Ortiz et al v. Alvarez et al

Filing 29

ORDER signed by Judge Kimberly J. Mueller on 8/26/2015 DISMISSING the plaintiffs' second claim for negligent infliction of emotional distress with leave to amend; DISMISSING the plaintiffs' ninth claim brought under 42 U.S.C. § 1983 wi th leave to amend; DISMISSING the plaintiffs' twelfth claim for wrongful termination in violation of public policy with prejudice as alleged against Mr. Lara; DISMISSING the plaintiffs' twelfth claim for wrongful termination in violation of public policy with leave to amend as alleged against Youth Centers; ORDERING the plaintiffs to file an amended complaint within twenty-one (21) days; RESOLVING 5 Motion to Dismiss; DENYING 25 Motion to Amend the Complaint as moot. (Michel, G.)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 S. ORTIZ, et al., 12 No. 1:15–cv–00535–KJM–GSA Plaintiffs, 13 v. ORDER 14 GERARDO ALVAREZ, et al., 15 Defendants. 16 17 This matter is before the court on the motion by defendants Israel Lara and Youth 18 Centers of America, Inc. (Youth Centers) to dismiss plaintiffs’ second, ninth, and twelfth claims. 19 (ECF No. 5.) Plaintiffs oppose the motion. (ECF No. 16.) The court submitted the matter 20 without a hearing, and now, as explained below, GRANTS it. 21 I. SUBJECT MATTER JURISDICTION It is axiomatic that the first question a federal court must ask before reaching the 22 23 merits of a case is whether it has the authority to adjudicate the controversy at hand. See Ruhrgas 24 AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (Ginsburg, J.) (“Article III generally requires 25 a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the 26 merits of a case.”). Subject matter limitations on federal courts serve institutional interests: 27 “They keep federal courts within the bounds the Constitution and Congress have prescribed.” Id. 28 ///// 1 1 “For a court to pronounce upon [the merits] when it has no jurisdiction to do so,” “is for a court to 2 act ultra vires.” Id. (internal quotation marks omitted, alteration in original). 3 Section 1331 of Title 28 of the United States Code provides district courts with 4 original jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the 5 United States.” In addition, section 1343 of Title 28 provides federal courts with original 6 jurisdiction over any civil action arising under federal civil rights statutes. One such statute is 7 section 1983 of Title 42 of the United States Code. And it is the statute upon which plaintiffs rely 8 in litigating the instant case in this court. (ECF No. 1.) Accordingly, this court is satisfied of its 9 subject matter jurisdiction and thus proceeds to the merits. 10 11 II. BACKGROUND A. Procedural Background 12 Plaintiffs commenced this action in the Fresno County Superior Court on 13 November 19, 2014. (ECF No. 1, Ex. A.) On April 7, 2015, defendants removed it to the Fresno 14 Division of this District. (ECF No. 1.) On April 14, 2015, defendants Youth Centers and Israel 15 Lara moved to dismiss plaintiffs’ second, ninth, and twelfth claims. (ECF No. 5.) Plaintiffs filed 16 a document titled “Supplement to the Notice of Removal,” which attaches plaintiffs’ opposition 17 to a motion to dismiss filed in the state court. (ECF No. 16.) Defendants have replied. (ECF 18 No. 23.) 19 B. Facts1 20 On April 14, 2015, defendants Youth Centers and Israel Lara moved to dismiss 21 plaintiffs’ second, ninth, and twelfth claims. (ECF No. 5.) Plaintiffs filed a document titled 22 “Supplement to the Notice of Removal” which has attached to it plaintiffs’ opposition to a 23 motion to dismiss filed in the state court. (ECF No. 16.) Defendants have replied. (ECF No. 23.) 24 Plaintiff Juan Sandoval worked as an assistant superintendent for Parlier United 25 School District (PUSD) from July 2013 to December 2014. (Pls.’ First Am. Compl. ¶¶ 2, 16, 26 ECF No. 1-4.) Plaintiff Gudelia Sandoval worked as principal of Chavez Elementary School and 27 28 1 On a motion to dismiss, the court “accept[s] as true all of the factual allegations contained in the complaint.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002). 