Michele Petersen v. County of Stanislaus et al

Filing 20

ORDER GRANTING 7 Motion to Dismiss WITH LEAVE TO AMEND, signed by Chief Judge Anthony W. Ishii on 10/12/2012. (30 Day Deadline) (Martin-Gill, S)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT FOR THE

8

EASTERN DISTRICT OF CALIFORNIA

9
10

MICHELE PETERSEN,

11
12
13
14
15
16
17

1:12-cv-00933-AWI-BAM

Plaintiff,
v.
COUNTY OF STANISLAUS, CHRISTINE
APPLEGATE, KIM VIEIRA, BERGEN
FILGAS, GEORGE MEDINE, DOE 1, DOE
2, DOE 3, DOE 4, and DOES 5 through 25,
inclusive,

ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS PURSUANT TO FED.
R. CIV. P. 12(b)(6)
(Doc. 7)

Defendants.
____________________________________/

18
19

INTRODUCTION

20

The instant motion to dismiss was filed on behalf of defendants Stanislaus County

21

(“County”), Christine Applegate, Kym Vieira (named in complaint as Kim Vieira), Bergen

22

Filgas, and George Medina (named in complaint as George Medine) (collectively, “Defendants”)

23

in response to a complaint filed by Michele Petersen (“Plaintiff”) on June 8, 2012, alleging

24

various causes of actions related to employment discrimination.

25

LEGAL STANDARD

26

A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) if the claim states no cognizable

27

legal theory or alleges insufficient facts to support a valid allegation. Balistreri v. Pacifica Police

28

1
2

Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
For purposes of the 12(b)(6) motion, all well-pleaded allegations are accepted as true and

3

are construed in the light most favorable to the non-moving party. Manzarek v. St. Paul Fire &

4

Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir. 2008). A well-pleaded allegation contains

5

sufficient facts to state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S.

6

544, 570 (U.S. 2007). To be plausible, alleged facts must be more than “merely consistent with a

7

defendant’s liability;” the “sheer possibility” of unlawful behavior is insufficient. Ashcroft v.

8

Iqbal, 556 U.S. 662, 678 (2009). Allegations that are merely conclusory, unwarranted deductions

9

of fact, or unreasonable inferences do not meet the plausibility standard and need not be accepted

10

as true. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

11
12

FACTS

13

Plaintiff is a woman over 40 years of age, Court’s Docket, Doc. 1 ¶ 10, who was

14

employed by Stanislaus County as a Social Worker IV. Id., Doc. 1 ¶ 24. Plaintiff alleges that she

15

was fully qualified to perform the duties of her position and was rated good or excellent in her

16

job performance. Id., Doc. 1 ¶ 25. Plaintiff alleges discrimination between April 2010 and May

17

31, 2011. Id., Doc. 1 ¶ 14. Plaintiff alleges that Defendants falsely accused her of “Dishonesty,

18

Insubordination, Inexcusable Neglect of Duties, and the Last Chance Agreement.” Id., Doc. 1

19

¶ 19. These accusations were followed by an investigation, id., and Plaintiff was terminated from

20

her position in May 2011. Id., Doc. 1 ¶ 26. Plaintiff alleges that she filed a claim against

21

Defendants with the California Department of Fair Employment and Housing (“DFEH”) for

22

numerous federal and state constitutional and statutory violations; DFEH subsequently sent

23

Plaintiff a right to sue letter. Id., Doc. 1 ¶ 11. Plaintiff alleges this same list of violations under

24

each cause of action in her complaint.

25
26

Plaintiff pleads nine causes of action: employment discrimination and retaliation, both
against the County; and, against all defendants, harassment; civil rights violations under

27
28

2

1

42 U.S.C. §§ 1981, 1983 and 1988; intentional infliction of emotional distress; breach of

2

contract; breach of implied covenant of good faith and fair dealing; negligent supervision; and

3

defamation.

