Victor Garcia v. Rite Aid Corporation et al

Filing 14

ORDER RE PLAINTIFFS MOTION TO REMAND AND PLAINTIFFS MOTION TO DISMISS 9 by Judge Beverly Reid O'Connell: The Court finds that Defendants properly removed this action to this Court. Based on Plaintiff's request under Rule 41(a)(2), the Co urt GRANTS Plaintiff's request to dismiss his ninth and tenth causes of action. These claims are DISMISSED without prejudice. Because the Court finds that it retains jurisdiction over Plaintiff's remaining preempted claims and has supplem ental jurisdiction over Plaintiff's remaining non-preempted claims, the Court DENIES Plaintiffs Motion to Remand. Because removal was proper, the Court also DENIES Plaintiff's request for attorneys' fees. The hearing currently scheduled for Monday, May 8, 2017, is hereby VACATED. (rfi)

LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

Present: The Honorable

BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER RE PLAINTIFF’S MOTION TO REMAND AND PLAINTIFF’S
MOTION TO DISMISS [9]
I.

INTRODUCTION

Pending before the Court is Plaintiff Victor Garcia’s Motion to Remand and
Motion to Dismiss his breach of express and implied contract claims. (See Dkt. No. 9
(hereinafter, “Mot.”).) After considering the papers filed in support of and in opposition
to the instant motions, the Court deems this matter appropriate for resolution without oral
argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following
reasons, Plaintiff’s Motion to Remand is DENIED though his Motion to Dismiss his
ninth and tenth causes of action is GRANTED.
II.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background

Plaintiff is a Los Angeles, California resident who alleges that Defendant Rite Aid
Corporation (“Rite Aid”) wrongfully terminated him. (See Dkt. No. 1-1 (hereinafter,
“Compl.”) ¶ 1.) Rite Aid and Thrifty Payless Incorporated (“Thrifty”) are businesses
operating on Santa Monica Boulevard in Los Angeles, California. (See Compl. ¶¶ 2–3.)
Defendants Joe Rocha, Jilbert Shahdaryan, and Nichole Hubera were Plaintiff’s
supervisors when he worked for Rite Aid.1 (See Compl. ¶¶ 4–6.)

1

The Court will refer to Rite Aid, Thrifty, and the individual Defendants collectively as “Defendants.”

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

Rite Aid hired Plaintiff on August 12, 1985, and he began working at a store
located on Sunset Boulevard in Los Angeles, California.2 (Compl. ¶ 12.) Plaintiff
worked as a stock clerk and a cashier for thirty-one years. (See Compl. ¶¶ 12–13.)
Plaintiff claims that he “was a loyal and hard-working employee” who was well
respected by his coworkers and received positive feedback and performance reviews.
(See Compl. ¶ 13.)

Plaintiff is a fifty-one-year-old Latino male who suffers from disabilities, including
depressive disorder, allergic rhinitis, hypertension, and chronic leg, elbow, back, and
shoulder pain, of which Rite Aid was aware. (Compl. ¶ 14.) In October 2013, Plaintiff
injured his back at work when he fell down a set of stairs while moving a table. (Compl.
¶ 15(a).) Around the same time, Plaintiff claims that another supervisor “frequently”
called him “Grandpa” and supervisors made other age-related comments to him. (See
Compl. ¶¶ 15(b), (f).) In October 2014, Defendant Shahdaryan, a Rite Aid district
manager, and loss prevention manager Chris Wade questioned Plaintiff about improperly
searching a customer’s bag, though Plaintiff claimed he had not performed any search.
(Compl. ¶ 15(c).) Defendant Shahdaryan ultimately cleared Plaintiff of this accusation.
(Id.)
Plaintiff’s former manager, Robert Leggins, brought a lawsuit against Rite Aid and
against several Rite Aid employees. (See Compl. ¶ 16(a).) Plaintiff testified on behalf of
Mr. Leggins when the case went to trial in July 2015. (Compl. ¶¶ 16(b), (c).) Plaintiff
contends that once he returned to work, Defendant Rocha, his manager at the time,
“aggressively approached him” and inquired about Plaintiff’s testimony. (Compl.
¶ 15(d).) According to Plaintiff, Defendant Rocha retaliated against him for testifying on
Mr. Leggins’s behalf by giving him more difficult shifts and requiring him to work two
shifts without a ten-hour break in between them, in violation of his union contract.
(Compl. ¶¶ 16(f)–(h).) In addition, Plaintiff claims that Defendant Rocha would monitor
Plaintiff while he was working and stopped speaking to him at work, though he treated no
other employees this way. (Compl. ¶¶ 16(i), (j).)
In October 2015, Plaintiff injured himself while at work. (Compl. ¶ 16(k).)
Plaintiff alleges that Defendant Rocha did not allow Plaintiff to see his own doctor and

2

Plaintiff explains that Thrifty is also known as Rite Aid. (See Compl. ¶ 12.) For clarity, the Court will
refer only to Rite Aid throughout this Order.

