Gonzalez et al v. Board of Trustees of San Diego Community College District et al, No. 3:2017cv02489 - Document 19 (S.D. Cal. 2018)

Court Description: ORDER granting in part and denying in part Defendants' 16 Motion to Dismiss, denying 16 Motion for More Definite Statement and denying 16 Motion to Strike Portions of First Amended Complaint. Court dismisses with leave to amend Plaintif fs' claims of discrimination based on race, color, and national origin. Court dismisses with leave to amend Plaintiffs' claims of age discrimination. Court dismisses without leave to amend Plaintiffs' claims of retaliation against Defe ndants Sandoval and Gerard. Court dismisses with leave to amend Plaintiff Becerra's claims of retaliation against Defendant College. Court dismisses with leave to amend Plaintiffs' claims of Intentional Infliction of Emotional Distress. Court denies Defendants' Motion for a More Definite Statement and Motion to Strike. If Plaintiffs choose to file a Second Amended Complaint, they must do so by 10/15/2018. Signed by Judge Cynthia Bashant on 9/14/2018. (jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BECERRA, et al., 12 Plaintiffs, 13 v. 14 SAN DIEGO COMMUNITY COLLEGE DISTRICT, et al., 15 Defendants. 16 17 Case No. 17-cv-2489-BAS-MDD ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT; (2) DENYING DEFENDANT’S MOTION FOR A MORE DEFINITE STATEMENT; AND (3) DENYING DEFENDANT’S MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT 18 19 20 [ECF No. 16] 21 22 I. INTRODUCTION 23 Defendants San Diego Community College District, Rosalinda Sandoval, and 24 Trudy Gerald move for three separate orders from the Court. (“Mot.,” ECF No. 16- 25 1.) 26 Jimenez’s First Amended Complaint (“FAC”) pursuant to Federal Rules of Civil 27 Procedure 12(b)(1) and 12(b)(6). Second, Defendants move for an order requiring 28 Plaintiffs to file a more definite statement pursuant to Federal Rule of Civil Procedure First, Defendants move to dismiss Plaintiffs David Becerra and Antonio –1– 17cv2489 1 12(e). Lastly, Defendants move to strike Paragraphs 3, 17, and 19 of the FAC 2 pursuant to Federal Rule of Civil Procedure 12(f). 3 The Court finds this Motion suitable for determination on the papers and 4 without oral argument. Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court 5 GRANTS IN PART and DENIES IN PART Defendants’ request to dismiss the 6 FAC, DENIES Defendants’ request to direct Plaintiffs to file a more definite 7 statement, and DENIES Defendants’ request to strike Paragraphs 3, 17, and 19 of 8 the FAC. 9 II. BACKGROUND 10 A. Procedural History 11 Plaintiffs are adjunct professors in the Spanish language department at the San 12 Diego Community College District (“College”). (“FAC,” ECF No. 11, ¶¶ 1, 2.) 13 Defendants Sandoval and Gerald are employees at the College and supervisors in its 14 Spanish department. (Id. ¶¶ 6, 7.) 15 In early 2017, Plaintiffs both filed charges of discrimination with the Equal 16 Employment Opportunity Commission (“EEOC”), alleging claims of age 17 discrimination and retaliation against Defendants. (Id. ¶¶ 11.) Plaintiffs then 18 received right-to-sue letters from the EEOC dated September 21, 2017 (Becerra), and 19 September 26, 2017 (Jimenez). (Id. at Ex. A.)1 20 Plaintiffs, along with now-dismissed plaintiff Salvador Gonzalez, filed a 21 complaint on December 12, 2017. On April 16, 2018, Gonzalez filed a Notice of 22 Voluntary Dismissal Without Prejudice. (ECF No. 9.) Plaintiffs Jimenez and 23 Becerra then filed a first amended complaint, which Defendants move to dismiss 24 1 25 26 27 28 Courts usually may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Because Plaintiffs attached the right-to-sue letters to the Complaint and incorporated the document therein, the Court considers the letters in adjudicating the instant Motion to Dismiss, see Ritchie, 342 F.3d at 908. –2– 17cv2489 1 B. Allegations in the First Amended Complaint 2 The allegations in the FAC fall into three general categories: Plaintiffs were 3 harassed by Sandoval and Gerald because of their age; Plaintiffs witnessed Sandoval 4 and Gerald harass Gonzalez because of his race/national origin; and Plaintiffs were 5 retaliated against for various reasons. 