4
5
6

DISCUSSION
A. Employment Discrimination (Title VII, ADA, and FEHA)

7

A plaintiff may make a prima facie case of discrimination under Title VII by showing that

8

(1) she was a member of a protected class; (2) she was qualified for her position; (3) she suffered

9

an adverse employment action; and (4) similarly situated individuals outside plaintiff’s class

10

were treated more favorably, or other circumstances surrounding the adverse employment action

11

give rise to an inference of discrimination. Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d

12

840, 847 (9th Cir. 2004). A prima facie case for discrimination under the ADA is identical to

13

one under Title VII, except that a plaintiff must show that she is disabled under the meaning of

14

the ADA for the first element. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093

15

(9th Cir. 2001). The elements of a prima facie case for discrimination under FEHA are likewise

16

closely related to the Title VII prima facie requirements. Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089,

17

1113 (Cal. 2000). To make a prima facie case of discrimination under FEHA, a plaintiff must

18

show that (1) she was a member of a protected class; (2) she was performing competently in the

19

position she held; (3) she suffered an adverse employment action; and (4) some other

20

circumstance suggests discriminatory motive. Id.

21

Plaintiff has pled that she is a woman over 40 years of age. Gender is a protected class

22

under both Title VII and FEHA. See 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful

23

employment practice for an employer ... to discriminate against any individual with respect to his

24

compensation, terms, conditions, or privileges of employment, because of such individual’s ...

25

sex ... .”); Cal. Gov’t Code § 12940(a) (“It is an unlawful employment practice ... [f]or an

26

employer, because of the ... gender ... of any person ... to discriminate against the person in

27
28

3

1

compensation or in terms, conditions, or privileges of employment.”). Plaintiff also alludes in

2

the complaint to mental and physical disabilities. Individuals with mental or physical disabilities

3

are protected under FEHA. Id. (“It is an unlawful employment practice ... [f]or an employer,

4

because of the ... physical disability, mental disability, [or] medical condition ... of any person ...

5

to discriminate against the person ... .”) Plaintiff, however, fails to give any description of the

6

nature of her disabilities or any factual allegation specific enough to give defendants notice as to

7

the behavior that may have constituted discrimination on account of Plaintiff’s disabilities. The

8

court will therefore continue its analysis only for a gender discrimination claim under Title VII

9

and FEHA.

10

As to the second and third elements of a prima facie gender discrimination case, Plaintiff

11

alleges that she was competently performing her job, and she also alleges that she was subjected

12

to unfair accusations and an unwarranted investigation that led to her termination.

13

Plaintiff, however, makes no factual allegations related to the fourth element of a prima

14

facie case under Title VII or FEHA, an element crucial to both causes of action. Although at the

15

pleading stage, a complaint need not establish all the elements of a prima facie case,

16

Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002); see Twombly, 550 U.S. at 569-70 (discussing

17

Swierkievicz), the complaint must still allege sufficient facts to make the claim of discrimination

18

plausible on its face. Twombly, 550 U.S. at 570. A complaint that fails to allege a connection

19

between an employer’s adverse actions and the plaintiff’s membership in a protected class may

20

be dismissed. Wood v. City of San Diego, 678 F.3d 1075, 1081-82 (9th Cir. 2012) (affirming

21

district court’s dismissal of FEHA discrimination claim for failing to sufficiently allege a

22

discriminatory motive); Ahmed v. San Joaquin Reg’l Rail Comm’n, 2012 U.S. Dist. LEXIS

23

89226 (E.D. Cal. June 26, 2012) (dismissing an amended Title VII claim that failed to allege a

24

connection between any alleged discrimination and the plaintiff’s membership in a protected

25

class, or that the plaintiff was treated differently than similarly situated individuals outside the

26

protected class). Plaintiff offers only the conclusory statements that Defendants “discriminated

27
28

4

1

against her” and that she was harmed as a “result of defendants’ discriminatory actions against

2

plaintiff.” Such bald assertions offer no hint of a fact that would suggest that the investigation of

3

Plaintiff or Plaintiff’s termination were related to a bias against women held by the County.

4
5
6

B. Retaliation (Title VII, ADA, and FEHA)
Under Title VII, it is unlawful for “an employer to discriminate against any of his

7

employees ... because he has opposed any practice made an unlawful practice by this title ... or

8

because he has made a charge, testified, assisted, or participated in any manner in an

9

investigation, proceeding, or hearing under this title.” 42 U.S.C. § 2000e-3(a). A plaintiff may

10

make a prima facie case of retaliation pursuant to Title VII by showing that (1) she was involved

11

in protected activity opposing an unlawful employment practice; (2) thereafter, the defendant

12

took some employment action adverse to the plaintiff; and (3) there was a causal connection

13

between protected activity and the adverse action. Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir.

