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Cathe L. Caraway-Howard, SBN 143661
1 LAW OFFICES OF CATHE L. CARAWAY-HOWARD
2 8117 Manchester Avenue, Suite 505
Playa Del Rey, CA 90293
3 Office: (310) 488-9020
Fax: (866) 401-4556
4 Email: cathe@carawaylaw.com
5
Martin L. Horwitz, SBN 156056
6 THE LAW OFFICE OF MARTIN L. HORWITZ, P.C.
11150 W. Olympic Blvd., Suite 1120
7 Los Angeles, CA 90064-1850 E-FILED
Office: (310) 278-3833 10/6/2020 10:58 AM
8 Fax: (310) 228-3123 Superior Court of California
Email: martin@attorneyscounsel.com County of Fresno
9
By: J. Nelson, Deputy
10 Attorneys for Plaintiffs, THOMAS OTTO, and et. al.
11
CATHE L. CARAWAY-HOWARD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
8117 Manchester Avenue, Suite 505
Playa Del Rey, California 90293
FOR THE COUNTY OF FRESNO
LAW OFFICES OF
13
UNLIMITED JURISDICTION
14
15 THOMAS OTTO, an individual, ALBERTO ) Case No.: 20CECG00807
CHAVEZ GONZALEZ, an individual, )
) Honorable Tyler D. Tharpe
16 GUADALUPE ANDRADE, an individual, ) Department 501
JOSE LORENZO TAMAYO BERBER, an )
17 individual, ) PLAINTIFFS’ OPPOSITION TO
18 ) DEFENDANTS FOSTER FARMS, LLC AND
Plaintiffs, ) FOSTER POULTRY FARMS, INC.’S
19 ) DEMURRER TO THE FIRST AMENDED
vs. ) COMPLAINT; MEMORANDUM OF
20 ) POINTS AND AUTHORITIES.
)
FOSTER FARMS, LLC; a California Limited ) Date: October 20, 2020
21
Liability Company; FOSTER POULTRY ) Time: 3:27 p.m.
22 FARMS, INC., a California corporation; and ) Dept: 501
DOES 1 through 100, inclusive, )
23 ) Complaint filed: March 4, 2020.
) First Amended Complaint filed: June 30, 2020
Defendant(s). ) Trial date: None Set.
24
)
25 )
)
26 )
)
27 )
)
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 TO THE COURT, AND TO DEFENDANTS FOSTER FARMS, LLC, AND FOSTER
2 POULTRY FARMS, INC., AND THEIR ATTORNEYS OF RECORD:
3 Plaintiffs THOMAS OTTO, an individual, ALBERTO CHAVEZ GONZALEZ, an
4 individual, GUADALUPE ANDRADE, an individual, JOSE LORENZO TAMAYO BERBER, an
5 individual, collectively (“Plaintiffs”), hereby oppose the Demurrer to the First Amended Complaint
6 brought by Defendants FOSTER FARMS, LLC and FOSTER POULTRY FARMS, INC. (collectively
7 “Defendants” or “FF”), as follows:
8 MEMORANDUM OF POINTS AND AUTHORITIES
9 I. INTRODUCTION
10 The demurrer to the First Amended Complaint (“FAC”) must be denied because itis based
11 on a deliberate misreading of the FAC and misapplication of case law. As is common with defendants
CATHE L. CARAWAY-HOWARD
12 on demurrer, Defendants here have ignored the initial paragraphs of the Sixth and Tenth Causes of
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Playa Del Rey, California 90293
LAW OFFICES OF
13 Action that incorporate by reference the previously stated allegations of the FAC. Paragraphs 55 on
14 page 12 and paragraph 81 on page 17 do exactly that. Consequently, the factual allegations supporting
15 these two causes of action are more than adequate.
16 Further, Defendants’ tortured misconstruction of Maldonado to support its attack on the
17 Sixth Cause of Action for LC 226 penalties is a transparent attempt to eviscerate that statute’s entire
18 purpose and effect.
19 Nor does workers compensation exclusivity defeat Plaintiffs’ Tenth Cause of Action for
20 Negligence since the factual allegations of retaliation are outside of the compensation bargain, and
21 therefore plaintiffs can, and have, stated a sufficient claim.
22 Accordingly, the demurrer must be denied and Defendants ordered to Answer the FAC
23 forthwith.
24 II. RELEVANT ALLEGATIONS IN THE FAC
25 a. THE SIXTH CAUSE OF ACTION FOR INACCURATE WAGE
26 STATEMENTS IS BASED ON THE ABSENCE OF HOURS WORKED
27 BY THE PLAINTIFFS
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 The demurrer relies entirely on a single case, Maldonado v Episilon Plastics, Inc. (2018) 22
2 Cal. App. 5th 1308, 1337, for the proposition that “Claims under LC 226 are only viable if they allege
3 that wage statements do not accurately reflect the pay that an employee receives.” (Dem. P. 9:6-7)
4 This is a misquote. The actual text of the opinion provides, at page 1337:
5 “Wage statements should include the hours worked at each rate and the wages
6 earned. In a perfect world, the first numbers will calculate out to the second. But
7 when there is a [1337] wage and hour violation, the hours worked will differ from
8 what was truly earned. But only the absence of the hours worked will give
9 rise to an inference of injury; the absence of accurate wages earned will be
10 remedied by the violated wage and hour law itself, as is the case here.
11 This interpretation is supported by legislative intent. The purpose of section 226 is
CATHE L. CARAWAY-HOWARD
12 to ‘document the paid wages to ensure the employee isfully informed regarding
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Playa Del Rey, California 90293
those wages.’ v. Motel 6 Operating, L.P.
LAW OFFICES OF
13 the calculation of (Soto (2016) 4
14 Cal.App.5th 385, 392.) ‘The purpose of requiring greater wage stub information is
15 to insure that employees are adequately informed of compensation received and
16 are not shortchanged by their employers.’ (quoting Assem. Com. on Labor
17 and Employment, Analysis of Sen. Bill No. 1255 (2011–2012 Reg. Sess.) as
18 amended May 15, 2012, p. 3, italics added).”