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

made no injury report. (Id.) In December 2015, Plaintiff’s supervisor asked him to
follow and stop a suspected shoplifter. (Compl. ¶ 16(n).) After Plaintiff confronted the
shoplifter, the shoplifter struck him in the face. (Id.) The police came and took a report
and Plaintiff sought treatment for a contusion on his cheek. (Compl. ¶ 16(o).) Several
weeks later, two loss prevention employees came to Plaintiff’s store and interrogated him
about the shoplifting incident. (Compl. ¶ 16(s).) Plaintiff stopped the interrogation and
asked to have his union representative present. (Id.) Two days later, with union
representatives present, the investigation continued. (Compl. ¶ 16(t).) In addition,
throughout 2015 and 2016, Plaintiff alleges that Defendants Rocha and Shahdaryan asked
him to perform work “off the clock”. (Compl. ¶ 16(w).)

On March 20, 2016, Defendant Rocha terminated Plaintiff. (Compl. ¶ 19.)
According to Plaintiff, after his termination, Rite Aid’s “lawyers sent [him] a letter
insinuating that he was terminated for the shoplifting incident that occurred over three
months prior to his termination.” (Compl. ¶ 20.)
B.

Procedural Background

On February 14, 2017, Plaintiff filed the instant Action in the Superior Court of
California, County of Los Angeles. (See Compl.) Plaintiff’s Complaint includes
fourteen causes of action: (1) discrimination in violation of California’s Fair Employment
and Housing Act (“FEHA”); (2) harassment in violation of FEHA; (3) retaliation in
violation of FEHA; (4) failure to reasonably accommodate in violation of FEHA;
(5) failure to engage in the interactive process in violation of FEHA; (6) failure to prevent
discrimination, harassment, and retaliation in violation of FEHA; (7) retaliation in
violation of California Labor Code section 1102.5; (8) wrongful termination in violation
of public policy; (9) breach of express oral contract not to terminate without good cause;
(10) breach of implied-in-fact contract not to terminate without good cause;
(11) intentional infliction of emotional distress; (12) failure to provide meal breaks;
(13) failure to provide rest breaks; and, (14) intentional infliction of emotional distress.3
(See Compl.)
On March 17, 2017, Defendants removed the action to this Court on the basis of
federal question jurisdiction, because, according to Defendants, Plaintiff’s claims require

3

It appears that Plaintiff’s eleventh and fourteenth causes of action are duplicative.

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

the interpretation of a collective bargaining agreement (“CBA”) between Plaintiff’s
employer and a union. (See Dkt. No. 1 (hereinafter, “Removal”) ¶ 9.) Plaintiff filed the
instant Motion to Remand the action to the Superior Court on April 7, 2017. (See Mot.)
Defendants filed their Opposition on April 17, 2017. (See Dkt. No. 11 (hereinafter,
“Opp’n”).) Plaintiff replied on April 24, 2017. (See Dkt. No. 13.)
III.

LEGAL STANDARD

Federal courts are of limited jurisdiction and possess only that jurisdiction which is
authorized by either the Constitution or federal statute. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 1331, federal courts have
jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. A case “arises under” federal law if a plaintiff’s
“well-pleaded complaint establishes either that federal law creates the cause of action” or
that the plaintiff’s “right to relief under state law requires resolution of a substantial
question of federal law in dispute between the parties.” Franchise Tax Bd. v. Constr.
Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 13 (1983). 28 U.S.C. § 1441(a) provides
that a civil action may be removed to the district court only if the district court has
original jurisdiction over the issues alleged in the state court complaint.
In determining whether removal in a given case is proper, a court should “strictly
construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992). “Federal jurisdiction must be rejected if there is any doubt as to
the right of removal in the first instance.” Id. The removing party, therefore, bears a
heavy burden to rebut the presumption against removal. See id. “[T]he court resolves all
ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d
1039, 1042 (9th Cir. 2009) (citing Gaus, 980 F.2d at 566).
IV.

DISCUSSION

As stated above, the Court has jurisdiction over this action only if it arises under
federal law.4 28 U.S.C. § 1331. Plaintiff claims that the Court lacks jurisdiction and
requests that the Court remand the proceeding to state court. (See Mot.) Defendants
contend that the Court has federal question jurisdiction over this action because several of

4

Neither party argues that diversity jurisdiction pursuant to 28 U.S.C. § 1332 is applicable in this case.

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

Plaintiff’s claims are preempted by § 301 of the Labor Management Relations Act
(“LMRA”). (See Opp’n.)
A.

