Romero v. DirecTV

























Filed 2/7/13 Romero v. DirecTV CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




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RICHARD ROMERO, Plaintiff and Appellant, v. DIRECTV, INC, Defendant and Respondent.

B235288 (Los Angeles County Super. Ct. No. BC457904)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Holly E.
Kendig, Judge. Affirmed.



Law Offices
of Arthur Kim, Arthur Kim and Claudia G. Prieto for Plaintiff and Appellant.



Wolflick
& Simpson, David B. Simpson and Christina R. Mitchell for Defendant and
Respondent.





_______________________



Richard
Romero (Romero) appeals from the judgment
of dismissal following the sustaining of the demurrer of respondent
DirecTV, Inc. The trial court ruled that
Romero’s wrongful termination complaint was federally preempted under the
National Labor Relations Act (NLRA or Act) (29 U.S.C. 151 et seq.) because the
alleged conduct was “arguably” subject to the protections of the NLRA. We affirm.


FACTUAL AND PROCEDURAL BACKGROUND

The complaint alleged the
following: Romero was hired by DirectTV
in August 2008 and worked as a “production technician.” He was promoted to “supervisor” in April
2010. “As a supervisor [Romero] informed
upper management about the concerns of the production technicians.” Production technicians were paid per project
and not per hour, so any work they performed that did not concern their project
was unpaid. Romero believed this was
illegal and complained to DirecTV on a weekly basis.

In August
2010, Romero’s manager suspended him for sleeping on the job, which Romero
denied. A few days later, Romero went
into the office and was told that he was being let go for sleeping on the job,
which he again denied. He was then told,
“well you like to make comments in meetings.”
Romero “was terminated because he complained to [DirecTV] about [its]
illegal activities, including the wage and hour
violations. . . .”

Romero
alleged seven causes of action against DirecTV for (1) violation of Labor Code
sections 98.6 and 232.5; (2) violation of Labor Code 1102.5; (3) wrongful
discharge in violation of public policy; (4) negligent hiring, retention and
supervision; (5) negligence; (6) intentional infliction of emotional
distress; and (7) negligent infliction of emotional distress.

DirecTV
demurred on two grounds: (1) Each of the
claims was federally preempted by the NRLA, and (2) each of the claims failed
to state facts sufficient to constitute a cause of action. Romero opposed the demurrer, which the trial
court sustained without leave to amend.
The case was dismissed and this appeal followed.

>DISCUSSION

I. Standard of Review.

We review de novo a trial court’s sustaining of a
demurrer without leave to amend, exercising our independent judgment as to
whether a cause of action has been stated as a matter of law. (People
ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; >Moore v. Regents of University of California
(1990) 51 Cal.3d 120, 125.) We assume
the truth of properly pleaded allegations in the complaint and give the
complaint a reasonable interpretation, reading it as a whole and with all its
parts in their context. (S>top Youth Addiction, Inc. v. Lucky Stores,
Inc. (1998) 17 Cal.4th 553, 558; People
ex rel. Lungren, supra, at p. 300.) We may disregard allegations which are
contrary to law or to judicially noticed facts.
(Wolfe v. State Farm Fire &
Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 559–560.) “On appeal, we do not review the validity of
the trial court’s reasoning but only the propriety of the ruling itself.” (Rodas
v. Spiegel (2001) 87 Cal.App.4th 513, 517.)
We apply the
abuse of discretion standard in reviewing a trial court’s denial of leave to
amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492,
1497–1498.) The plaintiff bears the
burden of proving there is a reasonable possibility that the defect can be
cured by amendment. (>Blank v. Kirwan, supra, at p. 318; >Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.)



II. NRLA Preemption.href="#_ftn1" name="_ftnref1" title="">[1]

The NRLA was enacted in 1935 to
govern labor-management relations in the private sector. Section 7 of the NRLA guarantees employees
“the right to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . . .” (29 U.S.C. § 157.) Section 8(a)(1) makes it an unfair labor practice
for an employer to “interfere with, restrain, or coerce employees in the
exercise of” their section 7 rights. (29
U.S.C. § 158(a)(1).) The NRLA
created the National Labor Relations Board (NLRB or Board), vesting it with
full powers to enforce sections 7 and 8 of the NLRA. (29 U.S.C. § 160(a).)

