Joseph Henderlong v. Southern California Regional Rail Authority et al, No. 2:2014cv03610 - Document 23 (C.D. Cal. 2014)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS 12 by Judge Dean D. Pregerson. (lc) .Modified on 9/18/2014. (lc).
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Joseph Henderlong v. Southern California Regional Rail Authority et al Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSEPH HENDERLONG, 12 Plaintiff, 13 14 15 16 v. SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY AKA METROLINK, Defendant. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-03610 DDP (PLAx) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS. [Dkt. No. 12] 17 Plaintiff asserts various causes of action, listed below, 18 19 associated with his hiring by, tenure at, and termination by 20 Defendant, the Southern California Regional Rail Authority 21 (“SCRRA”). 22 Rule 12 (c), arguing, variously, that the claims are barred by the 23 administrative exhaustion requirements of the California Tort 24 Claims Act (CTCA); that the claims are barred by statutory 25 immunity; that the claims are not sufficiently pled; and that some 26 of the enumerated causes of action are not, in fact, legally 27 cognizable causes of action. 28 /// Defendant moves for judgment on the pleadings under Dockets.Justia.com 1 I. BACKGROUND. 2 3 Plaintiff was employed by Defendant from July 10, 2010 to July 4 12, 2013, when he was fired. 5 he was employed pursuant to a valid employment agreement with 6 specific terms. 7 characterization of Plaintiff’s employment as contractual (Mot. 8 Judg. Pleadings § III.K.2), but it also requests the Court take 9 notice of a copy of the employment agreement, which appears to be 10 11 (Compl. ¶ 5.) (Compl. ¶ 11.) contractual in nature. Plaintiff alleges that Defendant disputes the (Req. Judicial Notice, Ex. C.) Plaintiff alleges that he is or was subject to a number of 12 disabilities and medical conditions, including atrial fibrillation 13 (a form of heart disease), melanoma, plantar fasciitis, hernia, 14 hypertension, and leg cramps. 15 not completely clear from the Complaint, however, that all of these 16 disabilities and conditions affected Plaintiff at the time of his 17 employment. Plaintiff alleges that he “had suffered from atrial 18 fibrillation (A-fib) in 2003,” (Compl. ¶ 15 (emphasis added)) and 19 “melanoma cancer in 2004.” 20 (Compl. ¶¶ 59-60, 101, 111.) It is Id. Plaintiff appears to allege that he requested reasonable 21 accommodation for his heart-related disabilities by asking for 22 increased staffing in his department (Compl. ¶¶ 37(a).) 23 alleges that he “mentioned” to at least one person that “he needed 24 carpeting in his office due to his plantar fasciitis and leg 25 cramps.” 26 accommodations were not granted. 27 28 (Compl. ¶ 111.) He also However, he alleges, these Plaintiff further alleges that his superiors were dissatisfied with him for at least two reasons. 2 First, Plaintiff appears to 1 allege that Defendant had a policy of attempting to force older 2 employees out; one part of that process, he alleges, was the 3 converting the basis of their employment from “for cause” to “at 4 will.” 5 to this policy to his superiors. 6 that his superiors were dissatisfied with his decision not to fire 7 an employee who later “sent a ‘whistle-blower’ letter to SCRRA’s 8 management,” as well as his testimony in two depositions supporting 9 that employee’s allegations. 10 (Compl. ¶ 18.) Plaintiff alleges that he voiced opposition Id. Second, Plaintiff alleges (Compl. ¶¶ 21-24.) On Nov. 1, 2011, Plaintiff’s employment was unilaterally 11 recharacterized by Defendant; his title changed, his salary went 12 down by $10,000 per year, and the number of employees reporting to 13 him was cut in half. 14 as time went on, various officers of Defendant refused to work with 15 him, making it impossible to do his job. 16 Finally, on July 12, 2013, Plaintiff’s employment was terminated. 17 (Compl. ¶ 40.) 18 interview, Gary Lettengarver questioned Plaintiff about certain 19 supply shortages implied to be Plaintiff’s fault, but that 20 Plaintiff denied that there were such shortages. 21 II. LEGAL STANDARD. 22 (Compl. ¶ 25.) Plaintiff also alleges that, (Compl. ¶¶ 32-34.) Plaintiff alleges that during the termination Id. Under Rule 12(c), “[a]fter the pleadings are closed-but early 23 enough not to delay trial-a party may move for judgment on the 24 pleadings.” Fed.R.Civ.P. 12(c). 25 proper when there are no issues of material fact, and the moving 26 party is entitled to judgment as a matter of law.” 27 Corp. of Seventh-Day Adventists v. Seventh-Day Adventist 28 Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989). “Judgment on the pleadings is 3 Gen. Conference 1 Allegations of fact by the nonmoving party are accepted as true and 2 construed in the light most favorable to that party. 3 Judgment on the pleadings is a judgment on the merits. 4 III. DISCUSSION. 5 A. Threshold Issues 6 1. Violation of Local Rules and Ethical Breach 7 Id. at 230. Id. Plaintiff’s Opposition brief is 30 pages in length. Local 8 Rule 11-6 requires briefs to be 25 pages or less, unless the Court 9 orders otherwise. The Opposition also appears to be in a smaller- 10 than-typical font. 11 fonts used in briefs. 12 83-7, to strike Plaintiff’s Opposition in its entirety, strike the 13 portion after page 21 (because the Defendant calculates that, were 14 it in the correct font, what is now page 21 would end at page 25), 15 or require Plaintiff to re-submit. 16 Local Rule 11-3 specifies the minimum sizes for Defendant asks the Court, under Local Rule LR 83-7 does provide for sanctions where parties violate the 17 Rules. 18 which the party’s conduct was “willful, grossly negligent, or 19 reckless,” id. at § (a) or “rises to the level of bad faith and/or 20 a willful disobedience of a court order.” 21 id. at § (c) (allowing for additional sanctions “for any of the 22 conduct specified in (a) and (b)”). 23 negligently, but not grossly so. 24 Plaintiff to comply with all Local Rules in the future, subject to 25 sanctions under LR 83-7(b) if he fails to do so. 26 However, it generally confines sanctions to instances in Id. at § (b). See also Plaintiff’s counsel has acted However, the Court now orders the Defendant also alleges ethical violations on the part of 27 Plaintiff’s counsel in directing his assistant to contact SCRRA 28 employee Bill Garrett in August of this year to obtain information 4 1 about SCRRA’s claims process. 