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Harvey WICKER, Plaintiff, v. WALMART, INC., d/b/a Walmart Fulfillment Center, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT [ECF No. 30]
Currently pending before the Court is the motion of Defendant Walmart, Inc. to dismiss the Second Amended Complaint filed by Plaintiff Harvey Wicker, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 The Court conducted a hearing on the Motion on March 12, 2021. After considering the papers filed in support of and in opposition to the Motion,2 as well as the arguments of counsel at the hearing, the Court GRANTS the Motion, for the reasons set forth herein, without leave to amend.
Wicker filed his Second Amended Complaint on January 20, 2021.3 Wicker, individually and on behalf of similarly situated class members, asserts two claims for relief against Walmart: (1) Public Nuisance, Cal. Civ. Code §§ 3294, 3479, 3480, 3491, & 3493 and Cal. Code. Civ. Proc. § 731; and (2) Violation of California's Unfair Competition Law (the “UCL”), Cal. Civ. Code §§ 17200, et seq. Wicker alleges that he is employed as an hourly employee at Walmart's fulfillment center in Chino, California.4
With respect to each of his claims for relief, Wicker alleges that Walmart has failed to adopt, to implement, or otherwise to comply with, work-place safety policies promulgated by the California Occupational Safety and Health Administration (“Cal/OSHA”), in conjunction with the California Department of Public Health and the United States Center for Disease Control, related to the COVID-19 pandemic. Wicker avers that Walmart's failure to adopt or implement these work-place safety policies put Wicker and other employees at an increased risk of contracting COVID-19. Based upon those allegations, Wicker contends that Walmart's conduct constitutes a public nuisance.5 Wicker further claims that the alleged public nuisance and the underlying violations of the Labor Code constitute an unlawful and unfair business practice in violation of California's UCL.6 Wicker seeks injunctive and declaratory relief, restitution, penalties, and attorneys’ fees and expenses.7
II. LEGAL STANDARD
A. Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In ruling on a Rule 12(b)(6) motion, “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Am. Family Ass'n v. City & County of San Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002). Although a complaint attacked by a Rule 12(b)(6) motion “does not need detailed factual allegations,” a plaintiff must provide “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The legal conclusions in a complaint must be supported by plausible factual allegations. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Plausible” factual allegations “raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ․” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations and footnote omitted). Put another way, a complaint must contain “well-pleaded facts” from which the Court can “infer more than the mere possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (a plaintiff must plead enough factual content to “allow[ ] the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged”).
B. Leave to Amend
The Federal Rules of Civil Procedure provide that leave to amend should be freely granted “when justice so requires.” Fed. R. Civ. P. 15(a). The purpose of the liberal amendment policy is to “facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Therefore, leave to amend should be granted unless the Court determines “that the pleading could not possibly be cured by the allegation of other facts.” Id. (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
Walmart contends that the Amended Complaint should be dismissed under the doctrines of judicial abstention and primary jurisdiction, because the relief that Wicker requests in connection with each of his claims would require the Court to assume the functions of an administrative agency and would interfere with the agency functions.8 Walmart also argues that Wicker fails to allege sufficient facts to state plausible claims for relief and, therefore, that both claims should be dismissed on the merits.9 Because the Court finds that Wicker fails adequately to allege a claim for public nuisance or a claim for violation of the UCL—as discussed below—the Court declines to address Walmart's argument regarding judicial abstention and primary jurisdiction.
A. Wicker's Public Nuisance Claim
Wicker alleges that Walmart's failure to adopt or otherwise to comply with work-place safety regulations intended to mitigate the spread of COVID-19 “has created an environment in [Walmart's] Chino Facility that is ripe for the super-spread of COVID-19.”10 Wicker further avers that Walmart's acts and omissions “caused a considerable number of persons to suffer increased exposures and risks of exposure” to COVID-19, including employees, customers, and those employees’ and customers’ family members and other close contacts.11 Wicker claims that the alleged public nuisance is specially injurious to himself and the class members “due to the nature of their work and the consequences of [Walmart's] actions to them, their loved ones, and their communities.”12
Under California law, a nuisance is “[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ․” Cal. Civ. Code § 3479. A public nuisance “is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Id. § 3480.
