Opinion
No. 14-cv-00904 JAM-KJN
07-30-2014
MIGUELINA GARCIA, GERARDO GARCIA, and CARLOS GARCIA, Plaintiffs, v. TERRA FIRMA FARMS, INC., a corporation, D. CAMPOS, INC., a corporation, EFRAIN SYLVA CRUZ, an individual, and DOE 1 through DOE 100, inclusive, Defendants.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
This matter is before the Court on Defendant D. Campos Inc.'s ("Defendant's") Motion to Dismiss Plaintiff's Eleventh Cause of Action (Doc. #4). Plaintiff Miguelina Garcia ("Plaintiff") opposes the motion (Doc. #6) and Defendant replied (Doc. #13). For the reasons set forth below, Defendant's Motion to Dismiss is denied.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for June 18, 2014.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Plaintiff, Gerardo Garcia ("Gerardo"), and Carlos ("Carlos") Garcia (collectively "Plaintiffs") originally filed this action on January 13, 2014, in Sacramento County Superior Court (Doc. #2) against Defendant, Terra Firma Farms, Inc. ("Terra Firma"), and Efrain Sylva Cruz ("Mr. Cruz") (collectively "Defendants"). This action was removed to this Court on April 11, 2014, based on federal question jurisdiction, 28 U.S.C. § 1331. Id. In the complaint, Plaintiffs allege eighteen causes of action: (1) discrimination in violation 42 U.S.C. § 2000e et seq.; (2) sex discrimination in violation of California Government Code § 12940(a); (3) harassment in violation of California Government Code § 12940(j); (4) retaliation in violation of 42 U.S.C. § 2000e-3(a); (5) retaliation in violation of California Government Code § 12940(h); (6) breach of contract; (7) failure to prevent discrimination in violation of California Government Code § 12940(k); (8) assault; (9) sexual battery; (10) intentional infliction of emotional distress; (11) negligent infliction of emotional distress; (12) negligent hiring, supervision, and retention; (13) constructive discharge in violation of public policy; (14) wrongful discharge in violation of public policy; (15) violation of California Civil Code § 51.9 Unruh Act; (16) violation of California Civil Code § 51.7 Unruh Act; (17) violation of California Civil Code § 52.1 Unruh Act; and (18) violation of California Labor Code § 1102.5 Whistleblower Protection (Doc. #2).
Plaintiffs were allegedly employed by Defendant to provide Terra Firma with farm labor. Compl. ¶¶ 16-19. From June 2012 to July 2012, Plaintiff worked on the farms owned by Terra Firma and under Mr. Cruz's supervision. Id. ¶¶ 16, 26. On June 13, 2012, Mr. Cruz allegedly whistled at Plaintiff and told her she was "pretty" and that she had "a big ass." Id. ¶ 24. On July 29, 2012, Mr. Cruz allegedly approached Plaintiff and directed her to walk ahead of him into a nearby tomato field. Id. ¶ 28. Once in the field, he allegedly forced Plaintiff "to the ground, sexually assaulted her, committed battery against her and attempted to rape her." Id. ¶ 29. She escaped and called the police, who arrested Mr. Cruz. Id. Plaintiff did not return as an employee of Defendant or Terra Firma. Id. ¶ 32. Plaintiff alleges that she suffered serious emotional distress as a result. Id. ¶ 112.
Plaintiffs Gerardo and Carlos are Plaintiff's father and brother respectively. Id. ¶ 17. Gerardo and Carlos allege that they were terminated by Terra Firma for assisting in the police investigation of Mr. Cruz's sexual assault and battery. Id. ¶ 33.
II. OPINION
A. Judicial Notice
Defendant requests judicial notice of (1) Plaintiffs' Superior Court Complaint dated January 13, 2014; (2) Plaintiff's Workers Compensation Appeals Board Application dated August 14, 2012; (3) Plaintiff's Workers Compensation Appeals Board Application for Increased Award for Serious and Willful Misconduct; (4) Defendant's Sacramento Superior Court Demurrer to Plaintiffs' Complaint; and (5) Defendant Terra Firma's Notice of Removal to Federal Court. Def.'s Request for Judicial Notice ("DRJN"), Doc. #4-3, Ex. A-E. In response, Plaintiff objects to the third item in Defendant's request for judicial notice. See Opp. at 6.