2 constitutes contact with a represented party, violating Cal. RPC 2- 3 100. 4 conversation with Garrett from the Harris declaration. 5 Defendant argues that this Defendant asks that the Court strike all references to the The Court is mindful of the danger posed by attorneys’ ethical 6 violations. 7 not to impose a penalty, as the propriety of punishment for 8 violation of the Rules of Professional Conduct is a matter within 9 the purview of the State Bar . . . . [T]he court must . . . focus 10 on identifying an appropriate remedy for whatever improper effect 11 the attorney's misconduct may have had in the case before it.” 12 McMillan v. Shadow Ridge At Oak Park Homeowner's Ass'n, 165 Cal. 13 App. 4th 960, 968 (2008) (citations omitted) (internal quotation 14 marks omitted). 15 (except as relates to its exhibits) is excluded as extrinsic 16 evidence, there is no improper effect, assuming an ethics violation 17 occurred. 18 allegation is moot. 19 any ethics violations which do have an effect on this litigation 20 may subject him to sanctions by this Court as well as whatever 21 action the State Bar may choose to take. 22 2. Evidentiary Objections 23 a. Submitted Materials 24 However, the Court is not the State Bar. Its “goal is In this case, because the Harris declaration Therefore, for the Court’s purposes Defendant’s However, Plaintiff’s attorney should note that Defendant has submitted and requests judicial notice of six 25 exhibits: (A) the document Plaintiff submitted to present his 26 claims administratively (“Claim Notice”), dated Jan. 3, 2014; (B) 27 memorandum modifying plaintiff’s employment contract; (C) the 28 employment contract itself; (D) a Statement of Facts Roster of 5 1 Public Agencies Filing for Los Angeles County Metropolitan Transit 2 Authority (LACMTA, i.e., LA Metro); (E) a Statement of Facts Roster 3 of Public Agencies Filing for SCRRA as of May 10, 2014; (F) a 4 Statement of Facts Roster of Public Agencies Filing for SCRRA as of 5 Jan. 17, 2013. 6 (Req. Judicial Notice.) Defendant wishes to rely on Exhibits A, D, E, and F to show 7 that Plaintiff did not properly file his Claim Notice and therefore 8 has not satisfied the exhaustion requirements of the CTCA. 9 Defendant wishes to rely on Exhibits B and C to refute Plaintiff’s 10 11 contract claims. Plaintiff has submitted exhibits as well, accompanying a 12 declaration by Plaintiff’s attorney, Dale Fiola: (A) a copy of 13 Plaintiff’s Claim Notice, including attachments detailing 14 substantially the same arguments as found in the Complaint; (B) a 15 copy of the proof of service of the Claim Notice; (C) a copy of the 16 “Joint Exercise of Powers Agreement” forming the SCRRA. 17 Plaintiff wishes to rely on Exhibits A and B to prove that the 18 Claim Notice was submitted correctly, or in the alternative that 19 the attempted submission was in “substantial compliance” with CTCA. 20 Plaintiff wishes to rely on Exhibit C to show that LACMTA and SCRRA 21 are fundamentally the same agency, which also goes to the CTCA 22 issue. 23 Claim Notice to LACMTA instead of SCRRA, his submission was in 24 compliance with the requirements of CTCA.) (Briefly, Plaintiff argues that even if he submitted the 25 Plaintiff has also submitted a declaration by Fiola’s 26 assistant, Monica Harris, supporting Fiola’s factual contentions 27 about the submission of the Claim Notice and attaching two 28 6 1 Exhibits, (A), a receipt from a messenger service, and (B), the 2 cover sheet of the Plaintiff’s Claim Notice. 3 Finally, Defendant has also submitted a declaration by SCRRA’s 4 Board Secretary, Kari Holman, discussing, inter alia, the proper 5 method for serving a Claim Notice on the agency. 6 Holman’s declaration is yet another exhibit, a copy of the Claim 7 Notice form that Holman declares is used by SCRRA to take CTCA 8 Claim Notices. 9 b. Objections Attached to 10 Plaintiff objects to the Holman declaration, arguing that 11 Holman lacks personal knowledge to substantiate her statements 12 about the agency’s claim filing requirements. 13 objects to the attached exhibit, calling the document both hearsay 14 and unauthenticated. Plaintiff also (Pl.’s Objection Decl. Kari Holman.) 15 Defendant objects to the Fiola declaration, citing numerous 16 instances of what it claims are statements lacking foundation or 17 personal knowledge, hearsay statements, or legal conclusions. 18 Defendant also objects to many statements on general relevancy 19 grounds, arguing that even if the statements are true, they cannot 20 support any legal argument, because “Plaintiff is not excused from 21 the need to strictly comply with CTCA claim requirements.” 22 Objection Decl. Dale Fiola.) 23 Exhibit B as hearsay and not properly authenticated, and to 24 Plaintiff’s Exhibit C as irrelevant and not properly authenticated. (Def.’s Defendant also objects to Plaintiff’s 25 Defendant objects to the Harris declaration on similar 26 grounds: relevancy and various examples of alleged hearsay. 27 Defendant also objects to Exhibit B attached to the Harris 28 declaration as irrelevant and not properly authenticated. 7 1 Finally, Plaintiff invokes Local Rule 7-8 to request that he 2 be allowed to cross-examine Kari Holman about her declaration. 3 c. Discussion 4 i. Request for Judicial Notice 5 Defendant properly points out that its Exhibits A-C may be 6 “incorporated by reference” into the complaint, because their 7 contents are referenced in the complaint and no party questions 8 their authenticity. 9 2005). Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. The Court can consider them in ruling on a 12(b)(6) or 10 12(c) motion, even if they are introduced by the defendant. 11 v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) overruled as to other 12 matters by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th 13 Cir. 2002). Branch 14 Matters of public record are properly subject to judicial 15 notice. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 16 2001). 17 ii. Defendant’s Objections to the Fiola Declaration 18 Thus, the Court takes judicial notice of Exhibits D-F. As a general matter, in ruling on 12(b)(6) or 12(c) motions, 19 “a district court may not consider any material beyond the 20 pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 21 F.2d 1542, 1555 n. 19 (9th Cir. 1990). 