Case Name:   Lilia Hancock v. United Site Services of California, Inc.

Case No.:       1-14-CV-268551

Demurrer by Defendant United Site Services of California, Inc. to the Complaint of Plaintiff Lilia Hancock

This case arises out of Plaintiff’s alleged wrongful termination from her employment with Defendant as a “Human Resources Generalist.”  (See Complaint, ¶¶ 5, 7, 9-14.)

Defendant’s request for judicial notice of the complaint filed on July 29, 2014, is GRANTED.  (See Evid. Code § 452, subd. (d).)      

Defendant demurs to the first cause of action of the complaint on the ground that Plaintiff’s claim for wrongful termination in violation of public policy is preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. 151, et seq.  (See Code Civ. Proc., § 430.10, subd. (a) [stating that a party may demur to a complaint on the ground that the court has no jurisdiction over the subject of the cause of action alleged in the pleading].)

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules.  ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  We also consider matters which may be judicially noticed.’”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  “A demurrer tests only the legal sufficiency of the pleading.  It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.”  (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

Plaintiff’s first cause of action for wrongful termination in violation of public policy is preempted by the NLRA because it is based solely upon the allegation that Plaintiff was terminated because she failed to prevent the employees at Defendant’s Benicia location from unionizing.  (See Complaint, ¶¶ 13 [stating that Plaintiff “was actually fired for her failure to prevent the Benicia site from unionizing”] [emphasis added], 16 [stating that “Defendants terminated Plaintiff’s employment based upon her failure to participate in an activity that would result in a violation of a state and/or federal statute, most specifically as to California Labor Code § 1102 and/or 29 U.S. Code § 158, which protects employee’s rights to form or engage in labor organization”] [emphasis added]; see also San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 244 [“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.”]; see also Ruscigno v. Am. Nat’l Can Co. (2000) 84 Cal.App.4th 112, 119-120 [noting that termination of employment for failure to prevent unionization is the type of unfair labor practice that is prohibited by section 8 of the NLRA].)  While it is true that the complaint alleges that Plaintiff informed Defendant about several unsafe working conditions and other potential violations of public policy (see Complaint, ¶¶ 7-10), the complaint does not allege that those actions resulted in Plaintiff’s termination, either in whole or in part.  (See Complaint, ¶¶ 13, 16; see also Balog v. LRJV (1988) 204 Cal. App. 3d 1295, 1304 [stating that so long as the defendant’s intentional wrongful conduct “was motivated by impermissible considerations other than solely a desire or plan to interfere with collective bargaining or unionization, they may be held liable under state law”].)

The demurrer to the first cause of action for wrongful termination in violation of public policy is SUSTAINED.

Defendant’s assertion that Plaintiff should be denied leave to amend is without merit because there is no indication that the Plaintiff’s amendment to the complaint would contradict her current allegations.  (American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal. App. 3d 875, 879 citing Tognazzi v. Wilhelm (1936) 6 Cal.2d 123, 127 and Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 386 [stating that the “well-established rule is that a proposed amendment which contradicts allegations in an earlier pleading will not be allowed in the absence of ‘very satisfactory evidence’ upon which it is ‘clearly shown that the earlier pleading is the result of mistake or inadvertence.’”].)  Moreover, it is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that the plaintiff can state a good cause of action and Plaintiff has indicated in her opposition papers how she would amend her complaint so as to state a valid claim for wrongful termination in violation of public policy.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Ten days’ leave to amend is granted.