Because Plaintiff's complaint (item #1) and the Notice of Removal (item #5) are already part of the record, the Court denies Defendant's requests. Further, the Court denies Defendant's request for judicial notice as to the remaining documents because they are not necessary for the determination of this motion.
B. Discussion
Defendant moves to dismiss Plaintiff's eleventh cause of action for negligent infliction of emotional distress ("NIED") because the claim is barred by the exclusive remedy provision in California's workers' compensation law. Plaintiff argues that she can pursue a NIED claim because the exclusivity provision does not bar NIED claims that do not result in personal physical injury or death.
Under California Labor Code section 3600 ("Section 3600"), an employer is liable under California's worker compensation law "for any injury sustained by his or her employees arising out of and in the course of the employment." Cal. Labor Code § 3600. Section 3602(a) provides that when an injury is compensable under Section 3600, recovery under Section 3600 is the employee's "sole and exclusive remedy." Cal. Labor Code § 3602(a).
The parties dispute the standard the Court should apply to determine whether the NIED claim is barred by the exclusive remedy provision, in part, because there is a split in authority. See Opp. at 6 (alluding to the split in authority). The Ninth Circuit has held that California workers' compensation law does not bar claims for infliction of emotional distress if the injuries are purely emotional and do not result in physical injury. Robards v. Gaylord Bros., Inc., 854 F.2d 1152, 1157 (9th Cir. 1988) (interpreting Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987)). Contrastingly, a California court of appeal rejected the physical versus non-physical injury distinction outlined in Robards, holding that "an employee is confined to workers' compensation recovery for emotional injuries negligently inflicted as part of the normal employment relationship." Robomatic, Inc., v. Vetco Offshore, 225 Cal.App.3d 270, 275 (1990).
This Court, however, must follow the binding Ninth Circuit decision if there is no California Supreme Court decision. See Brewster v. Cnty. of Shasta, 112 F. Supp. 2d 1185, 1188 n.5 (E.D. Cal. 2000) ("While in the absence of other evidence, the opinions of California courts of appeal on questions of California law cannot simply be ignored, a conflicting decision of the Ninth Circuit obligates adherence by this court to the Circuit's decision and rejection of the non-binding California precedent.") (Internal quotation marks and citations omitted). Therefore, Robards is binding. See Chavira v. Payless Shoe Source, 140 F.R.D. 441, 447 (E.D. Cal. 1991) (noting the split in authority, but following Robards because "the California Supreme Court has not yet resolved the issue, and until it does this Court is bound by the Ninth Circuit's reading of California law, as set out in Robards").
Here, Plaintiffs broadly allege that they suffered serious emotional distress and suffered "great anxiety, embarrassment, anger, loss of enjoyment of life, injury to reputation, and severe emotional and physical distress in an amount to be determined at trial." Compl. at ¶115. Even though Plaintiffs allege "physical distress," the term is too vague and refers to all three Plaintiffs. Therefore, the Court finds that Plaintiff has not alleged a resulting disabling or physical injury. Accordingly, as in Robards, Plaintiff's NEID claim is not barred by the exclusivity provision of workers' compensation law.
Further, even under the test established by the California court of appeal, Plaintiff's claim is not barred because her NIED claim is based on sexual harassment, conduct that violates California public policy and is therefore, beyond the normal risks of the employer and employee relationship. See Hernandez v. Hard Rock Cafe Int'l (USA), Inc., 2:07-CV-1088 FCD-DAD, 2007 WL 2782624, at *3 (E.D. Cal. Sept. 24, 2007) (holding that the plaintiff's NIED claim was not barred by workers' compensation law because it was based on sexual harassment, which exceeds the normal risks of the employment relationship.); Rascon v. Diversified Maint. Sys., 1:13-CV-1578 AWI-JLT, 2014 WL 1572554, at *10 (E.D. Cal. Apr. 17, 2014) ("Courts have found that NIED claims based on sexual harassment or failure to prevent sexual harassment are not preempted by the workers' compensation law.") (citing Hernandez, 2007 WL 2782624).
III. ORDER
For the reasons set forth above, the Court denies Defendant's Motion to Dismiss Plaintiff's Eleventh Cause of Action.
IT IS SO ORDERED. Dated: July 30, 2014
/s/_________
JOHN A. MENDEZ
UNITED STATES DISTRICT JUDGE