22 matters incorporated into the complaint by reference may be 23 considered, and matters of public record are fit for judicial 24 notice. 25 However, as noted above, Here, the Fiola declaration serves two purposes: to introduce 26 specific factual allegations as to the nature of the SCRRA Claim 27 Notice process, and to introduce and authenticate certain exhibits 28 the Plaintiff wishes the Court to consider. 8 To the extent that the 1 declaration makes factual allegations, the Court does not consider 2 it. 3 Some of the exhibits attached to the declaration, however, 4 fall into the exceptions to the general rule noted above. 5 Defendant does not object to Exhibit A, which is in any event just 6 another copy of the Claim Notice. 7 Agreement” creating SCRRA, a public agency, is a public record 8 subject to judicial notice. 9 Exhibit C, a copy of the “Joint Exhibit B is not suitable for either judicial notice or 10 incorporation by reference. 11 accuracy cannot reasonably be questioned.” 12 is it a document which was not appended to the Complaint, but which 13 the Complaint refers to or necessarily relies upon. 14 FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), as amended (July 28, 15 1998). 16 declaration. 17 It is not from a “source[] whose Fed. R. Evid. 201. Nor Parrino v. The Court does not consider Exhibit B attached to the Fiola Thus, Plaintiff’s Exhibit A, attached to the Fiola 18 Declaration, is incorporated into the Complaint by reference, and 19 the Court takes judicial notice of Exhibit C. 20 iii. Defendant’s Objections to the Harris Declaration 21 Defendant also objects to the declaration of Monica Harris, 22 Plaintiff’s counsel’s assistant. 23 extent that it discusses the attorney’s and Ms. Harris’s attempts 24 to submit a Claim Notice, is extrinsic evidence that will not be 25 considered. 26 The Harris declaration, to the Defendant objects to Exhibit B under FRE 901, asserting 27 without argument that the exhibit is not "authenticated." 28 records of this type are not reasonably subject to having their 9 Public 1 authenticity questioned, and Defendant does not allege that the 2 exhibit is actually inauthentic. 3 above, declines to interpret it as a challenge to the actual 4 authenticity of the document. 5 Harris Declaration are also incorporated by reference into the 6 Complaint, as the Complaint appears to necessarily rely on 7 information contained in them. 8 706 (9th Cir. 1998), as amended (July 28, 1998). 9 iv. Plaintiff’s Objections to the Holman Declaration 10 The Court, for reasons discussed Thus, Exhibits (A) and (B) to the Parrino v. FHP, Inc., 146 F.3d 699, Plaintiff objects to the Holman declaration. Holman’s 11 declaration itself is extrinsic evidence, and as such is excluded. 12 The exhibit, on the other hand, is purported to be a public record 13 and so subject to judicial notice. 14 document is “hidden from the public and not provided on request,” 15 which may or may not be true, but which does not render the 16 document inauthentic. 17 existence of the claim form. 18 v. Request to Cross-Examine Kari Holman 19 20 Plaintiff argues that the The Court takes judicial notice of the Plaintiff’s request to cross-examine Holman under LR 7-8 is denied. LR 7-8 provides that parties may cross examine declarants 21 [o]n motions for and orders to show cause re preliminary 22 injunctions, motions to be relieved from default and other 23 motions where an issue of fact is to be determined . . . . 24 (Emphasis added.) 25 alleging that there is no material issue of fact. 26 Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution 27 Control Dist., 644 F.3d 934, 937 n.1 (9th Cir. 2011). 28 argues that Holman’s declaration, itself, raises material issues of A 12(c) motion is, by definition, a motion 10 See, e.g., Plaintiff 1 fact: whether SCRRA ever actually received Plaintiff’s Claim 2 Notice, and whether SCRRA accepts Metro’s claim forms. 3 applies only to particular types of motion–not in every case where 4 there is a disputed issue of fact. 5 declaration, apart from the attached exhibit, is excluded. 6 request is denied. 7 B. Substantive Claims and Defenses 8 1. Exhaustion of Administrative Remedies Under the California Tort 9 Claims Act 10 But LR 7-8 In any event, Holman’s This In order to bring this suit, Plaintiff must first have 11 properly submitted his claim to SCRRA under terms prescribed by the 12 CTCA. 13 all claims for money or damages against local public entities . . . 14 .”); id. at § 945.4 (“[N]o suit for money or damages may be brought 15 against a public entity on a cause of action for which a claim is 16 required to be presented . . . until a written claim therefor has 17 been presented to the public entity and has been acted upon by the 18 board, or has been deemed to have been rejected by the board . . . 19 .”). 20 See Cal. Gov. Code § 905 (“There shall be presented . . . Plaintiff alleges in the Complaint that he filed a claim “[i]n 21 compliance with the California Tort Claims Act . . . on January 3, 22 2014 . . . with Metrolink . . . .” 23 added).)1 24 plaintiff may allege compliance with the claims requirements by 25 including a general allegation that he or she timely complied with (Compl. ¶ 137 (emphasis At the pleadings stage, such an allegation suffices: “A 26 27 28 1 “Metrolink” is the popular name of SCRRA. 11 1 the claims statute.” 2 4th 363, 374 (2014), review filed (June 30, 2014). 3 See Gong v. City of Rosemead, 226 Cal. App. Defendant, relying primarily on DiCampli-Mintz v. Cnty. of 4 Santa Clara, 55 Cal. 4th 983 (2012), argues that submission to the 5 wrong entity is a failure of compliance with CTCA’s requirements. 6 Defendant argues that Plaintiff’s Claim Notice was not filed 7 correctly, because Plaintiff’s own claim documents (Defendant’s Ex. 8 A; Ex. A, Fiola Decl.) show that he submitted the Claim Notice to 9 the Los Angeles County Metropolitan Transit Authority (LACMTA) 10 11 instead of SCRRA. Plaintiff, in response, makes two arguments that he satisfied 12 the statutory requirements. 13 serve the Claim Notice on SCRRA by delivering it to “Board 14 Secretary’s Offices–Legal Services, 12th Floor, of One Gateway 15 Plaza, Los Angeles, California.” 16 argues, “operated as a recipient for LACMTA for service of Metro 17 and SCRRA’S [sic] claims for damages.” 