Kovalenko v. Kirkland & Ellis LLP, No. 4:2022cv05990 - Document 92 (N.D. Cal. 2023)

Court Description: ORDER DENYING IN PART AND GRANTING IN PART ( 24 , 30 , 31 , 34 , 35 , 36 ) MOTIONS TO DISMISS, DENYING ([37, 38 ) MOTIONS TO STRIKE, AND DENYING IN PART AND GRANTING IN PART 53 MOTION TO SEAL. Amended Pleadings due by 9/20/2023. Signed by Judge Haywood S. Gilliam, Jr. on 8/23/2023. (ndr, COURT STAFF) (Filed on 8/23/2023) Modified on 8/23/2023 to add punction (ndr, COURT STAFF).

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Kovalenko v. Kirkland & Ellis LLP Doc. 92 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 1 of 27 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZOYA KOVALENKO, 8 Plaintiff, v. 9 10 KIRKLAND & ELLIS LLP, et al., Defendants. United States District Court Northern District of California 11 Case No. 22-cv-05990-HSG ORDER DENYING IN PART AND GRANTING IN PART MOTIONS TO DISMISS, DENYING MOTIONS TO STRIKE, AND DENYING IN PART AND GRANTING IN PART MOTION TO SEAL Re: Dkt. Nos. 24, 30, 31, 34, 35, 36, 37, 38, 53 12 Before the Court are Defendants’ motions to dismiss and motions to strike, as well as a 13 14 renewed administrative motion to seal. The Court DENIES the anti-SLAPP motion, Dkt. No. 38, 15 and DENIES the motion to strike, Dkt. No. 37. The Court GRANTS IN PART and DENIES IN 16 PART the motions to dismiss. See Dkt. Nos. 24, 30–31, 34–36. The Court DENIES IN PART 17 and GRANTS IN PART the motion to seal. Dkt. No. 53. 18 19 I. BACKGROUND Plaintiff Zoya Kovalenko brings this sex discrimination case against her former employer 20 Kirkland & Ellis LLP, as well as various firm partners. See Dkt. No. 1 (“Compl.”) ¶¶ 1–5, 20–34. 21 Plaintiff alleges that Defendants fired her in retaliation for complaining of sex-based 22 discrimination she experienced and observed at the law firm. Id. ¶¶ 7–19. 23 Plaintiff worked as an intellectual property litigation associate based out of Defendant’s 24 San Francisco office from November 2020 to September 2021. Id. ¶ 8. Plaintiff alleges she 25 experienced and observed “an obvious disparity in treatment relative to male associates” with 26 respect to workload, benefits and pay, support and assistance on assignments, accessibility to 27 partners, and respect for time off. Id. ¶ 12, 68–74. For example, Plaintiff alleges that: 28 • Defendants offered her a lower salary than male comparators. Id. ¶¶ 65–74. Dockets.Justia.com Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 2 of 27 1 • Defendants repeatedly assigned Plaintiff work during scheduled vacation time but did not do the same to male associates to her knowledge. Id. ¶¶ 78–80, 85, 85 n.14, 159–61. This included reassigning work to Plaintiff during her vacation time to ensure another male associate would not be disturbed during his vacation time. Id. ¶¶ 80, 159. • During two weeks Plaintiff served on a trial team, a partner made comments about disliking working with female teams, made disparaging comments about Plaintiff, and asked her to order food or do ministerial tasks that male associates were not asked to complete to Plaintiff’s knowledge. Id. ¶¶ 113, 117–20, 128. • Defendants gave Plaintiff a heavier workload than male comparators. Id. ¶¶ 143–44, 162. For example, Plaintiff received non-trial work in the leadup to trial, which other associates described as “highly abnormal.” Id. ¶¶ 112, 122–24, 128. Male comparators stated that Plaintiff’s workload was “extreme or unreasonable relative to their customary workload.” Id. ¶ 144. • After trial, male partners invited a male associate to join them on a charter flight home while sending Plaintiff and another female associate home in economy seating on commercial flights. Plaintiff was told not to tell anyone. Id. ¶¶ 129–30. • Plaintiff observed “alarmingly high turnover of female associates” in the IP litigation group, noting that at least seven left during her ten-month tenure, in contrast to one male associate. Id. ¶ 13. 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 Plaintiff alleges that she complained to Defendants on multiple occasions about how she 16 was treated compared to male associates working on the same matters. Id. ¶¶ 14, 131–38, 144, 17 178–80. According to Plaintiff, things got worse after she complained, with an escalation in 18 condensed, competing deadlines without support. Id. ¶¶ 141–43. Plaintiff alleges that male 19 associates commented that her workload was extreme and unreasonable compared to their own. 20 Id. ¶ 144. When Plaintiff complained again, Defendants allegedly froze her out of work altogether 21 and stopped providing positive feedback. Id. ¶¶ 144, 181. 22 In September 2021, Defendant Deoras allegedly fired Plaintiff at what was supposed to 23 be her first performance review, saying only that Plaintiff had “not contributed to her matters at 24 either the substantive or commitment level that is expected of an associate.” Id. ¶¶ 15, 203. 25 Plaintiff alleges that she was in “total shock” because she had received only positive feedback and 26 had not been notified of any performance issues before then. Id. ¶¶ 15, 203–26. Plaintiff asserts 27 that she regularly received high praise, that partners used her work in successful filings, and that 28 she performed excellently in her time at the firm. Id. ¶¶ 11, 75. According to Plaintiff, when she 2 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 3 of 27 1 first complained of discriminatory conduct, Defendant Deoras reassured her that she had no 2 performance issues and that “the intention was for her to grow with Kirkland.” Id. ¶¶ 137–38. United States District Court Northern District of California 3 The month after her termination, Plaintiff allegedly had a phone call in which a Kirkland 4 representative read her performance “evaluations” that were directly at odds with the real-time 5 feedback she received. Id. ¶¶ 206–13. Plaintiff asserts the evaluations, which she was not given 6 access to until after being fired, departed significantly from Defendant’s standard evaluation 7 process. See id. ¶¶ 191–202. For example, Plaintiff states one non-share partner who wrote an 8 evaluation told Plaintiff that he had been instructed to criticize her work. Id. ¶¶ 194, 215. She 9 asserts she was not given a chance to remediate performance issues during a typical probationary 10 period. Id. ¶ 200. Plaintiff alleges that Defendants intentionally withheld these evaluations at the 11 time she was fired in an attempt to get her to sign a severance package that would have required 12 her to waive her legal claims. Id. ¶¶ 16–17, 205. In sum, Plaintiff asserts that these negative 13 evaluations were fabricated and intended to serve as a post-hoc, pretextual justification for her 14 termination. Id. ¶¶ 19, 140, 147, 182–86, 200, 208–21. 15 To support Plaintiff’s allegation that the performance issues were pretextual, she describes 16 in detail the work she did and the positive feedback she received, and points to numerous instances 17 where male associates made errors or submitted subpar work and are still employed. See, e.g., id. 18 ¶¶ 75–103, 108–11, 115–16, 154–58. Plaintiff describes a repeating pattern of being assigned 19 disproportionate work with significant obstacles, then receiving excellent feedback, only to learn 20 that her post-firing evaluations contradicted the comments she’d received. See, e.g., id. 21 ¶¶ 145–47, 162–73. Plaintiff also asserts that Defendants continued to punish her after she was 22 fired. Id. ¶¶ 233–34. For example, she applied for benefits with the D.C. Office of Employment 23 Services, but Defendants told the office Plaintiff never worked at the firm, and also failed to 24 provide Plaintiff her W-2 form. Id. 25 Plaintiff brings causes of action for sex discrimination in violation of Title VII, the 26 California Fair Employment and Housing Act (“FEHA”), the San Francisco Ordinance, and the 27 federal Equal Pay Act; retaliation in violation of Title VII, FEHA, and the San Francisco 28 Ordinance; sex harassment constituting hostile work environment in violation of Title VII; failure 3 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 4 of 27 1 to prevent discrimination and retaliation in violation of FEHA; defamation, and intentional and 2 negligent infliction of emotional distress. Id. ¶¶ 2–6, 301–69. II. 3 Defendant Kirkland & Ellis LLP moves to strike certain allegations under California’s 4 5 Anti-SLAPP statute and requests fees in connection with the motion. See Dkt. No. 38.1 Under California’s anti-SLAPP statute, “[a] cause of action against a person arising from 6 United States District Court Northern District of California ANTI-SLAPP MOTION 7 any act of that person in furtherance of the person’s right of petition or free speech under the 8 United States or California Constitution in connection with a public issue shall be subject to a 9 special motion to strike, unless the court determines that the plaintiff has established that there is a 10 probability that the plaintiff will prevail on the claim.” Cal. Civ. P. Code § 425.16(b)(1). The 11 statute was enacted to curtail lawsuits that were “brought primarily to chill the valid exercise of 12 the constitutional rights of freedom of speech and petition for redress of grievances.” Id. 13 § 425.16(a). Because “it is in the public interest to encourage continued participation in matters of 14 public significance, and [because] this participation should not be chilled through abuse of the 15 judicial process,” the anti-SLAPP statute is to be construed broadly. Id. California courts generally apply a two-step process for analyzing an anti-SLAPP motion. 