Pedro Zuniga Lawsuit

1 ALBERTSONS COMPANIES, INC.
; and DOES 1 THROUGH 100, INCLUSIVE (hereinafter

2 collectively “Defendants”), and each of them, as follows:
3
THE PARTIES
4
1. At all relevant times herein, Decedent PEDRO ZUNIGA (hereinafter “Decedent” or
5
“Pedro”) was a domiciled resident of the City of Turlock, County of Stanislaus, State of California.
6
7 Decedent was an employee of Defendant SAFEWAY INC. at the Safeway Distribution Center in
8 Tracy, California.
9 2. At all relevant times herein, Plaintiff NORMA ZUNIGA, individually, as successor-

10
in-interest to PEDRO ZUNIGA, Deceased, was, and is now, a competent adult and a resident of the
11
County of Stanislaus, State of California. Plaintiff is the lawful wife and legal successor-in-interest
44 Montgomery Street, Suite 3850
12
San Francisco, CA 94104
of the Decedent.
The Matiasic Firm, P.C.
13
3. Plaintiff constitutes all the surviving heirs at law of Decedent pursuant to California
14
15 Code of Civil Procedure § 377.60. Plaintiff is Decedent’s lawful wife. No other person has a
16 superior right to commence the action or proceeding or to be substituted for the Decedent in the
17 pending action or proceeding. Plaintiff herein constitutes Decedent’s successor-in-interest as
18
defined in California Code of Civil Procedure § 377.11 and succeeds to Decedent’s interest in this
19
action. Plaintiff has complied with C.C.P. § 377.32 and has filed the requisite successor-in-interest
20
declaration herewith.
21
22 4. At all relevant times herein, based on information and belief, Defendants
23 SAFEWAY INC. (hereinafter “SAFEWAY”) and DOES 1 through 10 were, and are now,
24 companies involved in food and drug retail and distribution, with supermarkets located in seventeen
25 U.S. states and the District of Columbia, incorporated in the State of California, licensed to do
26
business in the State of California, with their principal place of business in the County of Alameda,
27
State of California.
28
____________________________________________________________________________________
2
FIRST AMENDED COMPLAINT FOR DAMAGES, CASE NO. HG20062742
1 5. At all relevant times herein, based on information and belief, Defendants
2 ALBERTSONS COMPANIES, INC. (hereinafter “ALBERTSONS”) and DOES 11 through 20
3
were, and are now, companies involved in food and drug retail and distribution with grocery stores
4
and supermarkets located throughout the United States, incorporated and licensed to do business in
5
the State of California. SAFEWAY and/or ALBERTSONS owned and/or operated the Safeway
6
7 Northern California Distribution Center (hereinafter “Distribution Center”) located at 16900
8 Schulte Road in Tracy, California.
9 6. ALBERTSONS has claimed in filings that it wholly owns SAFEWAY as a

10
subsidiary.
11
7. ALBERTSONS and SAFEWAY share many of the same executive officers and
12
appear to use the same assets.

13
8. ALBERTSONS serves as the parent company for SAFEWAY, which it calls a
14
15 “banner” under which it owns and operates stores and distribution centers.
16 9. The true names and capacities, whether individual, corporate, associate, agency,
17 familial, representative, or otherwise, of Defendants named herein as DOES 1 through 100,
18
inclusive, are unknown to Plaintiff at this time, and they are therefore sued by such fictitious names
19
pursuant to California Code of Civil Procedure §474. Plaintiff prays to amend this complaint to
20
allege the true names and capacities of DOES 1 through 100 when Plaintiff discovers such true
21
22 identities. Each of the DOE Defendants designated herein is negligently or otherwise in some
23 manner legally responsible for the events and happenings alleged herein, and negligently or
24 otherwise caused or contributed to the injuries and damages to Plaintiff as hereinafter alleged.
25 10. At all times mentioned herein, each and every of the Defendants herein was the
26
agent, ostensible agent, licensee, servant, partner, joint venturer, employer, employee, affiliate,
27
assistant, relative, or volunteer of each of the other Defendants, and each was at all times alleged
28
____________________________________________________________________________________
3
1 herein acting in the course and scope of said agency, ostensible agency, license, service,
2 partnership, joint venture, employment, affiliation, assistance, relation, and volunteering.
3
JURISDICTION AND VENUE
4
11. Venue is proper in the County of Alameda under California Code of Civil Procedure
5
§395.5, on the basis that the principal place of business of one or more Defendants is located in the
6
7 County of Alameda.
8 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
9 COVID-19
10
12. COVID-19 is an infectious respiratory disease caused by the SARS-CoV-2 virus.
11
13. The virus is highly contagious. Transmission of SARS-CoV-2 primarily occurs by
12
way of respiratory droplets in coughs and sneezes of infected persons in close proximity to others
13
and via contaminated surfaces.
14
15 14. There is presently no vaccine available for the prevention of COVID-19 in humans.
16 15. The incubation period for COVID-19 can range anywhere from 2-14 days.
17 16. Common symptoms of the virus include cough, fever, shortness of breath, chills,
18
muscle aches, headache, sore throat, and new loss of taste or smell. Symptoms vary in severity
19
and, in certain instances, can lead to hospitalization and death.
20
17. Due to the highly contagious nature of this virus, the risk of developing severe and
21
22 potentially fatal symptoms, and the lack of vaccine, experts recommend that individuals prevent the
23 spread of the virus by utilizing hand sanitizers and soaps, utilizing personal protective equipment
24 (“PPE”) when in close proximity to others, and maintaining a minimum of 6 feet of physical
25 distance between themselves and others.
26
Timeline of Events
27
18. It is believed that the virus originated in Asia in late 2019.
28
____________________________________________________________________________________
4
1 19. In January 2020, the first cases of COVID-19 in the United States were reported,
2 with the first recorded case of community-spread virus transmission in the United States occurring
3
on January 30, 2020.
4
20. On that same day, January 30, 2020, the World Health Organization declared this
5
novel coronavirus outbreak a “public health emergency of international concern.”
6
7 21. On March 4, 2020, California Governor Gavin Newsom declared a State of
8 Emergency due to the global COVID-19 outbreak.
9 22. On March 9, 2020, the Occupational Safety and Health Administration released a
10
publication titled “Guidance on Preparing Workplaces for COVID-19.” This detailed document
11
explained that SARS-CoV-2 “has the potential to cause extensive outbreaks” in workplaces and
12
provided employers with basic steps they should take to reduce the risk of employee exposure to
13
SARS-CoV-2. These steps included:
14
15 - Develop an Infectious Disease Preparedness and Response Plan