The NRLA does not contain an
express preemption provision. (>Luke v. Collotype Labels USA, Inc.
(2008) 159 Cal.App.4th 1463, 1469.) In >San Diego Unions v. Garmon 1959) 359
U.S. 236 (Garmon), the Supreme Court
concluded that “[w]hen an activity is arguably subject to [section] 7 or
[section] 8 of the Act, the States as well as the federal courts must defer to
the exclusive competence of the National Labor Relations Board if the danger of
state interference with national policy is to be averted.” (Garmon,
supra, at p. 245.) The >Garmon Court
explained: “At times it has not been
clear whether the particular activity regulated by the States was governed by
[section] 7 or [section] 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to
adjudicate such issues. It is essential
to the administration of the Act that these determinations be left in the first
instance to the National Labor Relations Board.
What is outside the scope of this Court’s authority cannot remain within
a State’s power and state jurisdiction too must yield to the exclusive primary
competence of the Board.” (>Id. at pp. 244–245.) Thus, under Garmon, whether the alleged conduct violates the NRLA must be decided
in the first instance by the NLRB and not the courts. A court’s only role is to determine whether
the alleged conduct “arguably” falls within the scope of the NRLA. If it does, then it is preempted.

We conclude that the complaint’s
allegations fall within the primary and exclusive jurisdiction of the NRLB
because they arguably allege an
unfair labor practice under section 8(a)(1).
(29 U.S.C. § 158(a)(1).) “A
violation of [section] 8(a)(1) is established if (1) the employee’s activity
was concerted; (2) the employer was aware of its concerted nature; (3) the
activity was ‘protected’ by the act; and (4) the discharge or other adverse
personnel action was motivated by the protected activity.” (N.L.R.B.
v. Oakes Mach. Corp. (2d Cir. 1990) 897 F.2d 84, 88.)

Here, the complaint alleges that
Romero complained to management on behalf of “the concerns of the production technicians” regarding their unpaid
work. It can reasonably be inferred that
management was aware Romero was complaining on behalf of other employees and
not himself because he was a supervisor and not one of the production
technicians who was allegedly underpaid.
It can also be reasonably inferred that Romero was bringing the concerns
of the production technicians to management to protect their interests. Finally, the allegation that Romero was fired
“because he complained” to management on behalf of other employees sufficiently
pleads that his firing was “motivated by” his href="http://www.mcmillanlaw.com/">protected activity.

DirecTV
concedes this is not the “garden variety NRLA retaliatory discharge case”
because it involves complaints by an individual employee rather than a group,
by a supervisor and not rank-and-file employees, and by a person who was not
alleged to have been affirmatively designated as a spokesperson for the
concerns of others. But we agree that
these factors are not barriers to preemption.

First,
courts have found that an individual employee who complains to management on
behalf of others may be engaged in “‘concerted activit[y].’” (See NLRB
v. City Disposal Systems, Inc. (1984) 465 U.S. 822, 830–831 [while the term
“concerted activity” is not defined in the NRLA and clearly “embraces the
activities of employees who have joined together in order to achieve common
goals,” it also encompasses circumstances where the “particular actions of an
individual employee” are such that it can “be said that the individual is
engaged in concerted activity”]; N.L.R.B.
v. Talsol Corp. (6th Cir. 1998) 155 F.3d 785, 796 [“For an individual’s
complaints to constitute concerted action, . . . the complaints
‘must not have been made solely on behalf of an individual employee, but [they]
must be made on behalf of other employees or at least with the object of inducing
or preparing for group action’”]; Compuware
Corp. v. N.L.R.B. (6th Cir. 1998) 134 F.3d 1285, 1288 [“Activity is
concerted ‘if it is related to group action for the mutual aid or protection of
other employees’ [Citation.] Therefore, the relevant question is whether the
employee acted with the purpose of furthering group goals”]; >Meyers Industries, Inc. (1986) 281 NLRB
882, 887, affd. Prill v. NRLB (D.C.
Cir. 1987) 835 F.2d 1481, 1482 [“our definition of concerted activity
. . . encompasses those circumstances where individual employees
seek to initiate or to induce or to prepare for group action, as well as
individual employees bringing truly group complaints to the attention of
management”].)