2 1 was employed by PUSD. (Id. ¶ 3.) Plaintiff Raul Villanueva was the head custodian of Chavez 2 Elementary and was employed by PUSD. (Id. ¶ 4.) Plaintiff Alfonso Padron worked as a 3 counselor for Youth Centers of America, Inc. (Youth Centers) and was employed under a contract 4 with PUSD. (Id. ¶ 5.) Plaintiff Luis Ramos was employed with the Community Union Parenting 5 Center at PUSD. (Id. ¶ 6.) Plaintiff Elida Padron was a retired principal for the PUSD and was 6 under a contract to provide consulting services. (Id. ¶ 7.) Plaintiff Sandra Ortiz worked with 7 Juan Sandoval to review PUSD’s compliance with Title VI of the Civil Rights Act of 1964. (Id. 8 ¶¶ 16–17.) 9 Defendant Gerardo Alvarez was a managerial employee and was the 10 superintendent of PUSD. (Id. ¶ 8.) PUSD is a public education institution for kindergarten 11 through grade 12 in Fresno County, California. (Id. ¶ 9.) The PUSD Board of Trustees is the 12 agent of PUSD. (Id. ¶ 10.) Defendant Youth Centers is a California corporation. (Id. ¶ 11.) 13 Defendant Israel Lara was Youth Centers' agent. (Id. ¶ 12.) Because numerous parties are 14 involved in this case, the court sets forth the complaint’s allegations as to each named individual 15 plaintiff under separate headings. 16 1. Plaintiff Juan Sandoval 17 During the 2013 and 2014 school years, Mr. Sandoval worked with co-plaintiff 18 Ms. Ortiz to review PUSD’s compliance with Title VI of the Civil Rights Act of 1964. (Compl. 19 ¶¶ 16–17.) Mr. Sandoval endorsed Mr. Raul Villanueva for the PUSB. (Id. ¶ 30.) When Ms. 20 Ortiz discovered that PUSD was not in compliance and reported her findings to Mr. Sandoval and 21 defendant Alvarez, Mr. Alvarez demoted her. (Id. ¶ 17.) When Mr. Sandoval told Mr. Alvarez 22 that the decision to demote Ms. Ortiz was unlawful, Mr. Alvarez threatened “to do the same to 23 Mr. Sandoval” if he reported that information to PUSD’s board members. (Id. ¶ 18.) 24 Nonetheless, Mr. Sandoval notified two PUSD board members of Mr. Alvarez’s action against 25 Ms. Ortiz; as a result, plaintiffs allege Mr. Alvarez placed Mr. Sandoval on administrative leave 26 on December 19, 2013. (Id. ¶ 19.) Mr. Sandoval remained on administrative leave until March 27 12, 2014, when the Board directed him to return to his position because Mr. Alvarez did not 28 provide documentation substantiating his decision to place Mr. Sandoval on leave. (Id. ¶ 20.) On 3 1 or about March 14, 2014, Mr. Alvarez asked Mr. Sandoval to recommend that the Board deny 2 another employee’s contract for 2014 and 2015. (Id. ¶ 21.) Mr. Sandoval responded that he 3 could not comply with that directive because “the employee had provided excellent service.” 4 (Id.) Because Mr. Alvarez continued to harass Mr. Sandoval, Mr. Sandoval filed a complaint 5 with PUSD on June 10, 2014. (Id. ¶ 22.) Also on June 19, 2014, Mr. Sandoval was again placed 6 on administrative leave and was eventually terminated on December 8, 2014. (Id. ¶ 23.) 7 2. Plaintiff Gudelia Sandoval 8 Mrs. Gudelia Sandoval is Juan Sandoval’s wife and principal at Chavez 9 Elementary. (Id. ¶ 26.) During the period when Mr. Sandoval was contesting Mr. Alvarez’s 10 actions, Mrs. Sandoval was being accused of “failing to fulfill mandated child abuse reporting 11 duties.” (Id.) She was placed on administrative leave by Mr. Alvarez on October 29, 2014. (Id. 12 ¶ 28.) Plaintiff Raul Villanueva2 13 3 14 Mr. Villanueva was a candidate for the PUSD Board and was endorsed by Mr. 15 Sandoval. (Id. ¶ 30.) In November 2014, Mr. Alvarez asked Mr. Villanueva to meet with him, 16 but when Mr. Villanueva requested that he be accompanied by Mr. Sandoval, Mr. Alvarez then 17 refused to meet with him. (Id.) On the day of the PUSD Board election, Mr. Alvarez assigned 18 Mr. Villanueva to a remote school location. (Id. ¶ 31.) Mr. Villanueva has been on medical leave 19 for stress and anxiety allegedly caused by Mr. Alvarez since November 2014. (Id.) 20 4. Plaintiff Alfonso Padron 21 Mr. Padron was an employee of Youth Centers, providing counseling services for 22 PUSD. (Id. ¶ 34.) In May 2014, Mr. Alvarez discussed with Mr. Padron the possibility of hiring 23 Mr. Padron as a PUSD employee. (Id.) Mr. Alvarez’s brother, Raul Alvarez, a PUSD employee, 24 contacted Mr. Padron “to begin negotiations to start a contract for full time employment.” (Id.) 25 In August 2014, Raul Alvarez told Mr. Padron, “now that we’re handling employment for you, 26 what are you going to do for me?” (Id. ¶ 35.) “Mr. Gerardo Alvarez continued to push his 27 28 2 The complaint is unclear as to what position Mr. Villanueva held at the time, although he must have been a PUSD employee. 