained to YEE that the truck he was operating nearly rolled over because Plaintiff believed the truck was carrying overweight loads…. [¶] It is apparent that Plaintiff’s employment with Defendant was terminated in retaliation for complaining about safety violations.” (SAC ¶¶41-42.)

Plaintiff’s SAC, filed on July 17, 2018, asserts the following causes of action: (1) Common Law Claim for Wrongful Termination in Violation of Public Policy; (2) Commission of Fraudulent or Unfair Business Acts; (3) Negligent Supervision; (4) Intentional Infliction of Emotional Distress; (5) Failure to Require Mandatory Rest and Meal Breaks and/or to Provide Compensation in Lieu Thereof; and (6) Failure to Pay All Wages Due in Violation of California Labor Code and Industrial Welfare Commission Order No. 5

Defendant PACIFIC AMERICAN FISH CO (“PAFCO”) moves for summary judgment, or alternatively summary adjudication as to each cause of action.

First Cause of Action – Common Law Claim for Wrongful Termination in Violation of Public Policy

Plaintiff asserts a claim for wrongful termination in violation of public policy, alleging that Plaintiff’s termination was in violation of Labor Code §1102.5(b) and Labor Code §6310(b).

The elements of a claim for wrongful termination in violation of public policy are: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of plaintiff’s employment; (4) that a violation of public policy was a substantial motivating reason for plaintiff’s discharge; and (5) damages. (CACI No. 2430; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426.)

Labor Code §1102.5(b) states: “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 a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, 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, regardless of whether disclosing the information is part of the employee’s job duties.” (Id.) Plaintiff’s claim under Labor Code §1102.5(b) claims as a matter of law. Plaintiff does not allege or submit any evidence to show that he reported PAFCO’s alleged violations of traffic and safety laws to a government or law enforcement agency. (See SAC ¶55.)

“An employee who is discharged… by his or her employer because the employee has made a bona fide oral or written complaint to…his or her employer… of unsafe working conditions, or work practices, in his or her employment or place of employment…shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.” (Labor Code §6310(b).) This section applies to “any oral or written complaint…with reference to employee safety or health” and has been interpreted to protect an employee “against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not there exists at the time of the complaint an OSHA standard or order which is being violated.” (Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299-300.) PAFCO asserts that it had a legitimate reason for discharging Plaintiff, and argues that Plaintiff discharged because he was involved in a single vehicle accident on July 12, 2016, when he lost control of the truck he was driving due to dangerous speeding. (PAFCO UMF No. 8.) The Motion is unopposed and Plaintiff proffers no evidence to raise a triable issue of material fact.

The motion for summary adjudication of the first cause of action is granted.

Second Cause of Action – Commission of Fraudulent or Unfair Business Practices

To state a claim under §17200, Plaintiff must allege whether the conduct complained of is a fraudulent, unlawful or an unfair business practice. To bring a claim under the fraud prong, Plaintiff must allege an affirmative misrepresentation, conduct or business practice on the part of a defendant; or an omission in violation of defendant’s duty to disclose; and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the unfairness prong, Plaintiff must allege that one or more of Defendants’ business practices are unfair, unlawful or fraudulent; and the remedy sought is authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiff must allege a violation of law and cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to allege violation of a law was properly sustained without leave to amend].)

The Court finds that PAFCO has met its initial burden to show that PAFCO did not engage in any fraudulent, unlawful, or unfair business practice. The Motion is unopposed and Plaintiff has failed to present evidence to create a triable issue.

Third Cause of Action – Negligent Supervision

“Actionable negligent involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Beacon Residential Community Assn. v. Skidmore, Owings, & Merrill LLP (2014) 59 Cal.4th 568, 573.) To establish a claim for negligent supervision of an employee, a plaintiff must show that: (1) the employee was unfit or incompetent to perform the work for which he or she was hired; (2) the employer knew or should have known the employee was unfit or incompetent and that such unfitness or incompetence created a particular risk to others; (3) the employee’s unfitness or incompetence harmed plaintiff; and (4) the employer’s negligence in hiring, supervising, and/or retaining the employee was a substantial factor in causing plaintiff’s harm. (See Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4th 748.)

The unopposed motion for summary adjudication of Plaintiff’s negligent supervision claim is granted. Plaintiff fails to raise a triable issue of material fact as to whether PAFCO’s conduct met the applicable standard of care, and as to whether Plaintiff was harmed as a result.

Fourth Cause of Action – Intentional Infliction of Emotional Distress

The elements of IIED are: (1) extreme and outrageous conduct by defendant; (2) made with intent to cause, or with reckless disregard of the probability of causing, emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

The Motion is unopposed and Plaintiff has failed to present evidence to create a triable issue on this cause of action. The motion for summary adjudication as to the fourth cause of action is granted.

Fifth Cause of Action – Failure to Require Mandatory Rest and Meal Breaks and/or to Provide Compensation in Lieu Thereof

Plaintiff’s meal and rest breaks claim is preempted by the Federal Motor Carrier Safety Administration (“FMCSA”) hours of service regulations. (See Ayala v. U.S. Xpress Enterprises, Inc. (2019) WL 1986760.) The motion for summary adjudication of the fifth cause of action is granted.

Sixth Cause of Action – Failure to Pay All Wages Due in Violation of California Labor Code and Industrial Welfare Commission Order No. 5

As argued by PAFCO in the instant Motion, Plaintiff bases his unpaid wage claims on Labor Code §§202 and 203. (SAC ¶¶107-108.)

Labor Code §202 applies to employees who voluntarily terminate their employment. (See Labor Code §202(a).) Here, it is undisputed that Plaintiff was involuntarily terminated. Plaintiff’s claim under Labor Code §202 fails as a matter of law.

Plaintiff’s Claim under Labor Code §203 also fails. PAFCO submits evidence to show that PAFCO paid Plaintiff all wages due and owing at the time of Plaintiff’s termination. (See PAFCO UMF No. 17.) The Motion is unopposed, and Plaintiff has failed to present evidence to raise a triable issue of material fact. The motion for summary adjudication of the sixth cause of action is granted.