6 Plaintiffs allege that Sandoval called Becerra an old man and “the antique of 7 the department” (FAC ¶ 21); Sandoval told a student that Jimenez was old enough to 8 be his grandfather (id. ¶ 32); and Jimenez and Becerra allege that Sandoval called 9 them “old geezers” and told them their clothes were out of fashion. (Id. ¶¶ 21, 31, 10 36.) Plaintiffs allege they witnessed Sandoval making discriminating remarks to 11 Gonzalez, including calling him derogatory terms. (Id. ¶ 18.) Plaintiffs do not 12 include any specific discriminating remarks alleged to be made against them 13 personally. They generally allege Sandoval and Gerald engaged in derogatory and 14 harassing conduct because of their dislike for Plaintiffs’ Mexican race, ethnicity, and 15 national origin. (Id. ¶ 36.) Plaintiffs continually allege throughout the FAC that 16 Defendants’ conduct is ongoing. (Id. ¶ 12–36.) 17 As to the claims of retaliation, Sandoval attempted to intimidate Becerra and 18 negatively changed his class schedule in retaliation for declarations he made on 19 behalf of Gonzalez (id. ¶¶ 23, 25); and gave Becerra a class schedule that exacerbates 20 his medical condition (id. ¶ 26). Jimenez alleges that Sandoval attempted to avoid 21 assigning him a Spanish 102 class one semester in retaliation for an administrative 22 mistake, but that the class was assigned to him after he complained to the Teachers’ 23 Union (“Union”) (id. ¶ 27); in retaliation for complaining to the Union, Sandoval 24 assigned Jimenez a class to teach three days a week at 7:45 a.m., when the traffic 25 crossing the border from Mexico was inconvenient (id. ¶ 28); Sandoval called 26 Jimenez into her office and berated him for going to the Union for help (id. ¶ 29); 27 Gerald told Jimenez that he would have to undergo an evaluation of his teaching 28 capabilities because he did a poor job with a student trip to Costa Rica (id. ¶ 30); –3– 17cv2489 1 Sandoval coerced Jimenez to make a false statement against Gonzalez by telling 2 Jimenez he would have problems with his courses if he did not comply (id. ¶ 33); 3 after Jimenez complained about another course assignment and the Union intervened, 4 Sandoval made Jimenez “split” a course with another instructor, which had never 5 been done before (id. ¶ 34); and Sandoval confronted Jimenez and told him that if he 6 chose to be her enemy, she would make his life “a living hell” and would make sure 7 he had problems in the future with courses (id. ¶ 35). 8 In sum, the FAC asserts the following six causes of action: (1) civil rights 9 violations against the College in violation of 42 U.S.C. § 1981, and Title VII of the 10 Civil Rights Act of 1964, (42 U.S.C. § 2000e et seq.); (2) disparate treatment against 11 the College in violation of California Government Code section 12940(a); (3) 12 retaliation against all Defendants in violation of California Government Code section 13 12940(h); (4) hostile work environment against all Defendants in violation of 14 California Government Code section 12940(j); (5) failure to prevent harassment, 15 discrimination, and retaliation against the College in violation of California 16 Government Code section 12940(k); and (6) intentional infliction of emotional 17 distress (“IIED”) against Sandoval and Gerald. 18 III. LEGAL STANDARD 19 A. Federal Rule of Civil Procedure 12(b)(1) 20 Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss 21 an action based on a lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 22 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. 23 Co. of Am., 511 U.S. 375, 377 (1994). “They possess only that power authorized by 24 Constitution and statute, which is not to be expanded by judicial decree.” Id. 25 (citations omitted). “It is to be presumed that a cause lies outside this limited 26 jurisdiction, and the burden of establishing the contrary rests upon the party asserting 27 jurisdiction.” Id. (citations omitted). Thus, “[w]hen subject matter jurisdiction is 28 challenged under the Federal Rule of [Civil] Procedure 12(b)(1), the plaintiff has the –4– 17cv2489 1 burden of proving jurisdiction in order to survive the motion.” Kingman Reef Atoll 2 Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008) (quoting Tosco 3 Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001)), abrogated on 4 other grounds Hertz Corp. v. Friend, 559 U.S. 77 (2010). 5 B. 6 A complaint must plead sufficient factual allegations to “state a claim to relief 7 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 8 quotation marks and citations omitted). “A claim has facial plausibility when the 9 plaintiff pleads factual content that allows the court to draw the reasonable inference 10 Federal Rule of Civil Procedure 12(b)(6) that the defendant is liable for the misconduct alleged.” Id. 11 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 12 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 13 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 14 must accept all factual allegations pleaded in the complaint as true and must construe 15 them and draw all reasonable inferences from them in favor of the nonmoving party. 