The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM GRANTING DEFENDANT'S MOTION TO STRIKE AND GRANTING I MOTION TO DECISION AND ORDER DENYING IN PART AND N PART DEFENDANT'S DISMISS (DOC. 18)
Juan Manuel Garcia-Barajas ("Plaintiff") filed a complaint against his former employer, Nestle Purina Petcare Co. ("Defendant") and Does 1-50 in Kern County Superior Court on November 10, 2008. Doc. 2. Defendant removed to federal court on January 6, 2009, pursuant to 28 U.S.C. § 1441(a), based on diversity of citizenship. Id. On April 10, 2009 Plaintiff filed a First Amended Complaint ("FAC"). Doc. 17. Before the court for decision is Defendant's motion to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike certain damages prayers pursuant to Federal Rule of Civil Procedure 12(f). Doc. 18. Specifically, Defendant argues: 1) Plaintiff is not entitled to "emotional distress" and punitive damages in connection with his claims under California Labor Code ("CLC") §§ 200, 226.7, and 512; 2) Plaintiff has failed to allege sufficiently outrageous conduct to support a claim for intentional infliction of emotional distress ("IIED"), or, in the alternative, Plaintiff's IIED claim is barred by California workers' compensation law; and 3) Plaintiff has failed to state a claim for negligent infliction of emotional distress ("NIED"), or, in the alternative, Plaintiff's NIED claim is barred by the workers' compensation system. Id . Plaintiff opposes the motion to dismiss and/or strike. Doc. 22. Defendant filed a reply on July 6, 2009. Doc. 26.
Plaintiff was employed at Defendant's Maricopa, California cat litter manufacturing facility from May 1989 to March 2007. FAC at ¶¶ 7, 9. During his eighteen years of employment, Plaintiff received a series of recommendations, certificates, and promotions. Id. at ¶¶ 7-8. In 1998, Plaintiff was promoted from Large Pack Line Person to Production Line Technician. Id. at ¶ 8. In 2002, he was promoted to Senior Line Technician and, in 2005, he was promoted to Processing Operator, a title he held until the termination of his employment. Id. Plaintiff's duties as Processing Operator included driving and operating a loader, "a large, heavy, wheeled piece of machinery used to load sand and dirt," and submitting daily reports. Id. at ¶¶ 10, 14D.
Plaintiff alleges that Defendant engaged in unreasonably dangerous work practices and failed to address the Maricopa facility's unsafe working conditions, which jeopardized Plaintiff's health and safety. Id. at ¶ 16. Plaintiff contends that he was required to operate a loader under extreme heat conditions without a working air conditioner and with weak breaks and worn-out tires. Id. at ¶ 10. Moreover, on two occasions, under threats of written warnings, Plaintiff was ordered to unclog a facility silo*fn1 without proper training or safety gear. Id. at ¶ 14A-B. One occasion resulted in Plaintiff becoming stuck and, after being pulled out by a co-worker, Plaintiff emerged unable to breathe properly and dizzy because of exposure to fine dust particles. Id. at ¶ 14B. Plaintiff also contends that Defendant did not give him meal and rest breaks and that Defendant failed to adequately compensate him for overtime as well as vacation time. Id. at ¶¶ 12, 14C. Plaintiff further alleges that Defendant required him to work unreasonably long hours, such as assigning him to work alone on a two-man job six to seven days a week on twelve hour shifts. Id. at ¶ 14A. Plaintiff asserts that he was accused of insubordination and refusing to follow a direct order in response to informing the Supervisor and Plant Manager of his concerns. Id. at ¶ 14E-F.
Plaintiff was placed on disciplinary suspension from March 2, 2007 to March 5, 2007, and, on March 9, 2007, Defendant terminated Plaintiff's employment. Id. at ¶¶ 14E-F, 15.
Federal Rule of Civil Procedure 12(f) provides that "redundant, immaterial, impertinent, or scandalous matters" may be "stricken from any pleading." Fed. R. Civ. P. 12(f). The disposition of a motion to strike lies within the discretion of the district court; such motions are disfavored and infrequently granted. Legal Aid Serv. of Or. v. Legal Serv. Corp. , 561 F. Supp. 2d 1187, 1189 (D. Or. 2008). Nevertheless, a motion to strike may serve as an appropriate vehicle for striking improper prayers for damages. See In re Trans Union Corp. Privacy Litig. , 211 F.R.D. 328, 346 (N.D. Ill. 2002).
B. Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding whether to grant a motion to dismiss, the court accepts all factual allegations of the complaint as true and draws all reasonable inferences in the light most favorable to the nonmoving party. See Rodriguez v. Panayiotou , 314 F.3d 979, 983 (9th Cir. 2002). "To avoid a Rule(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Weber v. Dept. of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (citing Bell Atlantic v. Twombly , 550 U.S. 544, 561-63 (2007)) (rejecting interpretation of Rule 8 that permits dismissal only when plaintiff can prove "no set of facts" in support of his claim). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001).
A. Motion to Strike Request for Emotional Distress and Punitive Damages In Connection with Claims Brought Under California Labor Code Sections 200, 226.7, and 512.