19 Maldonado, supra , 22 Cal.App. 5th 1336-1337. [Emphasis added.]
20 The demurrer concludes that “Therefore, based on the reasoning in Maldonado, a plaintiff
21 cannot seek penalties under Labor Code section 226 for deficient wage statements unless the wage
22 statements do not accurately reflect the compensation that was paid to the plaintiff.” [Motion 6:13-16]
23 This is a tortured reading of Maldonado v Epsilon Plastics, Inc., (2018) 22 Cal.App 5th 1308.
24 The Maldonado opinion, published in 2018, was cited in several 2019 opinions, as follows:
25 “If an employer does not comply with the overtime rules applicable to a non-exempt
26 employee, that employee is entitled to premium pay of 1.5 times his regular hourly pay, and to
27 twice his regular hourly pay if required to work more than 12 hours in a day or more than
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 eight hours on the seventh day in a row. (§ 510, subd. (a).) What is more, the employer's
2 failure to compensate the employee at the statutory premium pay rate means that
3 the employee's pay checks are inaccurate and, if the employee quits or is fired, may mean
4 that he was willfully not paid the full amount of his unpaid wages when he departed, each of
5 which constitutes a separate Labor Code violation with itsown additional penalty. (§§ 226,
6 subds. (a)(1), (a)(2), (a)(5) & (a)(9), 203; see Maldonado v. Epsilon Plastics, Inc. (2018) 22
7 Cal.App.5th 1308, 1331-1332 [willful failure to pay overtime premiums violates law requiring
8 timely payment of full wages to departing employee].” [Emphasis added]
9 Zakaryan v. The Men's Wearhouse, Inc., (2019)
10 33 Cal.App.5th 659, 667
11 “"The Legislature enacted section 226 to ensure an employer 'document[s] the basis of the
CATHE L. CARAWAY-HOWARD
12 employee compensation payments' to assist the employee in determining whether he or she
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Playa Del Rey, California 90293
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13 has been compensated properly. [Citations.] Section 226 'play[s] an important role in
14 vindicating [the] fundamental public policy' favoring ' " 'full and prompt payment of an
15 employee's earned wages.' " ' [Citation.]" (Soto v. Motel 6 Operating, L.P. (2016) 4
16 Cal.App.5th 385, 390; Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1337
17 ["The purpose of requiring greater wage stub information is to insure that employees are
18 adequately informed of compensation received and are not shortchanged by their employers"].
19 Savea v. YRC Inc., (2019)
20 34 Cal.App.5th 173
21 The Demurrer acknowledges as follows: “Plaintiffs’ First Amended Complaint alleges that the
22 wage statements were not accurate because they did not reflect hours for off the clock “on call” time
23 and for allegedly noncompliant meal and rest breaks for which no premium pay was paid. (Complaint,
24 ¶ 61.)” [Motion 6:19-22]. Additionally, the FAC details how Defendants did not record all of
25 Plaintiffs’ hours worked, and how those hours worked were absent from Defendants itemized wage
26 statements. The FAC quite clearly states that, “This additional time and compensation were
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 never reflected on the itemized statements issued by Defendants to Plaintiffs; …” (FAC
2 para. 57, p. 13:7-12).
3 That there may be a dispute over facts/liability does not mean that the cause of action is not
4 sufficiently pled. A demurrer tests the sufficiency of the plead, not the proof necessary for trial.
5 Indeed, if the standard of pleading were such that the defendant had to agree money was owed, no
6 case would ever survive the demurrer stage.
7 This cause of action was sufficient pled, and whether defendants can show that the wages
8 were not owed, and therefore the wage statements were properly documented, will be investigated in
9 the discovery phase, and considered at trial.
10 The FAC alleges at the beginning of the Sixth Cause of Action for Failure to Provide Accurate
11 Itemized Wage Statements in Violation of Labor Code §§226, at page 12, line 11: “Plaintiffs re-allege
CATHE L. CARAWAY-HOWARD
12 and incorporate each allegation of the preceding paragraphs.” This includes paragraphs 1 to 54.
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Playa Del Rey, California 90293
LAW OFFICES OF
13 The FAC further alleges from paragraph 17 to paragraph 29:
14 “17. At all relevant times alleged herein, Plaintiffs, as a condition of their employment,
15 were required to remain on Defendants’ premises, on duty and subject to the control
16 of Defendants 24- hours per day. However, from four years prior to the filing of this
17 action, to the present, Defendants paid Plaintiffs for only 10 hours worked per day.
18 This time spent outside the 10 “scheduled” hours while Plaintiffs were responsible for
19 the communication device for the ranch shall be referred to herein as “on-call time.”
20 More recently, Defendants have paid Plaintiffs for some, but not all,of the on-call
21 time spent responding to alarms and calls and employed relief workers during some,
22 but not all, of the on-call time.
23 18. Defendants imposed excessive geographical restrictions on Plaintiffs’ movements
24 during on-call time. Defendants required Plaintiffs to remain on Defendants’ premises
25 when on charge as a condition of employment and to spend all on-call time on-
26 premises, either in the residence provided by Defendants or elsewhere on the ranch.
27 During on-call time, Plaintiffs cannot leave the premises without (1) firstnotifying
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 defendants, (2) obtaining Defendants’ express permission and (3) waiting another
2 FOSTER FARMS employee to take responsibility for the communication device for
3 the ranch, sometimes even for a month (Guadalupe Andrade was on Charge for a
4 month as a Rancher without relieve when Ranch Manager was on holiday)
5 19. As there is a substantial risk that the chickens, for which Plaintiffs are responsible,
6 will animal welfare issues in the chicken houses regardless of whether the alarms
7 sound or issues arise during scheduled work hours or on-call time. These alarms and
8 animal welfare issues occur frequently and can last a few minutes or a few hours. In
9 order to respond, Plaintiffs must don special clothing that complies with the
10 Defendants’ policies, including bio-security policies and procedures, and other rules
11 and requirements. If an alarm sounds and Plaintiffs fail to immediately respond, they
CATHE L. CARAWAY-HOWARD
12 will be contacted by a dispatcher and ordered to respond to the alarm promptly.
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Playa Del Rey, California 90293
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13 During on-call time, Plaintiffs have also been responsible for other Ranch Managers’
14 chicken houses, in addition to their own. Defendants require Plaintiffs to maintain a
15 “mortality record” of the chicken deaths on their watch.
16 20. Plaintiffs cannot and could not easily trade on-call responsibilities. They had to
17 request the time off and receive permission to take it after the Defendants found a
18 suitable replacement. Defendants could refuse and have refused the requests for time
19 off during on-call time. Defendants actively discouraged taking time off from work
20 because it cost Defendants more to pay relief workers to cover Chicken Ranch.
21 21. Defendants placed restrictions on nonemployee visitors, pets, and alcohol use at
22 the ranches and restricted Plaintiffs’ travel. Plaintiffs had to comply with strict
23 limitations on where they could go during their off-duty time and had to avoid all
24 contact with animals. In some cases, Defendants required two to three days in
25 quarantine following a vacation before Plaintiffs will be permitted to return to work at
26 Defendants’ chicken ranches.
27 22. All of Plaintiffs’ on-call time was spent primarily for the benefit of Defendants and
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 their business. Defendants provided dwellings to some of the Plaintiffs, primarily to
2 assist and support the job assignment of said ranch forepersons and supervisor on its
3 poultry raising farm operations. The Defendants sell chickens. If the chickens become
4 sick, injured, or die, the Defendants cannot sell them. Plaintiffs’ 24-hour presence on
5 the chicken ranch is to ensure the welfare of the chickens and the security of the
6 ranches and is integral to the Defendants’ business.
7 23. From four years prior to the filing of this action to the present, Defendants’ policy
8 applicable to Plaintiffs has been not to pay Assistant Ranch Managers for on-call time.
9 Defendants’ policy changed at some point to pay for time spent responding to alarms
10 and animal welfare issues However, no other time is paid, including time spent
11 engaged to wait to respond to alarms and calls, responding to alarms and calls and
CATHE L. CARAWAY-HOWARD
12 chicken emergencies, performing other duties for Defendants, and donning and
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13 doffing special clothing required by the Defendants.
