Related State Torts

• Author: Andrew H. Friedman
• Pages: 879-964

RELATED

STATE TORTS

CHAPTER 3

RELATED STATE TORTS

RELATED

STATE TORTS

(Τηισ παγε ιντεντιοναλλψ λεφτ βλανκ.)

RELATED

STATE TORTS

3-3 Related State Torts

I. INTRODUCTION

Many plainti employment practitioners supplement their state and federal statutory discrimination claims with

related state tort claims. Indeed, many courts have recognized that responsible plainti’s employment practitioners

bringing statutory discrimination cases have a duty to also plead a variety of statutory, tort and contract causes of action

in order to fully protect the interests of their clients. Σεε Ροϕο ϖ. Κλιγερ, 52 Cal. 3d 65, 74 (1990); σεε αλσο Χροωλεψ ϖ.

Κατλεµαν, 8 Cal. 4th 666, 668 (1994). In addition to serving as an extra basis upon which liability may be found, other

reasons for pleading related state tort claims along with state and federal statutory discrimination claims include:

• There are generally no caps on the amount of damages available on the related state tort claims [σεε §3:05]

• State tort claims serve as a method to name additional defendants that otherwise could not be named

under the statutory discrimination claims;

• State tort claims serve as a precaution against possible defects in the exhaustion of administration remedies

process;

• State tort claims are a potential method to avoid federal diversity jurisdiction;

• State tort claims may be used as an additional method to obtain discovery that might not otherwise be

obtained;

• State tort claims may be used to ensure the admission of evidence that might not otherwise be heard by

the jury; and

• State tort claims may allow the plainti to allege facts that might not otherwise be relevant and, by doing

so, place increased pressure on the defendant to settle the case.

PRACTICE POINTER:

Consult model jury instructions

In determining whether there are suff‌icient facts to bring related state tort claims and when drafting state

tort claim allegations, consult the model jury instructions in your jurisdiction. These model jury instructions are

extremely useful in providing a roadmap for pleading and proving state tort claims.

PRACTICE POINTER:

Be Wary of Federal Preemption

In determining which state tort claims to bring on behalf of the plaintiff, it is important for the plaintiff

employment attorney to ensure that those claims will not be preempted by federal law. Federal preemption

most commonly arises from four bodies of preemption law

• “Garmon” preemption under the National Labor Relations Act.

• “Machinists” preemption under the National Labor Relations Act.

• Section 301, Labor Management Relations Act preemption.

• ERISA preemption.

An example of how Garmon preemption can result in the dismissal of state tort claims is Moreno v. UtiliQ-

uest, LLC, 29 F.4th 567 (9th Cir. 2022). In that case, the plaintiff, Cesar Antonio Moreno, appealed from the

district court’s dismissal of his lawsuit against his former employer, defendant UtiliQuest. Moreno alleged that

UtiliQuest promised him that if he convinced all of his fellow employees to “sign away” their union rights, they

would each receive a ten percent raise. Once Moreno obtained signatures from his co-workers releasing their

union rights, UtiliQuest gave him a ten percent raise. Moreno soon learned, however, that UtiliQuest did not give

any other employees the promised raise. Moreno contends he was terminated after confronting his supervisors

about UtiliQuest’s breach of its promise. Moreno brought various claims related to his termination, but the

district court dismissed them because it found that they were preempted by the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 151 et seq. The Ninth Circuit aff‌irmed the district court’s dismissal of Moreno’s complaint:

The NLRA does not contain express preemption provisions, but the Supreme Court held that two

categories of state action are implicitly preempted: (1) laws that regulate conduct that is either

protected or prohibited by the NLRA (Garmon preemption), and (2) laws that regulate in an area

Congress intended to leave unregulated or controlled by the free play of economic forces (Machinists

preemption). UtiliQuest contends that Garmon preemption applies to Moreno’s claims.