Xing Wei Jing v. Los Angeles County

Filing 38

ORDER GRANTING DEFENDANTS MOTION TO DISMISS SECOND AMENDED COMPLAINT 31 by Judge Dean D. Pregerson. ( MD JS-6. Case Terminated ). (lc) Modified on 5/12/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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XING WEI JING,

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Plaintiff,

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v.
COUNTY OF LOS ANGELES,

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Defendant.

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___________________________

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Case No. CV 13-05207 DDP (MANx)
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS SECOND AMENDED
COMPLAINT
[Dkt. 31]

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Presently before the court is Defendant County of Los Angeles’

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a Motion to Dismiss Plaintiff’s Second Amended Complaint.

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considered the parties’ submissions, the court grants the motion

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and adopts the following order.

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I.

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Having

Background
As described in this court’s earlier orders, Plaintiff is a

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Chinese-American citizen.

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employed as a registered nurse at LAC/USC Medical Center, where he

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participated in the intensive care unit program in the spring and

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summer of 2012.

He was a doctor in China, but was

Plaintiff was the oldest person in the program,

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and the only Chinese employee.

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of discriminatory acts that underlie his claims for unlawful

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termination, hostile work environment and harassment, retaliation,

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discrimination, and employment defamation.

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Plaintiff alleges several instances

At a Christmas party in 2011, Plaintiff’s immediate

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supervisor’s husband asked Plaintiff about his age, religion, and

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reasons for moving to the United States.

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assistant supervisor Amelia Shovlin also inquired about his age and

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reasons for immigrating.

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In February 2012,

Plaintiff also alleges that an instructor stated that “Chinese

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doctor should not be nurse” while other colleagues opined that

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Plaintiff was “too old to work in ICU.”

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allegedly “reached his face to plaintiff face 2, 3, fists far,

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shaving his head to Plaintiff said, ‘I would not let you pass this

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program, are you emotional?’”

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called “Ying Yang” and “Buda” by another instructor, who also

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suggested to Plaintiff to “forget your culture,” and that his

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eyebrows were too long, and needed to be cut.

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An instructor also

Plaintiff also contends that he was

Plaintiff further alleges that he was required to sign a “DHS

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Discipline Manual Attestation form” on two occasions, but that no

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one else signed it.

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sign twice because his form was lost, “which is not true, but

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‘Scaring’, because is kept in HR, not in manager’s hands.”

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Plaintiff alleges that he was told he had to

Plaintiff alleges that he complained about the instructors’

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conduct in early 2012 and again in August 2012.

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that although he was at all times rated “competence,” he was

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Plaintiff alleges

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discharged on February 22, 2012 and replaced by a younger, less

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qualified person.1

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Plaintiff appealed his discharge to the County Civil Service

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Commission, and participated in a two-day hearing in December 2013.

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The hearing examiner concluded that Plaintiff committed several

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workplace violations, that his “allegations of discrimination,

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raised as a defense, do not ring true and appear to be a straw man

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issue intended to detract from the main charges against him,” that

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Plaintiff provided no evidence of discrimination against him, and

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that his discharge was appropriate.

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in Support of Defendant’s Request for Judicial Notice, Ex. B.)

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Civil Service Commission overruled Plaintiff’s objections to the

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hearing officer’s findings of fact and conclusions of law and

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adopted the hearing officer’s recommendation.

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A).

(Declaration of Natalie Luongo
The

(Luongo Decl., Ex.

Plaintiff did not appeal that decision.

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Plaintiff’s Second Amended Complaint in this court alleges

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five claims: (1) “discrimination termination”; (2) “hostile working

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environment, and harassment”; (3) “retaliation”; (4) “intentional

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discrimination” and (5) “employment defamation.”

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moves to dismiss.

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II.

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Defendant now

Legal Standard
A complaint must include “a short and plain statement of the

claim showing that the pleader is entitled to relief.”

Fed. R.

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It appears that Plaintiff may have intended to allege that
he was discharged in February 2013, as much of the workplace
conduct Plaintiff describes occurred after February 2012.
Plaintiff’s allegation that he was rated “competence” at all times
is inconsistent with several other allegations in the SAC that
Plaintiff received “not met” evaluations.
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Civ. P. 8(a)(2).

