Aquelina Farias v. National Railroad Passenger Corporation, et al.

Filing 26

MINUTES (IN CHAMBERS) by Judge David O. Carter Re: Order granting in part and denying in part 11 MOTION to Dismiss ; granting 19 MOTION to Dismiss Case. For the reasons set forth above, Amtrak's Motion to Dismiss is GRANTED IN PART an d DENIED IN PART. Plaintiff's negligent hiring, supervision, or retention claim is DISMISSED WITHOUT PREJUDICE to plead additional facts supporting an inference of knowledge. The Amtrak Motion is DENIED in all other respects. Orange Coun ty's Motion to Dismiss is GRANTED. Plaintiff's FEHA claims are DISMISSED WITHOUT PREJUDICE. Plaintiff's negligence claim is DISMISSED WITH PREJUDICE. Plaintiff may file an amended complaint, if desired, on or before September 14, 2015. The Clerk shall serve this minute order on the parties. (see document for details). (dro) Modified on 8/11/2015 (dro).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SA CV 15-0633 DOC (AJWx)

Date: August 11, 2015

Title: AQUELINA FARIAS V. NATIONAL RAILROAD PASSENGER CORPORATION, ET
AL.

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Deborah Goltz
Courtroom Clerk

Not Present
Court Reporter

ATTORNEYS PRESENT FOR
PLAINTIFF:

ATTORNEYS PRESENT FOR
DEFENDANT:

None Present

None Present

PROCEEDINGS (IN CHAMBERS): ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
NATIONAL RAILROAD
PASSENGER CORPORATION’S
MOTION TO DISMISS PURSUANT
TO RULE 12(b)(6) [11] AND
GRANTING ORANGE COUNTY’S
MOTION TO DISMISS PURSUANT
TO RULE 12(b)(6) [19]
Before the Court are Defendant National Railroad Passenger Corporation’s
(“Amtrak”) Motion to Dismiss (“Amtrak Motion”) (Dkt. 11) and Defendant County of
Orange’s (“Orange County”) Motion to Dismiss (“Orange Motion”) (Dkt. 19). The Court
finds these matters appropriate for resolution without oral argument. Fed. R. Civ. P. 78;
L.R. 7-15. Having reviewed the papers and considered the parties’ arguments, the Court
hereby GRANTS IN PART and DENIES IN PART Amtrak’s Motion and GRANTS
Orange County’s Motion.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

I.

Date: August 11, 2015
Page 2

BACKGROUND

After she pled guilty to reckless driving, Plaintiff was ordered to complete
community service by Orange County, in lieu of paying fines and as directed by
“OneOC,” Orange County’s nonprofit resource center. Def.’s Request for Judicial Notice
(“RJN”) (Dkt. 12) Ex. C at 6.1 Plaintiff completed those hours at Amtrak’s property in
Anaheim, California in September 2013. First Amended Complaint (“FAC”) (Dkt. 10)
¶ 16. Plaintiff alleges she was sexually harassed by her supervisor, John Hernandez
(“Hernandez”), while completing those hours, id. ¶¶ 17-24, and sues Amtrak, Hernandez,
and Orange County. Id. ¶¶ 16-32.
Plaintiff filed suit in Orange County Superior Court on March 19, 2015. See
Compl. (Dkt 1-1). Defendant filed a Notice of Removal on April 21, 2015. See Notice of
Removal (Dkt 1). Plaintiff filed a FAC on May 15, 2015. See FAC. The FAC asserts ten
state law claims: (1) sexual harassment-hostile work environment; (2) quid pro quo
sexual harassment; (3) failure to prevent discrimination and harassment; (4) sexual
assault and battery; (5) intentional infliction of emotional distress; (6) negligent infliction
of emotional distress; (7) negligent hire, supervision and retention; (8) negligence; (9)
discrimination based on gender; and (10) retaliation. Id. at 1. Plaintiff asserts the first,
second, third, fourth, seventh, ninth, and tenth claims against Defendant Amtrak and the
first, second, third, eighth, and ninth claims against Defendant Orange County.
Amtrak filed a Motion to Dismiss on May 29, 2015 (Dkt. 11). Plaintiff filed an
Opposition on June 15, 2015 (“Amtrak Opp’n”) (Dkt. 15). Amtrak filed a Reply on June
22, 2015 (“Amtrak Reply”) (Dkt. 17).