16 17 Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010). Under the first prong, the moving 18 party must make “a threshold showing . . . . that the act or acts of which the plaintiff complains 19 were taken ‘in furtherance of the right of petition or free speech under the United States or 20 California Constitution in connection with a public issue,’ as defined in the statute.” Equilon 21 Enters., LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (Cal. 2002) (quoting Cal. Civ. P. Code § 22 425.16(b)(1)). If the moving party meets its threshold showing, then the burden shifts to the non- 23 moving party to show a probability of prevailing on the claim. See Hilton, 599 F.3d at 903. Additionally, “a claim may be struck only if the . . . activity itself is the wrong complained 24 25 of, and not just evidence of liability or a step leading to some different act for which liability is 26 27 28 1 For ease of reference, the Court refers to the PDF pages rather than the documents’ internal pagination unless otherwise noted. 4 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 5 of 27 1 asserted.” Bonni v. St. Joseph Health Sys., 11 Cal. 5th 995, 1014 (Cal. 2021) (quoting Park v. Bd. 2 of Trustees of Cal. State Univ., 2 Cal. 5th 1057, 1060 (Cal. 2017); see also Jordan-Benel v. 3 Universal City Studios, Inc., 859 F.3d 1184, 1190 (9th Cir. 2017) (finding plaintiff’s claim did not 4 arise from protected activity “because it was not the specific wrongful act that gives rise to his 5 claim”). The question is whether the challenged allegations “supply a necessary element” of a 6 claim. Bonni, 11 Cal. 5th at 1016. At the first step, it is the moving defendant who “must identify 7 the acts alleged in the complaint that it asserts are protected and what claims for relief are 8 predicated on them.” Id. at 1010. “Assertions that are ‘merely incidental’ or ‘collateral’ are not 9 subject to section 425.16. Allegations of protected activity that merely provide context, without 10 supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” Id. at 1013 11 (citation and quotations omitted). Here, Defendant Kirkland challenges allegations related to three asserted protected acts: 12 13 Kirkland’s response to Plaintiff’s unemployment claim after she was fired, Defendants’ filings in a 14 patent case, and communications with Defendants’ counsel regarding Plaintiff’s filings.2 See Dkt. 15 No. 38 at 8–10. Plaintiff responds that Defendant Kirkland has not met its burden to show that the 16 activities form the basis of any specific claim. See Dkt. No. 77 at 9. Assuming without deciding 17 that the challenged activities are protected, the Court agrees with Plaintiff that her claims do not 18 arise out of any of the identified conduct. See, e.g., Park, 2 Cal. 5th at 1065–66 (finding that a 19 dean’s comments supplied “evidence of animus,” which did not “convert the statements 20 themselves into the basis for liability” for a discrimination claim). Starting with Plaintiff’s allegations regarding unemployment benefits, Defendant asserts 21 22 that these allegations underlie Plaintiff’s retaliation claim. Dkt. No. 78 at 9–10. Although 23 Plaintiff does use the word “retaliation” in the paragraph discussing her application for benefits, 24 Compl. ¶ 233, Plaintiff has stated explicitly that she is not attempting to bring a separate claim for 25 retaliation based on this conduct. See Dkt. No. 77 at 19 (quoting Compl. ¶ 190). She states the 26 allegations were included only as “factual context” showing Defendants’ efforts to “increase the 27 28 Defendant Kirkland does not seek to strike allegations related to Plaintiff’s federal claims. See Dkt. No. 78 at 7 n.1. 5 2 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 6 of 27 1 financial pressure on Plaintiff to drop her claims.” Id.; see also id. ¶ 328 (stating retaliation claims 2 are based on the adverse employment action of “discharge”). Given this concession that Plaintiff 3 is not attempting to recover for Defendants’ alleged failure to provide information to the benefits 4 office, the Court will not strike the allegations. See Oakland Bulk & Oversized Terminal, LLC v. 5 City of Oakland, 54 Cal. App. 5th 738, 754 (2020) (“If the core injury-producing conduct upon 6 which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, 7 collateral or incidental allusions to protected activity will not trigger application of the anti- 8 SLAPP statute.”). 9 Next, Defendant Kirkland identifies the litigation correspondence from Kirkland’s counsel 10 as underlying Plaintiff’s defamation, retaliation, and discrimination claims. See Dkt. No. 78 at 13. 11 But Plaintiff clearly is not bringing suit based on communications from Defense counsel. 12 Plaintiff’s complaint makes clear that her defamation cause of action in its entirety is based solely 13 on Defendants’ statements in their evaluations. See Compl. ¶¶ 357–61 (“Defendants published 14 statements in their ‘evaluations’ regarding Plaintiff, each of which was false, defamatory, 15 unprivileged, and had a natural tendency to injure because each concerned Plaintiff’s profession 16 and practice and/or caused special damage.”). The footnote Defendant relies on, while loosely 17 using the word “defame,” states only that outside counsel repeated an alleged lie in a letter to 18 Plaintiff.3 See Compl. ¶ 170 n. 51. As to the retaliation and discrimination claims, again the 19 “specific wrongful act” Plaintiff challenges is her termination, not communications from defense 20 counsel. At most, the allegations in the challenged paragraphs may serve as evidence that the 21 reason for termination was pretextual. See Compl. ¶¶ 19, 182 (noting that the communications 22 strayed from “Defendants’ repeated, original rationale for firing Plaintiff”); Park, 2 Cal. 5th at 23 1065–66 (“The dean’s alleged comments may supply evidence of animus, but that does not 24 convert the statements themselves into the basis for liability.”). Finally, Defendant states that the IPR activities also underlie the claims for defamation, 25 26 discrimination, and retaliation. Plaintiff alleges that Defendant edited her outline for a filed patent 27 28 3 Plaintiff explicitly states that the challenged paragraphs do not relate to her defamation claim. See Dkt. No. 77 at 20. 6 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 7 of 27 1 owner response to “cloak their reliance” on her work. Compl. ¶ 190. Again, nothing in the 2 complaint indicates that Plaintiff is attempting to recover for this conduct, which is instead 3 provided for context and to support her allegation that Defendants were happy with her work 4 while she was employed. In other words, these allegations constitute “evidence of liability or a 5 step leading to some different act for which liability is asserted.” See Bonni, 11 Cal. 5th at 1014. The Court finds that the challenged activities do not form the basis of any of Plaintiff’s United States District Court Northern District of California 6 7 claims and DENIES Defendant’s Anti-SLAPP motion.4 8 III. MOTION TO STRIKE 9 Defendants also collectively move to strike specific paragraphs of Plaintiff’s complaint 10 under Federal Rule of Procedure 12(f).5 Dkt. No. 37. Specifically, Defendants ask the court to 11 strike Plaintiff’s request for equitable relief, special damages, and attorneys’ fees; and a footnote it 12 calls “scandalous.”6 Id. at 5–6. Rule 12(f) of the Federal Rules of Civil Procedure states that a district court “may strike 13 14 from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 15 matter.” Motions to strike are “regarded with disfavor because they are often used as delaying 16 tactics and because of the limited importance of pleadings in federal practice.” Z.A. ex rel. K.A. v. 17 St. Helena Unified Sch. Dist., No. 09-CV-03557-JSW, 2010 WL 370333, at *2 (N.D. Cal. Jan. 25, 18 19 20 21 22 23 24 25 26 27 28 Plaintiff objected to a declaration submitted with Defendant Kirkland’s reply in support of the anti-SLAPP motion. See Dkt. No. 79. The objection is OVERRULED AS MOOT because the declaration was not relevant to the Court’s analysis of the Anti-SLAPP motion, as the Court did not need to decide whether Plaintiff has a probability of prevailing given Defendant’s threshold failure to meet its burden. 