- Prepare to Implement Basic Infection Prevention Measures, including:
16
o Maintaining regular housekeeping practices, including routine cleaning and
17 disinfecting of surfaces, equipment, and other elements of the work environment
18 - Develop Policies and Procedures for Prompt Identification and Isolation of Sick People,
if Appropriate
19
- Develop, Implement, and Communicate about Workplace Flexibilities and Protections
20 - Implement Workplace Controls
21 o Administrative Controls, including: Encouraging sick workers to stay home;
minimizing contact between workers; alternating days or extra shifts that reduce
22 the total number of employees in a facility at a given time, allowing them to
maintain distance from one another while maintaining a full onsite work week;
23
Developing emergency communications plans, including a forum for answering
24 workers’ concerns and internet-based communications, if feasible; Providing
workers with up-to-date education and training on COVID-19 risk factors and
25 protective behaviors (e.g., cough etiquette and care of PPE).
26 o Personal Protective Equipment (PPE) Controls, including: Employers are

obligated to provide their workers with PPE needed to keep them safe while
27 performing their jobs. The types of PPE required during a COVID-19 outbreak
will be based on the risk of being infected with SARS-CoV-2.
28
____________________________________________________________________________________
5
1 - Follow Existing OSHA Standards
2 23. On March 11, 2020, due to “alarming levels of spread and severity,” the World
3
Health Organization made the assessment that COVID-19 can be characterized as a pandemic.
4
24. In guidance issued by the Food and Drug Administration on March 17, 2020, the
5
topic of workers in food processing and distribution facilities is directly addressed:
6
7 “If an employee is confirmed to have COVID-19, employers should inform fellow

employees of their possible exposure to COVID-19 in the workplace.”
8 “While the primary responsibility in this instance is to take appropriate actions to protect
9 other workers and people who might have come in contact with the ill employee, facilities
should re-double their cleaning and sanitation efforts to control any risks that might be
10 associated with workers who are ill regardless of the type of virus or bacteria. For example,
facilities are required to maintain clean and sanitized facilities and food contact surfaces.”
11
25. On March 20, 2020, a “Team Talk” sign titled “Coronavirus Risk: Fact vs. Fiction,”
12
13 prepared and circulated by ALBERTSONS, was posted at the Distribution Center. This sign
14 specifically informed workers that PPE such as masks and gloves were not recommended for use
15 by employees at the Distribution Center, contrary to the guidance and advice issued by federal and
16
state authorities.
17
18
19
20
21
22
23
24
25
26
27
28
____________________________________________________________________________________
6
1 26. In March 2020, workers at the Distribution Center began to fall ill with COVID-19.
2 These employees were mandated to continue working not only regular shifts, but also additional
3
shifts (6 days per week, rather than 4 or 5) with longer hours (16 hours per day).
4
27. By mid-March 2020, employees at the Distribution Center, including Pedro, began
5
complaining to their supervisors about the dangerous working conditions and their fears associated
6
7 with the same. These complaints were met by superiors with threats of retaliatory disciplinary
8 action, including the potential for accruing ‘points’ which could lead to termination.
9 28. On April 1, 2020, after experiencing a fever and other symptoms, Decedent received
10
a COVID-19 test, which came back positive a few days later. He was admitted to the hospital on
11
April 4, 2020 with pneumonia and symptoms including coughing, trembling, and fever. On April
12
5, 2020, he was transferred to the Intensive Care Unit, where he was intubated and placed in a
13
medically induced coma, and on April 13, 2020, he succumbed to the disease.
14
15 29. On approximately April 17, 2020, a SAFEWAY spokesperson confirmed that at
16 least 51 employees at the Distribution Center had tested positive for COVID-19. This figure
17 represented 3% of the approximately 1,700 employees at the Distribution Center.
18
30. It was not until after Pedro’s death that Defendants began to change their tune with
19
respect to safety measures at the Distribution Center – a woefully delayed move that can best be
20
described as “too little, too late.” In fact, these modest changes—consisting of the rearranging of
21
22 break rooms and the placement of one hand sanitizer stand (which was often left empty for hours)
23 for a department with over 100 employees on shift at any given time—continued to leave
24 SAFEWAY employees particularly exposed and vulnerable to this virus.

25 31. In response to public outcry surrounding Pedro’s death and the mounting number of
26
COVID-positive employees at the Distribution Center, Governor Newsom directed his remarks
27
28
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7
1 during a press conference to workers like Pedro, stating: “You are not disposable. You are
2 essential.” Unfortunately for Decedent and his family, Defendants did not share this sentiment.
3
Pedro Zuniga
4
32. Pedro Zuniga was a happily married 52-year-old man, devoted to his wife,
5
NORMA, and their five children, Jose, Adilene, Marisol, Alicia, and Junior. He was a man of deep
6
7 faith and loved traveling, soccer, and spending time with his three grandchildren.
8 33. For approximately 22 years, Decedent was employed by SAFEWAY as a loyal
9 material handler in the produce department at the Distribution Center.