A plaintiff asserting a claim for public nuisance must establish the following seven factual elements: (1) the defendant created a condition or permitted a condition to exist that was, inter alia, harmful to health; (2) the condition affected a substantial number of people; (3) an ordinary person would be reasonably annoyed or disturbed by the condition; (4) the seriousness of the harm outweighs the social utility of the defendant's conduct; (5) the plaintiff did not consent to the defendant's conduct; (6) the plaintiff suffered a special injury, i.e., different from the general public; and (7) the defendant's conduct was a substantial factor in causing the plaintiff's harm. See Cal. Civ. Jury Instr. (CACI) No. 2020 (Lexis 2021).
Walmart contends that Wicker lacks standing to bring a claim for public nuisance because “he does not and cannot allege unique harm.”13 The Court agrees. To maintain an action for public nuisance, California law unambiguously requires a private plaintiff to allege a special injury. See Cal. Civ. Code § 3493 (“[a] private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise”). That is, the damage suffered by the plaintiff “must be different in kind and not merely in degree from that suffered by other members of the public.” Koll-Irvine Ctr. Prop. Owners Ass'n v. Cnty. of Orange, 24 Cal. App. 4th 1036, 1040, 29 Cal.Rptr.2d 664 (1994); see also Schaeffer v. Gregory Village Partners, L.P., 105 F. Supp. 3d 951, 966 (N.D. Cal. 2015) (to allege public nuisance “the plaintiff's harm must be different from the type of harm suffered by the general public”).
Here, Wicker fails to allege any injury that is different in kind, not merely in degree, from the injuries suffered by the general public. See Koll-Irvine, 24 Cal. App. 4th at 1040, 29 Cal.Rptr.2d 664. The COVID-19 pandemic has been spreading through society for over a year. All members of the public are exposed to the risk of contracting COVID-19, whether at their workplace, the grocery store, or their homes. And every member of the public has been required to purchase personal protective equipment—like a mask—to mitigate the spread of the virus. Thus, Wicker's alleged injuries are not unique from the injuries suffered by the general public.
Furthermore, Wicker also fails adequately to allege that Walmart's policies caused an increased risk of exposure to the broader public. See Palmer v. Amazon.com, Inc., 498 F. Supp. 3d 359, 370–71 (E.D.N.Y. 2020). In this regard, the Court is persuaded by the reasoning of the district court in Palmer that allegations that the defendant's work-place policies created an “increased risk of contracting COVID-19 and fear of the same” were not enough to state a claim for public nuisance because that injury is common to the public at large. See id. Unlike other public nuisances—for example, “a noxious landfill, a malarial farm, or a pigsty,” id.—Walmart's Chino distribution facility is not the source of the COVID-19 virus. The public cannot avoid COVID-19 simply by avoiding Walmart's distribution facility, its surrounding area, and its employees. See id. The risk of exposure to COVID-19 is, unfortunately, present everywhere. See id.
Based upon the foregoing, the Court finds that Wicker fails to allege sufficient facts to state a plausible claim for public nuisance. Accordingly, the Court GRANTS Walmart's Motion to Dismiss with respect to Wicker's claim for public nuisance. Furthermore, in view of the fact that Wicker was already granted leave to amend, and in view of the fundamental issues with respect to Wicker's standing to pursue a claim for public nuisance, the Court finds that granting leave to amend would be futile. See Lopez, 203 F.3d at 1127.
B. Wicker's UCL Claim
The second claim for relief in the Amended Complaint is for violation of California's UCL,14 which prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. The Court finds that Wicker's UCL claim fails for two reasons. The first is that Wicker does not have standing to bring a UCL claim. The second reason is that Wicker fails to allege viable predicate acts to state a claim under either the “unfair” or the “unlawful” prong of the UCL. The Court addresses each of these grounds for dismissal in turn.
Wicker claims that the alleged unlawful and unfair conduct by Walmart (which the Court addresses in detail in the section that follows) caused him economic injury “by requiring [him] to miss work and forego wages to attempt to keep himself safe, and to incur unreimbursed expenses just to have the personal protective equipment necessary to do his job in a pandemic, and that Walmart failed to provide.”15 These allegations, however, are not sufficient to establish standing under the UCL.
To have standing under the UCL, a party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e. economic injury, and (2) show that that economic injury was the result of i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011) (emphasis in original). An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete and particularized ․ and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). The Ninth Circuit has held that only individuals who have suffered an actual loss of money or property, and who thus are eligible for restitution, have standing under the UCL. Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th Cir. 2009). Under California law, to maintain a claim for restitution, a plaintiff must have prior possession or a vested legal interest in the money or property that the plaintiff lost. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1148–49, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003).
