Garcia et al v. Terra Firma Farms, Inc. et al

Filing 17

ORDER signed by Judge John A. Mendez on 7/30/2014 ORDERING 4 the Court DENIES Defendant's Motion to Dismiss Plaintiff's Eleventh Cause of Action. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIGUELINA GARCIA, GERARDO
GARCIA, and CARLOS GARCIA,

No.

14-cv-00904 JAM-KJN

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Plaintiffs,
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ORDER DENYING DEFENDANT’S MOTION
TO DISMISS

v.
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TERRA FIRMA FARMS, INC., a
corporation, D. CAMPOS, INC.,
a corporation, EFRAIN SYLVA
CRUZ, an individual, and DOE
1 through DOE 100, inclusive,

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Defendants.
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This matter is before the Court on Defendant D. Campos

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Inc.’s (“Defendant’s”) Motion to Dismiss Plaintiff’s Eleventh

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Cause of Action (Doc. #4).

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(“Plaintiff”) opposes the motion (Doc. #6) and Defendant replied

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(Doc. #13). 1

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to Dismiss is denied.

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///

Plaintiff Miguelina Garcia

For the reasons set forth below, Defendant’s Motion

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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.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff, Gerardo Garcia (“Gerardo”), and Carlos

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(“Carlos”) Garcia (collectively “Plaintiffs”) originally filed

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this action on January 13, 2014, in Sacramento County Superior

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Court (Doc. #2) against Defendant, Terra Firma Farms, Inc.

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(“Terra Firma”), and Efrain Sylva Cruz (“Mr. Cruz”)

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(collectively “Defendants”).

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Court on April 11, 2014, based on federal question jurisdiction,

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28 U.S.C. § 1331.

Id.

This action was removed to this

In the complaint, Plaintiffs allege

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eighteen causes of action: (1) discrimination in violation 42

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U.S.C. § 2000e et seq.; (2) sex discrimination in violation of

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California Government Code § 12940(a); (3) harassment in

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violation of California Government Code § 12940(j);

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(4) retaliation in violation of 42 U.S.C. § 2000e-3(a);

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(5) retaliation in violation of California Government Code

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§ 12940(h); (6) breach of contract; (7) failure to prevent

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discrimination in violation of California Government Code

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§ 12940(k); (8) assault; (9) sexual battery; (10) intentional

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infliction of emotional distress; (11) negligent infliction of

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emotional distress; (12) negligent hiring, supervision, and

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retention; (13) constructive discharge in violation of public

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policy; (14) wrongful discharge in violation of public policy;

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(15) violation of California Civil Code § 51.9 Unruh Act;

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(16) violation of California Civil Code § 51.7 Unruh Act;

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(17) violation of California Civil Code § 52.1 Unruh Act; and

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(18) violation of California Labor Code § 1102.5 Whistleblower

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Protection (Doc. #2).

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Plaintiffs were allegedly employed by Defendant to provide
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Terra Firma with farm labor.

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to July 2012, Plaintiff worked on the farms owned by Terra Firma

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and under Mr. Cruz’s supervision.

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2012, Mr. Cruz allegedly whistled at Plaintiff and told her she

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was “pretty” and that she had “a big ass.”

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29, 2012, Mr. Cruz allegedly approached Plaintiff and directed

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her to walk ahead of him into a nearby tomato field.

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Once in the field, he allegedly forced Plaintiff “to the ground,

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sexually assaulted her, committed battery against her and

Compl. ¶¶ 16-19.

From June 2012

Id. ¶¶ 16, 26.

On June 13,

Id. ¶ 24.

On July

Id. ¶ 28.

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attempted to rape her.”

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police, who arrested Mr. Cruz.

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an employee of Defendant or Terra Firma. Id. ¶ 32.

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alleges that she suffered serious emotional distress as a

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result.

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Id. ¶ 29.

She escaped and called the

Id.

Plaintiff did not return as
Plaintiff

Id. ¶ 112.

Plaintiffs Gerardo and Carlos are Plaintiff’s father and

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brother respectively.

Id. ¶ 17.

Gerardo and Carlos allege that

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they were terminated by Terra Firma for assisting in the police

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investigation of Mr. Cruz’s sexual assault and battery.

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33.

Id. ¶

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II.

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OPINION

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A.

Judicial Notice

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Defendant requests judicial notice of (1) Plaintiffs’

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Superior Court Complaint dated January 13, 2014; (2) Plaintiff’s

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Workers Compensation Appeals Board Application dated August 14,

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2012; (3) Plaintiff’s Workers Compensation Appeals Board

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Application for Increased Award for Serious and Willful

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Misconduct; (4) Defendant’s Sacramento Superior Court Demurrer to
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Plaintiffs’ Complaint; and (5) Defendant Terra Firma’s Notice of

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Removal to Federal Court.

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(“DRJN”), Doc. #4-3, Ex. A-E.