1

Amtrak requests that the Court take judicial notice of:
 Plaintiff Aquelina Farias’s (“Plaintiff”) Worker’s Compensation Claim, RJN Ex. A;
 Plaintiff’s Notice of Complaint, Complaint, and Misdemeanor Plea for Reckless Driving
(collectively “Court Documents”), id. Ex. B;
 The Minutes of the California Superior Court in Orange County, for Plaintiff’s criminal case
(“Minutes”), id. Ex. C;
 A Community Service Workers Sign-In Sheet (“Sign-In Sheet”), id. Ex. D, and;
 A letter from OneOC certifying that Plaintiff completed 42 hours of Community Service
(“Letter”), id.
A court may take judicial notice of a fact that is not subject to reasonable dispute because it can be accurately and
readily determined from sources whose accuracy cannot be reasonable questioned. Fed. R. Ev. 201(b)(2). As is
relevant to the present Motion, the Court takes Judicial Notice of the Court Documents and Minutes of the criminal
case.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 3

Orange County filed a Motion to Dismiss on July 15, 2015 (Dkt. 19). Plaintiff
filed an Opposition on July 27, 2015 (“Orange Opp’n”) (Dkt. 21). Orange County filed a
Reply on August 3, 2015 (“Orange Reply”) (Dkt. 22).
A.

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed
when a plaintiff’s allegations fail to set forth a set of facts which, if true, would entitle the
complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order
to survive a motion to dismiss). The pleadings must raise the right to relief beyond the
speculative level; a plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this
court accepts as true a plaintiff’s well-pleaded factual allegations and construes all factual
inferences in the light most favorable to the plaintiff. See Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to accept
as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents
of the complaint and material properly submitted with the complaint. Van Buskirk v.
Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the
incorporation by reference doctrine, the court may also consider documents “whose
contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.
1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002). The court
may treat such a document as “part of the complaint, and thus may assume that its
contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” United States
v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Additionally, the court may take judicial notice of certain items without converting
the motion to dismiss into one for summary judgment. Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994). For instance, the court may take judicial notice of facts “not subject
to reasonable dispute” because they are either: “(1) [] generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also
Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (noting that the court may
take judicial notice of “undisputed matters of public record,” including “documents on

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 4

file in federal or state courts,” as well as “documents not attached to a complaint . . . if no
party questions their authenticity and the complaint relies on those documents”).
Dismissal with leave to amend should be freely given “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). This policy is applied with “extreme liberality.” Morongo Band
of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000) (holding that dismissal with leave to amend should be
granted even if no request to amend was made). Dismissal without leave to amend is
appropriate only when the court is satisfied that the deficiencies in the complaint could
not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir.
2003).
II.

DISCUSSION

Amtrak moves to dismiss the first, second, third, seventh, ninth, and tenth claims
on the grounds that Plaintiff was not Amtrak’s employee when the alleged sexual
harassment took place. See generally Amtrak Motion. It also argues that Plaintiff alleged
insufficient facts to support the negligent hiring claim or punitive damages. Orange
County moves to dismiss Plaintiff’s first, second, third, and ninth claims on the grounds
that Plaintiff was not Orange County’s employee. See generally Orange Motion. It also
invokes the California Tort Claims Act to dismiss Plaintiff’s negligence claim. Id.
A.

The Fair Employment and Housing Act Claims

Amtrak moves to dismiss Plaintiff’s first, second, third, ninth, and tenth claims,
grounded in California’s Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code
§ 12900 et seq, for failure to state a claim. Amtrak Motion at 1-2. Amtrak argues Plaintiff
was not Amtrak’s employee, and therefore cannot claim protection under FEHA. Id.
Orange County moves to dismiss Plaintiff’s first, second, third, and ninth claims on the
grounds that Plaintiff has not alleged sufficient facts to show that she was Orange
County’s employee. Orange Mot. at 1-2.
1.