4 Plaintiff challenges Defendants’ motion to strike as untimely because it was filed after the motions to dismiss. See Dkt. No. 62 at 8–9. A motion to strike must be made “before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Fed. R. Civ. P. 12(f)(2). Without deciding whether a motion to dismiss constitutes a response under Rule 12(f), the Court will consider the motion to strike because it was filed on the same day as most of the Defendants’ motions to dismiss. Further, even if the Court rejected the motion to strike as untimely, it would “on its own” strike the street addresses of the individual defendants. See Fed. R. Civ. P. 12(f)(1). 5 Defendants also ask to strike the individual Defendants’ home addresses. The home addresses are the subject of an administrative motion to seal, addressed below. Plaintiff did not oppose the request to redact the addresses. See Dkt. No. 58 at 2 n.1 (“Plaintiff does not oppose the request to redact the home addresses of certain Defendants.”). Because the Court will grant Defendants’ request to redact the home addresses, the Court DENIES AS MOOT the request to strike them. 7 6 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 8 of 27 1 2010). Motions to strike “should be denied unless the matter has no logical connection to the 2 controversy at issue and may prejudice one or more of the parties to the suit.” Hatamian v. 3 Advanced Micro Devices, Inc., No. 14-CV-00226-YGR, 2015 WL 511175, at *1 (N.D. Cal. Feb. 4 6, 2015). Here, as to the requests for relief, Defendants clearly are attempting to challenge the United States District Court Northern District of California 5 6 substantive sufficiency of Plaintiff’s allegations. Use of a Rule 12(f) motion for this purpose is 7 improper. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974–76 (9th Cir. 2010) (“Rule 8 12(f) does not authorize district courts to strike claims for damages on the ground that such claims 9 are precluded as a matter of law.”). And although the allegations in the challenged footnote are 10 personal and may be distasteful, it cannot be said that they have “no logical connection” to 11 Plaintiff’s case.7 The Court thus DENIES the motion to strike. 12 13 IV. MOTIONS TO DISMISS 14 A. Legal Standard 15 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 16 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 17 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 18 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 19 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 20 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 21 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 22 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 23 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 24 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the plausibility of a complaint, courts “accept factual allegations in the 25 26 27 28 Defendants ask that the Court strike Plaintiff’s declaration filed with her opposition to the motion to strike. See Dkt. No. 70 at 8–9. The request is DENIED AS MOOT because the Court’s analysis was based on the face of the complaint and the declaration was not relevant. 7 8 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 9 of 27 1 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 2 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 3 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 4 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 5 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Even if the court concludes that a 12(b)(6) motion should be granted, the “court should 6 7 grant leave to amend even if no request to amend the pleading was made, unless it determines that 8 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 9 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted). 10 B. Defendants bring six different motions to dismiss with overlapping arguments, asserting 11 United States District Court Northern District of California Discussion 12 numerous bases for dismissal.8 See Dkt. Nos. 24, 30, 31, 34, 35, 36.9 Although the Court agrees 13 with Defendants on several points, the Court ultimately concludes that many of these questions are 14 appropriately resolved at summary judgment or trial. i. 15 FEHA Preemption of San Francisco Police Code 16 First, Defendants argue that California’s FEHA preempts Plaintiff’s claims for 17 discrimination and retaliation under the San Francisco Ordinance. See S.F. Police Code art. 33 18 § 3310 et seq. FEHA states “it is the intention of the Legislature to occupy the field of regulation 19 20 21 22 23 24 25 26 27 28 Defendants request judicial notice of Plaintiff’s performance evaluations, employment offer letter, severance agreement, and payroll documents. See Dkt. No. 29. Plaintiff opposes the request. Dkt. No. 68. The Court GRANTS the request as to the performance evaluations because the statements in those documents form the basis of Plaintiff’s defamation claim. See Khoja v. Orexigen Therapeutics, 899 F.3d 988, 1002 (9th Cir. 2018). The Court DENIES the request as to the remaining documents. These documents are not “referred to extensively” and do not form the basis of any of plaintiff’s claims. Consideration of these documents would be more appropriate at the summary judgment stage. See M.O.R.E., LLC v. U.S., No. 12-cv-03609-JST, 2015 WL 5093621, at *3 (N.D. Cal. Aug. 28, 2015) (“The incorporation by reference doctrine ‘is a narrow exception aimed at cases interpreting, for example, a contract. It is not intended to grant litigants license to ignore the distinction between motions to dismiss and motions for summary judgement.’” (quoting Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998))). 8 Plaintiff objects to Defendants’ attempt to incorporate by reference arguments made by codefendants. See, e.g., Dkt. No. 65 at 34–35. Given Defendants’ repeated statement that their arguments are “complete and self-contained and are specifically and distinctively raised in the motion,” and that the “additional material . . . is not necessary to resolution of the Motion[s],” the Court will consider only the arguments raised in each motion. See, e.g., Dkt. No. 74 at 19. 9 9 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 10 of 27 1 of discrimination in employment and housing encompassed by the provisions of this part, 2 exclusive of all other laws banning discrimination in employment and housing by any city, city 3 and county, county, or other political subdivision of the state[.]” Cal. Gov’t Code § 12993(c). 4 Plaintiff relies on two cases where courts found no preemption because FEHA did not, at 5 that time, cover the specific type of discrimination at issue (i.e., age discrimination and refusal to 6 rent to Section 8 recipients). See Rental Hous. Assn. of N. Alameda Cnty. v. City of Oakland, 171 7 Cal. App. 4th 741, 761–62 & n.15 (Cal. Ct. App. 2009); City & Cnty. of San Francisco v. Post, 22 8 Cal. App. 5th 121, 131 (Cal. Ct. App. 2018). As courts have noted, the field of exclusivity is 9 limited to “those acts of discrimination that FEHA itself regulates.” Post, 22 Cal. App. 5th at 131. 10 But Plaintiff’s claims are for sex discrimination and retaliation in employment, which are squarely 11 covered by FEHA. See Compl. ¶¶ 319–24, 338–42; Cal. Gov’t Code § 12940(a), (h); see also 12 Post, 22 Cal. App. 5th at 132 (“Although narrow, this field of exclusivity acts to prevent cities and 13 counties from enforcing their own laws regarding the kinds of discrimination in housing and 14 employment that FEHA addresses.”). The Court thus finds Plaintiff’s S.F. Police Code claims are preempted by FEHA and 15 16 DISMISSES causes of action 3 and 7 without leave to amend. 17 ii. Individual Liability for Firm Partners Under Title VII and FEHA 18 Plaintiff named several individual firm partners as Defendants.10 The individual 19 defendants argue that they are not “employers” under Title VII and FEHA because these statutes 20 do not provide for individual liability. See, e.g., Dkt. No. 36 at 13–25. The Ninth Circuit has held that Title VII does not allow for individual liability. See Miller 21 22 v. Maxwell’s Int’l Inc., 991 F.2d 583, 587–88 (9th Cir. 1993) (finding previous holding “that 23 individual defendants cannot be held liable for damages under Title VII is good law”). The Miller 24 court reasoned that the “agent” language was included only to incorporate respondeat superior 25 liability. Id. at 587. The court further reasoned that because Congress limited liability to 26 27 28 10 Plaintiff also named the individual partners’ professional corporations. 