LMRA § 301 Preemption

Section 301 of the LMRA states:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this
chapter, or between any such labor organizations, may be brought in any
district court of the United States having jurisdiction of the parties, without
respect to the amount in controversy or without regard to the citizenship of
the parties.
29 U.S.C. § 185(a). The Supreme Court has explained that § 301 preempts any state law
cause of action for breach of contract between an employer and a labor organization.
Franchise Tax Bd., 463 U.S. at 23. “Any such suit is purely a creature of federal law,
notwithstanding the fact that state law would provide a cause of action in the absence of
§ 301.” Id. In addition, even if the plaintiff did not allege a breach of contract in the
complaint, a plaintiff’s claim is preempted by the LMRA if the claim “is either grounded
in the provisions of the labor contract or requires interpretation of it.” Burnside v. Kiewit
Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007) (citing Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 208–13 (1985)). Thus, the Court has jurisdiction if Plaintiff’s state law
claims are preempted by the LMRA.
Burnside articulated a two-part test to determine whether § 301 of the LMRA
preempts a plaintiff’s claim. Id. Courts must first determine whether the cause of action
is based on state law or a CBA. Id. If the cause of action is based on the CBA, the claim
is preempted. Id. However, if the cause of action’s source is state law, the court must
ask whether the claim depends on an analysis of the CBA.5 Id.

5

The Ninth Circuit recently addressed LMRA preemption in Alaska Airlines Inc. v. Schurke, 846 F.3d
1081 (9th Cir. 2017). The court employed a three-step process where the third step asks “whether the
state has shown an intent not to allow its prohibition to be altered or removed by private contract.” Id. at
1090 (citing Miller v. AT&T Network Sys., 850 F.2d 543, 548 (9th Cir. 1988)). The Miller court noted
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

B.

Date

May 3, 2017

Whether the LMRA Preempts Plaintiff’s Claims

In determining whether § 301 preempts state law, courts must first consider
“whether the asserted cause of action involves a right conferred upon an employee by
virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, then
the claim is preempted.” Id. To determine whether a right is independent of a CBA, a
court considers “the legal character of a claim, as ‘independent’ of rights under the
collective-bargaining agreement [and] not whether a grievance arising from ‘precisely the
same set of facts’ could be pursued.” Id. (quoting Livadas v. Bradshaw, 512 U.S. 107,
123 (1994)). Section 301 preempts only claims that are “founded directly on rights
created by collective-bargaining agreements.” Caterpillar, Inc. v. Williams, 482 U.S.
386, 394 (1987).
1.

Plaintiff’s Ninth and Tenth Causes of Action

First, Defendants contend that § 301 of the LMRA preempts Plaintiff’s ninth and
tenth causes of action for breach of express oral contract and breach of implied-in-fact
contract. (See Opp’n at 7–11.) Plaintiff contends that these agreements were extrinsic to
any CBA between the parties and, therefore, are not based on the CBA. (See Mot. at 18.)
Courts within the Ninth Circuit have rejected Plaintiff’s argument. See Price v. Ga.-Pac.
Corp., 99 F. Supp. 2d 1162, 1166 (N.D. Cal. 2000) (“[A]n employee in a position with
access to a CBA-sanctioned grievance procedure cannot state an individual claim for
breach of contract under state law. Such a claim is necessarily preempted by section
301.”).
In fact, the Ninth Circuit addressed a nearly identical factual scenario in Young v.
Anthony’s Fish Grottos, Inc., 830 F.2d 993 (9th Cir. 1987). There, the plaintiff alleged a
breach of an oral employment contract. Id. at 997. The plaintiff “contend[ed] that her
individual labor contract [was] independent of the CBA and that her contract claim [was]
thus not a claim for breach of the CBA.” Id. The court explained, however, that the

that courts typically only reach the first two parts. Id. Several recent Ninth Circuit rulings with respect
to LMRA preemption have used the two-part test. See, e.g., Kobold v. Good Samaritan Reg’l Med. Ctr.,
832 F.3d 1024, 1033 (9th Cir. 2016); Matson v. United Parcel Serv., Inc., 840 F.3d 1126, 1132 (9th Cir.
2016); Estrada v. Kaiser Found. Hosps., __ F. App’x __, No. 15-15133, 2017 WL 431463, at *1 (9th
Cir. Feb. 1, 2017). Accordingly, the Court will employ the two-part test.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

allegedly independent oral contract involved “a job position covered by the CBA.”6
“Because any ‘independent agreement of employment concerning that job position could
be effective only as part of the collective bargaining agreement,’ the CBA control[led]
and the contract claim [was] preempted.” Id. (quoting Olguin v. Inspiration Consol.
Copper Co., 740 F.2d 1468, 1474 (9th Cir. 1984)). Further, the court held that “[f]ederal
law not only preempt[ed] [the plaintiff’s] contract claim, but also supplant[ed] it with a
federal claim.” Id. at 998. The plaintiff could have brought a grievance pursuant to the
CBA to determine the effectiveness or scope of her individual contract, in which case a
federal court would have had jurisdiction pursuant to § 301 of the LMRA.7 Id. Thus, the
court concluded that the plaintiff’s contract claim could “be characterized as a section
301 claim and removed as completely preempted.” Id.