16 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 17 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, 18 it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell 19 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A Rule 12(b)(6) dismissal may 20 be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient 21 facts alleged under a cognizable legal theory.’” Johnson v. Riverside Healthcare 22 Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police 23 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 24 IV. MOTION TO DISMISS 25 A. Request for Judicial Notice 26 As an initial matter, Defendants request that the Court take judicial notice of 27 Jimenez’s April 25, 2017 EEOC charge of discrimination (Charge No. 488-2017- 28 00345), Becerra’s January 10, 2017 EEOC charge of discrimination (Charge No. –5– 17cv2489 1 488-2017-00104), and the College’s 2015–16 academic calendar. (ECF No. 16-3 at 2 Exs. A, B, C.) Plaintiffs do not oppose this request. 3 The charges of discrimination are both referenced in the FAC. (See FAC 4 ¶ 11 (“Plaintiffs filed a complaint for discrimination, retaliation and related claims 5 with the EEOC.”). The Court may therefore incorporate the charges by reference. 6 Incorporation by reference allows a court deciding a Rule 12(b)(6) motion to dismiss 7 to consider materials “properly submitted as part of the complaint.” Hal Roach 8 Studios, 896 F.2d at 1555 n.19. A court deciding a Rule 12(b)(6) motion to dismiss 9 may consider a document that is not attached to the complaint if the complaint 10 “necessarily relies” on it and “(1) the complaint refers to the document; (2) the 11 document is central to the plaintiff's claim; and (3) no party questions the authenticity 12 of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 13 (9th Cir. 2006). This is the case here, and the Court therefore incorporates the 14 documents by reference. It is noticed that Becerra filed a charge with the EEOC on 15 January 10, 2017 and Jimenez filed a charge on April 25, 2017 (ECF No. 16-3, at 16 Exs. A, B.) Additionally, the Court denies as moot Defendant’s request to notice the 17 academic calendar (Exhibit C) as the Court does not rely on it for the purposes of this 18 Order. 19 Turning to the merits, Defendants move to dismiss each of Plaintiffs’ causes 20 of action for various reasons. The Court will address each of Defendants’ arguments 21 in turn. 22 B. Administrative Exhaustion 23 Defendants argue that some of Plaintiffs’ discrimination claims are subject to 24 dismissal because neither Plaintiff exhausted all administrative remedies for the 25 claims. (Mot. 3, 5.) Plaintiffs’ first cause of action is based on the Civil Rights Act 26 of 1980, (42 U.S.C. § 1981), and Title VII of the Civil Rights Act of 1964, (42 U.S.C. 27 § 2000e, et seq.) (FAC ¶ 38.) Plaintiffs state they were wrongfully discriminated 28 against with respect to their compensation, terms, conditions, and privileges of –6– 17cv2489 1 employment because of Plaintiffs’ Mexican race, color, and national origin. 2 Plaintiffs’ second cause of action alleges violations of California’s Fair Employment 3 and Housing Act (“FEHA”) on the basis of “race, ethnicity, national origin and age.” 4 (Id. ¶ 44.) Defendants recognize that Plaintiffs both alleged age discrimination and 5 retaliation in their EEOC charges, but argue that Plaintiffs did not satisfy the 6 administrative exhaustion requirement for the claims based on race, color, or national 7 origin. (Mot. 5.) 2 1. 8 Legal Standard In order to establish federal subject matter jurisdiction over a Title VII or a 9 10 FEHA claim, a plaintiff must exhaust all administrative remedies. Lyons v. 11 England, 307 F.3d 1092, 1103–04 (9th Cir. 2002) (citations omitted); see also Okoli 12 v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607, 1612 (1995). A plaintiff 13 exhausts all administrative remedies by filing a timely charge with the EEOC, 14 thereby affording the EEOC an opportunity to investigate the charge. Freeman v. 15 Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002); Chew v. City & Cty. 16 of S.F., 714 F. App’x 687, 690–91 (9th Cir. 2017) (citations omitted); 42 U.S.C. § 17 2000e-5(e)(1). 