Determining the Definition of “Employee” under FEHA

“In order to recover under the discrimination in employment provisions of the
FEHA, the aggrieved plaintiff must be an employee.” Estrada v. City of Los Angeles, 218
Cal. App. 4th 143, 148 (2013) (quoting Shepard v. Loyola Marymount Univ. 102 Cal.
App. 4th 837, 842 (2002) (internal quotation marks omitted).
The statutory language of FEHA, California Government Code § 12926(c),
provides no guidance as to whether Plaintiff was an “employee” of either Amtrak or

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 5

Orange County under FEHA. “[S]ection 12926, subdivision (c) only provides a
description of what is not an employee.” Shepard, 102 Cal. App. 4th at 842 (emphasis in
original). Given the lack of legislative guidance, courts have examined employee status
through comparison with analogous statutes and regulations, including FEHA’s
regulatory definition, the California Labor Code, and Title VII of the federal Civil Rights
Act. See Estrada, 218 Cal. App. 4th 143; Mendoza v. Town of Ross, 128 Cal. App. 4th
625 (2005); Shepard, 102 Cal. App. 4th 837.
a.

Department of Fair Employment and Housing Definition

“[W]hile interpretation of a statute…is ultimately a question of law, [courts] must
also defer to an administrative agency’s interpretation of a statute or regulation involving
its area of expertise.” Cmtys. for a Better Env’t v. State Water Res. Control Bd., 109 Cal.
App. 4th 1089, 1104 (2003). The Department of Fair Employment and Housing
(“DFEH”), created by FEHA, defines an employee as “[a]ny individual under the
direction and control of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written.” Cal. Code Regs. tit. 2, § 1100.
In Mendoza, the court of appeals sustained the Town of Ross’s demurrer because a
volunteer “Community Service Officer” was not a municipal employee under the DFEH
definition.
The FAC contains no allegation that [a proper appointment by the town
council, as required by local regulation, Rule 3.5.1] was made in Mendoza’s
case, nor did Mendoza make any proffer in response to the Town’s request
for judicial notice that he was appointed to his CSO position in accordance
with Rule 3.5.1. The Town persuasively argues that since the Town’s
appointment process was not initiated, Mendoza was not appointed, and does
not fall under the FEHA employee category as an appointee.
Mendoza, 128 Cal. App. 4th at 633; see also Estrada, 218 Cal. App. 4th at 153 (holding
that a volunteer was not an employee under FEHA, in part because of the fact that,
pursuant to the language of L.A. Administrative Code section 22.227, while Estrada was
“appointed” to the position it did not qualify as employment under applicable city
regulations).
b.

California Labor Code Definition

California courts evaluating whether individuals are employees under FEHA also
look to the California Labor Code as persuasive authority. Estrada, 218 Cal. App. 4th at
150; Mendoza, 128 Cal. App. 4th at 634-35. The California Labor Code denies employee

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 6

status to “[a]ny person performing voluntary service for a public agency or a private,
nonprofit organization who receives no remuneration for the services other than meals,
transportation, lodging or reimbursement for incidental expenses.” Cal. Labor Code §
3352(i).
The California Supreme Court has held that, for purposes of worker’s
compensation, persons completing court-ordered community service in lieu of fines are
employees of both the agency ordering them to perform the hours and the agency with
whom the work is performed. Arriaga v. Cnty. of Alameda, 9 Cal. 4th 1055 (1995). “[A]
person who works in order to comply with a court order to pay a fine…is not acting free
of compulsion, and therefore is not ‘performing voluntary service’ within the meaning of
section 3352, subdivision (i).” Id. at 1064 (internal quotation marks in original). The
court further noted that the plaintiff, by receiving credit against the court-imposed fine,
“received remuneration sufficient to render section 3352, subdivision (i), inapplicable.”
Id. at 1065.
c.