Therefore, as Young demonstrates, any contract extrinsic to the CBA but which
covers the same employment relationship as the CBA is preempted. See Ramirez v. Fox
Television Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“Section 301 completely
preempts any state causes of action based on alleged violations of contracts between
employers and labor organizations.”); Busey v. P.W. Supermarkets, Inc., 368 F. Supp. 2d
1045, 1054 (N.D. Cal. 2005) (“Thus, the Ninth Circuit precedent is clear that where a
relationship is otherwise governed by a collective bargaining agreement, state law
theories of breach of contract and implied covenant of good faith and fair dealing are
preempted, and subject to recharacterization as [a] Section 301 claim for breach of
contract.”); see also Hill v. The Boeing Co., 765 F. Supp. 2d 1208, 1213 (C.D. Cal. 2011)
(holding that § 301 preempted plaintiff’s breach of contract claim that alleged the

6

Though Plaintiff’s Complaint does not explicitly identify a relevant CBA, it does mention a “union
contract.” (See Compl. ¶ 16(g).) Defendants provide a copy of the CBA, and Plaintiff does not dispute
its applicability. (See Declaration of Barbara M. Kay (Dkt. No. 12-2), Ex. A (hereinafter, “CBA”).)
Therefore, looking beyond the face of the Complaint, it appears that the proffered CBA is applicable
here. See Young, 830 F.2d at 997 (“[The plaintiff’s] complaint does not reveal that her employment is
governed by a collective bargaining agreement. The district court, however, properly looked beyond the
face of the complaint to determine whether the contract claim was in fact a section 301 claim for breach
of a collective bargaining agreement . . . .”).
7

Plaintiff’s CBA also enumerates grievance procedures. (See CBA § 16.) Thus, like the plaintiff in
Young, Plaintiff could have brought a grievance under the CBA to determine the efficacy or scope of his
individual contract, which would have provided this Court with jurisdiction under the LMRA. See
Young, 830 F.2d at 998.
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

defendant terminated his employment without good cause); Bachilla v. Pac. Bell Tel. Co.,
No. Civ. S-07-739 RRB KJM, 2007 WL 2825924, at *5–*6 (E.D. Cal. Sept. 25, 2007)
(determining that implied contract claim was preempted by the LMRA). Accordingly,
the Court finds that Plaintiff’s ninth and tenth causes of action for alleged breach of an
express oral contract and an implied-in-fact contract are preempted by the LMRA and
provided a basis for removal of this action.
2.

Plaintiff’s Eighth Cause of Action

Plaintiff’s eighth cause of action alleges that he was wrongfully terminated in
violation of public policy. (See Compl. ¶¶ 75–80.) Plaintiff claims that his termination
was based on Defendants’ discriminatory animus, his conduct when he tried to stop the
alleged shoplifter (which Plaintiff characterizes as exercising his right to self-defense),
and his testifying on behalf of Mr. Leggins. (See Compl. ¶ 76.) A wrongful discharge
claim is preempted “if it is bound up with interpretation of the collective bargaining
agreement and furthers no state policy independent of the employment relationship.”
Young, 830 F.2d at 1002. It is not preempted, however, “if it poses no significant threat
to the collective bargaining process and furthers a state interest in protecting the public
transcending the employment relationship.” Id. at 1001.
The Ninth Circuit has held that alleged discriminatory discharge functions
independently of the CBA because “California has adopted a public policy against
discrimination in the work place.” Jackson v. S. Cal. Gas Co., 881 F.2d 638, 644 (9th
Cir. 1989). Therefore, wrongful termination claims based on allegedly discriminatory
discharge are not preempted. See id. But California has established no such similar
public policy for the right to self-defense. See Johnson v. CVS Pharm., Inc., No. C 1003232 WHA, 2011 WL 4802952, at *5 (N.D. Cal. Oct. 11, 2011) (explaining that
California law does not recognize a public policy tort based on the right to self-defense);
see also Keshe v. CVS Pharm., Inc., No. 2:14-cv-08418-CAS(MANx), 2016 WL
1367702, at *6 (C.D. Cal. Apr. 5, 2016) (“The court . . . declines to extend the scope of
the California public policy violations to include the right to self-defense in the
workplace.”). Nor does California recognize a public policy right for employees to
access the court system or participate in court proceedings. See Harber v. Am. Airlines,
No. C 03-4385 MJJ, 2004 WL 2324112, at *3–*4 (N.D. Cal. Oct. 12, 2004) (holding that
the plaintiff failed to identify an established public policy to support her wrongful
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

termination claim when she was fired for filing a police report based on work-related
conduct (citing Jersey v. John Muir Med. Ctr., 97 Cal. App. 4th 814, 822 (Cal. Ct. App.
2002))); see also Jersey, 97 Cal. App. 4th at 825 (holding that California recognizes no
public policy-based right to access the courts).