14

2006). Under FEHA, it is unlawful in California “[f]or any employer ... to discharge, expel, or

15

otherwise discriminate against any person because the person has opposed any practices

16

forbidden under this part or because the person has filed a complaint, testified, or assisted in any

17

proceedings under this part.” Cal. Gov’t Code § 12940(h). A prima facie case of retaliation

18

under FEHA is the same as that for Title VII. See Nidds v. Schindler Elevator Corp., 113 F.3d

19

912, 919 (9th Cir. 1996) (applying elements of Title VII retaliation claim above to a FEHA

20

claim). A prima facie case of retaliation pursuant to the ADA also follows this same framework.

21

Brown v. City of Tucson, 336 F.3d 1181, 1186-87 (9th Cir. 2003).

22

Plaintiff alleges in her complaint that she took part in a protected activity by “reporting

23

and protesting working conditions to County; reporting and protesting discrimination based on

24

her mental and physical condition under ADA; objecting to the enforcement of nonexisting

25

policies, rules and regulations; [and] objecting to the creation of false and misleading reports of

26

plaintiff’s job performance.” Court’s Docket, Doc. 1 ¶ 34. Plaintiff describes County’s adverse

27
28

5

1

action toward her as “discrimination in her compensation, terms, conditions, privileges of her

2

employment and equal employment opportunities ... .” Id. These allegations are very similar to

3

those rejected by the Supreme Court in Iqbal as “nothing more than a formulaic recitation of the

4

elements.” 556 U.S. at 681 (internal quotation marks omitted). Bald allegations such as

5

Plaintiff’s need not be accepted by the court as true. Id.

6

As discussed above, a plaintiff need not allege all the elements of a prima facie case at the

7

pleading stage, but a complaint that fails to allege a causal connection between the protected

8

activity and adverse action is subject to dismissal. Adams v. Vivo, Inc., 2012 U.S. Dist. LEXIS

9

109199 at * 17 (N.D. Cal. Aug. 3, 2012) (Title VII); McKenna v. Permanente Med. Group, Inc.,

10

2012 U.S. Dist. LEXIS 113821 at *46 (E.D. Cal. Aug. 13, 2012) (FEHA); Ray v. Henderson, 217

11

F.3d 1234, 1240 (9th Cir. 2000) (ADA). Plaintiff fails entirely to allege a causal connection

12

between Plaintiff’s protected reports and protestations and the adverse actions taken against her,

13

beyond the conclusory statement that the alleged adverse actions were “discriminatory.” Court’s

14

Docket, Doc. 1 ¶ 34. The County’s motion to dismiss will therefore be granted, without

15

prejudice, as to the retaliation claims made under Title VII, FEHA, and the ADA.

16
17
18

C. Harassment (Title VII and FEHA)
Under FEHA, it is unlawful for an employer to harass an employee. Cal. Gov’t Code

19

§ 12940(j)(1). “[I]solated, sporadic, or trivial” incidents will not constitute harassment for

20

purposes of FEHA; rather, there must be “a concerted pattern of harassment of a repeated,

21

routine or a generalized nature.” Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590,

22

610 (2d Dist. 1989). Plaintiff alleges that Defendants’ conduct constituted harassment “in that it

23

created a hostile work environment when plaintiff was subjected to differential treatment and was

24

harassed; discriminated against; subjected to disparate treatment; defamed; retaliated against and

25

suffered severe mental and emotional distress.” This string of legal conclusions is wholly

26

insufficient to allege a concerted pattern of behavior constituting harassment under FEHA.

27
28

6

1

Under Title VII, harassment is alleged through a hostile work environment claim. Such a

2

claim “involves a workplace atmosphere so discriminatory and abusive that it unreasonably

3

interferes with the job performance of those harassed.” Brooks v. City of San Mateo, 229 F.3d

4

917, 923 (9th Cir. 2000). The elements of hostile work environment claim are (1) the plaintiff

5

was subjected to verbal or physical conduct because of her membership in a protected class; (2)

6

the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the

7

conditions of the plaintiff’s employment and create an abusive work environment. Manatt v.