4 1 political direction on Mr. Padron as terms of employment.” (Id.) A week before the election, Mr. 2 Padron’s e-mail access for PUSD was disconnected. (Id. ¶ 36.) Gerardo Alvarez contacted Mr. 3 Padron and told him he was “disappointed in him” for using his personal computer to create a 4 flyer, and endorsing a candidate for PUSD board who was opposed to Mr. Alvarez. (Id.) On or 5 about November 3, 2014, Israel Lara notified Mr. Padron that his contract was terminated with 6 PUSD. (Id. ¶ 38.) He was the only person terminated from Youth Centers who was working on a 7 contract with PUSD. (Id.) When Mr. Padron inquired about the reasons behind his termination, 8 Mr. Lara told him “that the contract termination was a personal attack . . . .” (Id. ¶ 39.) Mr. Lara 9 told Mr. Padron that he would not save one employee, only to lose the rest. (Id.) 10 5. Plaintiff Luis Ramos 11 Mr. Luis Ramos was a volunteer with the Parent Resource Center (PRC) in PUSD. 12 (Id. ¶ 40.) On or about October 7, 2014, when Mr. Ramos turned on his computer, he saw a blank 13 screen; he was told that a technician had accessed his computer and copied all of the files on the 14 computer. (Id.) One day, Mr. Alvarez entered the PRC and demanded Mr. Ramos’s keys and 15 computer modem, stating that he had found a campaign flyer on Mr. Ramos’s computer 16 endorsing a board candidate whom Mr. Alvarez did not support. (Id. ¶ 41.) Subsequently, 17 e-mails and flyers were distributed “targeting Mr. Ramos and depicting him in false light and 18 defaming his character . . . .” (Id. ¶ 42.) 19 6. Plaintiff Elida Padron 20 In July 2002, Ms. Elida Padron worked as a vice principal, and in 2005 she 21 became a principal with PUSD. (Id. ¶ 45.) After she retired in August 2012 (id.), Ms. Padron 22 became a consultant with PUSD and obtained a contract for January 2013 to June 2014. (Id. 23 ¶ 46.) She “would then provide [sic] a contract for the following year.” (Id.) That contract, 24 however, was postponed “due to her political affiliations with Mr. Juan Sandoval.” (Id.) At one 25 of the monthly board meetings, when the Board verbally attacked the members of the public, Ms. 26 Padron “shook her head at some of the comments . . . which she found to be unprofessional 27 responses to questions from the public.” (Id. ¶¶ 47–48.) At the end of the meeting, when Ms. 28 ///// 5 1 Padron approached the Board President, he told her that her “body language was not supportive 2 of the Board,” which “could cause some issues in your continued contract.” (Id. ¶ 49.) 3 During the election season, Ms. Padron attended a campaign meeting for Mr. 4 Sandoval. (Id. ¶ 51.) Mr. Alvarez was aware of Ms. Padron’s attendance. (Id.) Some days after 5 the election, Mr. Alvarez confronted Ms. Padron about her political affiliations and asked why 6 she had gone to Mr. Sandoval’s election meeting. (Id.) In July 2014, Ms. Padron submitted her 7 contract for the following year and sought to have it placed on the agenda for the Board’s review. 8 (Id. ¶ 52.) However, Mr. Alvarez did not place it on the agenda. (Id.) Then in October 2014, 9 Ms. Padron again requested that the contract question be placed on the agenda, and as of October 10 6, 2014, the matter was on the agenda. (Id. ¶ 53.) As of October 11, 2014, Mr. Alvarez had 11 removed the matter from the agenda. (Id.) “Ms. Padron’s contract renewal was never placed 12 before the . . . Board for review and she was not paid for the 30 days of work performed for 13 [PUSD] while she was awaiting review of the contract.” (Id.) 14 15 16 17 C. Claims The operative complaint alleges twelve claims: 1. Intentional infliction of emotional distress by all plaintiffs against defendants Mr. Alvarez and PUSD Board of Trustees; 18 2. Negligent infliction of emotional distress by all plaintiffs against all defendants; 19 3. Defamation by Juan Sandoval, Gudelia Sandoval, Raul Villanueva and Luis 20 Ramos against defendants Mr. Alvarez and PUSD Board of Trustees; 21 4. Invasion of privacy based on false light theory by Juan Sandoval, Gudelia 