Title VII Test

California courts often looks to the Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e, for guidance in evaluating FEHA claims. Grosz v. Boeing Co., 455 F. Supp. 2d
1033, 1039 (C.D. Cal. 2006); Mendoza, 128 Cal. App. 4th at 635. Title VII similarly
lacks a precise definition of an employee: an employee is “an individual employed by an
employer.” 42 U.S.C. § 2000e(f). However, “[a] primary factor in determining that an
employer-employee relationship exists is the employer’s right to control the means and
manner of the worker’s performance.” Rush v. Watkins Motor Lines, Inc., 58. Fed. App’x
320, 321 (9th Cir. 2003); accord Lutcher v. Musicians Union Local 47, 633 F.2d 880,
883 (9th Cir. 1980).
For Title VII claims, “[t]he absence of any direct or indirect remuneration from the
defendant to the plaintiff…is at least strong evidence that an employment relationship did
not exist.” Vernon v. State, 116 Cal. App. 4th 114, 126 (2004) (applying a Title VII
analysis to a FEHA claim). Remuneration is weighed against other factors, including the
employer’s control over a worker and the employer’s discretion to discipline workers. Id.
2.

Application
a.

Amtrak

Considering the aforementioned tests, finding Arriaga most persuasive, Plaintiff
has adequately alleged that she was Amtrak’s employee. Amtrak participated in OneOC,
accepting court-ordered workers. Amtrak invited Plaintiff onto its property, assigned her

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 7

tasks, and received the benefits of her labor. In so doing, Amtrak may have permitted
OneOC to appoint Plaintiff as its employee for FEHA purposes. Although the allegations
in the FAC as to Plaintiff’s relationship with Amtrak are sparse, they have raised her right
to relief, as an employee under FEHA, above a speculative level.
Amtrak relies heavily on Solesbee v. County of Inyo, No. 1:13-CV-1548 AWI JLT,
2014 WL 3890680 (E.D. Cal. Aug. 7, 2014), to argue that Plaintiff was not its employee.
Mot. at 6-9. There, a prisoner participating in a work-release program alleged sexual
harassment by a supervisor and sued under FEHA. Id. The court dismissed the plaintiff’s
FEHA claims with prejudice, finding that the plaintiff was “not an employee for purposes
of FEHA.” Id. at *8.
The court concluded that “any meaningful control over Plaintiff’s work was
established by the Sheriff’s Department pursuant to the limitations imposed by Penal
Code 4024.2…not by any relationship between Plaintiff and [defendant.]” Id. at *4. That
section grants a sheriff or the county board of supervisors control over many variables
typically determined by an employer, including hours worked, appropriate clothing, and
disciplinary measures. See generally Cal. Penal Code § 4024.2.
Here, Plaintiff completed “various assignments and job duties” for Amtrak while
being supervised and managed by Amtrak’s employee, Hernandez. FAC ¶¶ 16-17. The
FAC does not thoroughly describe Amtrak’s control over Plaintiff. Nonetheless, none of
the materials in Amtrak’s RJN precludes, or even opposes, a reasonable inference that
Amtrak, via Hernandez, exercised sufficient control over Plaintiff to make FEHA
protections available. While discovery may show that Plaintiff was not an employee of
Amtrak due to its lack of control over Plaintiff’s duties, tools, clothing, dates and times of
appearance, or other variables, the facts alleged in the FAC do not.
The only compensation the plaintiff in Solesbee received was “being released to
home at the end of the work day and the opportunity to be more or less free during off
hours.” 2014 WL 3890680, at *5. In contrast, Plaintiff worked “in lieu of fines.” RJN Ex.
C at 6. Plaintiff was not paid wages as a typical employee, but neither did she receive “no
compensation” like the plaintiff in Solesbee. Solesbee, 2014 WL 3890680, at *5.
Under California law, whether Plaintiff was Amtrak’s employee is largely a
question of fact. The facts may reveal that Plaintiff was not, in fact, Amtrak’s employee.
However, in the FAC, Plaintiff has pled sufficient facts to raise her right to relief beyond
a speculative level. Therefore, the Court DENIES Amtrak’s Motion on this ground.
b.