Second,
while supervisors are not considered “employees” under the NRLA (29 U.S.C. §
152(3)), federal and state courts have found that firing a supervisor can
constitute a section 8(a)(1) violation when such firing has the effect of
interfering, not with the supervisor’s rights, but with the section 7 rights of
nonsupervisors, for example their rights to seek collective redress for their
mutual aid or protection. (See >Iron Workers v. Perko (1963) 373 U.S.
701, 707 (finding preemption and stating “even if it be assumed that Perko was
not an employee but was solely a supervisor, there is a sufficient probability
that the matter would still have been cognizable by the Board so as to compel
the relinquishment of state jurisdiction”]; NLRB
v. Better Monkey Grip Co. (5th Cir. 1957) 243 F.2d 836, 837 [affirming NLRB
finding that discharge of a supervisor “interfered with, restrained and coerced
nonsupervisory employees in violation of [section] 8(a)(1)”].) In California, the courts in >Kelecheva v. Multivision Cable T.V.
Corp. (1993) 18 Cal.App.4th 521, 529, Bassett
v. Attebery (1986) 180 Cal.App.3d 288, 294–295, and Henry v. Intercontinental Radio, Inc. (1984) 155 Cal.App.3d 707,
714–715 all found that wrongful termination claims brought by supervisors were
preempted by the NRLA under the Garmon
doctrine.

Third,
specific authorization as a spokesperson is not needed to show concerted
activity. (Compuware Corp. v. N.L.R.B., supra, 134 F.3d at p. 1288; >N.L.R.B. v. Lloyd A. Fry Roofing Co., Inc.
of Del. (6th Cir. 1981) 651 F.2d 442, 445 [“It is not necessary that the
individual employee be appointed or nominated by other employees to represent
their interests”]; N.L.R.B. v. Talsol
Corp., supra, 155 F.3d at p. 796 [“Workers, however, are not required
to have formally chosen the complaining employee as their spokesperson, as long
as the employee is at least impliedly representing the views of other
employees”].)

To the
extent Romero argues that NRLA preemption requires that he be involved in union
activity or efforts to unionize, we reject this argument. (See Salt
River Val. W. User’s Assn v. National Lab. Rel. Bd. (9th Cir. 1953) 206
F.2d 325, 328 [“‘concerted activities for the purpose of mutual aid or
protection’ are not limited to union activities”]; Hugh H. Wilson Corporation v. NLRB (3d Cir. 1969) 414 F.2d 1345,
1347, fn. omitted [“The mantle of protection of concerted activities, the
various circuit courts have held, extends to both union and non-union
employees”]; Luke v. Collotype Labels
USA, Inc., supra, 159 Cal.App.4th at p. 1469 [finding NRLA preemption
of wrongful termination claim where no union activity alleged in complaint].)

We also
reject Romero’s argument that wage and hour violations are “local concerns” not
subject to federal NRLA preemption.
While DirecTV acknowledges there is a recognized exception for
activities of merely “peripheral concern”
to federal labor law, it argues persuasively that wages are not the type of
category traditionally falling within the local interest exception. “[D]issatisfaction due to low wages is the
grist on which concerted activity feeds.”
(Jeannette Corp. v. N.L.R.B.
(3d Cir. 1976) 532 F.2d 916, 919.)
“Traditionally conduct falling within the ‘local interest’ exception to
preemption has included violence . . . ; threats of violence
. . . ; libel . . . ; infliction of emotional
distress . . . ; trespass . . . ; obstructions of
access to property . . . ; and state breach of contract actions
by laid-off replacement employees.” (>Hillhaven Oakland Nursing Etc. Center v.
Health Care Workers Union (1996) 41 Cal.App.4th 846, 854–855.)

Finally, we
reject Romero’s argument that NRLA preemption should not apply because having
to appear before the NRLB would cause him “prejudice” and “huge hardship.” Not only does Romero fail to cite any
authority supporting a “hardship” exception to NRLA preemption, he fails to
make any showing of hardship or prejudice.
He merely complains that NRLB procedures differ from state court
procedures, but that is true for everyone.
As DirecTV points out, “if that fact alone were sufficient to legally
avoid NLRA preemption, then no one’s claim would ever be preempted.”