10 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 11 of 27 1 employers with fifteen or more employees11 to avoid “burden[ing] small entities with the costs 2 associated with litigating discrimination claims,” it was “inconceivable that Congress intended to 3 allow civil liability to run against individual employees.”12 Id. FEHA similarly does not allow for 4 individual liability for discrimination, retaliation, or failure to prevent violations.13 See Minor, 5 182 F. Supp. 3d at 986–87 (citing Reno v. Baird, 18 Cal. 4th 640, 663 (Cal. 1998)); Jones v. Lodge 6 at Torrey Pines P’ship, 42 Cal. 4th 1158, 1164 (2008) (“Reno’s rationale for not holding 7 individuals personally liable for discrimination applies equally to retaliation.”); Agosto v. Altec, 8 Inc., No. CV152405FMOMANX, 2015 WL 13908080, at *6 (C.D. Cal. July 23, 2015) 9 (“California law does not allow plaintiffs to assert claims for failing to prevent harassment against United States District Court Northern District of California 10 any individual defendant . . . .”). 11 The Court is not aware of any in-circuit authority that would allow Plaintiff to bring her 12 claims against individual law firm partners. See Richardson v. Bonanza Casino, 141 F.3d 1178 13 (9th Cir. 1998) (“As an employee and shareholder . . . [defendant] cannot be individually liable 14 for [] Title VII violations.” (emphasis added)). Plaintiff’s cited out-of-circuit cases do not apply 15 the holding of Miller and, while sometimes finding that partners are more like employers than 16 employees in other contexts, do not address the question of whether an individual partner can be 17 liable under Title VII.14 See, e.g., Dkt. No. 66 at 13–15. Conversely, out-of-circuit cases finding 18 19 20 21 22 23 24 25 26 27 28 An “employer” under Title VII is “a person . . . who has fifteen or more employees . . . and any agent of such a person . . . .” See 42 U.S.C. § 2000e(b). Similarly, an “employer” under FEHA is “any person regularly employing five or more persons, or any person acting as an agent of an employer . . . .” Cal. Gov’t Code § 12926. 11 12 Although Miller specifically addressed a suit against individual employees, courts have repeatedly noted that its holding prohibits suits against individuals. See Walsh v. Nevada Dep't of Hum. Res., 471 F.3d 1033, 1038 (9th Cir. 2006) (“The circuit has ruled that individuals may not be sued for damages under . . . Title VII of the Civil Rights Act of 1964.”); Minor v. Fedex Off. & Print Servs., Inc., 182 F. Supp. 3d 966, 985–86 (N.D. Cal. 2016) (“The Ninth Circuit held that the same reasoning applied to the ADA and thus, as with Title VII, individuals are not ‘employers’ under the ADA. Accordingly, Freitas may not be personally liable as an ‘employer’ . . . .”). FEHA does, however, allow for individual liability for harassment claims. See Cal. Gov’t Code § 12940(j)(3) (“An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee . . . .”). 13 14 For example, Burke v. Friedman, 556 F.2d 867, 870 (7th Cir. 1977), addressed whether partners counted as “employees” for the purpose of meeting Title VII’s 15-employee requirement. 11 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 12 of 27 1 that law firm partners cannot be individually liable are aligned with Miller and generally track its 2 reasoning. See, e.g., Yaba v. Cadwalader, Wickersham & Taft, 896 F. Supp. 352, 353 (S.D.N.Y. 3 1995) (finding “[t]he fact that defendant [] is a partner of the defendant employer does not alter the 4 analysis” that “[i]ndividual liability is inconsistent with the language and remedial framework of 5 Title VII”); Caplan v. Fellheimer Eichen Braverman & Kaskey, 882 F. Supp. 1529, 1532 (E.D. Pa. 6 1995) (adopting the reasoning of Miller and finding law firm partner not liable under Title VII). 7 Plaintiff asserts that the individual defendants are “employers.” But Plaintiff cannot use 8 the integrated enterprise test or joint employer test to circumvent the prohibition on individual 9 liability. First, the integrated enterprise test “is relevant when a plaintiff alleges that her direct 10 employer has committed discriminatory conduct but the direct employer cannot be held liable 11 under Title VII because it has fewer than fifteen employees.” DaOro v. Eskaton, No. 2:11-CV- 12 0960-KJM-JFM, 2013 WL 789120, at *4 (E.D. Cal. Mar. 1, 2013); see also Drottz v. Park 13 Electrochemical Corp., No. CV 11-1596-PHX-JAT, 2012 WL 1344729, at *3 (D. Ariz. Apr. 18, 14 2012) (“[W]hen there is no dispute that at least one defendant qualifies as an employer under Title 15 VII, the integrated enterprise test is wholly inapplicable.”). There is no dispute that Kirkland is an 16 “employer” for purposes of Title VII liability, and thus the integrated enterprise theory is 17 inapplicable. The integrated enterprise theory likewise is not applicable under FEHA on the facts 18 of this case. Caldrone v. Circle K Stores, Inc., No. EDCV 21-749-GW-KKX, 2021 WL 6496746, 19 at *5–6 (C.D. Cal. Aug. 2, 2021) (noting that the integrated employer test only applies to parent 20 and subsidiary corporate relationships under FEHA). Second, the joint employer test is applied 21 where “otherwise separate entities each exercise some control over an employee.” DaOro, 2013 22 WL 789120, at *6. Here, the firm partners clearly are not separate entities from Kirkland. See id. 23 The Court finds that the law firm partners and their P.C.s are not “employers” under Title 24 VII or FEHA. Thus, the Court DISMISSES the individual defendants from causes of action one, 25 two, five, six, eight, and nine.15 26 27 28 15 The FEHA claims against Defendant Fahey fail for the additional reason that FEHA does not apply extraterritorially. See Dkt. No. 36 at 33. Defendant Fahey is not a resident of California, and Plaintiff does not allege that any of Fahey’s alleged tortious conduct occurred in California. 12 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 13 of 27 1 2 Harassment/Hostile Work Environment Under Title VII To state a prima facia case for a hostile work environment claim under Title VII, Plaintiff 3 must allege that “(1) the defendants subjected her to verbal or physical conduct based on her [sex]; 4 (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter 5 the conditions of her employment and create an abusive working environment.” Surrell v. Cal. 6 Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). 7 United States District Court Northern District of California iii. Defendants argue that Plaintiff’s harassment allegations are all based on personnel 8 management decisions that cannot form the basis of a harassment claim. See Dkt. No. 24 at 9 17–19. Defendants rely on a rule from a California Supreme Court Case interpreting FEHA. See 10 Roby v. McKesson Corp., 47 Cal. 4th 686, 709 (Cal. 2009)). But even if the Court applied that 11 caselaw to Plaintiff’s Title VII claim, those cases hold that “official employment actions” can 12 support a harassment claim where they “communicate a hostile message” to employees, which 13 “occurs when the actions establish a widespread pattern of bias.” See Croft v. GTT Commc’ns, 14 Inc., No. 21-CV-01083-EMC, 2021 WL 1847816, at *6 (N.D. Cal. May 10, 2021) (quoting Roby, 15 47 Cal. 4th at 709). For example, rejecting the same argument Defendants make here, one court in 16 this district concluded that the Plaintiff had “at least colorably allege[d] that [defendant], by 17 excessively monitoring, micromanaging, and criticizing Plaintiff but not her male co-workers, 18 engaged in discriminatory actions based on her gender in order to send a message to the work 19 force that female employees were not valued.” Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 20 694, 704–05 (N.D. Cal. 2014); see also Rico v. Jones Lang LaSalle Americas, Inc., No. CV 14- 21 1322-GHK (JEMx), 2014 WL 1512190, at *2–3 (C.D. Cal. April 16, 2014) (finding plaintiff’s 22 allegations of negative performance review, criticism, and demeaning comments, “taken together, 23 suggest at least a possibility that [a supervisor] engaged in a pattern of harassing conduct”). 24 25 Similarly, Plaintiff alleges a “widespread pattern” of behavior that communicated a hostile message: in Plaintiff’s words, that Defendants were “more than happy to use women and to leave 26 27 28 See Dodd–Owens v. Kyphon, Inc., No. C 06–3988, 2007 WL 420191, at *3 (N.D.Cal. Feb. 5, 2007) (dismissing FEHA claim for failure to state that the alleged tortious conduct took place in California). Plaintiff did not respond to this argument. 