14 24. At all relevant times, Plaintiffs, and each of them, were not exempt from overtime
15 and double-time premium wages because they were never paid a salary of two times
16 minimum wage and they did not primarily engage in exempt duties. Defendants did
17 not maintain accurate records of Plaintiffs’ hours worked.
18 25. Defendants required the Plaintiffs to remain on duty through all meal periods and
19 rest periods and to carry their pagers or cell phones or other communication devices
20 throughout their meal and rest periods. If their pagers go off, cell phone rings, an
21 alarm sounds, or animal welfare issues arise, during a meal or rest period, Plaintiffs are
22 required by Defendants to interrupt the meal or rest period and respond immediately
23 and in-person to the alarm or issue. Defendants have never compensated Plaintiffs for
24 any on-duty meal or rest periods.
25 26. For those Plaintiffs who were required to reside on Defendants’ premises,
26 Defendants imposed a variety of restrictions on them. For those Plaintiffs who did not
27 reside on Defendants’ premises, during the periods they were responsible for the
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 ranch and/or the ranch’s communication device, Defendants’ restrictions were so
2 burdensome that Plaintiffs were unable to engage in many personal activities. For
3 example, Defendants would require Plaintiffs to remain in constant contact,
4 maintaining a cell phone that would alert Plaintiffs about alarms or issues that
5 Plaintiffs were required to immediately respond to Additionally, Plaintiffs were (1) not
6 free to invite family or guests to the ranch where they were required to remain, and (2)
7 were required to seek pre-approval before guests could visit, (3) were required to
8 identify all individuals living in the residence; and (4) were prohibited from frequenting
9 locations that may expose Plaintiffs to animals, i.e. swap-meets, farmers’ markets, etc.
10 When an alarm sounded or an animal welfare issue arose, Plaintiffs were required to
11 respond in person and immediately on-call. Accordingly, while on-call, Plaintiffs were
CATHE L. CARAWAY-HOWARD
12 unable to use the time freely and effectively for their own purposes.
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Playa Del Rey, California 90293
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13 27. While on-call, Plaintiffs were not paid by Defendants and would frequently begin
14 their workday immediately following having responded to a call. For example, a
15 Plaintiff may receive an otherwise die within minutes, Plaintiffs must respond
16 immediately and in-person to all alarms and emergency call at 3:00 a.m., resolve the
17 problem and then simply continue working through the rest of the day. This was a
18 common occurrence for Plaintiffs, and each of them during their work time.
19 28. Put simply, Defendants operate to maximize profits at the expense of their
20 employees and through multiple schemes which:
21 a. Deprive employees of legally mandated wages; and
22 b. Require its employees to work more than 10 hours in a workday
23 and/or more than 60 hours in a work week without receiving proper compensation;
24 including straight and overtime compensation; and
25 c. Deprived employees of the required duty-free meal and rest periods.
26 29. Plaintiffs are entitled to unpaid wages, unpaid minimum wages, unpaid overtime
27 compensation, meal and rest period wages, interest on such amounts, civil and
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 statutory penalties, and attorney’s fees litigation costs, and such other relief as may be
2 available to them.”
3 The FAC further alleges at paragraph 57:
4 57. Defendants, and each of them, failed and refused to keep accurate records of
5 Plaintiffs’ hours worked because the records did not reflect the time that Defendants,
6 and each of them, required Plaintiffs to work off the clock as “on-call” and to remain
7 on duty through their meal and rest periods without additional compensation. This
8 additional time and compensation were never reflected on the itemized
9 statements issued by Defendants to Plaintiffs; thus Defendants, and each of them
10 failed to provide accurate itemized wage statements to Plaintiffs.”
11 [Emphasis added]
CATHE L. CARAWAY-HOWARD
12 Defendants’ argument that LC 226 penalties are not available as long as the wage statements
8117 Manchester Avenue, Suite 505
Playa Del Rey, California 90293
accurately reflect the pay received eviscerates the purpose of LC 226 and the requirement for accurate
LAW OFFICES OF
13
14 records of time and compensation. Taken to its logical extreme, accepting the Defendants argument
15 would allow employers to list a single hour on a pay stub, and pay only for that single hour, and
16 escape any penalty, even for the absence on that pay stub of the employee’s other hours worked.
17 The Foster Farms wage statements do not reflect the actual number of hours worked. They
18 do not reflect the hours worked while on-call or while responding to alarms. The wage statements do
19 not reflect the hours worked through meal periods. Thus, hundreds and potentially thousands of
20 hours were absent from the Plaintiffs’ wage statements.
21 Accordingly, the FAC adequately alleges the necessary facts to support the Sixth Cause of
22 Action and the demurrer must be overruled, and this cause of action permitted to proceed to trial.
23 b. THE TENTH CAUSE OF ACTION FOR NEGLIGENCE IS BASED ON
24 DEFENDANTS’ RETALIATION AGAINST PLAINTIFFS
25 The Demurrer to this cause of action is based on the assertion that a retaliation claim falls
26 within the normal compensation bargain, and therefore is barred by the Worker’s Compensation
27 exclusivity. Without offering any code or case as support, defendants argue that this cause of action
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 needs to be pled with particularity and specificity, as ifit were a fraud claim. Further, defendants
2 protest that “[t]here is no dispute here that Plaintiffs’ negligence claim arises out of the
3 “compensation bargain” between Plaintiffs and Foster Farms” [Motion 7:21-23]. Actually, there a
4 dispute over this contention, and, as the claim is properly pled, the dispute is left for determination at
5 trial. As stated above, simply because a defendant disagrees with the pleading, does not mean the
6 cause of action is not sufficiently stated.
7 Conduct that is not a normal incident of employment does not fall within the exclusive
8 remedy provisions of the Worker’s Compensation Act. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701,
9 723.
10 “In sum, absent further guidance from our Supreme Court, we are unwilling to abandon the
11 longstanding view that unlawful discrimination and retaliation in violation of FEHA falls
CATHE L. CARAWAY-HOWARD
12 outside the compensation bargain and therefore claims of intentional infliction of emotional
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13 distress based on such discrimination and retaliation are not subject to workers' compensation
14 exclusivity. While the Supreme Court in Miklosy held that allegations of whistleblower
15 retaliation were insufficient to state an exception to workers' compensation exclusivity, it did
16 not remove the jurisprudential basis on which numerous authorities have held that allegations
17 of FEHA discrimination and retaliation did state such an exception. We therefore adhere to
18 those authorities here.”
19 Light v. Department of Parks & Recreation, (2017)
20 14 Cal.App.5th 75, 101
21 The First Amended Complaint alleges that the Defendants’ retaliated against Plaintiffs:
22 “..forced Plaintiffs to quit by intentionally created or knowingly permitted working
23 conditions to exist that were so intolerable that a reasonable person in Plaintiffs’
24 position would have no reasonable alternative but to resign. Alternatively, Defendants,
25 and each of them, retaliated by firing Plaintiffs for their protected activity…” [FAC,
26 page 15:16-19]
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 Retaliation is not a normal part of the employment relationship. Murray v. Oceanside
2 Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362-1363; Fretland v. County of
3 Humboldt (1999) 69 Cal.App.4th 1478, 1492 citing Livitsanos v. Superior Court (1992)
4 2 Cal.4th 744, and City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1155.