10
34. On April 13, 2020, Pedro died in the Intensive Care Unit at Memorial Medical
11
Center in Modesto, California, of cardiopulmonary arrest and hypoxic respiratory failure caused by
12
COVID-19.
13
35. Pedro’s death was the tragic and preventable result of Defendants’ failure to follow
14
15 appropriate guidelines, and common sense in order to provide for the Distribution Center workers’
16 health and safety. Defendants instead prioritized their own greed over the physical health and
17 survival of Decedent and others.
18
FIRST CAUSE OF ACTION
19
(Negligence – As Against All Defendants)
20
36. Plaintiff repeats and re-alleges, as if fully set forth herein, each and every allegation
21
22 contained in paragraphs 1-35 above, and further alleges:
23 37. SAFEWAY and DOES 1-10, and each of them, had a non-delegable duty to: ensure
24 that their facility operations were conducted and managed in such a manner so as to safeguard the
25 safety and well-being of their employees, including Decedent; comply with occupational safety and
26
health guidelines; comply with food and drug Administration guidelines; implement an Infectious
27
Disease Preparedness and Response Plan; develop and implement policies and procedures designed
28
____________________________________________________________________________________
8
1 to prevent an outbreak from occurring at the Distribution Center, including policies and procedures
2 to: screen workers upon arrival at the facility each day, send exposed and potentially exposed
3
workers home, maintain physical distance between workers, provide appropriate PPE for workers,
4
create disinfectant stations throughout the facility; maintain housekeeping practices, including
5
frequent cleaning and disinfecting of surfaces, equipment, and other elements of the work
6
7 environment; provide workers with up-to-date education and training on COVID-19 risk factors
8 and protective behaviors; respond appropriately to workers’ complaints and concerns regarding
9 exposure and/or potential exposure to the virus; not spread or disseminate false or misleading
10
information about the transmission, prospective exposure to, or contraction of the virus, including
11
false or misleading statements or information about the utilization of PPE; send workers who were
12
obviously exhibiting known signs and symptoms of COVID-19 home; not retaliate or threaten
13
disciplinary action against workers who were concerned that they were demonstrating signs and
14
15 symptoms of COVID-19; not threaten or take any adverse employment action against employees
16 due to attendance issues or concerns about their working environment in light of the COVID-19
17 pandemic; and develop and maintain an adequate prophylactic infrastructure after the outbreak
18
occurred.
19
38. ALBERTSONS and DOES 11-20, and each of them, by virtue of assuming a duty
20
and undertaking to distribute COVID-19 related signage and guidance to facilities and the workers
21
22 therein, including at the Distribution Center, had an independent duty to: not disseminate and
23 provide inaccurate information pertaining to COVID-19 transmission and prevention; and not
24 mislead individuals, including Decedent, with false, skewed, or unclear facts as it pertained to
25 personal protective equipment and safety measures that should be taken.
26
27
28
____________________________________________________________________________________
9
1 39. It was reasonably foreseeable that if Defendants breached their respective,
2 independent duties of care owed to Decedent, Decedent could sustain injuries and damages,
3
including death.
4
40. Defendants, and each of them, breached their respective, independent duties of care
5
owed to Decedent by:
6
7 a. Negligently failing to ensure that the facility operations were conducted and
8 managed in such a manner so as to safeguard the safety and well-being of
9 SAFEWAY employees, including Decedent;

10
b. Failing to comply with occupational health and safety guidelines;
11
c. Failing to comply with food and drug administration guidelines;
12
d. Misleading SAFEWAY employees into thinking that the utilization of PPE on

13
the job was not necessary or even potentially helpful in the prevention of disease
14
15 transmission;
16 e. Failing to implement an Infectious Disease Preparedness and Response Plan;

17 f. Failing to develop and implement policies and procedures designed to prevent an
18
outbreak from occurring at the Distribution Center, including policies and
19
procedures to: screen workers upon arrival at the facility each day, send
20
symptomatic, exposed, or potentially exposed workers home, maintain physical
21
22 distance between workers, provide appropriate PPE for workers, create
23 disinfectant stations throughout the facility;
24 g. Failing to maintain housekeeping practices, including frequent cleaning and

25 disinfecting of surfaces, equipment, and other elements of the work
26
environment;
27
28
____________________________________________________________________________________
10
1 h. Failing to implement, promote, and enforce social distancing guidelines
2 promulgated by the state and federal governments;
3
i. Failing to warn Decedent and other employees in a timely manner that other
4
SAFEWAY employees were experiencing COVID-19 symptoms and may have
5
been infected at the Distribution Center;
6
7 j. Failing to conduct periodic inspections of the condition and cleanliness of the
8 Distribution Center to prevent and/or minimize the risk of transmission of the
9 virus;
10
k. Failing to develop procedures for identification and isolation of sick workers;
11
l. Failing to properly train its personnel to implement and follow procedures
12
designed to minimize the risk of contracting COVID-19;

13
m. Failing to provide workers with up-to-date education and training on COVID-19
14
15 risk factors and protective behaviors;
16 n. Failing to respond appropriately to workers’ complaints and concerns regarding

17 exposure and/or potential exposure to the virus;
18
o. Failing to develop and maintain an adequate prophylactic infrastructure after the
19
outbreak occurred;
20
p. Threatening and/or taking adverse employment actions against employees due to
21
22 attendance issues or concerns about their working environment in light of the
23 COVID-19 pandemic;
24 q. Disseminating and providing inaccurate information pertaining to COVID-19