18 Defendant may actually have received the Claim Notice, even if it 19 was delivered to the wrong address or wrong agency. 20 First, he argues, he actually did (Opp’n, § IV.E.) Id. This office, he Second, he argues, Id. As to the first point, DiCampli is likely dispositive. In 21 that case, a plaintiff sent her claim notice to the risk management 22 department of a county hospital rather than the county itself. 23 DiCampli-Mintz v. Cnty. of Santa Clara, 55 Cal. 4th 983, 987 24 (2012). 25 served or presented, nor was it mailed to the county clerk or the 26 clerk of the board.” 27 the Risk Management Department at VMC, Dr. Bui, and Dr. Sklar . . . 28 [and] did not request that it be forwarded to any of the Parties agreed that “that the letter was never personally Id. Moreover, “The letters were addressed to 12 1 statutorily designated recipients . . . .” 2 all the evidence incorporated into the Complaint by both parties is 3 in accord: the Claim Notice was sent to LACMTA, not SCRRA. 4 Req. Judicial Notice; Ex. A, Harris Decl.) 5 Id. Similarly, here, (Ex. A, Plaintiff argues that because SCRRA is a joint agency created 6 by, among others, LACMTA, and because the two agencies share a 7 floor and perhaps a legal services department, presentation of the 8 claim on one suffices to comply with the presentation requirement 9 for the other. (Opp’n, § IV.E.) Plaintiff relies on Elias v. San 10 Bernardino Cnty. Flood Control Dist. 68 Cal.App.3d 70, 75 (1977), 11 and Carlino v. Los Angeles Cnty. Flood Control Dist. 10 Cal.App.4th 12 1526, 1533 (1992). 13 Supreme Court points out in DiCampli, 54 Cal.4th at 997, dealt with 14 agencies that shared a governing body. 15 facts to show that LACMTA and SCRRA share some office space and 16 perhaps a legal services department, not a governing body. 17 Meanwhile, government records submitted by both parties show that 18 the two boards are distinct entities, albeit with some overlapping 19 membership. 20 However, those two cases, as the California Plaintiff has alleged only (Exs. E & F, Req. Judicial Notice; Ex. C, Fiola Decl.) In any event, the Court need not decide now whether Elias and 21 Carlino are on point. 22 statutorily authorized officer actually received the Claim Notice, 23 Plaintiff is in compliance with the CTCA: “A claim . . . shall be 24 deemed to have been presented in compliance with this section even 25 though it is not delivered or mailed as provided in this section if 26 . . . [i]t is actually received by the clerk, secretary, auditor or 27 board of the local public entity.” 28 (emphases added). If SCRRA’s Board Secretary or other Cal. Gov't Code § 915(e) Plaintiff correctly points out that Defendant 13 1 has not denied that the Claim Notice was actually received by a 2 statutorily authorized officer. 3 facts in the complaint (or subject to judicial notice) showing that 4 the Claim Notice was not actually received. 5 say at this stage–looking solely at the pleadings–that Plaintiff is 6 not in compliance with the CTCA.2 7 Nor has Defendant pointed to any Thus, the Court cannot Because Plaintiff alleged in the Complaint that he submitted 8 the Claim Notice “in compliance” with the CTCA, and because 9 Defendant cannot show on the pleadings that he did not, his 10 Complaint is not affirmatively barred by a failure to exhaust 11 administrative remedies at this stage in the proceedings. 12 2. First and Eleventh Causes of Action Are Barred by Cal. Gov’t 13 Code § 815 14 Plaintiff alleges common-law wrongful termination (First 15 Cause) and intentional infliction of emotional distress (IIED) 16 (Eleventh), both common-law torts. 17 (Compl. ¶¶ 7-54, 167-73.) Cal. Gov’t Code § 815 provides that “[e]xcept as otherwise 18 provided by statute . . . [a] public entity is not liable for an 19 injury, whether such injury arises out of an act or omission of the 20 public entity or a public employee or any other person.” 21 legislative committee comments make clear that “the practical 22 effect of this section is to eliminate any common law governmental 23 liability for damages arising out of torts.” 24 Committee Comments). Plaintiff argues that § 815 immunity does not The Id. (Legislative 25 2 26 27 28 Defendant’s counsel argued in passing during oral arguments that § 915(e) should only apply where the plaintiff presented the claim to the wrong office or person within an agency, but not where it was presented to the wrong agency entirely. The plain language of the statute does not lend itself to such a reading, and the court is unable to find precedent establishing such a limitation. 14 1 cover acts by employees for which the public entity is liable as an 2 employer under a theory of respondeat superior, which is correct. 3 “Irrespective of Government Code section 815's elimination of 4 common law tort liability for public entities, a public employee 5 generally is liable for an injury caused by his or her act or 6 omission to the same extent as a private person, and when the act 7 or omission of the public employee occurs in the scope of 8 employment the public entity will be vicariously liable for the 9 injury.” 10 11 Lloyd v. Cnty. of Los Angeles, 172 Cal. App. 4th 320, 330 (2009) (citations omitted) (internal quotation marks omitted). However, at least with respect to wrongful termination and 12 retaliation, a supervisor who fires or otherwise takes retaliatory 13 action against an employee is “necessarily exercising authority the 14 employer conferred on the supervisor . . . . 15 law . . . cause of action for wrongful termination, or a claim of 16 retaliation, lies only against the employer, not against the 17 supervisor through whom the employer commits the tort. Accordingly, 18 the doctrine of respondeat superior has no application . . . .” 19 Id. (emphasis added.) Therefore, a common 20 The first claim is thus barred by immunity. 21 The eleventh claim, for IIED, essentially alleges that the 22 alleged "wrongful termination, discrimination, and termination of 23 Plaintiff without Defendant satisfying the representations and 24 assurances made to Plaintiff" were all "done for the purpose of 25 causing Plaintiff to suffer humiliation, mental anguish, and 26 emotional and physical distress." 27 common law tort and so generally would be barred by § 815. 28 Plaintiff again argues respondeat superior. 