5 The Court, in M.F. v. Pacific Pearl Hotel Management LLC, (2017) 16 Cal.App.5th 693, 700
6 addressed this subject as follows:
7 “Pacific does not dispute the workers' compensation exclusivity doctrine is inapplicable to
8 claims under the FEHA. (See B & E Convalescent Center v. State Compensation Ins. Fund
9 (1992) 8 Cal.App.4th 78, 89--92; Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 91; Jones
10 v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 808--809; see also Light
11 v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97--98 [citing a number of
CATHE L. CARAWAY-HOWARD
12 California authorities concluding "claims for intentional infliction of emotional distress in the
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13 employment context may be asserted where the actionable conduct also forms the basis for a
14 FEHA violation"].) Consequently, if the complaint states viable claims against Pacific under
15 the FEHA, the workers' compensative exclusivity doctrine presents no bar to M.F.'s claims,
16 and the complaint is not subject to a general demurrer on this ground.”
17 The Tenth Cause of Action incorporates by reference the previously stated allegations of the
18 FAC at paragraph 81. Consequently, the Tenth Cause of Action for Negligence includes the following
19 allegations, beginning at paragraph 71, page 15 of the FAC:
20 “71. Defendants, and each of them, believed that Plaintiffs, and each of them, have
21 opposed Defendants’ unlawful conduct as allege herein, including but not limited to
22 bringing a lawsuit or otherwise making a claim for unpaid wages as alleged herein.
23 72. Plaintiffs, and each of them, reasonably believed that Defendants, and each of
24 them, had violated Plaintiffs’ wage and hour rights under California and federal law.
25 73. Plaintiffs, and each of them, notified Defendants, and each of them, that they, the
26 Plaintiffs, were supporting a class action lawsuit against Defendants, and some of the
27 Plaintiffs testified against Defendants in that case.
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 74. In retaliation, Defendants, and each of them, forced Plaintiffs to quit by
2 intentionally created or knowingly permitted working conditions to exist that were so
3 intolerable that a reasonable person in Plaintiffs’ position would have no reasonable
4 alternative but to resign. Alternatively, Defendants, and each of them, retaliated by
5 firing Plaintiffs for their protected activity.
6 75. Defendants, and each of them, retaliated against Plaintiffs who remain employed
7 with Defendants, and each of them, for Plaintiffs’ protected activity, in addition to
8 doing the aforementioned things that caused some of the Plaintiffs to lose their jobs
9 with Defendants. Defendants and each of them have engaged in a pattern of
10 harassment that, taken as a whole, materially, and adversely affected the terms,
11 conditions, or privileges of the Plaintiffs’ employment. Defendants attempted to or in
CATHE L. CARAWAY-HOWARD
12 fact impaired Plaintiffs’ job performance and/or prospects for advancement or
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13 promotion, and deliberately reduced such Plaintiffs’ income. This pattern of
14 harassment against the Plaintiffs who are current employees of Defendants includes
15 but is not limited to:
16 a. Falsifying mortality and other records for Plaintiffs’ ranches, holding
17 Plaintiffs responsible for the production problems indicated by the
18 falsified records, including from denying eligibility for bonuses to
19 discipline for failing to meet production goals;
20 b. Deliberately understaffing Plaintiffs’ ranches with laborers and
21 assistants and then disciplining Plaintiffs for not getting allthe work
22 done by themselves or without the ordinary levels of help;
23 c. Excluding currently employed Plaintiffs from FOSTER FARMS
24 programs which impairs the ability to meet FOSTER FARMS’
25 production goals;
26 d. Disciplining Plaintiffs for following their supervisors’ instructions;
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 e. Giving instructions to Plaintiffs that result in poor production results
2 and disciplining Plaintiffs for not following those instructions and for
3 not getting the work done;
4 f. Changing instructions from long-term practices to make it more
5 difficult for Plaintiffs to complete their duties, meet the production
6 goals, or earn bonuses;
7 g. Changing the bonus structure and/or the bonus goals so that
8 Plaintiffs have a much more difficult time meeting them and earning
9 bonuses;
10 h. Failing and refusing to pay Plaintiffs bonuses when they have met
11 the goals and criteria for doing so, without explanation;
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12 i. Cutting Plaintiffs’ hours for which it pays wages;
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13 j. Changing the work schedule so that Plaintiffs work more days per
14 week for less pay;
15 and
16 k. Eliminating accumulated sick time from Plaintiffs.
17 76. Defendants were substantially motivated to take these retaliatory and adverse
18 employment actions against currently employed Plaintiffs, and each of them, as alleged
19 herein, based on Defendants’ knowledge that Plaintiffs supported the wage and hour
20 class action, had hired counsel, and were bringing their own claims for unpaid wages
21 against Defendants.
22 77. Plaintiffs were harmed when they were forced to quit, and Defendants actions, as
23 alleged herein were a substantial factor in causing the harm to Plaintiffs, and each of
24 them. Currently employed Plaintiffs were harmed when Defendants engaged in the
25 retaliatory actions alleged herein, causing the harm alleged above, and such actions by
26 Defendants, and each of them were a substantial factor in causing the harm to
27 currently employed Plaintiffs, and each of them.”
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 The Worker’s Compensation statute does not preempt this cause of action, and the plaintiffs
2 should be allow to proceed to trial on this cause of action.
3 CONCLUSION
4 Given that the FAC adequately alleges facts to support the Sixth and Tenth Causes of Action,
5 Plaintiffs respectfully request the Court overrule the Demurrer and Order Defendants to Answer the
6 FAC forthwith.
7
8 DATED: October 5, 2020 LAW OFFICES OF CATHE L. CARAWAY-HOWARD
9
Cathe Caraway-Howard
10 By __________________________________________
CATHE L. CARAWAY-HOWARD, Esq.
11 Attorney for Plaintiffs,
CATHE L. CARAWAY-HOWARD
12 Thomas Otto, Alberto Chavez Gonzalez,
8117 Manchester Avenue, Suite 505
Guadalupe Andrade, Jose Lorenzo Tamayo Berber
Playa Del Rey, California 90293
LAW OFFICES OF
13
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DATED: October 5, 2020 LAW OFFICE OF MARTIN L. HORWITZ, P.C.
15
16 By ____________________________________
MARTIN L. HORWITZ, Esq.