13 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 14 of 27 1 them behind.” Compl. ¶ 130. Taking Plaintiff’s allegations as true, she essentially alleges that 2 Defendants consistently gave male associates preferential treatment at her own expense, such that 3 her work life was unmanageable. Offering numerous specific examples, Plaintiff alleges that she 4 was treated differently than her male coworkers throughout her time at Kirkland and observed an 5 “obvious hierarchy between male and female associates.” See, e.g., Compl. ¶ 130.16 Whether 6 these allegations will ultimately support a hostile work environment claim is a factual question 7 properly answered at a later stage. See Young v. Buttigieg, No. 19-CV-01411-JCS, 2021 WL 8 981305, at *11 (N.D. Cal. Mar. 16, 2021) (finding challenge to the severity and pervasiveness of 9 the alleged conduct was better evaluated on a full evidentiary record); Haro v. Therm-X of 10 California, Inc., No. 15-CV-02123-JCS, 2015 WL 5121251, at *6 (N.D. Cal. Aug. 28, 2015) 11 (finding defendant’s arguments “about the severity or pervasiveness of the alleged harassment . . . 12 are better addressed as questions of fact”). 13 At this stage, the Court cannot say as a matter of law that a reasonable woman in Plaintiff’s 14 position “would not consider the terms and conditions of her employment altered” by Defendants’ 15 conduct. See Corrales v. Chase Bankcard Serv., Inc., 128 F. App’x 598, 599 (9th Cir. 2005). 16 Plaintiff has plausibly alleged that the work environment made it “more difficult for her to do her 17 job, to take pride in her work, and to desire to stay on in her position.” Sharp v. S&S Activewear, 18 L.L.C., 69 F.4th 974, 978 (9th Cir. 2023) (quoting Steiner v. Showboat Operating Co., 25 F.3d 19 1459, 1463 (9th Cir. 1994)). The Court DENIES the motion to dismiss on this basis. 20 // 21 // 22 23 24 25 26 27 28 16 See also Compl. ¶¶ 65–67 (offering lower salary); 80, 84–85 (assigning additional work before scheduled vacation); 85 n.14 (Defendants “had a habit of dumping last-minute assignments on [female associate] . . . but not on male associates”); 117–18 (stating Defendant did not like working on an all-female damages team and said “now I’m stuck with this”); 119 (asking Plaintiff to order food and do administrative tasks), 120 (stating Defendant did not like working with female experts and disparaging a female associate’s work); 121 (complimenting male associates but not female associates); 122 (requiring Plaintiff to work on non-trial matters); 123–28 (assigning Plaintiff disproportionate work); 129–30 (inviting male associates on private charter flight); 142–44, 166 (male associates noted her workload was “extreme or unreasonable” relative to theirs); 159–62 (offloading work from male associate who wanted to take a vacation to Plaintiff during hers); 15, 19, 140, 147, 182–86, 200, 203, 208–21 (fabricating performance reviews and terminating Plaintiff). 14 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 15 of 27 1 2 Defamation Defamation “involves (a) a publication that is (b) false, (c) defamatory, and (d) 3 unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus v. 4 Loftus, 40 Cal.4th 683, 720 (2007) (citation omitted). Plaintiff’s defamation claim is based on the 5 purported evaluations that were read to her after she was fired. Compl. ¶¶ 357–61. Defendants 6 argue that the evaluations cannot support a defamation claim because they are statements of 7 opinion and privileged. Dkt. No. 24 at 19–23. Plaintiff responds that the evaluations (1) contain 8 factual content; (2) are not true “evaluations”; and (3) accuse her of “abject incompetence,” which 9 makes them actionable. Dkt. No. 60 at 16–23. 10 United States District Court Northern District of California iv. As an initial matter, the Court agrees that Plaintiff has not adequately alleged a defamation 11 claim against Defendant Alper. See Dkt. No. 34 at 32. Defendant Alper did not submit an 12 evaluation of Plaintiff, which is the sole basis for her defamation claim. In her opposition, she 13 argues that Defendant Alper republished defamatory statements. But none of Plaintiffs’ cited 14 portions of her complaint allege republication by Defendant Alper. See Dkt. No. 65 at 30–31. 15 16 17 18 However, the Court finds that Plaintiff has adequately alleged a defamation claim against the remaining defendants and finds Defendants’ arguments are properly addressed at a later stage. a. Performance Evaluations Under California law, defamation claims cannot be based on a performance review unless 19 it “falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or 20 reprehensible personal characteristics or behavior.” See Jensen v. Hewlett-Packard Co., 14 Cal. 21 App. 4th 958, 965 (1993). 22 Here, although the statements appear in what were represented to be performance 23 evaluations, the statements could, in context, be found to suggest that Plaintiff lacked the inherent 24 competence to do her job. See Kim v. Yoon, No. 21-CV-04454-SVK, 2021 WL 4442664, at *3 25 (N.D. Cal. Sept. 28, 2021) (reserving the question of whether statements “fall into an exception to 26 the general rule that defamation cannot be based on performance reviews” for a later stage where 27 plaintiff argued statements “spoke directly to [his] competence”); Webber v. Nike USA, Inc., No. 28 12-CV-00974 BEN WVG, 2012 WL 4845549, at *6 (S.D. Cal. Oct. 9, 2012) (reasoning in part 15 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 16 of 27 1 that statement made in the context of explaining to plaintiff why he was fired “could be found to 2 suggest” that he “lacked the inherent competence, qualification, capability, or fitness to do his 3 job.”). Plaintiff asserts that the evaluations were used as the factual basis for her termination and 4 that she was not given a chance to address any of the purported performance issues. Id. ¶ 200. 5 She also alleges that the evaluations conveyed an unequivocal message that “Plaintiff was 6 deplorably deficient in every component of practicing law, failed to contribute at all during her 7 time at the Firm, and was nothing more than a burden and liability due to her utter incompetence.” 8 Compl. ¶ 14. United States District Court Northern District of California 9 The statements in the evaluation support this characterization. For example, the evaluation 10 concluded that Plaintiff had “not contributed to her matters at either the substantive or 11 commitment level that is expected of an associate” and “should promptly pursue outside 12 employment.” See 29-2 at 6. It included blanket statements that Plaintiff “does not produce 13 usable work product,” that partners “had to rewrite everything she wrote,” and that she “needed to 14 be supervised with all discussions with the third parties.” Id. at 4–6. It notes that Defendants 15 Schmidt and Akshay “decided that she will not attend the hearing in the case because of her poor 16 performance,” that she was “not up to [] expectations for someone much junior to her year,” and 17 that her preparation was “extremely poor.” Id. Although not every single statement in the 18 evaluation explicitly accuses Plaintiff of incompetence, the overall message (and numerous 19 statements within it), in context, might be reasonably understood to convey that message. See 20 Kahn v. Bower, 232 Cal. App. 3d 1599, 1609 (Cal. Ct. App. 1991) (“[I]n the context of the letter 21 as a whole it might be reasonably understood to convey the meaning that . . . [plaintiff] showed so 22 little ability to perform the duties of her position that her occupancy of it was deleterious to the 23 children in her care . . . .”). 24 And although Defendants are correct that expressions of opinion cannot support a 25 defamation claim, there are statements in the evaluation that “a reasonable fact finder could 26 conclude . . . declare[] or impl[y] a provably false assertion of fact” when considering the totality 27 of the circumstances. GetFugu, Inc. v. Patton Boggs LLP, 220 Cal. App. 4th 141, 156 (2013). For 28 example, the evaluation states that partners had to “had to entirely rewrite everything she wrote,” 16 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 17 of 27 1 that she “did not contribute at trial” and disappeared for large portions of it, and that Defendants 2 Schmidt and De Vries met with her to “let her know that her performance was unacceptable.” See 3 Dkt. No. 29-2. 