15 (Compl. ¶¶ 168-69.) IIED is a Cal. Gov't Code § 1 822.2, Plaintiff notes, allows that a public employee may be held 2 liable for "misrepresentation" if "he is guilty of actual fraud, 3 corruption or actual malice." 4 "throughout the complaint, there are references to representations" 5 that, according to Plaintiff, "were later determined to be untrue 6 and false." 7 employees who inflicted this distress should be liable, and 8 therefore so should SCRRA. 9 Plaintiff also notes that (Reply, § IV.F.3.) Thus, the Plaintiff argues, the But while it is true that Plaintiff alleges at various points 10 in the complaint that people have made misrepresentations to him, 11 the basis of his IIED claim does not rest on those 12 misrepresentations, which are alleged to have been made to induce 13 Plaintiff to move and take the job. 14 termination, discrimination, and termination of Plaintiff without 15 Defendant satisfying the representations and assurances made to 16 Plaintiff." 17 that the emotional distress results in part from the disparity 18 between Plaintiff's expectations (based on the employees' 19 representations) and reality, it is the discrimination and 20 termination, not the misrepresentation independently, that form the 21 cause of action. (Compl. ¶ 168.) Rather, it rests on "wrongful Even reading this allegation to mean 22 This is important, because Miklosy v. Regents of Univ. of 23 California, the controlling opinion on § 815 and claims related to 24 wrongful termination, makes very clear that torts resulting from 25 the exercise of the employer's employment authority, even if 26 committed by an employee, do not pierce § 815 immunity: 27 The words 'You are fired,' for example, have no legal 28 significance if spoken by a junior-level employee . . . it is 16 1 only when the speaker is in a position to exercise authority 2 on behalf of the employer that these words have significance. 3 Thus, in a retaliation case, it is the employer's adverse 4 employment action that constitutes the substance of the tort, 5 and the supervisor's action merges with that of the employer. 6 We could only hold that the supervisor commits an independent 7 tort if the supervisor's action were somehow by itself 8 injurious, irrespective of the adverse employment action it 9 causes the employer to take, but that is not alleged here. 10 44 Cal. 4th 876, 906 n.8 (2008) (emphases in original). 11 California appellate court, relying on Miklosy, has thus found 12 infliction of emotional distress claims barred when they 13 fundamentally rely on adverse employment actions. 14 Los Angeles Unified Sch. Dist., 216 Cal. App. 4th 1198, 1219 (2013) 15 ("The tort of wrongful discharge, and the related infliction of 16 emotional distress, may only be asserted against the employer."). A McAllister v. 17 Thus, the claim is barred by § 815 immunity. 18 Defendant’s motion is granted as to the first and eleventh 19 claims. 20 3. Plaintiff’s Second, Fifth, and Sixth Causes of Action Are Not 21 Sufficiently Pled 22 Plaintiff alleges three causes of action under Cal. Gov't Code 23 § 12940: disability and medical condition discrimination (Second 24 Cause); failure to reasonably accommodate his disability (Fifth); 25 and failure to engage in an "interactive process" to come to such 26 accommodation (Sixth). 27 not allege that these claims are barred by immunity but does argue 28 insufficient pleading. (Compl. ¶¶ 55-73, 99-121.) Defendant does (Mot. Judg. Pleadings § III.E.) 17 1 Although Defendant does not deny that Plaintiff has alleged a 2 number of physical impairments and ailments, it does argue that 3 Plaintiff's pleadings do not show, as is required for a disability 4 discrimination claim, that these conditions were present at the 5 time of employment and "[l]imit[] a major life activity." 6 Gov't Code § 12926(m)(1)(B). 7 Cal. It is true that Plaintiff's pleadings are imprecise as to the 8 exact times when he was affected by his alleged disabilities and 9 medical conditions. For example, he alleges that he “had suffered 10 from atrial fibrillation (A-fib) in 2003,” (Compl. ¶ 15 (emphasis 11 added)) and “melanoma cancer in 2004.” 12 these conditions affected him previously but not during the time of 13 employment, they are, of course, irrelevant. 14 Id. To the extent that However, in a motion on the pleadings, the standard of inquiry 15 is whether "the plaintiff pleads factual content that allows the 16 court to draw the reasonable inference that the defendant is 17 liable." 18 added). 19 heart disease, hypertension, plantar fasciitis, and hernia during 20 the course of his employment is reasonable based on the Complaint. 21 For example, at ¶ 59, Plaintiff alleges that he "was diagnosed with 22 heart disease," and that "during his employment" his supervisors 23 knew of his "heart condition and cancer and plantar fasciitis." 24 ¶ 62 he says that he "has a physical disability" (emphasis added) 25 and then lists heart disease, hypertension, high blood pressure, 26 and plantar fasciitis as his qualifying disabilities under Cal. 27 Gov't Code § 12926.1(c). 28 related problems are chronic and lasted well beyond the 2003 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis Here, the inference that Plaintiff suffered, at a minimum, This tends to suggest that his heart- 18 At 1 diagnosis. 2 his employers of his (presumably then-existing) heart disease, 3 hypertension, and plantar fasciitis or conditions related to them, 4 as well as conditions related to the cancer. 5 skillfully pled, taken together, these factual allegations are 6 enough to support, at the pleadings stage, the inference that 7 Plaintiff suffered at least some of the named impairments during 8 his employment. 9 At ¶¶ 37(a) and 101, Plaintiff alleges that he informed Although not But Plaintiff's allegations that his physical conditions 10 caused him "difficulty" or "limited" him in some major life 11 activity (presumably work) are not sufficient, because he does not 12 adequately allege that the impairment limited his ability to work. 13 For example, Plaintiff alleges that he told a supervisor he "needed 14 carpeting" because of plantar fasciitis, but he does not explain 15 how plantar fasciitis impaired his ability to work. 16 ¶ 111.) 17 performing his job duties when crucial staff positions were not 18 filled, requiring him to work extensively in an environment not 19 conducive to his health and wellbeing." 