17
Attorney for Plaintiffs,
18 Thomas Otto, Alberto Chavez Gonzalez,
Guadalupe Andrade, Jose Lorenzo Tamayo Berber
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC
1 PROOF OF SERVICE
2
3 I am employed in the County of Los Angeles, State of California. I am over the age of
4 eighteen (18) years and not a party to this action. My business address is 11150 W. Olympic
5 Boulevard, Suite 1120, Los Angeles, California 90064. On October 6, 2020, I served the foregoing
6 document(s) described as:
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Cathe L. Caraway-Howard, SBN 143661 1 LAW OFFICES OF CATHE L. CARAWAY-HOWARD 2 8117 Manchester Avenue, Suite 505 Playa Del Rey, CA 90293 3 Office: (310) 488-9020 Fax: (866) 401-4556 4 Email: cathe@carawaylaw.com 5 Martin L. Horwitz, SBN 156056 6 THE LAW OFFICE OF MARTIN L. HORWITZ, P.C. 11150 W. Olympic Blvd., Suite 1120 7 Los Angeles, CA 90064-1850 E-FILED Office: (310) 278-3833 10/6/2020 10:58 AM 8 Fax: (310) 228-3123 Superior Court of California Email: martin@attorneyscounsel.com County of Fresno 9 By: J. Nelson, Deputy 10 Attorneys for Plaintiffs, THOMAS OTTO, and et. al. 11 CATHE L. CARAWAY-HOWARD SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 FOR THE COUNTY OF FRESNO LAW OFFICES OF 13 UNLIMITED JURISDICTION 14 15 THOMAS OTTO, an individual, ALBERTO ) Case No.: 20CECG00807 CHAVEZ GONZALEZ, an individual, ) ) Honorable Tyler D. Tharpe 16 GUADALUPE ANDRADE, an individual, ) Department 501 JOSE LORENZO TAMAYO BERBER, an ) 17 individual, ) PLAINTIFFS’ OPPOSITION TO 18 ) DEFENDANTS FOSTER FARMS, LLC AND Plaintiffs, ) FOSTER POULTRY FARMS, INC.’S 19 ) DEMURRER TO THE FIRST AMENDED vs. ) COMPLAINT; MEMORANDUM OF 20 ) POINTS AND AUTHORITIES. ) FOSTER FARMS, LLC; a California Limited ) Date: October 20, 2020 21 Liability Company; FOSTER POULTRY ) Time: 3:27 p.m. 22 FARMS, INC., a California corporation; and ) Dept: 501 DOES 1 through 100, inclusive, ) 23 ) Complaint filed: March 4, 2020. ) First Amended Complaint filed: June 30, 2020 Defendant(s). ) Trial date: None Set. 24 ) 25 ) ) 26 ) ) 27 ) ) 28 –1– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 TO THE COURT, AND TO DEFENDANTS FOSTER FARMS, LLC, AND FOSTER 2 POULTRY FARMS, INC., AND THEIR ATTORNEYS OF RECORD: 3 Plaintiffs THOMAS OTTO, an individual, ALBERTO CHAVEZ GONZALEZ, an 4 individual, GUADALUPE ANDRADE, an individual, JOSE LORENZO TAMAYO BERBER, an 5 individual, collectively (“Plaintiffs”), hereby oppose the Demurrer to the First Amended Complaint 6 brought by Defendants FOSTER FARMS, LLC and FOSTER POULTRY FARMS, INC. (collectively 7 “Defendants” or “FF”), as follows: 8 MEMORANDUM OF POINTS AND AUTHORITIES 9 I. INTRODUCTION 10 The demurrer to the First Amended Complaint (“FAC”) must be denied because itis based 11 on a deliberate misreading of the FAC and misapplication of case law. As is common with defendants CATHE L. CARAWAY-HOWARD 12 on demurrer, Defendants here have ignored the initial paragraphs of the Sixth and Tenth Causes of 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 Action that incorporate by reference the previously stated allegations of the FAC. Paragraphs 55 on 14 page 12 and paragraph 81 on page 17 do exactly that. Consequently, the factual allegations supporting 15 these two causes of action are more than adequate. 16 Further, Defendants’ tortured misconstruction of Maldonado to support its attack on the 17 Sixth Cause of Action for LC 226 penalties is a transparent attempt to eviscerate that statute’s entire 18 purpose and effect. 19 Nor does workers compensation exclusivity defeat Plaintiffs’ Tenth Cause of Action for 20 Negligence since the factual allegations of retaliation are outside of the compensation bargain, and 21 therefore plaintiffs can, and have, stated a sufficient claim. 22 Accordingly, the demurrer must be denied and Defendants ordered to Answer the FAC 23 forthwith. 24 II. RELEVANT ALLEGATIONS IN THE FAC 25 a. THE SIXTH CAUSE OF ACTION FOR INACCURATE WAGE 26 STATEMENTS IS BASED ON THE ABSENCE OF HOURS WORKED 27 BY THE PLAINTIFFS 28 –2– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 The demurrer relies entirely on a single case, Maldonado v Episilon Plastics, Inc. (2018) 22 2 Cal. App. 5th 1308, 1337, for the proposition that “Claims under LC 226 are only viable if they allege 3 that wage statements do not accurately reflect the pay that an employee receives.” (Dem. P. 9:6-7) 4 This is a misquote. The actual text of the opinion provides, at page 1337: 5 “Wage statements should include the hours worked at each rate and the wages 6 earned. In a perfect world, the first numbers will calculate out to the second. But 7 when there is a [1337] wage and hour violation, the hours worked will differ from 8 what was truly earned. But only the absence of the hours worked will give 9 rise to an inference of injury; the absence of accurate wages earned will be 10 remedied by the violated wage and hour law itself, as is the case here. 11 This interpretation is supported by legislative intent. The purpose of section 226 is CATHE L. CARAWAY-HOWARD 12 to ‘document the paid wages to ensure the employee isfully informed regarding 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 those wages.’ v. Motel 6 Operating, L.P. LAW OFFICES OF 13 the calculation of (Soto (2016) 4 14 Cal.App.5th 385, 392.) ‘The purpose of requiring greater wage stub information is 15 to insure that employees are adequately informed of compensation received and 16 are not shortchanged by their employers.’ (quoting Assem. Com. on Labor 17 and Employment, Analysis of Sen. Bill No. 1255 (2011–2012 Reg. Sess.) as 18 amended May 15, 2012, p. 3, italics added).” 19 Maldonado, supra , 22 Cal.App. 5th 1336-1337. [Emphasis added.] 20 The demurrer concludes that “Therefore, based on the reasoning in Maldonado, a plaintiff 21 cannot seek penalties under Labor Code section 226 for deficient wage statements unless the wage 22 statements do not accurately reflect the compensation that was paid to the plaintiff.” [Motion 6:13-16] 23 This is a tortured reading of Maldonado v Epsilon Plastics, Inc., (2018) 22 Cal.App 5th 1308. 24 The Maldonado opinion, published in 2018, was cited in several 2019 opinions, as follows: 25 “If an employer does not comply with the overtime rules applicable to a non-exempt 26 employee, that employee is entitled to premium pay of 1.5 times his regular hourly pay, and to 27 twice his regular hourly pay if required to work more than 12 hours in a day or more than 28 –3– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 eight hours on the seventh day in a row. (§ 510, subd. (a).) What is more, the employer's 2 failure to compensate the employee at the statutory premium pay rate means that 3 the employee's pay checks are inaccurate and, if the employee quits or is fired, may mean 4 that he was willfully not paid the full amount of his unpaid wages when he departed, each of 5 which constitutes a separate Labor Code violation with itsown additional penalty. (§§ 226, 6 subds. (a)(1), (a)(2), (a)(5) & (a)(9), 203; see Maldonado v. Epsilon Plastics, Inc. (2018) 22 7 Cal.App.5th 1308, 1331-1332 [willful failure to pay overtime premiums violates law requiring 8 timely payment of full wages to departing employee].” [Emphasis added] 9 Zakaryan v. The Men's Wearhouse, Inc., (2019) 10 33 Cal.App.5th 659, 667 11 “"The Legislature enacted section 226 to ensure an employer 'document[s] the basis of the CATHE L. CARAWAY-HOWARD 12 employee compensation payments' to assist the employee in determining whether he or she 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 has been compensated properly. [Citations.] Section 226 'play[s] an important role in 14 vindicating [the] fundamental public policy' favoring ' " 'full and prompt payment of an 15 employee's earned wages.' " ' [Citation.]" (Soto v. Motel 6 Operating, L.P. (2016) 4 16 Cal.App.5th 385, 390; Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1337 17 ["The purpose of requiring greater wage stub information is to insure that employees are 18 adequately informed of compensation received and are not shortchanged by their employers"]. 