Defendant moves to strike the tort damages allegations in Plaintiff's Fourth, Fifth, and Sixth Causes of Action.*fn2 In the Fourth Cause of Action for Failure to Pay Wages and Other Benefits in Violation of Cal. Lab. Code § 200, et. seq , Plaintiff alleges that he was entitled to certain unpaid wages immediately upon termination. FAC at ¶ 41. These unpaid wages included earned wages, a quarterly bonus, vacation and holiday pay, and overtime. Despite his demands, Plaintiff alleges that Defendant has not paid these additional compensations. Id. at ¶¶ 41-42. Plaintiff alleges that he should be awarded punitive and exemplary damages to compensate him for "suffer[ing] severe emotional and mental distress" as a result of Defendant's "malicious" and "intentional" acts. Id. at ¶¶ 47-48. Plaintiff's Fifth Cause of Action is based on Cal. Lab. Code § 226.7, which affords Plaintiff meal or rest periods and provides that if Defendant fails to provide such periods, Plaintiff is entitled to one additional hour of pay at his regular rate of compensation. Plaintiff alleges that he was forced to work during his meal and rest periods and was not compensated in accordance with law. FAC at ¶¶ 51-52, 54. Plaintiff seeks punitive damages to compensate him for "suffer[ing] severe emotional and mental distress" as a result of Defendant's "malicious" and "intentional" acts. Id. at ¶¶ 56-57. In the Sixth Cause of Action for Violation of Cal. Lab. Code § 500, et. seq , Plaintiff alleges that Cal. Lab. Code § 512 afforded him a meal period of at least thirty minutes when his work day was over five hours. Plaintiff maintains that he was regularly denied and forced to work through his meal periods even though his workdays were longer than five hours. FAC at ¶¶ 60-61. Plaintiff alleges that he should be awarded punitive damages to compensate him for "suffer[ing] severe emotional and mental distress" as a result of Defendant's "malicious" and "intentional" acts. Id. at ¶¶ 63-64.
Defendant asserts that tort damages, including punitive damages and damages for severe emotional and mental distress, are not available under any of these claims. In support of this proposition, Defendant cites Brewer v. Premier Golf Properties , 168 Cal. App. 4th 1243, 1246-47 (2008), which concerned an employee's California Labor Code claims for minimum wage, meal and rest breaks, and pay stub violations. Brewer applied the so- called "new right-exclusive remedy" doctrine, which provides that "where a statute creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive remedy available for statutory violations, unless it is inadequate." Id . at 1252 (citing De Anza Santa Cruz Mobile Estates Homeowners Ass'n. v. De Anza Santa Cruz Mobile Estates , 94 Cal. App. 4th 890, 912 (2001)). Brewer held that the provisions of the Labor Code invoked in that case, namely those regulating pay stubs (§ 226), minimum wages (§ 1197.1), meal breaks (§ 512), and rest breaks (8 Cal. Code Regs. § 11090, subd. 12(A)), created "new rights and obligations not previously existing in the common law, and the statutory scheme provided "a comprehensive and detailed remedial scheme for [their] enforcement." Brewer , 168 Cal. App. 4th at 1253-54 (citing Rojo v. Kliger , 52 Cal. 3d 65, 79 (1990)). Accordingly, punitive damages were not available.
Plaintiff argues that Brewer was wrongly decided, relying on several federal and state cases addressing claims for wrongful discharge in violation of public policy and/or claims brought under California's Fair Employment and Housing Act ("FEHA"). For example, in Commodore Home Systems Inc. v. Superior Court , 32 Cal. 3d 211, 213-14 (1982), the California Supreme Court considered whether an employee who brought a FEHA claim alleging that he was discharged because of his race, could recover punitive damages even though such damages are not specifically identified under FEHA. Commodore found punitive damages recoverable because the common law recognized a tort cause of action for wrongful discharge in violation of public policy. Id . at 219-21. The Supreme Court reiterated this holding in Rojo , emphasizing that "FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination..." Rojo , 52 Cal. 3d at 74-75. "By expressly disclaiming a purpose to repeal other applicable laws..., we believe the Legislature has manifested an intent to amplify, not abrogate, an employee's common law remedies for injuries relating to employment discrimination." Id . at 75.
These FEHA cases are not direct authority for Plaintiff's position that punitive damages should be made available under the wage, hour, and break provisions he invokes, as they address common law claims for which punitive damages were an available remedy. Several federal district courts considering claims brought under the CLC have rejected Plaintiff's argument, following Brewer . Czechowski v. Tandy Corp., 731 F. Supp. 406, 410 (N.D. Cal. 1990), held that plaintiff's claims for lost vacation benefits under the Labor Code did not support a punitive damages award because § 203 provided for the award of statutory penalties when an employer "willfully fails to pay" wages due upon termination, finding that "[t]he Legislature's provision of such statutory penalties precludes an award of punitive damages." Accord In re Wal-Mart Stores Inc. Wage and Hour Litig., 505 F. Supp. 2d 609, 620-21 (N.D. Cal. 2007). Plaintiff also relies on Freund v. Nycomed Amersham , 347 F.3d 752, 756, 757 n.5 (9th Cir. 2003), concerning a claim for wrongful discharge in violation of public policy, a California tort, based on Cal. Lab. Code § 6310, which prohibits discharging an employee for making "any oral or written complaint...with reference to employee safety or health..." The Ninth Circuit first held that an alleged violation of § 6310 may support a tort claim for wrongful discharge in violation of public policy. Freund , 347 F.3d at 758-59. The Ninth Circuit cited Rojo and another California case, Hentzel v. Singer Co., 138 Cal. App. 3d 290, 301-02, 305 (1982), which held that wrongful termination actions brought directly under § 6310 were not limited to the statutorily-identified remedies. Hentzel found that punitive damages were available for a claim of wrongful discharge in violation of public policy premised on a CLC § 6310 violation. Id.
Hentzel applied the "new right-exclusive remedy" doctrine to § 6310, articulating the doctrine as follows: Where a new right,-one not existing at common law, is created by statute and a statutory remedy for the infringement thereof is provided, such remedy is exclusive of all others. But, if a right was established at common law or by statute before the new statutory remedy was created, the statutory remedy ...