Wicker's allegation that he took days off from work because of his fear of COVID-19, and that he therefore lost wages, is not sufficient to support a claim for restitution under the UCL because Wicker does not have a property interest in wages that he never earned. See Cortez v. Purolator Air Filtration Prod. Co., 23 Cal. 4th 163, 177, 96 Cal.Rptr.2d 518, 999 P.2d 706 (2000). Furthermore, Wicker's fear of COVID-19 is not enough to establish a credible and individualized threat of future harm. Cf. Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002); Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1234 (D.C. Cir. 1996) (finding a credible threat of future harm in action challenging a Forest Service decision to select a logging plan that created a greater likelihood of a wildfire occurring). The only remaining “economic injury” that Wicker claims is the expense that he incurred purchasing personal protective equipment. But that injury is not sufficiently individualized to confer standing under the UCL; every member of the public has incurred expenses purchasing protective equipment to mitigate the risk of COVID-19. See Chulick-Perez v. CarMax Auto Superstores California, LLC, 71 F. Supp. 3d 1145, 1149–51 (E.D. Cal. 2014) (dismissing UCL claim for lack of standing where plaintiff failed to allege individualized injury).
Accordingly, the Court concludes that Wicker fails to allege standing under the UCL.
2. Predicate Acts
In view of the Court's finding that Wicker fails to allege a viable claim for public nuisance,16 Wicker's UCL claim is predicated entirely upon Walmart's alleged violations of the California Labor Code and Cal/OSHA regulations.17
In this regard, Wicker alleges violations of the California's Labor Code §§ 6400, 6401, 6401.7, 6402, 6403, 6404, and 6407,18 and violations of Cal/OSHA standards set forth in California Code of Regulations, title 8, §§ 3203, 3366, 3380, 5141, and 8414.19 These statutes, however, do not provide for any private right of action. An aggrieved employee complaining of violations of these sections must bring his claims pursuant to the Labor Code Private Attorneys General Act of 2004 (“PAGA”), Cal. Labor Code §§ 2698, et seq. PAGA grants an aggrieved employee standing to recover statutory penalties for certain Labor Code violations, provided that the employee complies with the mandatory procedures for asserting a PAGA claim. See Cal. Labor Code § 2699(a).20 Those procedures are set forth in § 2699(a). With respect to alleged violations of the “Safety in Employment” provisions of the Labor Code (which commence with § 6300), one of the mandatory requirements is that the employee must submit written notice of the alleged violation to Cal/OSHA and to the employer, with a copy to the Labor and Development Agency. Cal. Labor Code § 2699.3(b). That notice triggers an administrative process that must be exhausted before the aggrieved employee has standing to pursue a civil claim. See id.
With respect to the First Amended Complaint, Walmart previously argued that Wicker's PAGA claim—based on the same alleged safety violations—was barred because Wicker failed to exhaust his administrative remedies. Wicker thereafter withdrew his PAGA claim, acquiescing to Walmart's argument.21 In the present Motion, Walmart argues that Wicker's UCL claim is premised upon the same alleged violations of the Labor Code and Code of Regulations as Wicker's withdrawn PAGA claim. Therefore, according to Walmart, the UCL claim is also barred.22 Wicker counters by arguing that “PAGA is not mentioned a single time” in the Amended Complaint and that the UCL claim does not rely upon a PAGA violation.23 Instead, Wicker argues, the “UCL claim is based on the public nuisance claim and violations of the California Labor Code and Cal/OSHA regulations.”24
Wicker misapprehends the relationship between PAGA and the predicate Labor Code violations that are at issue. As Walmart correctly observes, PAGA is the exclusive vehicle for an aggrieved employee to bring a civil action for alleged violations of the Labor Code sections referenced in Wicker's Amended Complaint.25 See ZB, N.A. v. Superior Court, 8 Cal. 5th 175, 187–88, 252 Cal.Rptr.3d 228, 448 P.3d 239 (2019) (where the Labor Code provides for only civil penalties, a claim under PAGA is the exclusive means for alleged violations). It is well established under California law that a plaintiff may not bring an action under the UCL if that action is barred by some other provision of law. See Cal-Tech Commc'ns, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 182–83, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999); In re Vaccine Cases, 134 Cal. App. 4th 438, 458–59, 36 Cal.Rptr.3d 80 (2005). California courts have consistently held that a plaintiff cannot “plead around” an “absolute bar to relief”—like PAGA's administrative exhaustion requirements—merely “by recasting the cause of action as one for unfair competition.” Cal-Tech Commc'ns, 20 Cal. 4th at 182, 83 Cal.Rptr.2d 548, 973 P.2d 527 (quoting Manufacturers Life Ins. Co. v. Superior Court, 10 Cal. 4th 257, 283, 41 Cal.Rptr.2d 220, 895 P.2d 56 (1995)).