8

Bank of America, 339 F.3d 792, 798 (9th Cir. 2002). To state a claim for hostile work

9

environment, a plaintiff “must allege sufficient facts to state the elements of a hostile work

10

environment claim.” Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1122 (9th Cir.

11

2008). As discussed above, Plaintiff’s conclusory statements are insufficient to allege pervasive

12

or severe harassment. Defendants’ motion to dismiss will be granted, without prejudice, as to the

13

harassment cause of action.

14
15

D. Deprivation of Civil Rights (42 U.S.C. §§ 1981 and 1983)

16

Against the County

17

Section 1983 subjects to liability any person who, “under color of any statute, ordinance,

18

regulation, custom, or usage, of any State or Territory,” deprives another “of any rights,

19

privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. A plaintiff

20

making a § 1983 claim against a local government must sufficiently allege that the government is

21

properly subject to liability under the section. This may be done (1) by alleging an explicit

22

municipal policy ratifying the unconstitutional behavior; (2) by alleging a settled and widespread

23

practice that constitutes an implicit policy or custom underlying the unconstitutional conduct; or

24

(3) by attributing the wrongful conduct to the decision of a municipal policymaker with final

25

authority in the area of the conduct. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694

26

(1978).

27
28

7

1

Plaintiff alleges that Defendants “deprived plaintiff of her civil rights and her

2

constitutional rights under color of state law” and that “[b]y reason of defendants’ discrimination

3

and harassment of plaintiff, plaintiff was deprived of rights, privileges and immunities secured to

4

her, as alleged by the First and Fourteenth Amendment of the United States Constitution and the

5

laws enacted thereunder in that defendants’ discrimination and harassment deprived plaintiff of

6

liberty and property without due process of law.” This opaque and conclusory statement fails to

7

offer any fact to suggest a policy or custom supporting unconstitutional behavior. Neither does

8

Plaintiff’s statement offer any fact that would support or clarify her allegation of unconstitutional

9

behavior by the County.

10

The Monell standard for local governmental liability in § 1983 cases also applies to

11

claims brought under § 1981. Federation of African Am. Contrs. v. City of Oakland, 96 F.3d

12

1204, 1214 (9th Cir. Cal. 1996). Plaintiff’s claims against the county made pursuant to § 1981

13

must therefore meet the requirements of pleading local governmental liability as discussed above.

14

Because Plaintiff has failed to adequately allege the County’s liability under §§ 1983 and 1981,

15

the County’s motion to dismiss will be granted, without prejudice, as to the civil rights cause of

16

action against it.

17

Against individual named defendants

18

In their motion to dismiss, Defendants argue that Applegate, Vieira, Filgas, and Medina

19

are entitled to qualified immunity because each holds a supervisory position as alleged in the

20

complaint. Such governmental officials are entitled to dismissal on the basis of qualified

21

immunity if, after viewing the facts in the light most favorable to the plaintiff, the facts as alleged

22

do not support a claim that they violated clearly established law. Mitchell v. Forsyth, 472 U.S.

23

511, 528 n.9 (1985). Plaintiff’s allegations under this cause of action contain no facts to indicate

24

what behavior is alleged to have violated her rights. Plaintiff’s allegations are entirely

25

conclusory, and they fail to support a claim that any of the named defendants violated any clearly

26

established law. The court will therefore grant the motion to dismiss, without prejudice, as to the

27
28

8

1

civil rights cause of action against Applegate, Vieira, Filgas, and Medina.