18 The administrative exhaustion requirement is satisfied if the allegations of the 19 civil action are within the scope of (i) the EEOC charge, (ii) any completed EEOC 20 investigation, or (iii) any investigation that might reasonably be expected to grow out 21 of the EEOC charge. Wills v. Superior Court, 195 Cal. App. 4th 143, 154–55 22 (2011), as modified on denial of reh’g (May 12, 2011); see also Sosa v. Hiraoka, 920 23 F.2d 1451, 1456 (9th Cir. 1990) (noting that the court “must inquire whether the 24 original EEOC investigation would have encompassed the additional charges made 25 in the court complaint but not included in the EEOC charge itself”) (internal 26 quotations omitted). Thus, the judicial complaint may encompass any discrimination 27 28 2 Defendants do not move to dismiss the claim brought under 42 U.S.C. § 1981, so the Court only addresses the claims brought under Title VII and FEHA. –7– 17cv2489 1 “like or reasonably related to” the allegations contained in the EEOC charge. Chew, 2 714 F. App’x at 690 (citing Green v. L.A. Cty. Superintendent of Schs., 883 F.2d 3 1472, 1475–76 (9th Cir. 1989)). “A plaintiff’s civil claims [are] reasonably related 4 to allegations in the charge to the extent that those claims are consistent with the 5 plaintiff’s original theory of the case.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 6 1100 (9th Cir. 2002), as amended (Feb. 20, 2002). Courts must “construe the 7 language of EEOC charges with utmost liberality since they are made by those 8 unschooled in the technicalities of formal pleading.” 9 omitted). 10 2. Id. (internal quotations Analysis 11 Neither Jimenez nor Becerra explicitly alleged discrimination on the basis of 12 race, color, or national origin in their EEOC charges. (ECF No. 16-3 at Exs. A, B.) 13 In specifying the types of discrimination they experienced, Jimenez and Becerra both 14 checked the boxes for “retaliation” and “age,” but neither checked the boxes for race, 15 color, or national origin discrimination. (Id.) In the section where the claimant is 16 requested to attach “the particulars” of the charge, Plaintiffs both reference an 17 “internal racial discrimination investigation against” Sandoval. (Id.) In Jimenez’s 18 charge, he only claims “a colleague” filed a racial discrimination against Sandoval 19 and that Jimenez was not questioned as part of the investigation. (ECF 16-3 at Ex. 20 A.) In Becerra’s charge, he only claims he served as a witness in the racial 21 discrimination investigation. (Id. at Ex. B.) Plaintiffs argue these references are 22 sufficient to satisfy the administrative exhaustion requirement for their allegations of 23 racial, color, and national origin discrimination. The Court disagrees. The references 24 would not have led the EEOC to believe that Plaintiffs had been subjected to racial 25 discrimination; the charges in no way indicate that the “investigation” was related to 26 actions Sandoval took against Plaintiffs. 27 Further, it is even more unfair to expect the EEOC to believe Plaintiffs have 28 been subjected to discrimination based on national origin or color. There is no –8– 17cv2489 1 reference to this in the charges. See Shah v. Mt. Zion Hosp. & Med. Ctr., 642 F.2d 2 268, 271 (9th Cir. 1981) (holding that the district court was correct to dismiss new 3 claims that were not included in the EEOC charge because, although the factual 4 allegations were the same, the newly asserted theories were never investigated by the 5 EEOC); Chew, 714 F. App’x at 690 (stating that a civil action may not include 6 different alleged acts of discrimination or retaliation “unless the new claims are like 7 or reasonably related to the allegations contained in the EEOC charge”). Plaintiffs’ 8 allegations of race, color, and national origin discrimination were not reasonably 9 related to, and were not reasonably expected to grow out of, the original investigation 10 into retaliation and age discrimination. Thus, the EEOC could not reasonably believe 11 Plaintiffs had been subjected to such discrimination. 12 GRANTS Defendants’ request to dismiss Plaintiffs’ claims of discrimination based 13 on race, color, and national origin (in Plaintiffs’ first and second causes of action). 14 This amendment is without prejudice because the Court finds it possible Plaintiffs 15 could plead sufficient exhaustion in at least some respects. See Zipes v. Trans World 16 Airlines, Inc., 455 U.S. 385, 393 (1982) (holding the Title VII administrative 17 exhaustion requirement is not jurisdictional, but is “a requirement that, like a statute 18 of limitations, is subject to waiver, estoppel, and equitable tolling”); Okoli v. 19 Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607, 1613 (1995) (holding under 20 FEHA, failure to exhaust the appropriate administrative remedies is regarded as a 21 jurisdictional defect). Accordingly, the Court 22 C. Statute of Limitations and Continuing Violations Doctrine 23 Plaintiffs’ second cause of action alleges age discrimination under California 24 Government Code § 12940(a). (FAC ¶ 44.) 