20 id. at 33 (describing inadequate staffing that "made it extremely 21 difficult for Plaintiff to perform his job duties"); id. at 36 22 (alleging that he was required to perform work unusual for a 23 Director, including "supervising the warehouse").) 24 explain how inadequate staffing made his job more difficult as a 25 person with a disability, above and beyond the usual pains and 26 difficulties suffered by every person working at an understaffed 27 public agency. (E.g., Compl. Plaintiff also alleges that he "had difficulties 28 19 (Compl. ¶ 113; see also But he does not 1 Defendant also argues, regarding the fifth and sixth causes of 2 action but obviously also touching on the second, that Plaintiff 3 does not sufficiently plead that he asked for accommodation. 4 Plaintiff alleges in a number of places that he informed specific 5 people that he needed an accommodation. 6 (alleging requests to named supervisors for accommodations "to 7 handle his job duties given his medical condition, A-fib, high 8 blood pressure, and other medical issues"); Compl. ¶ 111 (alleging 9 request to named supervisor for carpeting to accommodate his (E.g., Compl. ¶ 27 10 plantar fasciitis).) 11 the underlying qualifying disabilities is insufficient, and the 12 disabilities are a prerequisite to the claims regarding reasonable 13 accommodation and the interactive process, all three causes of 14 action fail for insufficient pleading. 15 However, because the pleading with regard to It appears that these defects could be corrected with more 16 careful pleading. 17 claims are dismissed without prejudice, and Plaintiff is free to 18 amend his Complaint so that it properly states a claim for 19 disability discrimination. 20 4. Plaintiff’s Third Cause of Action is Not Sufficiently Pled 21 Plaintiff alleges that he was fired, in part, due to age Therefore, Plaintiff’s second, fifth, and sixth 22 discrimination. 23 Plaintiff's pleadings do not establish a prima facie case of age 24 discrimination. 25 articulated in Muzquiz v. City of Emeryville: "In the context of 26 the usual age discrimination case, a prima facie case of age 27 discrimination arises when the employee shows that: (1) at the time 28 of the adverse employment action, the employee was 40 years of age (Compl. ¶¶ 74-86.) Defendant argues that Specifically, Defendant relies on a four-part test 20 1 or older; (2) some adverse employment action was taken against the 2 employee; (3) at the time of the adverse action the employee was 3 satisfactorily performing his or her job; and (4) the employee was 4 replaced in his or her position by a significantly younger person. 5 79 Cal. App. 4th 1106, 1116 (2000) (emphasis added). 6 Defendant argues that Plaintiff does not sufficiently plead 7 facts to show the last two elements, because (1) he admits that at 8 the time of his termination he was told that it was because of 9 alleged shortages that, it was implied, he had caused (Compl. ¶ 10 76); and (2) he does not allege that he was replaced by a younger 11 employee. 12 As to the first point, Plaintiff, in fact, does allege that he 13 was doing his job satisfactorily. 14 "if there were any errors or mistakes committed," they were 15 committed by others, and at ¶ 40 Plaintiff flatly denies that there 16 were shortages on his watch. 17 discrimination provisions to suggest that a mere statement of 18 dissatisfaction by the employer—a statement which might be entirely 19 pretextual and unsupported—could prevent a plaintiff from making 20 out a prima facie discrimination case. 21 At ¶ 76 he essentially says that It would make a mockery of anti- As to the second point, it is not without merit. However, the 22 test described by Muzquiz is not the sole method of making out a 23 prima facie age discrimination case: "Given the varying nature of 24 the problem, it is impossible to make an exact, all-inclusive 25 statement of the elements of a prima facie age discrimination case 26 applicable in all situations. 27 employee offer circumstantial evidence such that a reasonable 28 inference of age discrimination arises." The general requirement is that the 21 Hersant v. Dep't of Soc. 1 Servs., 57 Cal. App. 4th 997, 1002 (1997) (citations omitted) 2 (emphasis added). 3 always be necessary. 4 And the fourth element, in particular, may not Id. at 1003 n.3 (noting contrary authority). Even under a more generous test, however, it is hard to see 5 how Plaintiff has made out a prima facie case. 6 his own age and the fact of his termination, he offers two key 7 facts. 8 with the company,” even though, he alleges, it was they who were 9 responsible for whatever "errors or mistakes" may have been made Apart from noting First, he says, “younger employees were allowed to stay 10 during his tenure. 11 allege that Defendant had a general policy of attempting to force 12 older employees out. 13 (Compl. ¶ 76.) And second, he appears to (Compl. ¶ 18.) But Plaintiff does not allege that the younger employees held 14 similarly managerial positions. 15 because they were not ultimately responsible for the efficient 16 running of the department. 17 policy of forcing out older employees, it is unclear why, if that 18 is true, it hired Plaintiff at the age of 57 or 58 in the first 19 place. 20 such that a reasonable inference of age discrimination arises." 21 Hersant, 57 Cal. App. 4th at 1002. 22 They may have been allowed to stay And while Defendant may well have a In short, Plaintiff does not offer "circumstantial evidence The Court grants the Defendant’s motion as to Plaintiff’s 23 third claim. 24 5. Plaintiff’s Fourth Cause of Action is Sufficiently Pled 25 Plaintiff alleges that his supervisors first shut him out of 26 communications and then terminated him in retaliation for his 27 "challenge" to certain employment policies he felt to be 28 discriminatory, failure to fire an employee who later became a 22 1 "whistleblower," and deposition testimony supporting the 2 whistleblower. 3 1102.5, as well as the California and U.S. Constitutions. 4 ¶ 87-98.) 5 exhaust his administrative remedies under Labor Code § 98.7 before 6 pursuing a claim under § 1102.5, and second, that he did not plead 7 sufficient facts to establish the claim. 8 9 Plaintiff alleges that this violates Labor Code § (Compl. Defendant argues, first, that Plaintiff did not properly As to exhaustion, the California legislature recently amended the Labor Code to clarify that administrative exhaustion is not 10 required. 