Orange County

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 8

By contrast, Plaintiff has alleged no facts to support an inference that Orange
County exercised sufficient control over her to create an employer-employee relationship.
The Court accepts as true, for purposes of this Order, that Orange County sent Plaintiff to
Amtrak to complete community service hours. However, Orange County only appears, by
name, in the first paragraph of the “General Allegations” section of the Complaint. See
Compl. ¶¶ 16-32. Plaintiff provides no further facts to paint a plausible scenario under
which she was Orange County’s employee.2
Because Plaintiff has not alleged any facts that Orange County controlled her
actions while working, or that there were any other indicia of an employer-employee
relationship, the court GRANTS Orange County’s Motion on this ground and the FEHA
claims against Orange County are DISMISSED WITHOUT PREJUDICE.
3.

Plaintiff’s Status as a Volunteer

In her oppositions, Plaintiff suggests that even if she is not an “employee” she may
claim protection under FEHA as a “volunteer” pursuant to § 12940(j)(1). Amtrak Opp’n
at 12:12-24; Orange Opp’n at 7-10. Amtrak argues that Plaintiff cannot “inject new
allegations into the FAC via her opposition papers.” Amtrak Reply at 2:1-2. Orange
County argues that the amendment granting FEHA protection to volunteers cannot apply
retroactively. Orange Reply at 4.
As currently drafted, the FAC does not contain sufficient allegations that Plaintiff
was a “volunteer,” as opposed to an employee, under FEHA. Therefore, any arguments
concerning whether she was a volunteer appear premature. Insofar as she can make such
allegations in a subsequent complaint, for efficiency’s sake, the Court will address now
the application of the relevant statutory amendment.
Assembly Bill 1443 (“the Amendment”), amending §12940(j)(1) of FEHA to
extend FEHA protection to volunteers and unpaid interns, was adopted on September 9,
2014. Stats. 2014, c. 302 (A.B. 1443), §1, eff. Jan 1, 2015. The alleged harassment
occurred on or about September 11, 2013. FAC ¶ 18. For §12940(j)(1) to apply as
modified, the Amendment must apply retroactively.
“Generally, statues operate prospectively only.” Myers v. Philip Morris
Companies, Inc., 28 Cal. 4th 828, 840 (2002). The California Supreme Court addressed
the retroactivity of FEHA amendments in Carter v. California Dept. of Veterans Affairs,
2
In its Reply, Orange County argues that Resolution 73-170, passed by the Orange County Board of Supervisors,
precludes Plaintiff from claiming she was an employee. Orange Reply at 7:26-8:4. However, the Resolution’s
repeated references to inmates makes it appear inapplicable to the instant scenario. Plaintiff was never sentenced to
jail. See generally Court Documents; see also Minutes.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 9

38 Cal 4th914 (2006). The Carter court concluded that statutory amendments to FEHA
are retroactive when the amendment “clarifies, rather than changes, existing law.” Id. at
922. To answer that question, the court investigated the legislative intent behind the
amendment and asked whether the statute, prior to amendment, could be reasonably
construed as already expressing the amendment’s content; if it could not, the amendment
changed the statute rather than clarified it. Id.
The Court finds scant evidence that the California Legislature intended this
amendment to act retroactively. Plaintiff’s statement that the Amendment was passed “in
response to dictum found in Mendoza and Estrada,” Amtrak Opp’n at 11:8, does not fully
account for the context of the bill. Instead, the relevant legislative history shows that
Estrada was one driving factor for the Amendment, along with the “increasingly
common phenomenon” of unpaid work and internships.3
Furthermore, the court in Carter found support for retroactivity in the
Legislature’s express statement: “[i]t is the intent of the Legislature in enacting this act to
construe and clarify the meaning and effect of existing law and to reject the interpretation
given to the law in [a prior case].” Carter, 38 Cal 4th at 921 (quoting Stats 2003, ch. 671,
§ 2). There is no parallel expression of intent in the Amendment. Indeed, the Amendment
states an explicit goal to “revise and extend the existing FEHA non-discrimination,
harassment and reasonable accommodation obligations to interns and those in similar
arrangements.” Supplemental RJN, Ex. D (emphasis added). The Amendment did not
clarify FEHA; it expanded its protections in response to prevalent arrangements of
uncompensated internships.
Before this amendment, §12940(j)(1) could be reasonably read to include certain
volunteers, but only so long as the volunteers could also be considered employees under
applicable standards. Prior to the Amendment, §12940(j)(1) made it illegal “to harass an
employee, an applicant, or a person providing services pursuant to a contract.” Stats.
2014, c. 302 (A.B. 1443). The modified version of §12940(j)(1) applies to a broader
category of volunteers and unpaid interns, who do not necessarily qualify as employees
under existing law.
Therefore, the Court finds that the Amendment to § 12940(j)(1) cannot be applied
retroactively. If Plaintiff is to make FEHA claims, she must do so as an employee.