25 retaliation in violation of California Government Code § 12940(h). (FAC 26 ¶ 48.) Defendants contend that these claims are time-barred because Plaintiffs filed 27 their EEOC charges outside the statutory period of limitations. (Mot. 6.) 28 /// –9– The third cause of action alleges 17cv2489 1. 1 Legal Standard 2 FEHA requires that a plaintiff file an administrative charge with either the 3 EEOC or the California Department of Fair Employment and Housing (“DFEH”) 4 within one year of the alleged unlawful act. Cal. Gov’t Code § 12960(d).3 However, 5 the “continuing violations doctrine” allows a court, in some instances, to consider 6 alleged unlawful behavior that would otherwise be time-barred, as long as the 7 untimely incidents represent an ongoing unlawful employment practice. See R.R. 8 Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Scott v. Gino Morena Enters., 9 LLC, 888 F.3d 1101, 1112 (9th Cir. 2018) (stating that acts that fall outside of the 10 statutory time period may be actionable). 11 For claims brought under Title VII, the Supreme Court has held the continuing 12 violations doctrine is applicable to hostile work environment claims, but not to claims 13 of discrimination or retaliation. Morgan, 536 U.S. at 114–15. Discriminatory 14 or retaliatory acts such as termination, failure to promote, denial of transfer, or refusal 15 to hire are “discrete acts” which are not actionable unless they occur within the 16 statutory time period. Id. at 114. However, in Yanowitz v. L’Oreal USA, Inc., 36 17 Cal. 4th 1028, 1057–59 (2005), the California Supreme Court held that the continuing 18 violations doctrine may be applicable not only to hostile work environment FEHA 19 claims, but also to discrimination and retaliation FEHA claims where a plaintiff 20 alleges a continuing course of unlawful conduct. Id. at 1142. Because Plaintiffs’ 21 second and third causes of action are brought under FEMA, the Court follows the 22 Yanowitz standard. To establish a “continuing course of conduct” a plaintiff must 23 show that the employer’s actions (i) were sufficiently similar in kind, (ii) occurred 24 25 26 27 28 3 The EEOC must issue a right-to-sue letter any time after 180 days after the charges are filed. 29 C.F.R. § 1601.28(a)(1). If the EEOC dismisses a case, the claimant has ninety days to bring a civil action. Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992). Defendants do not argue that Plaintiffs filed suit in an untimely manner. Plaintiffs received right-to-sue letters from the EEOC on or about September 21, 2017 (Becerra) and on or about September 26, 2017 (Jimenez). (FAC ¶ 11.) Plaintiffs had ninety days thereafter to file their claims in federal court. See Scholar, 963 F.2d at 267. They filed their Complaint on December 12, 2017; this is timely for both Plaintiffs. – 10 – 17cv2489 1 with reasonable frequency, and (iii) did not acquire a degree of permanence. Id. 2 (citing Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 823 (2001)). “Permanence” 3 means “that an employer’s statements and actions make clear to a reasonable 4 employee that any further efforts at informal conciliation to obtain reasonable 5 accommodation or end harassment will be futile.” Richards, 26 Cal. 4th at 823. 6 2. Analysis 7 Defendants move to dismiss Plaintiffs’ age discrimination and retaliation 8 claims as being time barred. (Mot. 6.) Jimenez filed a charge of discrimination with 9 the EEOC on April 25, 2017. (ECF 16-3 at Ex. A.) Defendants assert that the 10 allegations of conduct that occurred more than one year before April 25, 2017 are 11 time-barred under FEHA. Cal. Gov’t Code § 12960. Similarly, Becerra filed a 12 charge of discrimination with the EEOC on January 10, 2017, (ECF No. 16-3 at Ex. 13 B), and Defendants assert that allegations of conduct that occurred more than one 14 year before January 10, 2017 are time-barred under FEHA. Plaintiffs argue the 15 continuing violation doctrine applies. 16 a. Age Discrimination 17 First, as to Plaintiffs’ age discrimination claim, Plaintiffs refer to various 18 occasions where Sandoval made remarks about Plaintiffs’ age, calling them 19 “antique,” “old,” “geezers,” and Jimenez a “grandfather.” (FAC ¶¶ 21, 31, 32.) 