2
3
4

E. Intentional Infliction of Emotional Distress
Under California law, the elements of the tort of intentional infliction of emotional

5

distress are: (1) extreme and outrageous conduct by the defendant with the intent of causing, or

6

reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering

7

severe or extreme emotional distress; and (3) actual and proximate causation of the emotional

8

distress by the defendant’s outrageous conduct. Christensen v. Superior Court, 820 P.2d 181

9

(Cal. 1991). Plaintiff alleges that Defendants engaged in outrageous conduct “[i]n failing to

10

protect plaintiff from the continuing discrimination, harassment, differential treatment and other

11

conduct described herein and terminating plaintiff in retaliation for reporting harassment,

12

discrimination and differential conduct.” Plaintiff further alleges that Defendants “acted with

13

intent to cause, or with reckless disregard for the probability of causing plaintiff to suffer severe

14

emotional distress” and that “plaintiff has suffered and will continue to suffer pain and suffering,

15

and extreme and severe mental anguish and emotional distress.” Court’s Docket, Doc. 1 ¶¶ 43-

16

45. These allegations are a mere parroting of the legal elements of intentional infliction of

17

emotional distress, without any factual allegations to support the bare conclusions.

18

Defendants’ motion to dismiss will therefore be granted, without prejudice, as to the intentional

19

infliction of emotional distress cause of action.

20
21
22

F. Breach of Contract
Plaintiff’s sixth cause of action (listed in the caption as the fifth cause of action) is for

23

breach of contract as to all defendants. To state a cause of action for breach of contract, Plaintiff

24

must plead the contract, her performance of the contract or excuse for non-performance,

25

Defendants’ breach, and the resulting damage. Lortz v. Connell (1969) 273 Cal.App.2d 286,

26

290. In her complaint, Plaintiff does not allege the existence of a contract between herself and

27
28

9

1

Defendants Applegate, Viera, Filgas, and Medina, and therefore a cause of action for breach of

2

contract cannot stand as to these Defendants. As to Defendant County, Plaintiff asserts that she

3

is a member of a “labor organization” and that this organization entered into a “Memorandum of

4

Understanding” (MOU) with County. This alleges not a contract between Plaintiff and County,

5

but between the labor organization and County, the former of whom is not a party to this suit.

6

More importantly, Plaintiff’s description of the MOU lacks the specificity necessary to define a

7

contract. Her complaint must indicate on its face whether the contract is written, oral or implied

8

by conduct (Code Civ. Proc. , 430.10, subd. (g).), which it does not. If the action is based on an

9

alleged breach of a written contract, the terms must be set out verbatim in the complaint or a

10

copy of the written instrument must be attached and incorporated by reference. Wise v. Southern

11

Pacific Co. (1963) 223 Cal.App.2d 50, 59. Plaintiff’s complaint lacks this information. Instead,

12

it makes vague reference to “covenants,” “conditions” and “rights,” none of which is offered with

13

the specificity necessary to constitute a contract as described above.

14

Plaintiff is further prevented from exerting a claim of breach of contract because “[it] is

15

well settled in California that public employment is not held by contract but by statute and that,

16

insofar as the duration of such employment is concerned, no employee has a vested contractual

17

right to continue in employment beyond the time or contrary to the terms and conditions fixed by

18

law.” Miller v. State of California (1977) 18 Cal.3d 808, 813. The public employee’s remedies,

19

then, are limited to those provided by statute or ordinance. Hill v. City of Long Beach (1995) 33

20

Cal.App.4th 1684, 1690. Since Plaintiff was an employee of County, her employment was held

21

by statute, not by contract, and her remedies for breach, if any, were limited to those afforded by

22

statute and County’s rules and policy. Plaintiff’s membership in a labor organization does not

23

alter her status as a public employee, or alter the fact that “[the] terms and conditions of civil

24

service employment are fixed by statute and not by contract.” (Government Code Section 18500,

25

et seq.) The MOU also does not alter her status as a public employee, or vest any contractual

26

rights in that employment so as to support a cause of action for breach of contract. County and

27
28

10

1

the other Defendants cannot be held liable for a breach of contract, or any other cause of action

2

thereunder, because, as stated above, no such contract existed. Defendants’ motion to dismiss

3

will therefore be granted, without prejudice, as to the breach of contract cause of action.