In this case, the CBA provides that Rite Aid may terminate employees for “good
and sufficient cause.” (CBA § 2.2.3.7.) Therefore, because Plaintiff alleges that his
termination was wrongful not just because it was discriminatory, but also because it was
wrongfully based on his own conduct during the alleged shoplifting incident and by
testifying at Mr. Leggins’s trial—which are not rights California recognizes as furthering
independent public policies—the trier of fact will be required to interpret the CBA’s
“good and sufficient cause” provision when determining whether Defendants wrongfully
terminated Plaintiff. See Hollinquest v. St. Francis Med. Ctr., 872 F. Supp. 723, 726 &
n.5 (C.D. Cal. 1994) (holding that the court “must examine the CBA” when determining
“whether Plaintiff was wrongfully terminated from her employment” where the CBA
provided that an employee could be terminated for just cause); see also Young, 830 F.2d
at 1002 (“Because no state public policy transcending the employment relationship
protects [the plaintiff’s] actions, her wrongful termination claim is preempted.”). Thus,
to the extent Plaintiff’s wrongful termination claim is based on Defendants’
discriminatory motive, it is not preempted. To the extent it is based on his right to selfdefense and his decision to testify at Mr. Leggins’s trial, however, it is.
3.

Plaintiff’s Eleventh and Fourteenth Causes of Action

In addition, Defendants argue that § 301 of the LMRA also preempts Plaintiff’s
eleventh and fourteenth causes of action for intentional infliction of emotional distress.
(See Opp’n at 16–20.) The Ninth Circuit has noted that determining whether the LMRA
preempts intentional infliction of emotional distress claims is “complicated . . . because
most state torts allowing recovery for intentional infliction of emotional distress require
the plaintiff to show that the defendant’s conduct was outrageous, extremely
unreasonable, or in some way inappropriate.” Miller, 850 F.2d at 550. “Because the tort
requires inquiry into the appropriateness of the defendant’s behavior, the terms of the
CBA can become relevant in evaluating whether defendant’s behavior was reasonable”;
certain conduct may be reasonable under the terms of a CBA that would not be otherwise.
See id. However, the Ninth Circuit has also counseled that “[t]hese complications do not
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

lead to preemption of all intentional infliction of emotional distress claims.” Id. at 550
n.5. “Such claims may not be preempted if the particular offending behavior has been
explicitly prohibited by statute or judicial decree . . . .” Id. For example, if a plaintiff
alleges that he suffered emotional distress due to his employer’s criminal activity, his
intentional infliction of emotional distress claim may not be preempted because the
outrageousness of this conduct is clear, regardless of the CBA’s terms. Id.

Put another way, a plaintiff’s “emotional distress claims are preempted if they can
be resolved only by referring to the terms of the CBA.” Perugini v. Safeway Stores, Inc.,
935 F.2d 1083, 1087 (9th Cir. 1991). In Perugini, the Ninth Circuit examined whether
§ 301 preempted a plaintiff’s emotional distress claim brought under California law. See
id. at 1087–89. Under California law, the elements to establish an intentional infliction
of emotional distress claim are (1) extreme and outrageous conduct by the defendant,
(2) the plaintiff’s suffering emotional distress, and, (3) actual and proximate causation.
Id. at 1087 (citing Cervantez v. J.C. Penney Co., 24 Cal. 3d 579, 593 (Cal. 1979)). The
court explained that because whether the employer’s refusal to, for example,
provide the plaintiff with light duty work constituted “extreme and outrageous conduct”
required the trier of fact to determine whether this decision was unreasonable under the
CBA’s terms, an emotional distress claim arising from this alleged conduct was
preempted. See id. at 1088. On the other hand, to the extent the plaintiff’s emotional
distress claim arose from discrimination and harassment, the court determined that the
plaintiff’s claim was not preempted because the “[t]he CBA [did] not govern the
offending behavior.” Id. Rather, “[t]he resolution of these claims depends on a purely
factual inquiry into the conduct and motivation of the employer.” Id.
Here, in his Reply, Plaintiff contends that his intentional infliction of emotional
distress claims arise only from his FEHA discrimination, retaliation, and harassment
claims. (See Reply at 4–5.) However, Plaintiff’s Complaint indicates that his emotional
distress claims arise from Defendants’ “discriminatory, harassing, and retaliatory actions;
violations of the labor code; and wrongful termination.”8 (Compl. ¶ 105.) Therefore,

8

Defendants argue that the CBA includes provisions governing scheduling and overtime, and therefore
Plaintiff’s claims that he suffered emotional distress because Rite Aid violated the CBA by scheduling
him improperly and failing to pay him overtime, (see Compl. ¶ 16(g)), require interpretation of the CBA,
(see Opp’n at 19). But Plaintiff does not appear to base his emotional distress claims on these
allegations; rather, as explained above, Plaintiff bases his emotional distress claims on his FEHA claims,
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

while courts within the Ninth Circuit have held that emotional distress claims arising
from discrimination, harassment, and retaliation are not preempted because such conduct
is not controlled by the terms of the CBA,9 see, e.g., Martinez v. Kaiser Found. Hosps.,
No. C-12-1824 EMC, 2012 WL 2598165, at *6 (N.D. Cal. July 5, 2012) (holding that
emotional distress claims arising from discrimination claims were not preempted because
“the focus is on discriminatory treatment, rather than the substantive provisions of the
CBA”), because Plaintiff also bases his emotional distress claim on Labor Code
violations and on his wrongful termination, the inquiry does not end there.