25 transmission and prevention; and
26
r. Misleading individuals, including Decedent and other workers at the Distribution
27
Center, with false, skewed, or unclear facts as it pertained to personal protective
28
____________________________________________________________________________________
11
1 equipment and safety measures that should have been taken by Decedent and
2 others.
3
In these negligent actions and inactions, Defendants exceeded the inherent risk associated
4
with Decedent’s job.
5
41. The negligence, recklessness, carelessness, and other wrongdoing of Defendants,
6
7 and each of them, was a direct and proximate cause of Decedent’s injuries and ultimate death on or
8 about April 13, 2020. The harm, injuries, and damages caused by Defendants, and each of them,
9 including Decedent’s predeath wage loss and medical bills for treatment of COVID-19, survive the
10
death of the Decedent.
11
42. As a direct and proximate result of the negligence, recklessness, carelessness, and
12
other wrongdoing of Defendants, and each of them, and the resulting death of Decedent, Plaintiff
13
has been, and will continue to be, deprived of her husband’s love, companionship, society, comfort,
14
15 care, attention, guidance, support, future financial dependence on Decedent, other future financial
16 contributions, future gifts, services, and other (non-economic) damages in a sum in excess of the
17 jurisdictional minimum of this Court, in an amount allowable by law, according to proof.
18
43. As a further direct, legal, and proximate result of the negligence, carelessness,
19
recklessness, and wrongdoing of Defendants, and each of them, and the resulting death of
20
Decedent, Plaintiff has incurred funeral, cremation and/or burial, and other related expenses in a
21
22 sum according to proof.
23 44. Said conduct as herein alleged was undertaken by, authorized, approved of, and
24 ratified by managing agents of Defendants, and was done knowingly and willfully, and further was
25 malicious and oppressive in conscious disregard of Decedent’s rights and safety, subjecting
26
Decedent to cruel and unjust hardship. As such, Decedent’s legal successor-in-interest is entitled to
27
punitive or exemplary damages given that this claim survives his death.
28
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12
1 45. WHEREFORE, Plaintiff prays for judgment for damages as hereinafter set forth.
2 SECOND CAUSE OF ACTION
3
(Gross Negligence – As Against All Defendants)
4
46. Plaintiff repeats and re-alleges, as if fully set forth herein, each and every allegation
5
contained in paragraphs 1-45 above, and further alleges:
6
7 47. SAFEWAY and DOES 1-10, and each of them, had a non-delegable duty to: ensure
8 that their facility operations were conducted and managed in such a manner so as to safeguard the
9 safety and well-being of their employees, including Decedent; comply with occupational health and
10
safety guidelines; comply with food and drug Administration guidelines; implement an Infectious
11
Disease Preparedness and Response Plan; develop and implement policies and procedures designed
12
to prevent an outbreak from occurring at the Distribution Center, including policies and procedures
13
to: screen workers upon arrival at the facility each day, send exposed and potentially exposed
14
15 workers home, maintain physical distance between workers, provide appropriate PPE for workers,
16 create disinfectant stations throughout the facility; maintain housekeeping practices, including
17 frequent cleaning and disinfecting of surfaces, equipment, and other elements of the work
18
environment; provide workers with up-to-date education and training on COVID-19 risk factors
19
and protective behaviors; respond appropriately to workers’ complaints and concerns regarding
20
exposure and/or potential exposure to the virus; not spread or disseminate false or misleading
21
22 information about the transmission, prospective exposure to, or contraction of the virus, including
23 false or misleading statements or information about the utilization of PPE; send workers who were
24 obviously exhibiting known signs and symptoms of COVID-19 home; not retaliate or threaten
25 disciplinary action against workers who were concerned that they were demonstrating signs and
26
symptoms of COVID-19; not threaten or take any adverse employment action against employees
27
due to attendance issues or concerns about their working environment in light of the COVID-19
28
____________________________________________________________________________________
13
1 pandemic; and develop and maintain an adequate prophylactic infrastructure after the outbreak
2 occurred.
3
48. ALBERTSONS and DOES 11-20, and each of them, by virtue of assuming a duty
4
and undertaking to distribute COVID-19 related signage and guidance to facilities and the workers
5
therein, including at the Distribution Center, had an independent duty to: not disseminate and
6
7 provide inaccurate information pertaining to COVID-19 transmission and prevention; and not
8 mislead individuals, including Decedent, with false, skewed, or unclear facts as it pertained to
9 personal protective equipment and safety measures that should be taken.

10
49. It was reasonably foreseeable that if Defendants breached their respective duties of
11
care owed to Decedent, Decedent could sustain injuries and damages, including death.
12
50. Defendants, and each of them, breached their respective duties of care owed to
13
Decedent by:
14
15 a. Negligently failing to ensure that their facility operations were conducted and
16 managed in such a manner so as to safeguard the safety and well-being of

17 SAFEWAY employees, including Decedent;
18
b. Failing to comply with occupational health and safety guidelines;
19
c. Failing to comply with food and drug administration guidelines;
20
d. Misleading SAFEWAY employees into thinking that the utilization of PPE on
21
22 the job was not necessary or even potentially helpful in the prevention of disease
23 transmission;
24 e. Failing to implement an Infectious Disease Preparedness and Response Plan;

25 f. Failing to develop and implement policies and procedures designed to prevent an
26
outbreak from occurring at the Distribution Center, including policies and
27
procedures to: screen workers upon arrival at the facility each day, send
28
____________________________________________________________________________________
14
1 symptomatic, exposed, or potentially exposed workers home, maintain physical
2 distance between workers, provide appropriate PPE for workers, create
3
disinfectant stations throughout the facility;
4
g. Failing to maintain housekeeping practices, including frequent cleaning and
5
disinfecting of surfaces, equipment, and other elements of the work
6
7 environment;
8 h. Failing to implement, promote, and enforce social distancing guidelines
9 promulgated by the state and federal governments;

10
i. Failing to warn Decedent and other employees in a timely manner that other
11
employees were experiencing COVID-19 symptoms and may have been infected
12
at the Distribution Center;

13
j. Failing to conduct periodic inspections of the condition and cleanliness of the
14
15 Distribution Center to prevent and/or minimize the risk of transmission of the
16 virus;
17 k. Failing to develop procedures for identification and isolation of sick workers;
18
l. Failing to properly train its personnel to implement and follow procedures
19
designed to minimize the risk of contracting COVID-19
20
m. Failing to provide workers with up-to-date education and training on COVID-19
21
22 risk factors and protective behaviors;
23 n. Failing to respond appropriately to workers’ complaints and concerns regarding
24 exposure and/or potential exposure to the virus;

25 o. Failing to develop and maintain an adequate prophylactic infrastructure after the
26
outbreak occurred;
27
28
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15
1 p. Threatening and/or taking adverse employment actions against employees due to
2 attendance issues or concerns about their working environment in light of the
3
COVID-19 pandemic;
4
q. Disseminating and providing inaccurate information pertaining to COVID-19
5
transmission and prevention; and
6
7 r. Misleading individuals, including Decedent and other workers at the Distribution
8 Center, with false, skewed, or unclear facts as it pertained to personal protective
9 equipment and safety measures that should have been taken by Decedent and
10
others.
11
In these negligent actions and inactions, Defendants exceeded the inherent risk associated
12
with Decedent’s job.