4
5

G. Breach of Implied Covenant of Good Faith and Fair Dealing

6

Plaintiff’s seventh cause of action (listed in the caption as the sixth cause of action) is for

7

breach of the implied covenant of good faith and fair dealing as to all Defendants. As a threshold

8

matter, this claim must be predicated upon the existence of an underlying contract. “An

9

allegation of breach of the implied covenant of good faith and fair dealing is an allegation of

10

breach of an ‘ex contractu’ obligation, namely one arising out of the contract itself. The

11

covenant of good faith is read into contracts in order to protect the express covenants or promises

12

of the contract, not to protect some general public policy interest not directly tied to the

13

contract’s purpose.” Foley v. Interactive Data Corporation (1988) 47 Cal.3d 654, 690. Here

14

Plaintiff must assert in her complaint the existence of such an underlying contract in order for

15

this cause of action to stand. “Since the good faith covenant is an implied term of a contract, the

16

existence of a contractual relationship is thus a prerequisite for any action for breach of the

17

covenant.” Kim v. Regents of the University of California (2000) Cal.App.4th 160, 164 (citing

18

Smith v. City and County of San Francisco (1990) Cal.App.3d 38, 49).

19

As discussed in Section F above, Plaintiff has failed to make a showing that such a

20

contract existed between herself and Defendants as a matter of law. In support of this claim,

21

Plaintiff does allege that she and Defendant County “entered into an oral implied in fact

22

employment agreement upon her hire and during the term of Plaintiff’s employment.”

23

(Complaint, p. 17:5-6) However, even if satisfactorily established, such a contractual relationship

24

would not help Plaintiff because, once again, her employment as a public employee is not held by

25

contract but by statute. This bars any actions for either breach of contract or breach of the

26

implied covenant of good faith and fair dealing. “A California public employee, whether civil

27
28

11

1

service or not, cannot state a cause of action for breach of contract or breach of the implied

2

covenant of good faith and fair dealing arising out of the public employment relationship.”

3

Lachtman v. Regents of the University of California (2007) 158 Cal.App.4th 187, 207 (citing Hill

4

v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690). Defendants’ motion to dismiss will

5

therefore be granted, without prejudice, as to breach of implied covenant of good faith and fair

6

dealing.

7
8
9

H. Negligent Supervision
Plaintiff’s eighth cause of action is for negligent supervision as to all Defendants. As

10

stated in the complaint, the Individual Defendants were supervisory to Plaintiff. (Complaint, p.

11

4:20-21) Although the complaint does not draw a clear distinction, three theories of liability

12

under this cause of action can be inferred: 1) direct liability of County for negligent supervision

13

of the Individual Defendants and other employees in Plaintiff’s workplace (presumably Does 1-

14

25); 2) vicarious liability of County for the Individual Defendants’ negligent supervision of other

15

Individual Defendants and other employees; and 3) direct liability of the Individual Defendants

16

for negligent supervision of the other Individual Defendants and other employees. These theories

17

will be addressed in turn.

18

1) Regarding the direct liability of County for negligent supervision of the Individual

19

Defendants and other employees, Defendants correctly assert that public entities are immune

20

from direct liability. In California all governmental tort liability is dependant upon the existence

21

of an authorizing statute or enactment. (Gov. Code §815, subd. (a), §815.6; Tolan v. State of

22

California (1979) 100 Cal.App.3d 980, 983; Morris v. State of California (1979) 89 Cal.App.3d

23

962, 964; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 798. Government

24

Code section 815, subdivision (a) provides: “Except as otherwise provided by statute: (a) A

25

public entity is not liable for an injury, whether such injury arises out of an act or omission of the

26

public entity or a public employee or any other person.” In a wrongful death action against the

27
28

12

1

County of San Diego, in which plaintiffs alleged negligent supervision, the Court of Appeals,

2

Fourth District, held that, “We find no relevant case law approving a claim for direct liability

3

based on a public entity’s allegedly negligent hiring and supervision practices.” De Villers v.

4

County of San Diego (2007) 156 Cal.App.4th 238, 252. The court further held that, “there is no

5

statutory basis for declaring a governmental entity liable for negligence in its hiring and

6

supervision practices. . .” Id. At p. 253.

7

Here, Plaintiff does not invoke any statute or enactment that would impose direct liability

8

upon County for the negligent supervision of the Individual Defendants and other employees.