Instead, the Court must determine whether the reasonableness or outrageousness of
Defendants’ alleged Labor Code violations and their decision to terminate Plaintiff
require an interpretation of the CBA. See Busey, 368 F. Supp. 2d at 1052 (“Ninth Circuit
case law provides that the LMRA preempts an intentional infliction of emotional distress
claim when the CBA governs the offending behavior.”). In this case, the Court finds that
Plaintiff’s emotional distress claim arising from his allegedly wrongful termination
partially requires CBA interpretation, while the alleged Labor Code violations do not.
As explained above, to the extent Plaintiff alleges that his wrongful termination
was based on discriminatory or retaliatory animus it is not preempted. Therefore,
whether Defendants acted outrageously (and therefore caused Plaintiff emotional
distress) by wrongfully terminating him due to this animus does not require CBA
interpretation and this portion of Plaintiff’s emotional distress claim arising from his
alleged wrongful termination is not preempted. See Lee v. Eden Med. Ctr., 690 F. Supp.
2d 1011, 1021 (N.D. Cal. 2010) (“When the CBA governs the behavior, and the
underlying claims are preempted, the [intentional infliction of emotional distress] claims
relying upon them are also preempted. In contrast, when the underlying claims are not

violations of the Labor Code, and his wrongful termination. (See Compl. ¶ 105.) His Labor Code
allegations do not mention unpaid overtime or improper scheduling. Therefore, Plaintiff’s emotional
distress claims do not require the interpretation of the CBA’s scheduling or overtime provisions.
9

Likewise, the Court finds that Plaintiff’s first through sixth causes of action alleging discrimination,
retaliation, and harassment arising under FEHA are not preempted, as whether Defendants violated
FEHA is not governed by the terms of the CBA. See Brown v. Botman Med. Ctr., Inc., 571 F. App’x
572, 574–75 (9th Cir. 2014) (“We have consistently held that the LMRA does not preempt FEHA
claims.”); Ramirez, 998 F.2d at 750 (“In every case in which we have considered an action brought
under the [FEHA], we have held that it is not preempted by section 301.”).
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

preempted, neither are the claims for [intentional infliction of emotional distress].”
(citation omitted)).

However, when determining whether Plaintiff suffered emotional distress based on
the preempted portions of Plaintiff’s wrongful termination claim—i.e., whether
Defendants acted outrageously by terminating him because he exercised his right to selfdefense and his right to testify at Mr. Leggins’s trial—the trier of fact will be required to
interpret the CBA’s “good and sufficient cause” provision to determine whether the CBA
permitted Plaintiff’s termination. If so, Defendants did not participate in extreme or
outrageous conduct; but if not, then Defendants may be liable for Plaintiff’s emotional
distress. Accordingly, to the extent Plaintiff’s emotional distress claim arises from his
underlying preempted alleged wrongful termination claim, it is preempted. See Cook v.
Lindsay Olive Growers, 911 F.2d 233, 239 (9th Cir. 1990) (“[T]he basis of Cook’s
emotional distress claim is wrongful discharge . . . For this court to determine whether
LOG acted outrageously in firing him would require us to evaluate, as the grievance
committee did, whether LOG complied with the terms of the CBA regulating seniority
and work transfers.”); Newberry v. Pac. Racing Ass’n, 854 F.2d 1142, 1149 (9th Cir.
1988) (“From these allegations, it is clear that Newberry’s emotional distress claim arises
out of her discharge and the defendants’ conduct in the investigation leading up to it. A
determination of the validity of her emotional distress claims will require us to decide
whether her discharge was justified under the terms of the [CBA]. . . . It is therefore
preempted . . . .”). Thus, Plaintiff’s emotional distress claim arising from his alleged
wrongful termination is partially preempted.
As to Plaintiff’s allegations that Defendants’ failure to comply with the Labor
Code caused him emotional distress, this claim is not preempted. These alleged Labor
Code violations appear to be Defendants’ unlawful retaliation and termination of Plaintiff
for whistleblowing and Defendants’ failure to provide required meal and rest breaks.
(See Compl. ¶¶ 69–80, 96–103.)
Plaintiff’s seventh cause of action arises under California Labor Code section
1102.5. (Compl. ¶ 69–74.) Labor Code section 1102.5 provides a cause of action for
unlawful retaliation based on an employee’s reporting of unlawful conduct. See Brown,
571 F. App’x at 575 (“Under § 1102.5(b) of the California Labor Code, an employer may
not retaliate against an employee for disclosing a violation of a state or federal statute,
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

regulation, or rule.”). As the Ninth Circuit has explained, “[t]he elements of this claim
require an inquiry into the respective actions of the employer and the employee in order
to determine whether [the defendant] retaliated against [the plaintiff] after he engaged in
whistleblowing activity.” Id. “This inquiry will not depend on interpretation of terms in
the CBA.” Id. Thus, whether Defendants acted unreasonably or outrageously in
allegedly retaliating against Plaintiff does not require interpretation of the CBA.10
Accordingly, this claim is not preempted.