19 Savea v. YRC Inc., (2019) 20 34 Cal.App.5th 173 21 The Demurrer acknowledges as follows: “Plaintiffs’ First Amended Complaint alleges that the 22 wage statements were not accurate because they did not reflect hours for off the clock “on call” time 23 and for allegedly noncompliant meal and rest breaks for which no premium pay was paid. (Complaint, 24 ¶ 61.)” [Motion 6:19-22]. Additionally, the FAC details how Defendants did not record all of 25 Plaintiffs’ hours worked, and how those hours worked were absent from Defendants itemized wage 26 statements. The FAC quite clearly states that, “This additional time and compensation were 27 28 –4– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 never reflected on the itemized statements issued by Defendants to Plaintiffs; …” (FAC 2 para. 57, p. 13:7-12). 3 That there may be a dispute over facts/liability does not mean that the cause of action is not 4 sufficiently pled. A demurrer tests the sufficiency of the plead, not the proof necessary for trial. 5 Indeed, if the standard of pleading were such that the defendant had to agree money was owed, no 6 case would ever survive the demurrer stage. 7 This cause of action was sufficient pled, and whether defendants can show that the wages 8 were not owed, and therefore the wage statements were properly documented, will be investigated in 9 the discovery phase, and considered at trial. 10 The FAC alleges at the beginning of the Sixth Cause of Action for Failure to Provide Accurate 11 Itemized Wage Statements in Violation of Labor Code §§226, at page 12, line 11: “Plaintiffs re-allege CATHE L. CARAWAY-HOWARD 12 and incorporate each allegation of the preceding paragraphs.” This includes paragraphs 1 to 54. 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 The FAC further alleges from paragraph 17 to paragraph 29: 14 “17. At all relevant times alleged herein, Plaintiffs, as a condition of their employment, 15 were required to remain on Defendants’ premises, on duty and subject to the control 16 of Defendants 24- hours per day. However, from four years prior to the filing of this 17 action, to the present, Defendants paid Plaintiffs for only 10 hours worked per day. 18 This time spent outside the 10 “scheduled” hours while Plaintiffs were responsible for 19 the communication device for the ranch shall be referred to herein as “on-call time.” 20 More recently, Defendants have paid Plaintiffs for some, but not all,of the on-call 21 time spent responding to alarms and calls and employed relief workers during some, 22 but not all, of the on-call time. 23 18. Defendants imposed excessive geographical restrictions on Plaintiffs’ movements 24 during on-call time. Defendants required Plaintiffs to remain on Defendants’ premises 25 when on charge as a condition of employment and to spend all on-call time on- 26 premises, either in the residence provided by Defendants or elsewhere on the ranch. 27 During on-call time, Plaintiffs cannot leave the premises without (1) firstnotifying 28 –5– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 defendants, (2) obtaining Defendants’ express permission and (3) waiting another 2 FOSTER FARMS employee to take responsibility for the communication device for 3 the ranch, sometimes even for a month (Guadalupe Andrade was on Charge for a 4 month as a Rancher without relieve when Ranch Manager was on holiday) 5 19. As there is a substantial risk that the chickens, for which Plaintiffs are responsible, 6 will animal welfare issues in the chicken houses regardless of whether the alarms 7 sound or issues arise during scheduled work hours or on-call time. These alarms and 8 animal welfare issues occur frequently and can last a few minutes or a few hours. In 9 order to respond, Plaintiffs must don special clothing that complies with the 10 Defendants’ policies, including bio-security policies and procedures, and other rules 11 and requirements. If an alarm sounds and Plaintiffs fail to immediately respond, they CATHE L. CARAWAY-HOWARD 12 will be contacted by a dispatcher and ordered to respond to the alarm promptly. 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 During on-call time, Plaintiffs have also been responsible for other Ranch Managers’ 14 chicken houses, in addition to their own. Defendants require Plaintiffs to maintain a 15 “mortality record” of the chicken deaths on their watch. 16 20. Plaintiffs cannot and could not easily trade on-call responsibilities. They had to 17 request the time off and receive permission to take it after the Defendants found a 18 suitable replacement. Defendants could refuse and have refused the requests for time 19 off during on-call time. Defendants actively discouraged taking time off from work 20 because it cost Defendants more to pay relief workers to cover Chicken Ranch. 21 21. Defendants placed restrictions on nonemployee visitors, pets, and alcohol use at 22 the ranches and restricted Plaintiffs’ travel. Plaintiffs had to comply with strict 23 limitations on where they could go during their off-duty time and had to avoid all 24 contact with animals. In some cases, Defendants required two to three days in 25 quarantine following a vacation before Plaintiffs will be permitted to return to work at 26 Defendants’ chicken ranches. 27 22. All of Plaintiffs’ on-call time was spent primarily for the benefit of Defendants and 28 –6– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 their business. Defendants provided dwellings to some of the Plaintiffs, primarily to 2 assist and support the job assignment of said ranch forepersons and supervisor on its 3 poultry raising farm operations. The Defendants sell chickens. If the chickens become 4 sick, injured, or die, the Defendants cannot sell them. Plaintiffs’ 24-hour presence on 5 the chicken ranch is to ensure the welfare of the chickens and the security of the 6 ranches and is integral to the Defendants’ business. 7 23. From four years prior to the filing of this action to the present, Defendants’ policy 8 applicable to Plaintiffs has been not to pay Assistant Ranch Managers for on-call time. 9 Defendants’ policy changed at some point to pay for time spent responding to alarms 10 and animal welfare issues However, no other time is paid, including time spent 11 engaged to wait to respond to alarms and calls, responding to alarms and calls and CATHE L. CARAWAY-HOWARD 12 chicken emergencies, performing other duties for Defendants, and donning and 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 doffing special clothing required by the Defendants. 14 24. At all relevant times, Plaintiffs, and each of them, were not exempt from overtime 15 and double-time premium wages because they were never paid a salary of two times 16 minimum wage and they did not primarily engage in exempt duties. Defendants did 17 not maintain accurate records of Plaintiffs’ hours worked. 