9

Instead, her complaint presents a laundry list of rights that County allegedly violated in its

10

employment relationship with Plaintiff, and further presents a laundry list of statutes, codes and

11

constitutional provisions that allegedly bear upon those violations. (Complaint, p. 18: 24-26; 19:

12

1-8) This, however, does not state a cause of action for negligent supervision as dictated by both

13

Government Code section 815, subdivision (a) and California case law. As de Villers makes

14

clear, a specific statute authorizing direct liability of a public entity is required: “In other words,

15

direct tort liability of public entities must be based on a specific statute declaring them to be

16

liable, or at least creating some specific duty of care, and not on the general tort provisions of

17

Civil Code section 1714.” Id. At p. 255. Plaintiff’s complaint does not invoke such a statute,

18

and therefore County cannot be held directly liable for the negligent supervision of the Individual

19

Defendants and other employees.

20

2) Regarding the vicarious liability of County for the Individual Defendants’ negligent

21

supervision of other Individual Defendants and other employees, Plaintiff is on firmer ground.

22

According to the Supreme Court of California, the statutory authority she seeks in order to hold

23

County liable can be found in Govt. Code §815.2(a). Hoff v. Vacaville Unified School Dist.

24

(1998) 19 Ca.4th 925, 932. The statute provides: “A public entity is liable for injury proximately

25

caused by an act or omission of an employee of the public entity within the scope of his

26

employment if the act or omission would, apart from this section, have given rise to a cause of

27
28

13

1

action against that employee or his personal representative.” The court in Hoff expounds:

2

“Through this section, the California Tort Claims Act expressly makes the doctrine of respondeat

3

superior applicable to public employers. (Mary M. V. City of Los Angeles (1991) 54 Cal.3d 202

4

[285 Cal.Rptr. 99, 814 P.2d 1341].) ‘A public entity, as employer, is generally liable for the torts

5

of an employee committed within the scope of employment if the employee is liable. [Citations.]’

6

(Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157 [40 Cal.Rptr.2d 442, 892 P.2d 1185].)

7

Under section 820, subdivision (a), ‘[e]xcept as otherwise provided by statute . . ., a public

8

employee is liable for unjury caused by his act or omission to the same extent as a private

9

person.’ Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the

10

same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for

11

any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private

12

employer (§ 815, subd. (b)).’ (Societa per Azioni de Navigazione Italia v. City of Los Angeles

13

(1982) 31 Cal.3d 446, 463 [183 Cal.Rptr. 51, 645 P.2d 102], fn. Omitted.) [¶] Through these

14

statutes, ‘the Legislature incorporated “general standards of tort liability as the primary basis for

15

respondeat superior liability of public entities . . .” [Citation.]’ (Mary M. V. City of Los Angeles,

16

supra, 54 Cal.3d at pp. 209-210.)” Hoff, supra, 19 Cal.4th at 932-33.

17

Thus Plaintiff may rely upon common law theories of negligence to support her claim.

18

Government Code § 815.2(a) provides the statutory basis upon which County, as a public entity,

19

may be held vicariously liable for any negligence of its employees, including the negligent

20

supervision of Individual Defendants over other Individual Defendants and other employees. In

21

order to state a claim on this basis, Plaintiff must allege that the Individual Defendants knew, or

22

in the exercise of reasonable care should have known, that other Individual Defendants and other

23

employees were unfit and posed a risk to Plaintiff of the sort of harm that occurred. Liability for

24

negligent hiring/supervision occurs when the employer know or should have known that hiring or

25

retaining the employee created a particular risk or hazard and that particular harm materializes.

26

See Doe v. Capital Records (1969) 50 Cal.App.4th 1038, 1054. Similarly, “there can be no

27
28

14

1

liability for negligent supervision in the absence of knowledge by the principal that the agent or

2

servant was a person who could not be trusted to act properly without being supervised.” Juarez

3

v. Boy Scouts of America (2000) 81 Cal.App.4th 377, 395 (quoting Noble v. Sears, Roebuck &

4

Co. (1973) 33 Cal.App.3d 654, 664).