11 ("An individual is not required to exhaust administrative remedies 12 or procedures in order to bring a civil action under any provision 13 of this code, unless that section under which the action is brought 14 expressly requires exhaustion of an administrative remedy."); id. 15 at § 98.7(g) (effective Jan. 1, 2014) ("In the enforcement of this 16 section, there is no requirement that an individual exhaust 17 administrative remedies or procedures."). 18 complaint in March, well after these provisions took effect. 19 Therefore, his complaint was not barred by a requirement that he 20 exhaust administrative remedies. 21 See Cal. Lab. Code § 244(a) (effective Jan. 1, 2014) Plaintiff filed his As to pleading, establishing a prima facie case of retaliation 22 under § 1102.5 is refreshingly simple: "a plaintiff must show (1) 23 she engaged in a protected activity, (2) her employer subjected her 24 to an adverse employment action, and (3) there is a causal link 25 between the two." 26 Cal. App. 4th 1378, 1384 (2005). 27 Plaintiff alleges adverse employment actions: he alleges being 28 effectively demoted, excluded from staff meetings, undermined with Patten v. Grant Joint Union High Sch. Dist., 134 There is no question that 23 1 respect to third party vendors, and eventually terminated. (Compl. 2 ¶ 92.) 3 "protected activities," and whether the adverse actions were caused 4 by those activities. Thus, the crucial questions are whether he engaged in 5 Under 1102.5, an employee engages in a protected activity if 6 he disclos[es] information to a government or law enforcement 7 agency, to a person with authority over the employee, or to 8 another employee who has authority to investigate, discover, 9 or correct the violation or noncompliance . . . if the 10 employee has reasonable cause to believe that the information 11 discloses a violation of state or federal statute, or a 12 violation of or noncompliance with a local, state, or federal 13 rule or regulation, regardless of whether disclosing the 14 information is part of the employee's job duties. 15 16 Cal. Lab. Code § 1102.5(a) (emphases added). Plaintiff's allegation that he refused to go along with an 17 alleged scheme to force out older workers suffices to show he 18 engaged in a protected activity. 19 authority over" him that he believed "the conversion practice had a 20 discriminatory effect based upon age." 21 California law. 22 pleadings in the light most favorable to Plaintiff, he can 23 reasonably be inferred to have been informing his supervisor of a 24 potential or actual violation of the law. 25 He reported to a "person with Age discrimination violates Cal. Gov’t Code § 12940. Hence, reading the Plaintiff's allegation that he testified "truthfully in 26 support of" a whistleblower's allegations also constitutes 27 sufficient pleading. 28 whistleblower was under § 1102.5's protection, it seems elementary (Compl. ¶ 22.) 24 Assuming that the 1 that those giving deposition testimony in an investigation of her 2 case should also be protected. 3 The causal element is, of course, the hardest to prove. 4 Plaintiff has alleged multiple facts creating at least a minimally 5 plausible narrative that he began to experience adverse treatment 6 only after engaging in these protected activities, and he alleges 7 that one of his supervisors acknowledged that there was pressure to 8 fire him after the whistleblower incident. 9 suffices at the pleadings stage. 10 (Compl. ¶ 24.) But That Thus, Plaintiff alleges sufficient facts to support a 11 retaliation claim. 12 regard to the fourth claim. 13 6. Plaintiff’s Seventh and Eighth Causes of Action Are Not Barred 14 by Immunity and Require More Factual and Legal Development to Be 15 Resolved 16 Accordingly, Defendant’s motion is denied with Plaintiff alleges that Defendant, in changing the terms of his 17 employment and later in terminating him, breached his employment 18 contract as well as the implied covenant of good faith and fair 19 dealing imputed to contracts under California law. 20 47.) 21 employment is statutory rather than contractual; and that in any 22 event, if there was a contract, it was terminated and replaced with 23 a different contract rather than breached. 24 (Compl. ¶ 122- Defendant argues that § 815 immunity applies; that government Section 815 immunity does not apply. That statutory immunity 25 applies only to torts (see above). 26 specifically excepted. 27 part affects liability based on contract . . . ."). 28 covenant of good faith and fair dealing can sound in tort where the Contractual liability is Cal. Gov't Code § 814 ("Nothing in this 25 While the 1 defendant is an insurer, Silberg v. California Life Ins. Co., 11 2 Cal.3d 452, 460 (1974), it is otherwise an aspect of contract law, 3 subject to contract remedies—especially in the area of employment. 4 Foley v. Interactive Data Corp., 47 Cal. 3d 654, 683 (1988). 5 It is true that generally "public employment is not held by 6 contract but by statute and that, insofar as the duration of such 7 employment is concerned, no employee has a vested contractual right 8 to continue in employment beyond the time or contrary to the terms 9 and conditions fixed by law." 10 11 Miller v. State, 18 Cal.3d 808, 813 (1977).3 On the other hand, when it comes to issues other than tenure 12 of employment, it is clear that public employees do have 13 contractual rights. 14 not ordinarily based on contract, it is well established that 15 public employment gives rise to certain obligations which are 16 protected by the contract clause of the Constitution, including the 17 right to the payment of salary which has been earned. 18 pension right is an integral portion of contemplated compensation 19 it cannot be destroyed, once it has vested, without impairing a 20 contractual obligation." 21 (citations omitted) (internal quotation marks omitted). 22 Shaw v. Regents of Univ. of California, 58 Cal. App. 4th 44, 55 23 (1997) ("We find no merit in the University's suggestion that, as a 24 public employee who is employed pursuant to statute, not contract, "Although the tenure of a public employee is [S]ince a Miller, 18 Cal. 3d 808, 815 (1977) See also 25 26 27 28 3 Contra some of the arguments in the Opposition, Miller's holding, by its plain terms, applies to all public employees, not merely civil service employees—though, in any event, Plaintiff's position does not appear to fall into one of the few exceptions to civil service allowed by Cal. Const. art. 7, § 4. 