4 b. Common Interest Privilege Defendants also argue that the statements in the evaluations are protected by the common United States District Court Northern District of California 5 6 interest privilege of Civil Code section 47(c). Dkt. No. 24 at 21–23. Under that privilege, “an 7 employer’s statements to employees regarding the reasons for termination of another employee 8 generally are privileged.” MacKinnon v. Logitech Inc., No. 15-CV-05231-TEH, 2016 WL 9 2897661, at *4 (N.D. Cal. May 18, 2016) (quoting King v. United Parcel Serv., Inc., 152 Cal. 10 App. 4th 426, 440 (2007)). However, a plaintiff may overcome the privilege by showing the 11 statements were made with “actual malice.” Taus, 40 Cal. 4th at 721.17 Even assuming Defendants can meet their burden of showing that all of the approximately 12 13 118 recipients of the evaluations shared a common interest,18 Plaintiff has alleged actual malice 14 sufficient to overcome the privilege. In this context, “actual malice” means “the publication was 15 motivated by hatred or ill will” or that the defendant “lacked reasonable ground for belief in the 16 truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” Taus, 40 17 Cal. 4th at 721. Plaintiff alleges the statements were made in retaliation for her complaints of 18 discrimination, and as part of a concerted effort to create a false basis for her termination. That is 19 sufficient to establish at the pleading stage either that Defendants acted with ill will toward 20 Plaintiff or lacked a basis for believing the truth of the statements. See Johnson v. Wells Fargo & 21 Co., No. CV 14-06708 MMM JCX, 2014 WL 6475128, at *9 (C.D. Cal. Nov. 19, 2014) (finding 22 allegations that “the statements were knowingly false, and were made to retaliate against him for 23 reporting . . . illegal conduct, so as to justify his termination” supported actual malice); 24 25 26 27 28 The common interest privilege applies to “a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” Cal. Civ. Code § 47(c). 18 The Court notes that the assertion that the information was shared as “standard practice,” Dkt. No. 24 at 22, does not in itself establish that every one of the recipients meets the definition of an “interested party” under the statute as a matter of law. 17 17 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 18 of 27 1 MacKinnon, 2016 WL 2897661, at *4 (finding plaintiff adequately alleged that defendants lacked 2 a basis to believe the truth of the statement that he had been fired for performance reasons where 3 his sales numbers were high and he had received emails congratulating him on his excellent 4 work); Layton v. Terremark N. Am., LLC, No. 5:13-CV-03093-PSG, 2014 WL 2538679 (N.D. 5 Cal. June 5, 2014) (finding plaintiff’s allegations that defendants made statements in retaliation for 6 his complaints supported actual malice). In sum, although Defendants’ arguments might ultimately prove successful at a later stage, 7 8 the Court finds that Plaintiff has adequately alleged a claim for defamation. The Court DENIES 9 the motion to dismiss cause of action 10 as to all Defendants except Defendant Alper and 10 DISMISSES the defamation claim against him with leave to amend. United States District Court Northern District of California 11 v. Negligent Infliction of Emotional Distress Plaintiff’s negligent infliction of emotional distress (“NIED”) cause of action is based on 12 13 failure to prevent discrimination, harassment, and retaliation. See Compl. ¶¶ 368–69. Defendants 14 argue that Plaintiff’s NIED claim is preempted by the workers’ compensation law. See Dkt. No. 15 24 at 25. The Court agrees.19 Workers’ compensation is the exclusive remedy for an injury resulting “at the worksite, in 16 17 the normal course of the employer-employee relationship.” Miklosy v. Regents of the University of 18 California, 44 Cal. 4th 876, 902 (2008). However, a plaintiff’s emotional distress claim may 19 proceed if the employer’s misconduct “exceeds the risk inherent in the employment 20 relationship.”20 Livitsanos v. Superior Court, 2 Cal. 4th 744, 754–55 (1992). For example, courts 21 have found that “neither discrimination nor harassment is a normal incident of employment.” 22 Tone v. Wal-Mart Stores, Inc., No. 14CV2643-LAB DHB, 2015 WL 4658564, at *2 (S.D. Cal. 23 Aug. 5, 2015) (quoting Nazir v. United Airlines, 178 Cal. App. 4th 243, 288 (Cal. Ct. App. 2009)); 24 25 26 27 28 19 The Court does not reach the remaining arguments that the NIED claim fails because it is based on intentional actions and because Defendants did not owe Plaintiff a duty of care. See Dkt. No. 24 at 25–26. There is another exception for “conduct that violates fundamental public policy,” which only applies to Tameny actions for wrongful termination in violation of public policy. See Miklosy, 44 Cal. 4th 876, 902–03 (2008). 20 18 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 19 of 27 1 see also Light v. Dep’t. of Parks & Recreation, 14 Cal. App. 5th 75, 101 (Cal. Ct. App. 2017) 2 (holding that “absent further guidance from our Supreme Court, we are unwilling to abandon the 3 long-standing view that unlawful discrimination and retaliation in violation of FEHA falls outside 4 the compensation bargain”). But Plaintiff has not provided persuasive authority that would allow her claim for United States District Court Northern District of California 5 6 negligence to proceed. See Fermino v. Fedco, Inc., 7 Cal. 4th 701, 713–14 (Cal. 1994) (noting 7 “injuries caused by employer negligence . . . are compensated at the normal rate under the 8 workers’ compensation system”) (emphasis added). Schaffer v. GTE, Inc., 40 F. App’x 552, 558 9 (9th Cir. 2002) (“[Plaintiff’s] negligence claim fails because claims for negligence are within the 10 exclusive remedy provisions of the California Workers’ Compensation Act.”); Grotz v. Kaiser 11 Found. Hosps., No. C-12-3539 EMC, 2012 WL 5350254, at *10–11 (N.D. Cal. Oct. 29, 2012) 12 (finding negligent infliction of emotional distress claim preempted by workers’ compensation); 13 Howard v. Contra Costa Cnty., No. 13-CV-03626 NC, 2014 WL 824218, at *18–19 (N.D. Cal. 14 Feb. 28, 2014) (finding claim for negligent hiring that “placed [plaintiff] in a position to witness a 15 crime and be harassed and retaliated against” was preempted by workers’ compensation); Johnson 16 v. Zillow, Inc., No. SACV141991DOCDFMX, 2016 WL 11760226, at *3 (C.D. Cal. Mar. 28, 17 2016) (finding claim based on negligence in failing to maintain safe working conditions 18 preempted). The Court finds that Plaintiff’s NIED claim for failure to prevent is preempted by 19 20 California’s Workers Compensation Act and DISMISSES the NIED claim without leave to 21 amend. 22 vi. Intentional Infliction of Emotional Distress 23 Defendants also argue that Plaintiff’s intentional infliction of emotional distress (“IIED”) 24 claim fails because she does not allege “extreme and outrageous conduct” or “severe or extreme” 25 emotional distress. See Dkt. No. 24 at 23–24. 26 To state a cause of action for intentional infliction of emotional distress, “the plaintiff must 27 allege: (1) extreme and outrageous conduct by the defendant with the intention of causing, or 28 reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering 19 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 20 of 27 1 severe or extreme emotional distress; (3) and actual and proximate causation of the emotional 2 distress by the defendant’s outrageous conduct.” Hailey v. California Physicians’ Serv., 158 Cal. 3 App. 4th 452, 473–74 (Cal. Ct. App. 2007) (quotation omitted). The conduct alleged must be “so 4 extreme and outrageous as to go beyond all possible bo[u]nds of decency, and to be regarded as 5 atrocious, and utterly intolerable in a civilized community.” Id. at 474 (citation and internal 6 quotation marks omitted). 7 8 must consider two questions: (1) is this claim, like the NIED claim, preempted by the Workers 9 Compensation Act?; and (2) if not, has Plaintiff adequately alleged the elements of the claim? 10 United States District Court Northern District of California In evaluating Defendants’ argument that the IIED claim fails as a matter of law, the Court On the first question, the California Supreme Court has suggested that even IIED claims 11 are preempted under some circumstances by the Workers Compensation Act. See Miklosy, 44 Cal. 12 4th at 903 (finding that “plaintiffs’ causes of action for intentional infliction of emotional 13 distress,” which were based on alleged retaliation for whistleblowing, “are barred by the workers’ 14 compensation exclusive remedy provisions”). But in contrast to their NIED argument, Defendants 15 do not argue preemption as to the IIED claim, contending only that the claim fails because 16 Plaintiff does not allege “extreme and outrageous conduct” or “severe or extreme” emotional 17 distress. See Dkt. No. 24 at 23–24. The Court finds, based on recent authority from the California 18 Court of Appeal, that Plaintiff’s IIED claim is not preempted based on “the long-standing view 19 that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation 20 bargain and therefore claims of intentional infliction of emotional distress based on such 21 discrimination and retaliation are not subject to workers’ compensation exclusivity.” Light, 14 22 Cal. App. 5th at 101. Accordingly, Plaintiff “may pursue a claim for intentional infliction of 23 emotional distress in the employment context where the conduct at issue violates FEHA and also 24 satisfies the elements of the claim.” Id. 25 As to the second question, the