In addition, “[m]eal periods are a non-negotiable right under state law.”
Vasserman v. Henry May Newhall Mem’l Hosp., 65 F. Supp. 3d 932, 960 (C.D. Cal.
2014). Thus, the LMRA cannot preempt claims for meal period violations under the
California Labor Code. See Valles v. Ivy Hill Corp., 410 F.3d 1071, 1082 (9th Cir. 2005)
(finding no preemption of missed meal period claims because “[t]he right to meal periods
applies to signatories of collective bargaining agreements and constitutes a nonnegotiable
right under California state law”). Therefore, whether Defendants acted outrageously in
failing to provide meal periods is also an inquiry independent of the CBA.
Likewise, Plaintiff’s missed rest period claims “are based on rights conferred by
[the] California Labor Code” and “they exist as a matter of state law.” Meyer v. Irwin
Indus., Inc., 723 F. Supp. 2d 1237, 1245 (C.D. Cal. 2010). Therefore, “they are not
substantially dependent upon an interpretation of the CBA.” Id. Though the CBA
includes several provisions regarding rest periods, these provisions are of no moment.
(See CBA § 6.6.5.) “[I]t is irrelevant that the CBA provides similar claims under its own
terms where the state law claims can be resolved without any interpretation of the CBA.”
Id. (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409–10 (1988)).
Accordingly, whether Defendants acted outrageously in failing to provide rest periods
does not require interpretation of the CBA. Therefore, Plaintiff’s emotional distress
claims arising from these alleged Labor Code violations are not preempted.11

10

Moreover, for the same reasons, the underlying section 1102.5 claims are not preempted. See Brown,
571 F. App’x at 575 (finding section 1102.5 claim was not preempted).

11

For the same reasons Plaintiff’s emotional distress claims arising from this alleged conduct are not
preempted, neither are the underlying claims. Meal and rest breaks are rights provided by the California
Labor Code; the terms of the CBA have no bearing on whether Defendants have failed to comply with

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

In sum, Plaintiff’s first through seventh causes of action, based on violations of the
FEHA and California Labor Code are not preempted. Plaintiff’s eighth cause of action is
not preempted to the extent it arises from Defendants’ allegedly discriminatory or
retaliatory animus. It is preempted, however, to the extent Plaintiff contends he was
wrongfully terminated for exercising his right to self-defense and his right to testify.
Plaintiff’s ninth and tenth causes of action for breach of contract are preempted.
Plaintiff’s eleventh and fourteenth causes of action for emotional distress are not
preempted to the extent they arise from Defendants’ alleged discrimination, retaliation,
harassment, and Labor Code violations, but are preempted to the extent they arise from
Plaintiff’s wrongful discharge. Plaintiff’s twelfth and thirteenth causes of action for
missed meal and rest breaks are not preempted. Because this Court has jurisdiction over
Plaintiff’s preempted claims, see Vasserman, 65 F. Supp. 3d at 951, removal was proper.
C.

Whether Dismissal of Plaintiff’s Ninth and Tenth Claims Bears on this
Court’s Jurisdiction
1.

Whether to Dismiss Plaintiff’s Ninth and Tenth Causes of Action

Plaintiff requests that, if the Court finds that the LMRA preempts his ninth and
tenth breach of contract causes of action, the Court dismiss these claims.12 (See Mot. at
18–19.) Defendants argue that Plaintiff’s request is procedurally defective because in
order to amend his pleadings, Federal Rule of Civil Procedure 15 and Local Rule 15-1
require that he file a separate motion and a copy of his proposed amended complaint.
(Opp’n at 12 (citing Fed. R. Civ. P. 15; C.D. Cal. L.R. 15-1).) Federal Rule of Civil
Procedure 41(a)(2), however, provides that the court may dismiss claims “at the
plaintiff’s request . . . on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2).

the Labor Code’s requirements. See Valles, 410 F.3d at 1082 (finding the LMRA does not preempt
missed meal period claims); Meyer, 723 F. Supp. 2d at 1245 (finding the LMRA does not preempt
missed rest break claims).
12

It appears that Plaintiff brings this request under the assumption that these claims are the only
preempted claims and that by dismissing them, the Court will lose jurisdiction over the matter. (See
Mot. at 1–3, 18–19.) Plaintiff did not anticipate the Court’s conclusion here—that the LMRA partially
preempts his wrongful termination and emotional distress claims as well. Thus, to the extent Plaintiff
wishes to reassert his ninth and tenth causes of action under this Court’s jurisdiction, he may do so by
seeking to amend his Complaint.

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

Rule 41 does not require the plaintiff to file a separate motion or attach an amended
complaint. Therefore, the Court finds that Plaintiff’s request is not procedurally
defective.