20 However, Plaintiffs make no allegations that any of these incidents took place in the 21 limitations period (after January and April 2016). “The continuing violation doctrine 22 comes into play when an employee raises a claim based on conduct that occurred in 23 part outside the limitations period.” Richards, 26 Cal. 4th at 812. Plaintiffs have 24 alleged discrimination occurred only before January and April 2016, not afterwards, 25 therefore, the Court need not analyze the continuing violations doctrine. The Court 26 GRANTS Defendants’ Motion to Dismiss Plaintiffs’ age discrimination claims as 27 time barred. Because the Court finds it possible Plaintiffs could sufficiently allege 28 the continuing violations doctrine applies, this dismissal is with leave to amend. – 11 – 17cv2489 b. 1 2 Retaliation As a preliminary matter, Plaintiffs’ retaliation claims are brought against all 3 Defendants. 4 individuals may not be held personally liable under FEHA for their role in retaliation. 5 Jones v. Lodge at Torrey Pines Partnership, 42 Cal. 4th 1158 (2008). Therefore, the 6 Court GRANTS Defendants’ Motion to Dismiss all retaliation claims against 7 Sandoval and Gerald and proceeds to analyze the claims brought against the College. 8 Plaintiffs make no allegations of any retaliatory conduct that occurred to 9 The California Supreme Court has clearly held non-employer Becerra within the limitations period. Thus, the Court need not analyze the 10 continuing violations doctrine, and GRANTS Defendant’s Motion to Dismiss 11 Becerra’s retaliation claims and dismisses the claims with leave to amend. 12 As to Jimenez, Plaintiffs allege Jimenez was forced to teach a “split course” 13 which he had to share with another instructor for two semesters. (See FAC ¶ 34.) 14 Plaintiffs allege Jimenez was assigned this class in retaliation for him seeking help 15 from the Union in or about Fall 2016, when Sandoval cancelled Jimenez’s spring 16 class. (Id.) This action falls within the limitations period. Before analyzing the 17 continuing violations doctrine, the Court must determine whether the assignment of 18 a split course in this instance is a sufficient allegation of retaliation. 19 To establish a prima facie case of retaliation under the FEHA, a plaintiff must 20 show (1) he engaged in a protected activity, (2) the employer subjected the employee 21 to an adverse employment action, and (3) a causal link existed between the protected 22 activity and the employer’s action. Yanowitz, 36 Cal. 4th at 1042. Under the first 23 prong, “protected conduct can take many forms.” Id. It is unlawful for an employer 24 “to discharge, expel, or otherwise discriminate against any person because the person 25 has opposed any practices forbidden under this part or because the person has filed a 26 complaint, testified, or assisted in any proceeding under this part.” Cal Gov’t Code 27 § 12940(h). Here, Jimenez’s action of going to the Union for help is plausibly an 28 – 12 – 17cv2489 1 action opposing the College’s action of cancelling a professor’s classes for 2 discriminatory reasons. (FAC ¶ 27.) Thus, the first prong is met. 3 Under the second prong, to establish either a discrimination or a retaliation 4 claim, “an employee must demonstrate that he or she has been subjected to an adverse 5 employment action that materially affects the terms, conditions, or privileges of 6 employment.” Yanowitz, 36 Cal. 4th at 1051. In contrast, “an adverse action or 7 treatment that reasonably would deter an employee from engaging in the protected 8 activity” does not establish a sufficient adverse employment action. Id. The Court 9 finds, at this stage, the inconvenient “split class” schedule, which has never been 10 assigned before in the College’s Spanish Department, (FAC ¶ 35), is sufficient to 11 show Jimenez has been subjected to an action that materially affects the terms of his 12 employment. Third, Plaintiffs have demonstrated a causal link, alleging Jimenez was 13 given an inconvenient schedule because he complained to the Union. Thus, Jimenez 14 has sufficiently pled retaliation against the College. 15 The issue now becomes whether the continuing violation doctrine applies so 16 that Jimenez can bring claims based on conduct that occurred before the limitations 17 period. In determining this, the Court analyzes the three prongs from Richards. 26 18 Cal. 4th at 823. The first Richards prong requires the actions be “sufficiently similar 19 in kind.” Id. Plaintiffs allege Defendants did not assign Jimenez a class one semester, 20 (id. ¶ 27), assigned him an inconvenient class, (id. ¶ 28), cancelled a course assigned 21 to him (id. ¶ 34), and assigned him a “split course,” (id.) These actions are related 22 and sufficiently similar. The second prong requires the actions to occur with 23 reasonable frequency. Given that the environment is a school, it is reasonable that 24 the actions occurred about once at the beginning of each semester. This prong is met. 25 The third prong requires it to be clear “to a reasonable employee that any further 26 efforts at informal conciliation to obtain reasonable accommodation or end 27 harassment will be futile.” Richards, 26 Cal. 4th at 823. It is alleged that Sandoval 28 told Jimenez he would “be sorry” for going to the Union, he was “defenseless,” and – 13 – 17cv2489 1 the Union would “be on [Sandoval’s] side.” (FAC ¶ 29.) This would cause a 2 reasonable employee to think there was no hope for informal resolution to the 3 harassment. Therefore, the Court finds Jimenez has sufficiently alleged a continuing 4 violation of retaliatory conduct. The Court DENIES Defendants’ Motion to Dismiss 5 Jimenez’s claims of retaliation against the College. 