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direct.”

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distracting pleadings do not meet the requirements of Rule 8.

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Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th

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Cir. 2011).

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confused and redundant that its true substance, if any, is well

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disguised.”

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1131 (9th Cir. 2008)(quoting Gillibeau v. City of Richmond, 417

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F.2d 426, 431 (9th Cir. 1969).

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The allegations must be “simple, concise and

Fed. R. Civ. P. 8(d)(1).

Confusing, ambiguous, and
See

A complaint must be dismissed if it is “so verbose,

Hearns v. San Bernardino Police Dep’t, 530 F.3d. 1124,

A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.”

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.”

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.”

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under the liberal pleading standard of Federal Rule of Civil

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Procedure 8(a)(2), under which a party is only required to make a

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“short and plain statement of the claim showing that the pleader is

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entitled to relief,” a “pleading that offers ‘labels and

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conclusions’ or a ‘formulaic recitation of the elements of a cause

Ashcroft v. Iqbal, 556 U.S.

When considering a Rule 12(b)(6) motion, a court must

Iqbal, 556 U.S. at 678.

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Resnick

Although a complaint

Conclusory allegations or

Id. at 679.

Even

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of action will not do.’”

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555).

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Id. 678 (quoting Twombly, 550 U.S. at

III. Discussion

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A.

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The doctrine of res judicata “prohibits lawsuits on any claims

Res Judicata

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that were raised or could have been raised in a prior action.”

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Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).

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applies when there is “(1) an identity of claims; (2) a final

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judgment on the merits; and (3) identity or privity between

It

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parties.”

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Commission’s order constitutes a final judgment of the merits for

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res judicata purposes, and therefore bars Plaintiff’s claims.

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court agrees.

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Id.

Defendant contends that the Civil Service

The

Federal courts afford state court decisions the same

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preclusive effect that other state courts would give.

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Financing Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1125

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(9th Cir. 2013).

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decisions.

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1100 (9th Cir. 2014).

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provides that administrative decisions are binding in later civil

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actions to the same extent as state court decisions.

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of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012).

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See MHC

The same applies to state administrative

See Avila v. Los Angeles Police Dep’t, 758 F.3d 1096,
In cases such as this one, California law

White v. City

While Plaintiff’s opposition regarding the res judicata issue

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expresses a clear dissatisfaction with the outcome of his

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administrative hearing, it presents no reason why the Commission’s

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decision, which Plaintiff did not appeal, does not preclude his

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claims here.

Because the Commission issued a final ruling on the

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same discrimination issues Plaintiff now seeks to raise once again

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before this court, Plaintiff’s claims are barred as res judicata.

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B.

Defamation

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Plaintiff’s Fifth Cause of Action for Employment Defamation

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refers to acts addressed by the Commission’s ruling and also to

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statements made in the course of the administrative hearing.

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Because the latter statements were not necessarily encompassed in

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the agency’s decision, res judicata may not bar Plaintiff’s

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defamation claim.

However, California’s Tort Claims Act “requires

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that any civil complaint for money damages must first be presented

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to and rejected by the pertinent public entity.”

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Dep’t of Corrections and Rehabilitation, 212 Cal. App. 4th 1051,

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1061 (2001).

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Although Plaintiff appears to argue that this requirement does not

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apply to his claim against the County of Los Angeles, the basis for

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that contention is unclear to the court, and appears to conflate

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Plaintiffs’ employment claims with his defamation claim.

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defamation claim is, therefore, dismissed.

Compliance with this requirement is mandatory.

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Castaneda v.

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The

Id.

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IV. Conclusion

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For the reasons stated above, Defendant’s Motion to Dismiss is

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GRANTED.2

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prejudice.

The Second Amended Complaint is DISMISSED, with

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IT IS SO ORDERED.

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Dated: May 12, 2015

HON. DEAD D. PREGERSON

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United States District Judge

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Having dismissed Plaintiff’s claims for the reasons stated
above, the court need not reach Defendant’s additional arguments,
including the argument that the SAC, like its earlier iterations,
fails to satisfy Federal Rule of Civil Procedure 8.
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