III. Leave to Amend.

Romero
contends the trial court abused its discretion in denying him leave to amend
the complaint to make it clear that his activities do not fall within the
NRLB’s jurisdiction.

Romero is correct that generally it
is an abuse of discretion to sustain a demurrer without leave to amend if there
is any reasonable possibility the pleading defect can be cured by amendment (>Temescal Water Co. v. Dept. Public Works
(1955) 44 Cal.2d 90, 107), that leave to amend is usually liberally permitted (>Angie M. v. Superior Court (1995) 37
Cal.App.4th 1217, 1227), and that a request for leave to amend and the showing necessary to cure the
defects may be made for the first time on appeal. (Code Civ. Proc., § 472c, subd. (a); >Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43 (Rakestraw)). To satisfy the burden on appeal of showing a reasonable
possibility that an amendment will cure the defects, an appellant must not only
set forth the legal basis for amendment, but “‘must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.’” (Rakestraw, supra, at p. 43, quoting Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The plaintiff must set forth factual
allegations that sufficiently state all required elements of the challenged
causes of action, and the allegations “must be factual and specific, not vague
or conclusionary.” (Rakestraw, supra, at p. 44.)
“Where the appellant offers no allegations to support the possibility of
amendment and no legal authority showing the viability of new causes of action,
there is no basis for finding the trial court abused its discretion when it
sustained the demurrer without leave to amend.”
(Ibid.)

Neither below nor in his opening
appellate brief did Romero set forth the specific factual allegations he would
include in an amended complaint. For the
first time in his appellate reply brief, he states that he could amend his
complaint by replacing the sentence “As a supervisor Plaintiff informed upper
management about the concerns of the production technicians” with “As a
supervisor Plaintiff informed upper management about wage and hour violations
affecting production technicians.”
There are two problems with this proposed amendment.

First, “[a]s a general rule, points
not addressed until a reply brief will
not be considered unless good reason is shown for failing to address them
earlier.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852,
fn. 10.) “‘Obvious considerations
of fairness in argument demand that the appellant present all of his points in
the opening brief. To withhold a point
until the closing brief would deprive the respondent of his opportunity to
answer it . . . . Hence the rule is that points
raised in the reply brief for the first time will not be considered, unless
good reason is shown for failure to present them before. [Citations.]’” (Neighbours
v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) No good reason is shown here.

Second, Romero cites no authority
for the proposition that he should be allowed to amend his complaint by
eliminating language that subjects his claims to NRLA preemption. Nor can he do so. “‘“A plaintiff may not avoid a demurrer by
pleading facts or positions in an amended complaint that contradict the facts
pleaded in the original complaint or by suppressing facts which prove the
pleaded facts false. [Citation.]” [Citations.]’” (State
of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149
Cal.App.4th 402, 412.) “Similarly,
‘[u]nder the sham pleading doctrine, plaintiffs are precluded from amending
complaints to omit harmful allegations, without explanation, from previous
complaints to avoid attacks raised in demurrers or motions for summary
judgment.’ [Citations.]” (>Ibid.)
“‘If a party files an amended complaint and attempts to avoid the
defects of the original complaint by either omitting facts which made the
previous complaint defective or by adding facts inconsistent with those of
previous pleadings, the court may take judicial notice of prior pleadings and
may disregard any inconsistent allegations.’”
(Colapinto v. County of Riverside
(1991) 230 Cal.App.3d 147, 151.)

While
Romero argues in his reply brief that he already provided the trial court with
a “clear blueprint” for amending his complaint, in this regard he merely points
to the arguments he made in his
opposition to the demurrer. For example,
he points to the conclusory argument that he was never engaged in concerted
activities. He also points to the
arguments that he was not part of a union, did not have discussions with
employees regarding working conditions, and was not elected a spokesperson. Even assuming he could truthfully amend his
complaint by adding such allegations, we have already concluded that these
factors are not a bar to NRLA preemption.

We are
satisfied that the trial court did not abuse its discretion in denying Romero
leave to amend his complaint.



DISPOSITION

The judgment is affirmed. DirecTV is entitled to recover its costs on
appeal.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.









______________________________,
J.

ASHMANN-GERST





We concur:







_______________________________, P. J.

BOREN







_______________________________, J.

CHAVEZ