26 1 Shaw has no vested contractual right in his terms of employment, 2 such terms being subject to change by the University . . . . 3 a public employer chooses . . . to enter into a written contract 4 with its employee . . . it cannot later deny the employee the means 5 to enforce that agreement.") (emphasis added). 6 When Thus, it seems clear that while the ultimate termination of 7 Plaintiff's employment cannot be barred by his contract (which was 8 in any event at-will), changes to the terms of his employment, as 9 long as he is not terminated, might well constitute a cognizable 10 11 breach of contract. Perhaps recognizing this, Defendant argues that it had a right 12 to unilaterally modify the contract, or more precisely, to replace 13 it altogether with a different agreement. 14 DiGiacinto v. Ameriko-Omserv Corp. for the proposition that "as a 15 matter of law, an at-will employee who continues in the employ of 16 the employer after the employer has given notice of changed terms 17 or conditions of employment has accepted the changed terms and 18 conditions . . . . 19 impliedly terminated by the employer's modification. The 20 modification constitutes, in legal effect, both the termination of 21 the old contract and the offer of a new contract." 22 4th 629, 637 (1997). 23 Defendant cites [T]he old contract has been expressly or 59 Cal. App. But as far as can be determined from the facts of that case, 24 id. at 632, the contract at issue in DiGiacinto did not have an 25 anti-modification clause. 26 Defendant did contain such a clause: "This agreement may not be 27 modified unless said modification is in writing and signed by 28 AUTHORITY and HENDERLONG." By contrast, Plaintiff's contract with (Ex. C, Request for Judicial Notice, § 27 1 9.3.) The Court declines, at this stage, to find a valid contract 2 clause a nullity solely because the contract was at-will. 3 Munson v. Splice Commc'ns, Inc., 12-CV-05089-JCS, 2013 WL 6659454 4 (N.D. Cal. Dec. 16, 2013) ("Defendants' reliance on DiGiacinto . . 5 . is misplaced, however, because in that case the change in the 6 employment agreement was made in writing whereas here there is no 7 evidence that Munson received written notice of the change. As the 8 offer letter expressly states that modifications must be made in 9 writing by the COO, the Court rejects Defendants' assertion that See 10 Munson accepted the changed terms of his employment agreement as to 11 control over the inside sales team.") (citation omitted). 12 As to termination of his employment, then, Plaintiff cannot 13 assert a breach of contract action. 14 of the terms of the contract, however, his claim is not barred and 15 cannot be disposed of as a matter of law on the pleadings. 16 7. Plaintiff’s Ninth, Tenth, and Twelfth Causes of Action Are 17 Barred by Cal. Gov’t Code § 818.8 As to unilateral modifications 18 Plaintiff alleges various forms of tortious misrepresentation 19 on the part of SCRRA in inducing him to leave Colorado and move to 20 California to take the job at issue. 21 Labor Code § 970 (Ninth Cause), common-law fraud (Tenth), and 22 negligent misrepresentation (Twelfth). 23 176.) 24 liable for the misrepresentations of their employees under Cal. 25 Gov't Code § 818.8 ("A public entity is not liable for an injury 26 caused by misrepresentation by an employee of the public entity."). 27 See also Burden v. Cnty. of Santa Clara, 81 Cal. App. 4th 244, 251 28 (2000) (holding that § 818.8 applies to representations in the He alleges violation of the (Compl. ¶¶ 148-166, 174- Defendant, however, argues that public entities are not 28 1 context of employment with the public entity). Plaintiff argues 2 that § 818.8 does not apply to claims relying on promissory 3 estoppel, because promissory estoppel is an equitable doctrine, 4 over which the CTCA has no effect. Cal. Gov't Code § 814. 5 Even if the Court accepted that argument, however, Plaintiff 6 does not assert promissory estoppel, which is indeed an equitable 7 doctrine imputing a quasi-contract where no actual contract exists. 8 Here, as, Plaintiff argues in his seventh cause of action, a valid 9 contract was formed. 10 Plaintiff’s ninth, tenth, and twelfth claims are all barred by 11 § 818.8. 12 claims. 13 8. Plaintiff’s Thirteenth and Fourteenth Causes of Action Are Not 14 Proper Causes of Action 15 The Court grants Defendant’s motion with respect to those Plaintiff also alleges frustration of purpose and rescission 16 of contract. 17 in substantial frustration to Plaintiff’s contract of employment 18 without the fault of the plaintiff,” (Compl. ¶ 182) and asks for a 19 “rescission of the position reclassification” and “restoration of 20 the original employment agreement.” 21 Plaintiff alleges that Defendant’s actions “resulted (Compl. ¶¶ 185-88.) Defendant is correct that these are simply not cognizable 22 causes of action. 23 contract and a remedy. 24 They are, respectively, a defense to breach of Even assuming Plaintiff meant to assert the defense and 25 request the remedy, they are not appropriate. 26 allegation that Plaintiff breached his employment (or any other) 27 contract, so the defense of frustration of purpose is unnecessary. 28 Rescission of contract is likewise not necessary, since, under 29 There has been no 1 Plaintiff’s apparent theory of his own contract claim, the original 2 contract was still in force until his termination. 3 The Court grants the Defendant’s motion as to Plaintiff’s 4 thirteenth and fourteenth claims. 5 IV. CONCLUSION. 6 Defendant’s motion is granted with respect to Plaintiff’s 7 first, third, and ninth through fourteenth causes of action. 8 second, fifth, and sixth causes of action are dismissed without 9 prejudice. The With regard to the fourth cause of action the motion is 10 denied. 11 causes of action, inasmuch as those causes of action relate to the 12 modification of the contract. 13 Plaintiff’s termination, however, Defendant’s motion is granted 14 with regard to those claims as well. The motion is also denied regarding the seventh and eighth Inasmuch as they relate to 15 16 IT IS SO ORDERED. 17 Dated: September 18, 2014 18 DEAN D. PREGERSON United States District Judge 19 20 21 22 23 24 25 26 27 28 30
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