18 25. Defendants required the Plaintiffs to remain on duty through all meal periods and 19 rest periods and to carry their pagers or cell phones or other communication devices 20 throughout their meal and rest periods. If their pagers go off, cell phone rings, an 21 alarm sounds, or animal welfare issues arise, during a meal or rest period, Plaintiffs are 22 required by Defendants to interrupt the meal or rest period and respond immediately 23 and in-person to the alarm or issue. Defendants have never compensated Plaintiffs for 24 any on-duty meal or rest periods. 25 26. For those Plaintiffs who were required to reside on Defendants’ premises, 26 Defendants imposed a variety of restrictions on them. For those Plaintiffs who did not 27 reside on Defendants’ premises, during the periods they were responsible for the 28 –7– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 ranch and/or the ranch’s communication device, Defendants’ restrictions were so 2 burdensome that Plaintiffs were unable to engage in many personal activities. For 3 example, Defendants would require Plaintiffs to remain in constant contact, 4 maintaining a cell phone that would alert Plaintiffs about alarms or issues that 5 Plaintiffs were required to immediately respond to Additionally, Plaintiffs were (1) not 6 free to invite family or guests to the ranch where they were required to remain, and (2) 7 were required to seek pre-approval before guests could visit, (3) were required to 8 identify all individuals living in the residence; and (4) were prohibited from frequenting 9 locations that may expose Plaintiffs to animals, i.e. swap-meets, farmers’ markets, etc. 10 When an alarm sounded or an animal welfare issue arose, Plaintiffs were required to 11 respond in person and immediately on-call. Accordingly, while on-call, Plaintiffs were CATHE L. CARAWAY-HOWARD 12 unable to use the time freely and effectively for their own purposes. 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 27. While on-call, Plaintiffs were not paid by Defendants and would frequently begin 14 their workday immediately following having responded to a call. For example, a 15 Plaintiff may receive an otherwise die within minutes, Plaintiffs must respond 16 immediately and in-person to all alarms and emergency call at 3:00 a.m., resolve the 17 problem and then simply continue working through the rest of the day. This was a 18 common occurrence for Plaintiffs, and each of them during their work time. 19 28. Put simply, Defendants operate to maximize profits at the expense of their 20 employees and through multiple schemes which: 21 a. Deprive employees of legally mandated wages; and 22 b. Require its employees to work more than 10 hours in a workday 23 and/or more than 60 hours in a work week without receiving proper compensation; 24 including straight and overtime compensation; and 25 c. Deprived employees of the required duty-free meal and rest periods. 26 29. Plaintiffs are entitled to unpaid wages, unpaid minimum wages, unpaid overtime 27 compensation, meal and rest period wages, interest on such amounts, civil and 28 –8– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 statutory penalties, and attorney’s fees litigation costs, and such other relief as may be 2 available to them.” 3 The FAC further alleges at paragraph 57: 4 57. Defendants, and each of them, failed and refused to keep accurate records of 5 Plaintiffs’ hours worked because the records did not reflect the time that Defendants, 6 and each of them, required Plaintiffs to work off the clock as “on-call” and to remain 7 on duty through their meal and rest periods without additional compensation. This 8 additional time and compensation were never reflected on the itemized 9 statements issued by Defendants to Plaintiffs; thus Defendants, and each of them 10 failed to provide accurate itemized wage statements to Plaintiffs.” 11 [Emphasis added] CATHE L. CARAWAY-HOWARD 12 Defendants’ argument that LC 226 penalties are not available as long as the wage statements 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 accurately reflect the pay received eviscerates the purpose of LC 226 and the requirement for accurate LAW OFFICES OF 13 14 records of time and compensation. Taken to its logical extreme, accepting the Defendants argument 15 would allow employers to list a single hour on a pay stub, and pay only for that single hour, and 16 escape any penalty, even for the absence on that pay stub of the employee’s other hours worked. 17 The Foster Farms wage statements do not reflect the actual number of hours worked. They 18 do not reflect the hours worked while on-call or while responding to alarms. The wage statements do 19 not reflect the hours worked through meal periods. Thus, hundreds and potentially thousands of 20 hours were absent from the Plaintiffs’ wage statements. 21 Accordingly, the FAC adequately alleges the necessary facts to support the Sixth Cause of 22 Action and the demurrer must be overruled, and this cause of action permitted to proceed to trial. 23 b. THE TENTH CAUSE OF ACTION FOR NEGLIGENCE IS BASED ON 24 DEFENDANTS’ RETALIATION AGAINST PLAINTIFFS 25 The Demurrer to this cause of action is based on the assertion that a retaliation claim falls 26 within the normal compensation bargain, and therefore is barred by the Worker’s Compensation 27 exclusivity. Without offering any code or case as support, defendants argue that this cause of action 28 –9– PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 needs to be pled with particularity and specificity, as ifit were a fraud claim. Further, defendants 2 protest that “[t]here is no dispute here that Plaintiffs’ negligence claim arises out of the 3 “compensation bargain” between Plaintiffs and Foster Farms” [Motion 7:21-23]. Actually, there a 4 dispute over this contention, and, as the claim is properly pled, the dispute is left for determination at 5 trial. As stated above, simply because a defendant disagrees with the pleading, does not mean the 6 cause of action is not sufficiently stated. 7 Conduct that is not a normal incident of employment does not fall within the exclusive 8 remedy provisions of the Worker’s Compensation Act. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 9 723. 10 “In sum, absent further guidance from our Supreme Court, we are unwilling to abandon the 11 longstanding view that unlawful discrimination and retaliation in violation of FEHA falls CATHE L. CARAWAY-HOWARD 12 outside the compensation bargain and therefore claims of intentional infliction of emotional 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 distress based on such discrimination and retaliation are not subject to workers' compensation 14 exclusivity. While the Supreme Court in Miklosy held that allegations of whistleblower 15 retaliation were insufficient to state an exception to workers' compensation exclusivity, it did 16 not remove the jurisprudential basis on which numerous authorities have held that allegations 17 of FEHA discrimination and retaliation did state such an exception. We therefore adhere to 18 those authorities here.” 19 Light v. Department of Parks & Recreation, (2017) 20 14 Cal.App.5th 75, 101 21 The First Amended Complaint alleges that the Defendants’ retaliated against Plaintiffs: 22 “..forced Plaintiffs to quit by intentionally created or knowingly permitted working 23 conditions to exist that were so intolerable that a reasonable person in Plaintiffs’ 24 position would have no reasonable alternative but to resign. Alternatively, Defendants, 25 and each of them, retaliated by firing Plaintiffs for their protected activity…” [FAC, 26 page 15:16-19] 27 28 – 10 – PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 Retaliation is not a normal part of the employment relationship. Murray v. Oceanside 2 Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362-1363; Fretland v. County of 3 Humboldt (1999) 69 Cal.App.4th 1478, 1492 citing Livitsanos v. Superior Court (1992) 4 2 Cal.4th 744, and City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1155. 