Brown v. Foster Farms Poultry
Filed 7/14/09 Brown v. Foster Farms Poultry CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CATRELL BROWN, Plaintiff and Appellant, v. FOSTER FARMS POULTRY, Defendant and Respondent. | F056603 (Super. Ct. No. 08 CECG02253) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Franson, Judge.
Catrell Brown, in pro. per., for Plaintiff and Appellant.
Dowling, Aaron & Keeler, Stephanie Hamilton Borchers and Paul J. Bauer for Defendant and Respondent.
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This is an appeal from judgment entered after the court sustained general and special demurrers to plaintiffs amended complaint, without further leave to amend. We will affirm the judgment.
Facts and Procedural History
Plaintiff and appellant Catrell Brown was an employee of defendant and respondent Foster Farms Poultry. In late 2007 or early 2008, appellant perceived he was having conflicts with fellow employees. By June of 2008, he suspected that fellow employees were tampering with food he placed in the employees refrigerator. He placed a voice recorder in his lunch bag in the refrigerator. It recorded a sound appellant perceived as spitting, and appellant concluded the sound was a particular employee spitting in appellants drink, which was also in the refrigerator.
Appellant took the issue to his supervisor, who listened to the recording and concluded the sound was a sneeze, not spitting. Appellant was not satisfied with this explanation. The supervisor referred appellant to the human resources department. Appellant spoke to various people there. These persons apparently took no action on the matter, except that one human resources person directed appellant not to bring the recording device to work any longer.
Appellant sued defendant. His complaint was entitled Complaint for Accounting, apparently in the sense of holding respondent accountable. Appellant subsequently filed an Amended Complaint to Foster Poultry Farms Special Demurrers. (Any such demurrers and proceedings thereon are absent from the record on appeal.) Although the amended complaint is not organized into causes of action, it appears to attempt to state a cause of action against respondent for negligence based on the way they chose to handle appellants complaint about contamination of his drink by his co-worker.
Respondent filed general and special demurrers to the amended complaint. The court sustained both demurrers by formal order, following the issuance of a detailed tentative decision. Appellant filed a notice of appeal.[1]
Discussion
As the trial court found, the amended complaint does not allege facts sufficient to state a cause of action. It appears appellant seeks to allege against respondent a negligent failure to maintain a safe workplace or a negligent failure to prevent misconduct by appellants co-workers. A cause of action for negligence requires allegation of a duty of care owed by defendant to plaintiff, together with a breach of that duty that proximately causes legally cognizable injury. (See Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)
Even if appellants complaint could be read as alleging a duty of care and a breach thereof, it clearly does not allege respondents action or inaction caused cognizable legal injury to appellant. In the absence of such an allegation, a complaint does not state a cause of action even if it adequately alleges duty and breach. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, 933, p. 348.) Further, there is no indication in the lengthy, narrative pleadings filed by appellant that he could allege such injury if permitted to further amend the complaint.
As a result of this conclusion, we need not address respondents contentions that appellant cannot allege a cognizable duty and that any possible cause of action would be preempted by the exclusivity provisions of the Workers Compensation Act. (See Lab. Code, 3602, subd. (a).)
Disposition
The order filed November 23, 2008, sustaining defendants general and special demurrers to plaintiffs first amended complaint is deemed a judgment of dismissal. That judgment is affirmed. Respondent is awarded costs on appeal.
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* Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.
[1]The appeal is taken from the order sustaining the demurrer to the amended complaint. That order is not appealable. (First Aid Services of San Diego, Inc. (2005) 133 Cal.App.4th 1470, 1474, fn. 1.) The record on appeal does not show that the court entered a judgment of dismissal. In the interests of judicial economy and the orderly administration of justice, and in the absence of any demonstrable prejudice to the parties, this court in the exercise of its discretion deems this appeal to have been taken from a judgment of dismissal following entry of the order sustaining the demurrers. (Ibid.)