3

Plaintiff requests that the Court take judicial notice of the Bill Analysis for Assembly Bill 1443. Plaintiff’s
Supplemental Request for Judicial Notice (“Supplemental RJN”) (Dkt. 21-2) Ex. D. The Court takes Judicial Notice
of this legislative history.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 10

B.
The Negligent Hiring, Supervision, and Retention Claim against
Amtrak
Amtrak moves to dismiss Plaintiff’s claim that Amtrak negligently hired,
supervised and retained John Hernandez, FAC ¶¶ 75-79, on the grounds that Plaintiff
argues inconsistent facts to support her claims, that the facts are insufficient to support
her claims, and that Plaintiff’s claims are precluded by the Federal Employer’s Liability
Act or the California Labor Code. Mot at 10-11.
1.

Plaintiff’s Arguments in the Alternative

Amtrak contends that Plaintiff “argues inconsistent facts to support her claim for
negligent hiring, supervision and retention.” Amtrak Motion at 10:19-20. According to
Amtrak, Plaintiff may not argue both that Amtrak negligently hired Hernandez, and that
they “deliberately failed to restrain him from sexually harassing Plaintiff.” Id. at 10:2224. Amtrak also argues Plaintiff cannot claim to be suing as an employee and also as a
“community service worker.” Id. at 11:8 (internal quotation marks omitted).
“A party may state as many separate claims or defenses as it has, regardless of
consistency.” Fed. R. Civ. P. 8(d)(3). The Ninth Circuit “allow[s] pleadings in the
alternative-even if the alternatives are mutually exclusive.” Kingsburg Apple Packers Inc.
v. Ballantine Produce Co., No. 1:09-CV-901-AWI-JLT, 2011 WL 587355, at *4 (E.D.
Cal. Feb. 9, 2011) (citing PAE Gov. Services, Inc., v. MPRI, Inc., 514 F.3d 856, 859 (9th
Cir. 2007)).
2.

Plaintiff’s Insufficient Facts

“An employer may be liable to a third person for the employer’s negligence in
hiring or retaining an employee who is incompetent or unfit.” Phillips v. TLC Plumbing,
Inc., 172 Cal. App. 4th 1133, 1139 (2009) (citing Roman Catholic Bishop v. Superior
Court, 42 Cal. App. 4th 1556, 1564-65 (1996)). “Liability for negligent supervision
requires knowledge by the principal that the agent or servant was a person who could not
be trusted to act properly without being supervised.” McCliss v. Ward, No. 207CV01154MCE-KJM, 2008 WL 4754814, at *3 (E.D. Cal. Oct. 30, 2008) (citations omitted).
“Liability for negligent supervision and/or retention of an employee is one of direct
liability for negligence, not vicarious liability.” Delfino v. Agilent Tech., Inc., 145 Cal.
App. 4th 790, 815 (2006).
According to Amtrak, Plaintiff’s allegation, on information and belief, that it knew
or should have known that Hernandez would engage in harassment is factually
insufficient to support her claim under Iqbal. Amtrak Motion at 12:2-6. “Although