13
51. Defendants knew of the high risk of viral transmission and contraction of COVID-
14
15 19 by workers, including Decedent, at the Distribution Center. Despite having this knowledge, as
16 the pandemic unfolded, SAFEWAY employees, including Decedent, were forced to work even
17 more shifts with longer hours without taking any measures to ensure safe workplace conditions.
18
52. Defendants’ conduct in continuing to send workers, including Decedent, into a
19
dangerous and hazardous workplace without any protective measures in place in the midst of this
20
pandemic, despite having knowledge of specific guidelines from state and federal agencies,
21
22 demonstrates an intentional failure to do what reasonably careful companies would do under the
23 circumstances, exhibits a willful and conscious disregard for the safety of Decedent and his fellow
24 workers, and evidences reckless indifference by Defendants, which constitutes gross negligence.
25 53. The negligence, gross negligence, recklessness, carelessness, and other wrongdoing
26
of Defendants, and each of them, was a direct and proximate cause of Decedent’s injuries and
27
ultimate death on or about April 13, 2020. The harm, injuries, and damages caused by Defendants,
28
____________________________________________________________________________________
16
1 and each of them, including Decedent’s predeath wage loss and medical bills for treatment of
2 COVID-19, survive the death of the Decedent.
3
54. As a direct and proximate result of the negligence, gross negligence, recklessness,
4
carelessness, and other wrongdoing of Defendants, and each of them, and the resulting death of
5
Decedent, Plaintiff has been, and will continue to be, deprived of her husband’s love,
6
7 companionship, society, comfort, care, attention, guidance, support, future financial dependence on
8 Decedent, other future financial contributions, future gifts, services, and other (non-economic)
9 damages in a sum in excess of the jurisdictional minimum of this Court, in an amount allowable by
10
law, according to proof.
11
55. As a further direct, legal, and proximate result of the negligence, gross negligence,
12
carelessness, recklessness, and wrongdoing of Defendants, and each of them, and the resulting
13
death of Decedent, Plaintiff has incurred funeral, cremation and/or burial, and other related
14
15 expenses in a sum according to proof.
17 ratified by managing agents of Defendants, and was done knowingly and willfully, and further was
18
malicious and oppressive in conscious disregard of Decedent’s rights and safety, subjecting
19
Decedent to cruel and unjust hardship. As such, Decedent’s legal successor-in-interest is entitled to
20
punitive or exemplary damages given that this claim survives his death.
21
23 THIRD CAUSE OF ACTION
24 (Negligent Undertaking – As Against ALBERTSONS and DOES 11-20)

25 58. Plaintiff repeats and re-alleges, as if fully set forth herein, each and every allegation
26
27
28
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17
1 59. As set forth above, despite not being his employer, ALBERTSONS and DOES 11-
2 20, and each of them, undertook and assumed a duty SAFEWAY owed to Decedent.
3
ALBERTSONS undertook to: maintain a safe and clean environment at the Distribution Center for
4
the safety, health, benefit and protection of Decedent and other workers at the Distribution Center;
5
require that SAFEWAY seek its approval and/or recommendations with respect to the issuance of
6
7 health and safety information to Decedent and other workers at the Distribution Center; and provide
8 safety training, guidance, and policies for SAFEWAY’s employees.
9 60. These services were of a kind that ALBERTSONS and DOES 11-20 should have
10
recognized as needed for the safety, health, benefit and protection of Decedent.
11
61. ALBERTSONS and DOES 11-20, and each of them, failed to exercise reasonable
12
care in rendering these services.

13
62. The failure of ALBERTSONS and DOES 11-20, and each of them, to exercise
14
15 reasonable care in performing the undertaking increased the risk of harm to Decedent and was a
16 substantial factor in causing harm to Decedent.

17 63. Decedent died because Decedent was dependent upon and relied on the services of
18
the undertaking by ALBERTSONS and DOES 11-20.
19
64. The negligence, gross negligence, recklessness, carelessness, and other wrongdoing
20
of ALBERTSONS and DOES 11-20, and each of them, was a direct and proximate cause of
21
22 Decedent’s injuries and ultimate death on or about April 13, 2020. The harm, injuries, and
23 damages caused by ALBERTSONS and DOES 11-20, including Decedent’s predeath wage loss
24 and medical bills for treatment of COVID-19, survive the death of the Decedent.
25 65. As a direct and proximate result of the negligence, gross negligence, recklessness,
26
carelessness, and other wrongdoing of ALBERTSONS and DOES 11-20, and each of them, and the
27
resulting death of Decedent, Plaintiff has been, and will continue to be, deprived of her husband’s
28
____________________________________________________________________________________
18
1 love, companionship, society, comfort, care, attention, guidance, support, future financial
2 dependence on Decedent, other future financial contributions, future gifts, services, and other (non-
3
economic) damages in a sum in excess of the jurisdictional minimum of this Court, in an amount
4
allowable by law, according to proof.
5
6
7 carelessness, recklessness, and wrongdoing of ALBERTSONS and DOES 11-20, and each of them,
8 and the resulting death of Decedent, Plaintiff has incurred funeral, cremation and/or burial, and
9 other related expenses in a sum according to proof.

10
67. Said conduct as herein alleged was undertaken by, authorized, approved of, and
11
ratified by managing agents of ALBERTSONS and DOES 11-20, and each of them, and was done
12
knowingly and willfully, and further was malicious and oppressive in conscious disregard of
13
Decedent’s rights and safety, subjecting Decedent to cruel and unjust hardship. As such,
14
15 Decedent’s legal successor-in-interest is entitled to punitive or exemplary damages given that this
16 claim survives his death.

