Cychner v. Food 4 Less Holdings

Filed 5/3/06 Cychner v. Food 4 Less Holdings CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment and order of the Superior Court of Los Angeles County, Madeleine I. Flier and Joanne B. O'Donnell, Judges. Judgment affirmed and order reversed.

Rudy, Exelrod & Zieff, Steven G. Zieff, Patrice L. Goldman; Patten, Faith & Sandford, Jules Sandford and Lorraine Grindstaff for Plaintiffs and Appellants.

Thelen, Reid & Priest, Thomas E. Hill, Remy Kessler; Littler Mendelson, Henry D. Lederman and Allison Balc for Defendants and Appellants.

Tom Cychner, Terry Jolicoeur, and Andrew Ramirez sued Food 4 Less Holdings, Inc. (Food 4 Less Holdings), and Ralphs Grocery Company (Ralphs) challenging the alleged payment of a $10,000 bonus to employees who opted out of class action litigation to recover unpaid overtime wages. The plaintiffs alleged that the bonus payment violated Labor Code section 98.6, constituted tortious retaliation, and was an unfair business practice. The superior court determined that the National Labor Relations Act (29 U.S.C. § 151 et seq.; NLRA) preempted the plaintiffs' complaint and granted the defendants' motion for judgment on the pleadings. The court later concluded that its ruling was in error and granted the plaintiffs' new trial motion. The plaintiffs appeal the judgment. The defendants appeal the judgment and the order granting a new trial.

The plaintiffs contend their complaint does not allege an unfair labor practice within the jurisdiction of the National Labor Relations Board (NLRB), so there is no preemption. The defendants contend the controversy arguably falls within the coverage of the NLRA and therefore is preempted, and contend the court had no jurisdiction to grant a new trial motion more than 60 days after their service of a notice of entry of judgment. The defendants also challenge the overruling of their demurrer to each cause of action alleged in the complaint. We conclude that the complaint fails to state a cause of action under Labor Code section 98.6 or a common law cause of action for retaliation, and that the plaintiffs have no standing to sue under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.). We therefore affirm the judgment and need not discuss further the question of federal preemption. We also conclude that the court had no jurisdiction to order a new trial, and reverse the new trial order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prior Class Actions

Employees of Food 4 Less stores sued Food 4 Less Holdings and Ralphs in two class actions seeking to recover unpaid overtime wages (Kung v. Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC188014); Hines v. Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC202728)). The class action complaints alleged that the plaintiffs were employed as â€