Court finds that Plaintiff has sufficiently met these pleading 26 requirements at this stage. Defendants are correct that a “simple pleading of personnel 27 management activity is insufficient to support a claim of intentional infliction of emotional 28 distress, even if improper motivation is alleged.” Janken v. GM Hughes Elecs., 46 Cal. App. 4th 20 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 21 of 27 1 55, 80 (Cal. Ct. App. 1996). But as the California Court of Appeal confirmed in Light, workplace 2 discrimination and retaliation in violation of FEHA can support an IIED claim. Here, Defendants 3 do not move to dismiss the underlying FEHA sex discrimination or retaliation claims as to 4 Kirkland, and the Court finds that the allegations in the Complaint sufficiently plead those 5 violations at this stage. Plaintiff alleges more than just “personnel management activity.” Instead, 6 she alleges that Defendants deliberately falsified performance reviews, going so far as to instruct a 7 fellow reviewer to criticize her, to create a fabricated justification for termination. While Plaintiff 8 may or may not ultimately be able to prove these allegations, they are enough to survive a motion 9 to dismiss. See Light, 14 Cal. App. 5th at 102 (reversing grant of summary adjudication in favor 10 of supervisor on IIED claim where “a reasonable trier of fact could find [supervisor] ostracized 11 [plaintiff] in the workplace, encouraged [plaintiff] to lie to investigators, pursued [plaintiff] at 12 home and in the office to determine whether [plaintiff] did so, and verbally and physically 13 attacked [plaintiff] after [she] disobeyed,” and the trier of fact could conclude this conduct “was 14 extreme and outrageous (especially in light of [supervisor’s] supervisory position), taken for 15 purposes of retaliation prohibited by FEHA, and intended to cause [plaintiff] emotional distress”); 16 see also Webber, 2012 WL 4845549, at *4 (plaintiff alleged “fabrication of false performance 17 issues,” and court found that this type of “deceptive conduct in denying a fundamental right or in 18 violation of a fundamental interest of the employee” may give rise to an IIED claim). And the 19 question of whether the conduct fell within regular business and management practices is 20 appropriately resolved at a later stage. See Light, 14 Cal. App. 5th at 103 (reversing in part and 21 affirming in part summary adjudication regarding supervisors); see also Hause v. The Salvation 22 Army, No. CV-07-5249 CAS CWX, 2007 WL 4219450, at *10 (C.D. Cal. Nov. 27, 2007) (“On 23 these allegations, a reasonable jury could find that plaintiff’s alleged mistreatment was not part 24 and parcel of the employment relationship or of the termination thereof and that their conduct was 25 sufficiently attenuated from defendants’ regular business and management practices so as to 26 constitute outrageous behavior.”). 27 28 Defendants’ argument to the contrary relies on their contention that Miklosy, Jansen, and Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144, 161–62 (Cal. Ct. App. 2014), stand for 21 United States District Court Northern District of California Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 22 of 27 1 the principle that “[t]he actions at issue here—discipline, criticisms, and termination—constitute 2 normal workplace interactions which, even if improperly motivated, do not constitute extreme or 3 outrageous conduct as a matter of law.” Dkt. No 24 at 16; see also Dkt. No. 69 at 17 (contending 4 that Miklosy stands for the principle that “when personnel management is the basis for an IIED 5 claim, intent is irrelevant so long as the alleged wrongful conduct ‘occurred at the worksite, in the 6 normal course of the employer-employee relationship’”). The Court recognizes that there appears 7 to be something of a split in the California Courts of Appeal on this question. Compare Yau, 229 8 Cal. App. 4th at 162 (citing Miklosy for the principle that “[a]n employer’s intentional misconduct 9 in connection with actions that are a normal part of the employment relationship . . . resulting in 10 emotional injury is considered to be encompassed within the compensation bargain, even if the 11 misconduct could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to 12 cause emotional disturbance”) (citations omitted) with Light, 14 Cal. App. 5th at 100 (explaining 13 that “[w]e believe Yau reads Miklosy too narrowly,” and pointing out that “neither Miklosy nor the 14 authorities on which it relies considered the much larger body of case law supporting the 15 proposition that conduct in violation of FEHA is not part of the employment relationship or the 16 compensation bargain at the heart of the workers’ compensation system”). 17 In a case requiring a federal court to apply California law, the court “must apply the law as 18 it believes the California Supreme Court would apply it.” Gravquick A/S v. Trimble Navigation 19 Int’l, Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). “In the absence of a controlling California 20 Supreme Court decision, the [court] must predict how the California Supreme Court would decide 21 the issue, using intermediate appellate court decisions, statutes, and decisions from other 22 jurisdictions as interpretive aids.” Id. To the extent Yau and Light are inconsistent, the Court 23 finds Light’s reasoning more persuasive, and believes that it reflects how the California Supreme 24 Court would rule with respect to whether discrimination and retaliation in violation of FEHA can 25 support an IIED claim. The Court notes that a number of the cases Defendants cite, see Dkt. No. 26 69 at 17 and n.10, including this Court’s earlier ruling in Rezvan v. Philips Elecs. N. Am. Corp., 27 No 15-cv-04767-HSG, 2016 WL 8193160 (N.D. Cal. Dec. 15, 2016), were issued before the Light 28 court’s detailed analysis of the relevant issue. And the Court does not find the post-Light cases 22 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 23 of 27 1 persuasive support for Defendants’ position for the reasons already explained, especially since 2 none of them address Light at all.21 Plaintiff has also sufficiently alleged that she suffered severe emotional distress. Plaintiff 3 4 alleges that Defendants’ conduct led to mental anguish, humiliation, stress, fear, and depression, 5 with physical manifestations including nausea, pain, vomiting, and migraines. Compl. ¶¶ 235, 6 365. That is sufficient at the pleading stage. Accordingly, the motion to dismiss the IIED claim, cause of action number 11, is 7 8 DENIED. 9 vii. Defendants next argue that Plaintiff has not plausibly pled punitive damages. Dkt. No. 24 10 United States District Court Northern District of California Punitive Damages 11 at 26. California law allows for punitive damages when “it is proven by clear and convincing 12 evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. Code 13 § 3294(a). Malice in this context means “conduct which is intended by the defendant to cause 14 injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and 15 conscious disregard of the rights or safety of others.” Id. § 3294(c)(1). Corporate employer 16 liability for punitive damages is limited to instances where an officer, director, or managing agent 17 has advance knowledge and consciously disregards, authorizes, or ratifies the wrongful conduct. 18 Id. § 3294(b). Plaintiff alleges that individual partners coordinated to falsify performance evaluations in 19 20 retaliation for Plaintiff’s complaints of discriminatory conduct. See Compl. ¶¶ 17, 88, 90 n.21, 94, 21 98, 103 n.23, 115, 122, 126, 139, 140, 147, 163, 182, 202, 208–29. Plaintiff’s complaint contains 22 factual allegations that, if proven, could plausibly lead to a finding that Defendants acted with 23 oppression, fraud, or malice. The Court DENIES Defendants’ motions to dismiss Plaintiff’s 24 request for punitive damages. 25 26 27 28 The Court does not need to address whether the Ninth Circuit’s holding in the 2002 memorandum disposition in Schaffer v. GTE, Inc., 40 F. App’x 552, 558 (9th Cir. 2002), is arguably inconsistent with Light and other later decisions by the California courts, because Schaffer is not controlling authority. See CTA9 Rule 36-3 (establishing that unpublished Ninth Circuit decisions are not precedent). 