18
FOURTH CAUSE OF ACTION
19
(Violations of The California Occupational Safety and Health Act of 1973 (Title 8, California
20 Code of Regulations § 3203 and California Labor Code § 6400 et seq.) – As Against
SAFEWAY and DOES 1-10 )
21
24 70. The California Occupational Safety and Health Act of 1973 (“Cal OSHA”) “was
25 enacted by the California Legislature to assure safe and healthful working conditions for all
26
California working men and women.” Per Cal OSHA, an employer shall furnish to each of its
27
28
____________________________________________________________________________________
19
1 employees, employment and a place of employment which are free from recognized hazards that
2 are causing or are likely to cause death or serious physical harm to his employees.
3
71. California Code of Regulations § 3203 sets forth California’s workplace Injury and
4
Illness Prevention Program:
5
(a) Effective July 1, 1991, every employer shall establish, implement and maintain an
6 effective Injury and Illness Prevention Program (Program). The Program shall be in writing
7 and, shall, at a minimum:
(1) Identify the person or persons with authority and responsibility for implementing
8 the Program.
9 (2) Include a system for ensuring that employees comply with safe and healthy work
practices. Substantial compliance with this provision includes recognition of
10 employees who follow safe and healthful work practices, training and retraining
11 programs, disciplinary actions, or any other such means that ensures employee
compliance with safe and healthful work practices.
12 (3) Include a system for communicating with employees in a form readily

understandable by all affected employees on matters relating to occupational safety

13
and health, including provisions designed to encourage employees to inform the
14 employer of hazards at the worksite without fear of reprisal. Substantial compliance
with this provision includes meetings, training programs, posting, written
15 communications, a system of anonymous notification by employees about hazards,
labor/management safety and health committees, or any other means that ensures
16 communication with employees.
17
72. California Labor Code §6401.7 mirrors and expands upon this:
18
(a) Every employer shall establish, implement, and maintain an effective injury prevention
19 program. The program shall be written, except as provided in subdivision (e), and shall
include, but not be limited to, the following elements:
20
(1) Identification of the person or persons responsible for implementing the
21 program.
22 (2) The employer’s system for identifying and evaluating workplace hazards,
including scheduled periodic inspections to identify unsafe conditions and work
23 practices.
24 (3) The employer’s methods and procedures for correcting unsafe or unhealthy
conditions and work practices in a timely manner.
25 (4) An occupational health and safety training program designed to instruct
26 employees in general safe and healthy work practices and to provide specific
instruction with respect to hazards specific to each employee’s job assignment.
27 (5) The employer’s system for communicating with employees on occupational
28 health and safety matters, including provisions designed to encourage employees to
inform the employer of hazards at the worksite without fear of reprisal.
____________________________________________________________________________________
20
1 (6) The employer’s system for ensuring that employees comply with safe and
healthy work practices, which may include disciplinary action.
2
(b) The employer shall correct unsafe and unhealthy conditions and work practices in a
3 timely manner based on the severity of the hazard.
4 73. SAFEWAY and DOES 1-10, and each of them, breached their duty of care owed to
5
Decedent pursuant to The California Occupational Safety and Health Act of 1973 by: failing to
6
ensure that their facility operations were conducted and managed in such a manner so as to
7
safeguard the safety and well-being of their employees, including Decedent; failing to comply with
8
9 occupational health and safety guidelines; failing to comply with food and drug Administration
10 guidelines; failing to implement an Infectious Disease Preparedness and Response Plan; misleading
11 employees into thinking that the utilization of PPE on the job was not necessary or even potentially
12 helpful in the prevention of disease transmission; failing to develop and implement policies and
13
procedures designed to prevent an outbreak from occurring at the Distribution Center, including
14
policies and procedures to: screen workers upon arrival at the facility each day, send exposed and
15
potentially exposed workers home, maintain physical distance between workers, provide
16
17 appropriate PPE for workers, create disinfectant stations throughout the facility; failing to maintain
18 regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment,
19 and other elements of the work environment; failing to provide workers with up-to-date education
20
and training on COVID-19 risk factors and protective behaviors; failing to respond appropriately to
21
workers’ complaints and concerns regarding exposure and/or potential exposure to the virus; and
22
failing to develop and maintain an adequate prophylactic infrastructure after the outbreak occurred.
23
In these negligent actions and inactions, SAFEWAY and DOES 1-10 exceeded the inherent risk
24
25 associated with Decedent’s job.
27 of SAFEWAY and DOES 1-10, and each of them, was a direct and proximate cause of Decedent’s
28
____________________________________________________________________________________
21
1 injuries and ultimate death on or about April 13, 2020. The harm, injuries, and damages caused by
2 SAFEWAY and DOES 1-10, and each of them, including Decedent’s predeath wage loss and
3
medical bills for treatment of COVID-19, survive the death of the Decedent.
4
75. As a direct and proximate result of the negligence, gross negligence, recklessness,
5
carelessness, and other wrongdoing of SAFEWAY and DOES 1-10, and each of them, and the
6
7 resulting death of Decedent, Plaintiff has been, and will continue to be, deprived of her husband’s
8 love, companionship, society, comfort, care, attention, guidance, support, future financial
9 dependence on Decedent, other future financial contributions, future gifts, services, and other (non-
10
economic) damages in a sum in excess of the jurisdictional minimum of this Court, in an amount
11
allowable by law, according to proof.
12
13
carelessness, recklessness, and wrongdoing of SAFEWAY and DOES 1-10, and each of them, and
14
15 the resulting death of Decedent, Plaintiff has incurred funeral, cremation and/or burial, and other
16 related expenses in a sum according to proof.