“A district court should grant a motion for voluntary dismissal under Rule 41(a)(2)
unless a defendant can show that it will suffer some plain legal prejudice as a result.”
Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (footnote omitted). The Ninth
Circuit has “held that ‘legal prejudice’ means ‘prejudice to some legal interest, some
legal claim, some legal argument.’” Id. (quoting Westlands Water Dist. v. United States,
100 F.3d 94, 97 (9th Cir. 1996)). “[P]lain legal prejudice does not result merely because
the defendant will be inconvenienced by having to defend in another forum or where a
plaintiff would gain a tactical advantage by that dismissal.” Id.
Here, dismissal of Plaintiff’s ninth and tenth causes of action has no impact on the
proceedings because, as addressed below, the Court retains jurisdiction over the matter.
Therefore, Defendants have identified no prejudice they will suffer if Plaintiff’s ninth and
tenth causes of action are dismissed. Accordingly, the Court GRANTS Plaintiff’s
request to dismiss his ninth and tenth causes of action. As Rule 41(a)(2) indicates, a
plaintiff’s voluntary dismissal is without prejudice. See id. (“Unless the order states
otherwise, a dismissal under this paragraph (2) is without prejudice.”).
2.

Whether the Court Retains Subject Matter Jurisdiction

Neither Plaintiff nor Defendants provided argument as to whether the Court retains
subject matter jurisdiction over the entire proceeding if it dismisses Plaintiff’s ninth and
tenth causes of action, but finds—as it does here—that Plaintiff’s emotional distress and
wrongful discharge claims are partially preempted. As explained above, the Court has
jurisdiction over Plaintiff’s preempted claims. See Vasserman, 65 F. Supp. 3d at 951
(“Section 301(a) of the LMRA gives federal courts exclusive jurisdiction to hear ‘suits
for violation of contracts between an employer and a labor organization.’” (alteration
omitted) (quoting 29 U.S.C. § 185(a)). Whether the Court has jurisdiction over
Plaintiff’s other, non-preempted claims turns on whether the Court may properly exercise
supplemental jurisdiction over them. See Brown, 571 F. App’x at 576 (“We have held
that a district court may exercise supplemental jurisdiction over claims that are brought in
conjunction with claims that are preempted by the LMRA.”).
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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

Date

May 3, 2017

Pursuant to 28 U.S.C. § 1367(a), “in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). “A state law
claim is part of the same case or controversy when it shares a ‘common nucleus of
operative fact’ with the federal claims and the state and federal claims would normally be
tried together.” Bahrampour v. Lampert, 356 F.3d 969, 978 (9th Cir. 2004).

Here, the Court finds that Plaintiff’s non-preempted claims arise from the same
nucleus of operative fact as his partially preempted wrongful termination and emotional
distress claims. Specifically, all of Plaintiff’s claims, both preempted and nonpreempted, arise from Plaintiff and Defendants’ employment relationship, including
Defendants’ treatment of Plaintiff, motive for his termination, and the cause of his
emotional distress. See Jackson, 881 F.2d at 642 (“The remainder of Jackson’s state law
claims share with this federal claim [based on LMRA preemption] ‘a common nucleus of
operative fact’ because the claims arise from the alleged discriminatory conduct that
Jackson alleges caused him constructively to be discharged.”). In other words, his
“claims arise from the same conduct on the part of” Defendants; to decide all of
Plaintiff’s claims, the trier of fact will examine one factual scenario. Therefore, the Court
finds that it is appropriate to exercise supplemental jurisdiction over Plaintiff’s nonpreempted claims here. Saxe v. Cast & Crew Payroll, LLC, No. CV 15-01872 SJO
(VBKx), 2015 WL 4648041, at *9 (C.D. Cal. Aug. 4, 2015) (exercising supplemental
jurisdiction over non-LMRA preempted FEHA claims); see also Hernandez v. Pac. Mar.
Ass’n, 379 F. App’x 668, 671 (9th Cir. 2010) (affirming trial court’s exercise of
supplemental jurisdiction over non-LMRA preempted claims).
D.

Plaintiff’s Request for Attorneys’ Fees

Plaintiff requests that the Court award him attorneys’ fees incurred by filing the
instant Motion because Defendants had no reasonable basis for removal. (See Mot. at
20–21.) As determined above, however, removal was appropriate. Accordingly,
Plaintiff’s request is DENIED.

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LINK:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.

CV 17-02124 BRO (SKx)

Title

VICTOR GARCIA V. RITE AID CORPORATION ET AL.

V.

Date

May 3, 2017

CONCLUSION

For the foregoing reasons, the Court finds that Defendants properly removed this
action to this Court. Based on Plaintiff’s request under Rule 41(a)(2), the Court
GRANTS Plaintiff’s request to dismiss his ninth and tenth causes of action. These
claims are DISMISSED without prejudice. Because the Court finds that it retains
jurisdiction over Plaintiff’s remaining preempted claims and has supplemental
jurisdiction over Plaintiff’s remaining non-preempted claims, the Court DENIES
Plaintiff’s Motion to Remand. Because removal was proper, the Court also DENIES
Plaintiff’s request for attorneys’ fees. The hearing currently scheduled for Monday, May
8, 2017, is hereby VACATED.
:

IT IS SO ORDERED.
Initials of
Preparer

rf

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