23 21 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 24 of 27 1 2 3 United States District Court Northern District of California 4 viii. Personal Jurisdiction over Schmidt Defendants The Schmidt Defendants argue that the Court does not have personal jurisdiction over them. See Dkt. No. 31 at 13–19. The Court agrees. “When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears 5 the burden of demonstrating that the court has jurisdiction over the defendant.” Pebble Beach Co. 6 v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Where a state, like California, “allows the 7 exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution,” federal 8 courts ask whether the exercise of jurisdiction over a defendant “comports with the limits imposed 9 by federal due process.” Daimler AG v. Bauman, 571 U.S. 117, 125 (2014); Cal. Civ. Proc. Code 10 § 410.10 (providing that California's long-arm statute is coextensive with the federal due process 11 clause). The Due Process Clause requires that the defendant have “certain minimum contacts” 12 with the forum “such that the maintenance of the suit does not offend traditional notions of fair 13 play and substantial justice.” Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945) 14 (citations and internal quotation marks omitted). There are two types of personal jurisdiction: 15 “general or all-purpose” and “specific or case-linked.” Goodyear Dunlop Tires Operations, S.A. v. 16 Brown, 564 U.S. 915, 919 (2011). 17 The parties do not appear to dispute that there is no general jurisdiction over the Schmidt 18 Defendants, as Leslie Schmidt resides in New York and Schmidt P.C.’s state of incorporation and 19 principal place of business is also New York. See Compl. ¶ 31. 20 Thus, the only question is whether there is specific jurisdiction. For intentional tort claims, 21 courts use the “purposeful direction” test. Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 22 1090–91 (9th Cir. 2023). “Harm suffered in the forum state is a necessary element in establishing 23 purposeful direction.” Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1144 (9th Cir. 2017). But 24 Plaintiff does not allege that Defendants injured her in California. Plaintiff did not reside in 25 California while working at Kirkland—she alleges that she “intended” to relocate, but never did. 26 See Compl. ¶¶ 62–63, 250(a). Instead, Plaintiff notes that she did work from Washington, D.C., 27 Texas, Florida, and Atlanta. See id. As alleged, the harm to Plaintiff did not occur in California. 28 Because this lack of forum-state harm is dispositive, the court need not address the remaining 24 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 25 of 27 1 elements. See Davis v. Cranfield Aerospace Sols., Ltd., 71 F.4th 1154, 1163 (9th Cir. 2023). 2 Given Plaintiff’s admission that she did not reside or do any work while in California, the 3 Court finds it does not have personal jurisdiction over the Schmidt Defendants and DISMISSES 4 the Schmidt Defendants from all claims without leave to amend. See Sprewell, 266 F.3d at 988– 5 89 (“A plaintiff can plead himself out of court by alleging facts which show that he has no claim, 6 even though he was not required to allege those facts.” (citation and quotations omitted)). ix. 7 The Alper Defendants argue that they cannot be liable under the federal Equal Pay Act 8 United States District Court Northern District of California Equal Pay Act Claims Against Alper Defendants 9 because they are not “employers.” See Dkt. No. 34 at 28. Plaintiff fails to provide any legal 10 authority in response and instead simply cites the portions of her complaint naming the Alper 11 Defendants as her “employer.” See Dkt. No. 65 at 32. Noting its link to Title VII, out-of-circuit 12 courts have held “the Equal Pay Act does not allow for suits against defendants in their individual 13 capacity.” See Harris v. City of Harvey, 992 F. Supp. 1012, 1014 (N.D. Ill. 1998). Given the lack 14 of any authority to the contrary provided by Plaintiff, the Court finds that the EPA claim cannot 15 proceed against Defendant Alper and DISMISSES him from cause of action number 4. 16 17 18 V. MOTION TO SEAL The Court denied Defendant Kirkland’s initial motion to redact portions of Plaintiff’s complaint, Dkt. No. 23, and Defendant has since filed a renewed motion. Dkt. No. 53. 19 Because the complaint is the pleading on which this action is based, the Court applies a 20 “compelling reasons” standard to the motion. See, e.g., Space Data Corp. v. Alphabet Inc., No. 21 16-CV-03260-BLF, 2018 WL 10454862, at *2 (N.D. Cal. Aug. 31, 2018). “[A] strong 22 presumption in favor of access is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 23 F.3d 1172, 1178 (9th Cir. 2006) (quotation omitted). To overcome this strong presumption, a 24 party must “articulate compelling reasons supported by specific factual findings that outweigh the 25 general history of access and the public policies favoring disclosure, such as the public interest in 26 understanding the judicial process” and “significant public events.” Id. at 1178–79 (quotation 27 omitted). “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 28 disclosure and justify sealing court records exist when such ‘court files might have become a 25 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 26 of 27 1 vehicle for improper purposes,’ such as the use of records to gratify private spite, promote public 2 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon v. 3 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). Having reviewed Defendants’ offered justifications, the Court continues to believe the United States District Court Northern District of California 4 5 information in the complaint is far too generalized to warrant sealing. Defendants argue that the 6 proposed redacted portions are subject to attorney-client privilege and work product doctrine, and 7 that the allegations about partners and male comparators either reveal “confidential personnel 8 information” or are included for improper reasons. See Dkt. No. 53 at 6–10. First, the allegations 9 in the complaint related to attorney work are high-level, generalized descriptions. See Clarke v. 10 Am. Com. Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992) (“[T]he identity of the client, the amount 11 of the fee, the identification of payment by case file name, and the general purpose of the work 12 performed are usually not protected from disclosure by the attorney-client privilege.”); see also 13 United States v. Rite Aid Corp., No. 2:12-CV-1699-KJM-EFB, 2021 WL 1196250, at *8 (E.D. 14 Cal. Mar. 30, 2021) (collecting cases and noting “[s]uch general information does not reveal the 15 specific nature of any potential legal advice sought or rendered on the identified subjects”). 16 Second, the allegations related to male comparators and partners are directly relevant to Plaintiff’s 17 allegations of sex-based discrimination; that the allegations are unflattering and potentially 18 embarrassing is insufficient. See Kamakana, 447 F.3d at 1179. The Court finds that Defendant 19 Kirkland’s conclusory assertions that the information is confidential and will harm its ability to 20 compete does not outweigh the public’s interest in disclosure. The Court grants the motion only as to the individual Defendants’ home addresses. This 21 22 level of personal detail is unnecessary, but Plaintiff may include the city and state in which 23 Defendants reside. The Court DENIES IN PART and GRANTS IN PART the motion to redact portions of 24 25 the complaint. 26 VI. CONCLUSION 27 The Court rules as follows: 28 • The renewed motion to redact is DENIED IN PART and GRANTED IN PART. Dkt. 26 Case 4:22-cv-05990-HSG Document 92 Filed 08/23/23 Page 27 of 27 1 No. 53. Plaintiff shall file an amended complaint that omits the street addresses of the 2 individual Defendants. After the amended complaint is filed, the Clerk shall strike and 3 remove the complaint at Dkt. No. 1. 4 • The ANTI-SLAPP motion to strike is DENIED. Dkt. No. 38. 5 • The motion to strike under Rule 12(f) is DENIED. Dkt. No. 37. 6 • The motions to dismiss are GRANTED IN PART and DENIED IN PART as follows: 7 8 9 United States District Court Northern District of California 10 o The Court DISMISSES the S.F. Ordinance claims without leave to amend (COA 3 & 7). o The Court DISMISSES the negligent infliction of emotional distress cause of action (COA 12) as preempted by workers’ compensation without leave to amend. 11 o The Title VII and FEHA claims against Defendant Kirkland may proceed. The 12 Court DISMISSES the Title VII and FEHA claims as to all other defendants 13 without leave to amend (COA 1, 2, 5, 6, 8, 9). 14 15 16 17 18 19 20 21 22 23 24 25 o The Court DISMISSES the Equal Pay Act claim (COA 4) against Defendant Alper without leave to amend. o The Court DISMISSES the defamation claim against the Alper Defendants with leave to amend (COA 10). o The Court DISMISSES the Schmidt Defendants for lack of personal jurisdiction without leave to amend. Any amended complaint must be filed within 28 days of the date of this order. The Clerk is directed to terminate Dkt. Nos. 24, 30–31, 34–36. IT IS SO ORDERED. Dated: 8/23/2023 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 26 27 28 27

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