18
ratified by managing agents of SAFEWAY and DOES 1-10, and was done knowingly and
19
willfully, and further was malicious and oppressive in conscious disregard of Decedent’s rights and
20
safety, subjecting Decedent to cruel and unjust hardship. As such, Decedent’s legal successor-in-
21
22 interest is entitled to punitive or exemplary damages given that this claim survives his death.
24 FIFTH CAUSE OF ACTION

25 (Fraudulent Concealment of Injury (California Labor Code § 3602(b)(2)) – As Against
26 SAFEWAY and DOES 1-10 )
____________________________________________________________________________________
22
1 80. Decedent was injured on the job at the Distribution Center when he was exposed to
2 and contracted COVID-19 in approximately March 2020.
3
81. By virtue of the fact that employees were exhibiting recognized signs and symptoms
4
of infection while at the Distribution Center, SAFEWAY and DOES 1-10, and each of them, knew
5
that there was an outbreak at the Distribution Center and that many of their employees, including
6
7 Decedent, had suffered job related injuries in the form of COVID-19 exposure, contraction and
8 infections. Moreover, Decedent’s superiors at the Distribution Center had knowledge that Pedro
9 had been exposed to and contracted COVID-19 from his coworker in close proximity.
10
82. Despite having this knowledge, SAFEWAY and DOES 1-10, and each of them,
11
concealed the knowledge of the COVID-19 outbreak at the Distribution Center from their
12
employees, including Decedent. In addition, despite their knowledge that Pedro had been exposed
13
to and contracted COVID-19 from his coworker in close proximity, and dispute having a duty to
14
15 inform him of the same, Defendants concealed their knowledge of Pedro’s injury, who was not
16 aware of his injury at all times relevant hereto.

17 83. Decedent’s injury was made worse by the concealment of SAFEWAY and DOES 1-
18
10, and each of them, including Decedent experiencing a delay in being diagnosed and treated for
19
the virus, which then eventually resulted in his death on April 13, 2020 after a hospitalization that
20
included several days in the Intensive Care Unit.
21
23 of SAFEWAY and DOES 1-10, and each of them, was a direct and proximate cause of Decedent’s
24 injuries and ultimately his death on or about April 13, 2020. The harm, injuries, and damages
25 caused by SAFEWAY and DOES 1-10, and each of them, including Decedent’s predeath wage loss
26
and medical bills for treatment of COVID-19, survive the death of the Decedent.
27
28
____________________________________________________________________________________
23
1 85. As a direct and proximate result of the negligence, gross negligence, recklessness,
2 carelessness, and other wrongdoing of SAFEWAY and DOES 1-10, and each of them, and the
3
resulting death of Decedent, Plaintiff has been, and will continue to be, deprived of her husband’s
4
love, companionship, society, comfort, care, attention, guidance, support, future financial
5
dependence on Decedent, other future financial contributions, future gifts, services, and other (non-
6
7 economic) damages in a sum in excess of the jurisdictional minimum of this Court, in an amount
8 allowable by law, according to proof.
9 86. As a further direct, legal, and proximate result of the negligence, gross negligence,
10
carelessness, recklessness, and wrongdoing of SAFEWAY and DOES 1-10, and each of them, and
11
the resulting death of Decedent, Plaintiff has incurred funeral, cremation and/or burial, and other
12
related expenses in a sum according to proof.

13
87. Said conduct as herein alleged was undertaken by, authorized, approved of, and
14
15 ratified by managing agents of SAFEWAY and DOES 1-10, and was done knowingly and
16 willfully, and further was malicious and oppressive in conscious disregard of Decedent’s rights and
17 safety, subjecting Decedent to cruel and unjust hardship. As such, Decedent’s legal successor-in-
18
interest is entitled to punitive or exemplary damages given that this claim survives his death.
19
88. WHEREFORE, Plaintiff prays for judgment for damages as hereinafter set forth.
20
SIXTH CAUSE OF ACTION
21
22 (Public Nuisance – As Against All Defendants)

25 90. Pursuant to California Civil Code Section 3480, “a public nuisance is one which
26
affects at the same time an entire community or neighborhood, or any considerable number of
27
28
____________________________________________________________________________________
24
1 persons, although the extent of the annoyance or damage inflicted upon individuals may be
2 unequal.”
3
91. Defendants’ failure to comply with government ordinances, guidelines, and/or
4
minimum basic workplace health and safety standards necessary to stop the spread of COVID-19
5
resulted, and continues to result, in community spread of the virus.
6
7 92. This community spread is not limited to workers at the Distribution Center, as these
8 workers returned home and elsewhere in the community, interacting with their family members
9 other members of the public, resulting in further spread of the virus.

10
93. As a result of this community spread of the virus within the workplace and beyond,
11
Defendants’ conduct constitutes a nuisance under Civil Code Section 3479 because it was
12
“injurious to health.”
13
94. Defendants, and each of them, created a condition that was harmful to the health of
14
15 others, including Decedent and Plaintiff. The condition affected a substantial number of
16 individuals similarly situated to Decedent and Plaintiff.

17 95. An ordinary person would be reasonably annoyed and/or disturbed by the condition.
18
96. The conduct of Defendants, and each of them, was unreasonable and the seriousness
19
of the harm to the public, including Decedent and Plaintiff, outweighs the social utility of
20
Defendants’ conduct.
21
22 97. Neither Decedent nor Plaintiff consented to Defendants’ conduct.
23 98. The wrongdoing of Defendants, and each of them, in creating a public nuisance was
24 a direct and proximate cause of Decedent’s injuries and ultimate death on or about April 13, 2020
25 and injuries to Plaintiff, including to her physical and mental health. The harm, injuries, and
26
damages caused by Defendants, and each of them, including Decedent’s predeath wage loss and
27
medical bills for treatment of COVID-19, survive the death of the Decedent.
28
____________________________________________________________________________________
25
1 99. As a direct and proximate result of the wrongdoing of Defendants, and each of them,
2 in creating a public nuisance, and the resulting death of Decedent and separate physical and
3
emotional injuries to Plaintiff, Plaintiff has been, and will continue to be, deprived of her husband’s
4
love, companionship, society, comfort, care, attention, guidance, support, future financial
5
dependence on Decedent, other future financial contributions, future gifts, services, and other (non-
6
7 economic) damages in a sum in excess of the jurisdictional minimum of this Court, in an amount
8 allowable by law, according to proof.
9 100. As a further direct, legal, and proximate result of the wrongdoing of Defendants, and
10
each of them, in creating a public nuisance, and the resulting death of Decedent, and separate
11
physical and emotional injuries to Plaintiff, Plaintiff has incurred medical expenses, funeral,
12
cremation and/or burial, and other related expenses in a sum according to proof.
13
101. WHEREFORE, Plaintiff prays for judgment for damages as hereinafter set forth.
14
15 SEVENTH CAUSE OF ACTION
16 (Wrongful Death – As Against All Defendants)