“Borrowing from PAGA,” as Wicker frames the argument,26 is not the issue. Rather, it is that Wicker's UCL claim is premised upon violations of provisions of the Labor Code that do not create any private right of action—Wicker has standing to pursue relief for the violation of those statutes only through PAGA. Accordingly, because Wicker failed to comply with PAGA's administrative exhaustion requirements, Wicker cannot recast his barred PAGA claim as one for violation of the UCL. See id.; see also Briggs v. OS Rest. Servs., LLC, 2020 WL 6260001, at *5 (C.D. Cal. Aug. 26, 2020) (dismissing UCL claim where plaintiff conceded that the UCL claim cannot be premised upon a violation of a section of the Labor Code that does not create a private right of action).
In sum, the Court finds that Wicker fails adequately to allege a claim under the UCL. Accordingly, the Court GRANTS Walmart's Motion with respect to Wicker's UCL claim. Furthermore, in view of the fact that Wicker was already granted leave to amend, and in view of the fundamental issues with respect to Wicker's standing to pursue a claim under the UCL, the Court finds that granting leave to amend would be futile. See Lopez, 203 F.3d at 1127.
For the reasons set forth above, the Court hereby ORDERS as follows:
1. Walmart's instant Motion to Dismiss is GRANTED in its entirety, without leave to amend.
2. The Clerk is DIRECTED to close this case.
IT IS SO ORDERED.
1. Def.’s Mot. to Dismiss Pl.’s Second Am. Compl. (the “Motion”) [ECF No. 30].
2. The Court considered the following papers: (1) the Motion (including its attachments); (2) Req. for Judicial Notice in Supp. of the Motion (the “Def. RJN”) [ECF No. 31]; (3) Pl.’s Opp'n to the Motion (the “Opposition”) [ECF No. 34]; (4) Pl.’s Req. for Judicial Notice in Supp. of the Opposition (the “Pl. RJN”) [ECF No. 35]; and (5) Def.’s Reply in Supp. of the Motion (the “Reply”) [ECF No. 36].
3. Second Am. Compl. (the “Amended Complaint”) [ECF No. 29]. The Amended Complaint contains misnumbered paragraphs. Specifically, page 20 of the Amended Complaint ends with ¶ 70(v), then page 21 begins with ¶ 64 and continues sequentially until the final paragraph. To account for that error, citations herein to any paragraph numbered sequentially for the second time will be indicated with an asterisk (e.g., ¶¶ 64*–70*).
4. Id. at ¶¶ 7 & 8.
5. See id. at ¶¶ 79–99.
6. See id. at ¶¶ 100–112.
7. See id. at Prayer for Relief; see also id. at ¶ 111.
8. See Motion 5:7–8:6.
9. See Motion 8:7–21:22.
10. Amended Complaint ¶ 85.
11. Id. at ¶ 86.
12. Id. at ¶ 89.
13. Motion 20:2–3.
14. Amended Complaint ¶¶ 100–112.
15. Opposition 19:16–20; see also Amended Complaint ¶¶ 64*–68*.
16. As alleged, Wicker's UCL claim is predicated upon his claim for public nuisance and Walmart's alleged violations of the California Labor Code and Cal/OSHA regulations. See Opposition 19:10–23.
17. See Amended Complaint ¶¶ 107–110.
18. Id. at ¶ 68.
19. Id. at ¶ 70.
20. The Labor Code provides, in pertinent part, that “any provision of this code that provides for a civil penalty to be assessed and collected” by the relevant California governmental agency for violations of the Labor Code, “may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.” Cal. Labor Code § 2699(a).
21. See Pl.’s Opp'n to Def.’s Mot. to Dismiss the FAC [ECF No. 16] 9:22–24 & 13:19–14:2; Pl.’s Mot. for Leave to File Second Am. Compl. [ECF No. 17] 1:7–8 & 14:15–16.
22. Motion 2:11–20.
23. Opposition 20:1–3 (emphasis omitted).
24. Id. at 20:3–4.
25. See Motion 8:7–14:20.
26. Opposition 20:4–5 (quotation marks omitted).
John W. Holcomb, UNITED STATES DISTRICT JUDGE
Response sent, thank you
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Docket No: Case No. 5:20-cv-02166-JWH-KKx
Decided: April 12, 2021
Court: United States District Court, C.D. California.
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