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 11

‘knowledge’…may be averred generally, [Ninth Circuit precedent] requires that the
pleadings allege[] sufficient underlying facts from which a court may reasonably infer
that a party acted with the requisite state of mind.” Exergen Corp. v. Wal-Mart Stores,
Inc., 575 F.3d 1312, 1327.
Plaintiff has alleged no facts from which the Court could reasonably infer that
Amtrak knew or should have known that John Hernandez had a propensity to engage in
unlawful discriminating and harassing conduct. For example, the Plaintiff has not alleged
that Hernandez had engaged in improper conduct in the past, that Amtrak had ignored
complaints regarding his misconduct, or the like. See McCliss, 2008 WL 4754814, at *3
(allegations of knowledge sufficient where the plaintiff alleged, among other things, that
the supervisor often openly hugged female subordinate co-workers, he repeatedly had
female subordinate co-workers alone with him in his office, a complaint had previously
been made to a supervisor against him for engaging in inappropriate and aggressive
physical contact with a sedated female patient, and he had stated that female subordinate
coworkers should take sexual harassment as a compliment). There are no factual
allegations in the FAC from which Amtrak’s knowledge could be inferred.
Therefore, Plaintiff’s claim for negligent hiring, supervision, or retention fails.
3.

Preclusion

Because the allegations otherwise fail, the Court will not reach Amtrak’s alternate
argument concerning the preclusive effect of the Federal Employer’s Liability Act
(“FELA”), 45 U.S.C. §§ 51-60 or §§ 3600 and 3602 of the California Labor Code, in the
event that Plaintiff is in fact an employee. The Defendant may raise the arguments in a
subsequent motion.
C.

Plaintiff’s Negligence Claim Against Orange County

Orange County seeks to dismiss Plaintiff’s negligence claim for failing to provide
a statutory basis for the claim, Cal. Gov’t Code § 815(a), and failure to comply with the
California Tort Claims Act, Cal. Gov’t Code §§ 912.4, 945.4. Orange Motion at 4-6.
Plaintiff does not oppose this request. Orange Opp’n at 1:23-24. Therefore, the Court
grants Orange County’s motion to dismiss that claim and the claim is dismissed WITH
PREJUDICE.
D.

Plaintiff’s Punitive Damages Claims

Amtrak seeks to dismiss Plaintiff’s punitive damages claims because the FAC fails
to allege specific facts demonstrating that Defendant’s conduct meets the requirements of

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 15-0633-DOC (AJWx)

Date: August 11, 2015
Page 12

§ 3294(b) of the California Civil Code. Amtrak Motion at 12:13-19. Section 3294(b)
authorizes punitive damages when an employee was guilty of malice, and the employer
knew of the employee’s unfitness and employed him with “a conscious disregard of the
rights or safety of others,” Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1151
(1998), or the employer itself was guilty of the oppression, fraud, or malice.
Malice is a state of mind that can be alleged generally. See Clark v. State Farm
Mut. Auto. Ins. Co., 231 F.R.D. 405, 407 (C.D. Cal. 2005) (while California law governs
substantive claims for punitive damages, the Federal Rules of Civil Procedure govern the
punitive damages claim procedurally with respect to the adequacy of pleadings). Pursuant
to Rule 9(b), Plaintiff has alleged sufficient facts to raise the plausible inference that the
employer itself acted with malice in its behavior after the disclosure of the harassment.
FAC ¶¶ 27-28. Therefore, the FAC has raised the right to recover punitive damages
above a speculative level.
III.

Disposition

For the reasons set forth above, Amtrak’s Motion to Dismiss is GRANTED IN
PART and DENIED IN PART.
 Plaintiff’s negligent hiring, supervision, or retention claim is DISMISSED
WITHOUT PREJUDICE to plead additional facts supporting an inference
of knowledge.
 The Amtrak Motion is DENIED in all other respects.
Orange County’s Motion to Dismiss is GRANTED.
 Plaintiff’s FEHA claims are DISMISSED WITHOUT PREJUDICE.
 Plaintiff’s negligence claim is DISMISSED WITH PREJUDICE.
Plaintiff may file an amended complaint, if desired, on or before September 14,
2015.
The Clerk shall serve this minute order on the parties.
MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: djg