18
19
103. As a direct, legal, and proximate result of the negligence, gross negligence,
20
undertaking, carelessness, recklessness, and wrongdoing of Defendants, and each of them, as herein
21
22 alleged, Decedent suffered injuries, ultimately leading to his death on April 13, 2020.
23 104. As a further direct, legal, and proximate result of the negligence, gross negligence,
24 carelessness, recklessness, and wrongdoing of Defendants, and each of them, and the resulting
25 death of Decedent, Plaintiff has been, and will continue to be deprived of her husband’s love,
26
companionship, society, comfort, care, affection, society, moral support, sexual relations, attention,
27
presence, guidance, future financial dependence on Decedent, other future financial contributions,
28
____________________________________________________________________________________
26
1 future gifts, support, and other (non-economic) damages in a sum in excess of the jurisdictional
2 minimum of this Court, in an amount allowable by law, according to proof.
3
4
carelessness, recklessness, and wrongdoing of Defendants, and each of them, and the resulting
5
death of Decedent, Plaintiff has incurred funeral, burial and/or cremation, and other related
6
7 expenses in a sum according to proof.
10
PRAYER FOR RELIEF
11
WHEREFORE, Plaintiff prays judgment against Defendants, and each of them, jointly and
12
severally, as follows:
13
A. For general (non-economic) damages, according to proof;
14
15 B. For special (economic) damages, according to proof;
16 C. For exemplary (punitive) damages, according to proof;

17 D. For attorney’s fees, pursuant to Code of Civil Procedure §1021.5;
18
E. For prejudgment interest as permitted by law;
19
F. For costs of suit herein; and
20
G. For such other and further relief the Court may deem proper.
21
22
Dated: July ___, 2020 THE MATIASIC FIRM, P.C.
23
24
By:
25 Paul A. Matiasic
26 Hannah E. Mohr
Attorneys for Plaintiff
27
28
____________________________________________________________________________________
27
1 DEMAND FOR JURY TRIAL
2 Plaintiff demands a trial by jury.
3
4
Dated: July ___, 2020 THE MATIASIC FIRM, P.C.
5
7 By:
Paul A. Matiasic
8
Hannah E. Mohr
9 Attorneys for Plaintiff
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
____________________________________________________________________________________
28

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1 ALBERTSONS COMPANIES, INC.

; and DOES 1 THROUGH 100, INCLUSIVE (hereinafter

9 2. At all relevant times herein, Plaintiff NORMA ZUNIGA, individually, as successor-

22 4. At all relevant times herein, based on information and belief, Defendants

7 Northern California Distribution Center (hereinafter “Distribution Center”) located at 16900

8 Schulte Road in Tracy, California.

9 6. ALBERTSONS has claimed in filings that it wholly owns SAFEWAY as a

appear to use the same assets.

8 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

7 21. On March 4, 2020, California Governor Gavin Newsom declared a State of

8 Emergency due to the global COVID-19 outbreak.

15 - Develop an Infectious Disease Preparedness and Response Plan

26 o Personal Protective Equipment (PPE) Controls, including: Employers are

7 “If an employee is confirmed to have COVID-19, employers should inform fellow

15 29. On approximately April 17, 2020, a SAFEWAY spokesperson confirmed that at

24 SAFEWAY employees particularly exposed and vulnerable to this virus.

8 33. For approximately 22 years, Decedent was employed by SAFEWAY as a loyal

9 material handler in the produce department at the Distribution Center.

22 contained in paragraphs 1-35 above, and further alleges:

8 managed in such a manner so as to safeguard the safety and well-being of

9 SAFEWAY employees, including Decedent;

d. Misleading SAFEWAY employees into thinking that the utilization of PPE on

16 e. Failing to implement an Infectious Disease Preparedness and Response Plan;

22 distance between workers, provide appropriate PPE for workers, create

23 disinfectant stations throughout the facility;

24 g. Failing to maintain housekeeping practices, including frequent cleaning and

7 j. Failing to conduct periodic inspections of the condition and cleanliness of the

8 Distribution Center to prevent and/or minimize the risk of transmission of the

designed to minimize the risk of contracting COVID-19;

15 risk factors and protective behaviors;

16 n. Failing to respond appropriately to workers’ complaints and concerns regarding

22 attendance issues or concerns about their working environment in light of the

24 q. Disseminating and providing inaccurate information pertaining to COVID-19

22 sum according to proof.

9 personal protective equipment and safety measures that should be taken.

16 managed in such a manner so as to safeguard the safety and well-being of

24 e. Failing to implement an Infectious Disease Preparedness and Response Plan;

8 h. Failing to implement, promote, and enforce social distancing guidelines

9 promulgated by the state and federal governments;

at the Distribution Center;

15 Distribution Center to prevent and/or minimize the risk of transmission of the

22 risk factors and protective behaviors;

23 n. Failing to respond appropriately to workers’ complaints and concerns regarding

24 exposure and/or potential exposure to the virus;

7 r. Misleading individuals, including Decedent and other workers at the Distribution

8 Center, with false, skewed, or unclear facts as it pertained to personal protective

with Decedent’s job.

15 expenses in a sum according to proof.

23 THIRD CAUSE OF ACTION

24 (Negligent Undertaking – As Against ALBERTSONS and DOES 11-20)

8 safety training, guidance, and policies for SAFEWAY’s employees.

care in rendering these services.

16 substantial factor in causing harm to Decedent.

9 other related expenses in a sum according to proof.

16 claim survives his death.

23 contained in paragraphs 1-68 above, and further alleges:

12 (3) Include a system for communicating with employees in a form readily

understandable by all affected employees on matters relating to occupational safety

25 associated with Decedent’s job.