5 The Court, in M.F. v. Pacific Pearl Hotel Management LLC, (2017) 16 Cal.App.5th 693, 700 6 addressed this subject as follows: 7 “Pacific does not dispute the workers' compensation exclusivity doctrine is inapplicable to 8 claims under the FEHA. (See B & E Convalescent Center v. State Compensation Ins. Fund 9 (1992) 8 Cal.App.4th 78, 89--92; Meninga v. Raley's, Inc. (1989) 216 Cal.App.3d 79, 91; Jones 10 v. Los Angeles Community College Dist. (1988) 198 Cal.App.3d 794, 808--809; see also Light 11 v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 97--98 [citing a number of CATHE L. CARAWAY-HOWARD 12 California authorities concluding "claims for intentional infliction of emotional distress in the 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 employment context may be asserted where the actionable conduct also forms the basis for a 14 FEHA violation"].) Consequently, if the complaint states viable claims against Pacific under 15 the FEHA, the workers' compensative exclusivity doctrine presents no bar to M.F.'s claims, 16 and the complaint is not subject to a general demurrer on this ground.” 17 The Tenth Cause of Action incorporates by reference the previously stated allegations of the 18 FAC at paragraph 81. Consequently, the Tenth Cause of Action for Negligence includes the following 19 allegations, beginning at paragraph 71, page 15 of the FAC: 20 “71. Defendants, and each of them, believed that Plaintiffs, and each of them, have 21 opposed Defendants’ unlawful conduct as allege herein, including but not limited to 22 bringing a lawsuit or otherwise making a claim for unpaid wages as alleged herein. 23 72. Plaintiffs, and each of them, reasonably believed that Defendants, and each of 24 them, had violated Plaintiffs’ wage and hour rights under California and federal law. 25 73. Plaintiffs, and each of them, notified Defendants, and each of them, that they, the 26 Plaintiffs, were supporting a class action lawsuit against Defendants, and some of the 27 Plaintiffs testified against Defendants in that case. 28 – 11 – PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 74. In retaliation, Defendants, and each of them, forced Plaintiffs to quit by 2 intentionally created or knowingly permitted working conditions to exist that were so 3 intolerable that a reasonable person in Plaintiffs’ position would have no reasonable 4 alternative but to resign. Alternatively, Defendants, and each of them, retaliated by 5 firing Plaintiffs for their protected activity. 6 75. Defendants, and each of them, retaliated against Plaintiffs who remain employed 7 with Defendants, and each of them, for Plaintiffs’ protected activity, in addition to 8 doing the aforementioned things that caused some of the Plaintiffs to lose their jobs 9 with Defendants. Defendants and each of them have engaged in a pattern of 10 harassment that, taken as a whole, materially, and adversely affected the terms, 11 conditions, or privileges of the Plaintiffs’ employment. Defendants attempted to or in CATHE L. CARAWAY-HOWARD 12 fact impaired Plaintiffs’ job performance and/or prospects for advancement or 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 promotion, and deliberately reduced such Plaintiffs’ income. This pattern of 14 harassment against the Plaintiffs who are current employees of Defendants includes 15 but is not limited to: 16 a. Falsifying mortality and other records for Plaintiffs’ ranches, holding 17 Plaintiffs responsible for the production problems indicated by the 18 falsified records, including from denying eligibility for bonuses to 19 discipline for failing to meet production goals; 20 b. Deliberately understaffing Plaintiffs’ ranches with laborers and 21 assistants and then disciplining Plaintiffs for not getting allthe work 22 done by themselves or without the ordinary levels of help; 23 c. Excluding currently employed Plaintiffs from FOSTER FARMS 24 programs which impairs the ability to meet FOSTER FARMS’ 25 production goals; 26 d. Disciplining Plaintiffs for following their supervisors’ instructions; 27 28 – 12 – PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 e. Giving instructions to Plaintiffs that result in poor production results 2 and disciplining Plaintiffs for not following those instructions and for 3 not getting the work done; 4 f. Changing instructions from long-term practices to make it more 5 difficult for Plaintiffs to complete their duties, meet the production 6 goals, or earn bonuses; 7 g. Changing the bonus structure and/or the bonus goals so that 8 Plaintiffs have a much more difficult time meeting them and earning 9 bonuses; 10 h. Failing and refusing to pay Plaintiffs bonuses when they have met 11 the goals and criteria for doing so, without explanation; CATHE L. CARAWAY-HOWARD 12 i. Cutting Plaintiffs’ hours for which it pays wages; 8117 Manchester Avenue, Suite 505 Playa Del Rey, California 90293 LAW OFFICES OF 13 j. Changing the work schedule so that Plaintiffs work more days per 14 week for less pay; 15 and 16 k. Eliminating accumulated sick time from Plaintiffs. 17 76. Defendants were substantially motivated to take these retaliatory and adverse 18 employment actions against currently employed Plaintiffs, and each of them, as alleged 19 herein, based on Defendants’ knowledge that Plaintiffs supported the wage and hour 20 class action, had hired counsel, and were bringing their own claims for unpaid wages 21 against Defendants. 22 77. Plaintiffs were harmed when they were forced to quit, and Defendants actions, as 23 alleged herein were a substantial factor in causing the harm to Plaintiffs, and each of 24 them. Currently employed Plaintiffs were harmed when Defendants engaged in the 25 retaliatory actions alleged herein, causing the harm alleged above, and such actions by 26 Defendants, and each of them were a substantial factor in causing the harm to 27 currently employed Plaintiffs, and each of them.” 28 – 13 – PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 The Worker’s Compensation statute does not preempt this cause of action, and the plaintiffs 2 should be allow to proceed to trial on this cause of action. 3 CONCLUSION 4 Given that the FAC adequately alleges facts to support the Sixth and Tenth Causes of Action, 5 Plaintiffs respectfully request the Court overrule the Demurrer and Order Defendants to Answer the 6 FAC forthwith. 7 8 DATED: October 5, 2020 LAW OFFICES OF CATHE L. CARAWAY-HOWARD 9 Cathe Caraway-Howard 10 By __________________________________________ CATHE L. CARAWAY-HOWARD, Esq. 11 Attorney for Plaintiffs, CATHE L. CARAWAY-HOWARD 12 Thomas Otto, Alberto Chavez Gonzalez, 8117 Manchester Avenue, Suite 505 Guadalupe Andrade, Jose Lorenzo Tamayo Berber Playa Del Rey, California 90293 LAW OFFICES OF 13 14 DATED: October 5, 2020 LAW OFFICE OF MARTIN L. HORWITZ, P.C. 15 16 By ____________________________________ MARTIN L. HORWITZ, Esq. 17 Attorney for Plaintiffs, 18 Thomas Otto, Alberto Chavez Gonzalez, Guadalupe Andrade, Jose Lorenzo Tamayo Berber 19 20 21 22 23 24 25 26 27 28 – 14 – PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER TO FAC 1 PROOF OF SERVICE 2 3 I am employed in the County of Los Angeles, State of California. I am over the age of 4 eighteen (18) years and not a party to this action. My business address is 11150 W. Olympic 5 Boulevard, Suite 1120, Los Angeles, California 90064. On October 6, 2020, I served the foregoing 6 document(s) described as: 7