6 D. 7 Plaintiffs’ fourth cause of action alleges a hostile work environment under 8 FEHA. Plaintiffs allege the harassing conduct was “because of their Mexican race, 9 ethnicity and national origin or age.” (FAC ¶ 53.) The Court has dismissed 10 Plaintiffs’ race, ethnicity, national origin, and age claims herein and therefore does 11 not analyze Plaintiffs’ hostile work environment claim here. 12 E. Hostile Work Environment Claim Failure to Prevent Harassment, Discrimination, and Retaliation Claim 13 14 Plaintiffs’ fifth cause of action alleges failure to prevent harassment, 15 discrimination, and retaliation against the College. (FAC ¶ 57.) Defendants argue 16 this claim should be dismissed because Plaintiffs’ underlying claims of 17 discrimination, hostile work environment, and retaliation are all subject to dismissal. 18 (Mot. 17.) It is true that when a plaintiff fails to plead a claim for discrimination, 19 harassment, or retaliation, the derivative failure to prevent that claim also fails as a 20 matter of law. Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1314 (2015), 21 as modified on denial of reh’g (Mar. 24, 2015). However, in this case, the Court 22 found that Plaintiffs have adequately alleged at least some claims of discrimination 23 and retaliation. Thus, the Court rejects this argument and finds that Plaintiffs’ claim 24 is legally sufficient. See Fed. R. Civ. P. 12(b)(6). Accordingly, the Court DENIES 25 the motion to dismiss Plaintiffs’ fifth cause of action on this ground. Intentional Infliction of Emotional Distress (“IIED”) Claim 26 F. 27 Plaintiffs’ sixth cause of action alleges IIED against Sandoval and Gerald. 28 (FAC ¶ 60.) Defendants argue that this claim should be dismissed because the – 14 – 17cv2489 1 alleged conduct of Sandoval and Gerald is not “outrageous conduct” and Plaintiffs 2 fail to plead severe emotional distress. (Mot. 21.) 3 To state a cause of action for IIED, a plaintiff must show: (1) outrageous 4 conduct by the defendant; (2) the defendant’s intention of causing or reckless 5 disregard of the probability of causing emotional distress; (3) that the plaintiff 6 suffered severe or extreme emotional distress; and (4) actual and proximate causation 7 of the emotional distress by the defendant’s outrageous conduct. Huntingdon Life 8 Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228, 9 1259 (2005) (citing Trerice v. Blue Cross of Cal., 209 Cal. App. 3d 878, 883 (1989)). 10 Under the first prong, outrageous conduct is conduct that is “so extreme as to 11 exceed all bounds of that usually tolerated in a civilized society.” Id. When the 12 conduct complained of is continuing in nature, the point at which it becomes 13 sufficiently outrageous or severe, and whether it in fact continues, are questions of 14 fact. Murphy v. Allstate Ins. Co., 83 Cal. App. 3d 38 (1978). Plaintiffs have alleged 15 the conduct was continuing, relentless, and intentional; the Court therefore finds 16 Plaintiffs’ allegations as to the first two prongs of this cause of action are sufficient 17 at this stage. 18 Under the third prong, each plaintiff must show that he suffered severe or 19 extreme emotional distress. Huntingdon Life Scis., Inc., 129 Cal. App. 4th at 1259. 20 Severe emotional distress is a high bar, requiring “distress of such substantial 21 quantity or enduring quality that no reasonable [person] in civilized society should 22 be expected to endure it.” Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009) (alteration 23 in original) (citations omitted). Here, Plaintiffs merely state that they “suffer severe 24 emotional distress” with no facts or symptoms to support this assertion, (FAC ¶ 61). 