SAN FRANCISCO — The California First District Court of Appeal recently decided to uphold the Solano County Superior Court's decision in the case of Diane Dellamarggio vs. WinCo Foods Inc.

In its April 17 decision, the appeals court said Dellamarggio sued WinCo Foods to go after "damages she suffered as a result of an extramarital affair her husband had with another WinCo employee." The appeals court said the superior court upheld WinCo's demurrer "without leave to amend" because the court ruled the suit violated California Civil Code Section 43.5.

The appeals court said Dellamarggio argued pro se that the statute is not related to her suit and that she should be allowed to change the lawsuit.

According to the appeals court, Dellamarggio accused WinCo Foods "of professional negligence and breach of non-fiduciary duty under aiding and abetting." According to the appeals court decision, Dellamarggio's ex-husband got assigned to the Vacaville, Calif. location in October 2010 after he had been working at the Eugene, Ore. facility. The appeals court cited the original lawsuit when it wrote that her husband told his store manager in Vacaville that he went to that store was so that he could spend time with Dellamarggio, "the love of his life."

The appeals court cited the original lawsuit and said that Dellamarggio got notice via mail at her home in August 2014 that her husband had been cheating on her with a coworker who was also married. The appeals court cited the original lawsuit and wrote that Dellamarggio's husband said that his store manager also had the letter and was aware of the affair but didn't acknowledge it and threw away the letter after reading it."

The appeals court said WinCo Foods had a policy against supervisors and those they are in charge of having relationships. In citing the original lawsuit, the appeals court wrote that the employee with whom Dellamarggio's husband cheated on her signed her "receipt of this policy on Sept. 30, 2010," but WinCo only downgraded her responsibilities.

In continuing to cite the original lawsuit, the appeals court wrote that when she sued for professional negligence, Dellamarggio outlined her losses as her marriage, her husband's money, worrying about contracting sexually transmitted diseases and losing her medical insurance that would've covered her until she retired. The appeals court said Dellamarggio accused WinCo Foods of contributing to this because it did not enforce the policy.

The appeals court said Dellamarggio went after WinCo "for breach of non-fiduciary duty under aiding and abetting," and accused WinCo of helping cause her shame and increaing her risk of getting an STD.

According to the appeals court, "Winco demurred to the complaint on the ground the entire action was barred by California’s Civil Code, Section 43.5." The appeals court said Dellamarggio fought the demurrer.

"Dellamarggio’s action is barred by Section 43.5 because she attempts to hold a third party—WinCo—responsible for damages she suffered as a result of her husband’s act of engaging in an extramarital affair with a co-worker," the appeals court said in its decision. 

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Organizations in this Story

California 1st District Court of Appeal
350 McAllister Street
San Francisco, CA 94102

Winco Foods
40435 Winchester Rd
Temecula, CA 92591

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