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the third item in Defendant’s request for judicial notice.

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Opp. at 6.

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Def.’s Request for Judicial Notice
In response, Plaintiff objects to
See

Because Plaintiff’s complaint (item #1) and the Notice of

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Removal (item #5) are already part of the record, the Court

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denies Defendant’s requests.

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Defendant’s request for judicial notice as to the remaining

Further, the Court denies

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documents because they are not necessary for the determination of

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this motion.

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B.

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Defendant moves to dismiss Plaintiff’s eleventh cause of

Discussion

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action for negligent infliction of emotional distress (“NIED”)

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because the claim is barred by the exclusive remedy provision in

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California’s workers’ compensation law.

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she can pursue a NIED claim because the exclusivity provision

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does not bar NIED claims that do not result in personal physical

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injury or death.

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Plaintiff argues that

Under California Labor Code section 3600 (“Section 3600”),

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an employer is liable under California’s worker compensation law

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“for any injury sustained by his or her employees arising out of

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and in the course of the employment.”

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Section 3602(a) provides that when an injury is compensable under

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Section 3600, recovery under Section 3600 is the employee’s “sole

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and exclusive remedy.”

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Cal. Labor Code § 3600.

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
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remedy provision, in part, because there is a split in authority.

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See Opp. at 6 (alluding to the split in authority).

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Circuit has held that California workers’ compensation law does

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not bar claims for infliction of emotional distress if the

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injuries are purely emotional and do not result in physical

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injury.

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Cir. 1988) (interpreting Cole v. Fair Oaks Fire Protection Dist.,

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43 Cal.3d 148 (1987)).

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appeal rejected the physical versus non-physical injury

The Ninth

Robards v. Gaylord Bros., Inc., 854 F.2d 1152, 1157 (9th

Contrastingly, a California court of

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distinction outlined in Robards, holding that “an employee is

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confined to workers’ compensation recovery for emotional injuries

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negligently inflicted as part of the normal employment

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relationship.”

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Cal.App.3d 270, 275 (1990).

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Robomatic, Inc., v. Vetco Offshore, 225

This Court, however, must follow the binding Ninth Circuit

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decision if there is no California Supreme Court decision.

See

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Brewster v. Cnty. of Shasta, 112 F. Supp. 2d 1185, 1188 n.5 (E.D.

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Cal. 2000) (“While in the absence of other evidence, the opinions

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of California courts of appeal on questions of California law

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cannot simply be ignored, a conflicting decision of the Ninth

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Circuit obligates adherence by this court to the Circuit’s

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decision and rejection of the non-binding California precedent.”)

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(Internal quotation marks and citations omitted).

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Robards is binding.

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F.R.D. 441, 447 (E.D. Cal. 1991) (noting the split in authority,

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but following Robards because “the California Supreme Court has

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not yet resolved the issue, and until it does this Court is bound

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by the Ninth Circuit’s reading of California law, as set out in

Therefore,

See Chavira v. Payless Shoe Source, 140

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Robards”).
Here, Plaintiffs broadly allege that they suffered serious

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emotional distress and suffered “great anxiety, embarrassment,

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anger, loss of enjoyment of life, injury to reputation, and

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severe emotional and physical distress in an amount to be

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determined at trial.”

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allege “physical distress,” the term is too vague and refers to

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all three Plaintiffs.

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has not alleged a resulting disabling or physical injury.

Compl. at ¶115.

Even though Plaintiffs

Therefore, the Court finds that Plaintiff

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Accordingly, as in Robards, Plaintiff’s NEID claim is not barred

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by the exclusivity provision of workers’ compensation law.

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Further, even under the test established by the California

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court of appeal, Plaintiff’s claim is not barred because her NIED

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claim is based on sexual harassment, conduct that violates

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California public policy and is therefore, beyond the normal

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risks of the employer and employee relationship.

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v. Hard Rock Cafe Int’l (USA), Inc., 2:07-CV-1088 FCD-DAD, 2007

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WL 2782624, at *3 (E.D. Cal. Sept. 24, 2007) (holding that the

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plaintiff’s NIED claim was not barred by workers’ compensation

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law because it was based on sexual harassment, which exceeds the

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normal risks of the employment relationship.); Rascon v.

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Diversified Maint. Sys., 1:13-CV-1578 AWI-JLT, 2014 WL 1572554,

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at *10 (E.D. Cal. Apr. 17, 2014) (“Courts have found that NIED

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claims based on sexual harassment or failure to prevent sexual

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harassment are not preempted by the workers’ compensation law.”)

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(citing Hernandez, 2007 WL 2782624).

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See Hernandez

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III.

ORDER

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For the reasons set forth above, the Court denies

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Defendant’s Motion to Dismiss Plaintiff’s Eleventh Cause of

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Action.

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IT IS SO ORDERED.
Dated: July 30, 2014

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