5

Here, Plaintiff has failed to allege the specific elements of this claim as set forth above,

6

namely, that Individual Defendants knew other Individual Defendants or other employees were

7

unfit, or failed to use reasonable care to discover such unfitness. The complaint does not identify

8

the specific principals and agents involved, and does not identify the specific circumstances in

9

which knowledge of unfitness presented itself. Furthermore, the complaint fails to make a

10

connection between Plaintiff’s list of generalized harms (“anxiety, tension, depression,

11

humiliation,” etc.), the specific Defendants who caused them, and the specific supervisory

12

Defendants who knew that these Defendants were causing the harms or had the propensity to

13

cause them. Because of that, Plaintiff fails to state a claim for the vicarious liability of County

14

for the Individual Defendants’ negligent supervision of other Individual Defendants and other

15

employees.

16

3) Regarding the direct liability of the Individual Defendants for negligent supervision of

17

the other Individual Defendants and other employees, Plaintiff must establish the same threshold

18

elements for a claim as set forth in 2) above: Individual Defendants knew that other Individual

19

Defendants or other employees were unfit, or failed to use reasonable care to discover such

20

unfitness. Because the complaint does not meet that threshold, Plaintiff also fails to state a claim

21

under this theory.

22

In summation: because Plaintiff has failed to state a claim under all three theories,

23

Defendants’ motion to dismiss will be therefore granted, without prejudice, as to negligent

24

supervision.

25
26

I. Defamation

27
28

15

1

The Plaintiff’s ninth cause of action is for defamation as to all Defendants. In particular,

2

Plaintiff alleges slander in the form of “untrue statements [made] to other persons in plaintiff’s

3

profession, that plaintiff was dishonest, insubordinate, and had engaged in inexcusable neglect of

4

her duties.” (Complaint, p. 21:10-11) There can be no recovery for defamation without a

5

falsehood. Seelig v. Infinity Broadcasting Corporation (2002) 97 Cal.App.4th 798, 809 (citing

6

Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259). Thus, to state a defamation

7

claim that survives First Amendment challenge, Plaintiff must allege a statement of fact that is

8

provably false. See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20. “Statements do not

9

imply a provably false factual assertion and thus cannot form the basis of a defamation action if

10

they cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” Ibid (citing

11

Hustler Magazine v. Falwell (1988) 485 U.S. 46, 50). Thus, “rhetorical hyperbole,” “vigorous

12

epithet[s],” “lusty and imaginative expression[s] of ... contempt,” and language used “in a loose,

13

figurative sense” have all been accorded constitutional protection. Greenbelt Pub. Assn. v.

14

Bresler (1970) 398 U.S. 6, 14. Here, the alleged statements regarding Plaintiff’s dishonesty,

15

insubordination, and neglect of duty are too vague and unspecific to provide the factual

16

foundation for a defamation claim. In particular, the complaint fails to state actual alleged facts

17

about the Plaintiff as required by Milkovich. A complaint for defamation is defective if it “does

18

not allege either the specific words or the substance of [the] statements ... but instead merely

19

alleges the conclusions of the pleader that statements were made which ‘intimated and suggested’

20

that plaintiff had done certain wrongful things.” Lipman v. Brisbane Elementary Sch. Dist.

21

(1961) 55 Cal.2d 224, 235 (overruled other grounds in Brown v. Kelly Broadcasting Co. (1989)

22

48 Cal.3d 711, 753). Because Plaintiff’s complaint does not provide the specific words or the

23

substance of the alleged statements, Defendants’ motion to dismiss will be granted, without

24

prejudice, as to defamation.

25
26

J. Leave to Amend

27
28

16

1

Rule 8 of the Federal Rules of Civil Procedure directs plaintiffs to make a “short and

2

plain statement of the claim.” Plaintiff’s lengthy complaint, however, continually avoids any

3

straightforward statement of facts. A complaint that frustrates the court and confuses defendants

4

will rarely advance a plaintiff’s cause. Any amended complaint need not contain laundry lists of

5

statutory rights or long-winded conclusory language. Simple and honest factual allegations are

6

the heart of a successful complaint, and such a complaint will best allow all parties and the court

7

to resolve the case efficiently and fairly.

8
9

CONCLUSION AND ORDER

10

For the foregoing reasons, the court GRANTS Defendants’ motion to dismiss the

11

complaint as against them. Plaintiff is granted leave to file an amended complaint, within 30

12

days of entry of this order.

13
14

IT IS SO ORDERED.

15
16

Dated:
0m8i78

October 12, 2012
CHIEF UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28

17