25 Therefore the Court finds that the claim is not sufficient. See Iqbal, 556 U.S. at 678 26 (stating that the plaintiff must offer factual allegations to “state a claim to relief that 27 is plausible on its face”). Thus, the Court GRANTS WITH LEAVE TO AMEND 28 the Motion to Dismiss Plaintiffs’ claim of IIED. – 15 – 17cv2489 1 V. MOTION FOR A MORE DEFINITE STATEMENT 2 While Defendants include a request for a more definite statement in the caption 3 of their Motion, they include no detail in their memorandum of points and authorities 4 regarding the request. In their notice of motion only, Defendants state that the FAC 5 fails to state dates on which, and circumstances under which, the alleged conduct 6 occurred. (ECF No. 16.) As such, Defendants argue that the FAC is so vague and 7 ambiguous that they cannot reasonably prepare a response. (Id.) 8 Under Federal Rule of Civil Procedure 12(e), “[a] party may move for a more 9 definite statement of a pleading to which a responsive pleading is allowed but which 10 is so vague or ambiguous that the party cannot reasonably prepare a response.” 11 Confusing and unclear complaints “impose unfair burdens on litigants and judges.” 12 McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (explaining that defendants 13 and courts could disagree on what claims are being alleged or risk surprises from the 14 plaintiff later on in the case). Thus, in response to a motion for a more definite 15 statement, the court has discretion to “require such detail as may be appropriate in 16 the particular case.” Id. 17 Defendants argue that the FAC is so vague and ambiguous that they cannot 18 reasonably prepare a response. However, this does not seem to be the case because 19 Defendants have filed a response to Plaintiffs’ FAC and move for the Court to dismiss 20 Plaintiff’s claims. Therefore, the complaint does not “impose unfair burdens on 21 litigants and judges” because Defendants are able to respond to it. See id. Thus, the 22 Court DENIES Defendants’ motion for a more definite statement. 23 VI. MOTION TO STRIKE 24 Defendants also provide no detail regarding their motion to strike in their 25 memorandum of points and authorities. Only in their notice of motion do Defendants 26 provide minimal detail, arguing “Salvador Gonzalez, as a now-dismissed plaintiff to 27 this civil action, is not a real party in interest to this action, and portions of the First 28 – 16 – 17cv2489 1 Amended Complaint, and specifically Paragraphs 3, 17 and 19, are immaterial and 2 impertinent.” (ECF No. 16 at 3.) 3 A court may strike from a pleading “an insufficient defense or any redundant, 4 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Motions to 5 strike are generally regarded with disfavor because of the limited importance of 6 pleading in federal practice, and because they are often used as a delaying tactic.” 7 Neilson v. Union Bank of Cal., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). “[The] 8 motion . . . should not be granted unless the matter to be stricken clearly could have 9 no possible bearing on the subject of the litigation. If there is any doubt . . . the court 10 should deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 11 1057 (N.D. Cal. 2004) (citations omitted). The court “must view the pleadings in a 12 light most favorable to the pleading party.” In re 2TheMart.com, Inc. Sec. Litig., 114 13 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 14 Plaintiffs assert the references to Gonzalez in their FAC provides “necessary 15 background and supplemental information” to their case and assert Gonzalez has 16 been named as a Real Party-in-Interest. (Opp’n 12.) The Court finds, at this stage 17 and without any supporting argument by Defendants, it is possible the reference to 18 Gonzalez has bearing on Plaintiffs’ case, thus, the Court DENIES the request to 19 strike portions of the FAC. 20 VII. CONCLUSION AND ORDER 21 22 23 24 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss Plaintiffs’ claims. Specifically, the Court DISMISSES with leave to amend Plaintiffs’ claims of discrimination based on race, color, and national origin; 25 DISMISSES with leave to amend Plaintiffs’ claims of age discrimination; 26 DISMISSES without leave to amend Plaintiffs’ claims of retaliation against 27 Defendants Sandoval and Gerard; 28 – 17 – 17cv2489 1 2 3 DISMISSES with leave to amend Plaintiff Becerra’s claims of retaliation against Defendant College. DISMISSES with leave to amend Plaintiffs’ claims of IIED. 4 The Court DENIES the remainder of the Motion. Further, the Court DENIES 5 Defendants’ Motion for a More Definite Statement, and DENIES Defendants’ 6 Motion to Strike. If Plaintiffs choose to file a Second Amended Complaint, they 7 must do so no later than October 15, 2018. 8 IT IS SO ORDERED. 9 10 DATED: September 14, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 18 – 17cv2489

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