22 Sandoval, Raul Villanueva, Luis Ramos against Mr. Alvarez and PUSD Board 23 of Trustees; 24 5. Invasion of privacy based on publication of private facts theory by Juan 25 Sandoval, Gudelia Sandoval, Raul Villanueva and Luis Ramos against Mr. 26 Alvarez and PUSD Board of Trustee; 27 28 6. Misrepresentation by Alfonso Padron and Elida Padron against defendants Mr. Alvarez and PUSD Board of Trustee; 6 1 7. Intentional interference with prospective economic advantage by plaintiffs 2 Alfonso Padron and Elida Padron against defendants Mr. Alvarez and PUSD 3 Board of Trustees; 4 8. Negligent interference with prospective economic advantage by plaintiffs 5 Alfonso Padron and Elida Padron against defendants Mr. Alvarez and PUSD 6 Board of Trustees; 7 9. A claim under 42 U.S.C. § 1983 by all plaintiffs against defendants Mr. 8 Alvarez, PUSD Board of Trustees, Edward Lucero, Israel Lara, and Youth 9 Centers; 10 10. A claim under California’s Bane Act, Cal. Civ. Code section 52.1, by all 11 plaintiffs against defendants Mr. Alvarez and PUSD Board of Trustees; 12 11. A claim under California Labor Code section 1102.5, by plaintiff Juan Sandoval 13 against defendants Mr. Alvarez, PUSD Board of Trustees, and PUSD; and 14 12. Wrongful termination in violation of public policy by plaintiffs Juan Sandoval, 15 Gudelia Sandoval, Elida Padron, Alfonso Padron, Luis Ramos against all 16 defendants. 17 (ECF No. 1-4.) 18 III. LEGAL STANDARD 19 Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a 20 complaint for “failure to state a claim upon which relief can be granted.” A court may dismiss 21 “based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a 22 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 23 Although a complaint need contain only “a short and plain statement of the claim 24 showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), to survive a motion to 25 dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a claim 26 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 27 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 28 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 7 1 conclusions’ or ‘a formulaic recitation of the elements of a cause of action . . . .’” Id. (quoting 2 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 3 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 4 its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the 5 interplay between the factual allegations of the complaint and the dispositive issues of law in the 6 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 7 In making this context-specific evaluation, this court “must presume all factual 8 allegations of the complaint to be true and draw all reasonable inferences in favor of the 9 nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). This rule 10 does not apply to “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 11 U.S. 265, 286 (1986), quoted in Twombly, 550 U.S. at 555, to “allegations that contradict matters 12 properly subject to judicial notice,” or to material attached to or incorporated by reference into the 13 complaint, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 14 IV. DISCUSSION 15 Defendants Youth Centers and Israel Lara move to dismiss plaintiffs’ second, 16 ninth, and twelfth claims. (ECF No. 5-1.) In essence, plaintiffs request denial of defendants’ 17 motion. (ECF No. 16.) Plaintiffs’ opposition does not make any substantive arguments for denial 18 of defendants’ motion. Nonetheless, in the interest of justice, this court will “examine the 19 complaint itself to see whether it is formally sufficient to state a claim.” Vega-Encarnacion v. 20 Babilonia, 344 F.3d 37, 41 (1st Cir. 2003). In so doing, the court finds unpersuasive defendants’ 21 argument that the court should dismiss plaintiffs’ complaint for lack of proper opposition. (ECF 22 No. 23.) 23 24 25 26 A. Plaintiffs’ Second Claim: Negligent Infliction of Emotional Distress Defendants argue the complaint does not allege the required elements of a negligence claim. (ECF No. 5-1 at 4–5.) The negligent causing of emotional distress is not an independent tort, but is a 27 species of negligence. See Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 28 588 (1989). Accordingly, the traditional elements for negligence apply with equal force. Id. 8 1 These are: (1) a duty of care on the defendant’s part; (2) the defendant’s breach of that duty of 2 care; (3) causation; and (4) harm. Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 3 (1998). 4 In “direct victim” cases, as in this case, California allows recovery even in the 5 absence of impact and physical injury. Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 919 6 (1980) (“emotional injury may be fully as severe and debilitating as physical harm, and is no less 7 deserving of redress,” therefore, “the refusal to recognize a cause of action for negligently 8 inflicted injury in the absence of some physical consequence is . . . an anachronism”). 9 In California, “courts will generally enforce the breach of a contractual promise 10 through contract law, except when the actions that constitute the breach violate a social policy 11 that merits the imposition of tort remedies.” Erlich v. Menezes, 21 Cal. 4th 543, 552 (1999). 12 Even then, “a preexisting contractual relationship, without more, will not support a recovery for 13 mental suffering where the defendant’s tortious conduct has resulted only in economic injury to 14 the plaintiff.” Id. at 554–55; Mercado v. Leong, 43 Cal. App. 4th 317, 324 (1996) (noting “a 15 breach of the duty must threaten physical injury, not simply damage to property or financial 16 interests”). Moreover, “where the conduct alleged is intentional, it cannot be used as a basis for a 17 negligent infliction of emotional distress claim.” Edwards v. U.S. Fid. & Guar. Co., 848 F. Supp. 18 1460, 1466 (N.D. Cal. 1994). 19 Here, plaintiff Alfonso Padron was an employee of Youth Centers providing 20 parenting and counseling services for PUSD. (Compl. ¶ 34.) On November 3, 2014, Israel Lara 21 notified Mr. Padron his contract with PUSD was terminated. (Id. ¶ 38.) His contract was the 22 only contract terminated. (Id.) When Mr. Padron inquired about the decision to terminate, Mr. 23 Lara told him the “termination was a personal attack on Mr. Padron.” (Id. ¶ 39.) Further, Mr. 24 Lara did not try to save Mr. Padron’s contract, stating, “why would [he] save one employee and 25 lose 50.” (Id.) From these allegations, it is apparent plaintiff’s injury stems from a contractual 26 relationship, and the complaint alleges economic harm without any physical injury. The 27 complaint is devoid of any allegations of physical harm caused by Youth Centers’ conduct and of 28 allegations showing an exception to the general requirement of physical harm. Moreover, as 9 1 alleged, Mr. Lara’s conduct in terminating Mr. Padron’s contract was intentional; plaintiffs do not 2 plead any negligence in Mr. Lara’s conduct. 3 4 The court GRANTS defendants’ motion. Plaintiffs are granted leave to amend if they can do so consonant with Rule 11. 5 B. Plaintiffs’ Ninth Claim: 42 U.S.C. § 1983 6 Section 1983 provides, in pertinent part: 7 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 8 9 10 11 12 42 U.S.C. § 1983 13 Congress enacted § 1983 under its power provided in section 5 of the Fourteenth 14 Amendment to pass “appropriate legislation” enforcing the Fourteenth Amendment. Crumpton v. 15 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Section 1983 does not serve as an independent 16 source of substantive rights; rather it provides “a method for vindicating federal rights elsewhere 17 conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). The Ninth Circuit has described 18 the requirements of a § 1983 claim as: “(1) a violation of rights protected by the Constitution or 19 created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under 20 color of state law.” Crumpton, 947 F.2d at 1420. “[Section] 1983 . . . contains no state-of-mind 21 requirement independent of that necessary to state a violation of the underlying constitutional 22 right.” Daniels v. Williams, 474 U.S. 327, 329–30 (1986). 23 On a fundamental level, plaintiffs’ ninth claim does not specify what federal rights 24 they are seeking to vindicate against defendants Youth Centers and Mr. Lara. In addition, the 25 ninth claim does not allege Youth Centers and Mr. Lara were acting under color of state law in 26 terminating the contract at issue. The court GRANTS defendants’ motion, while giving plaintiffs 27 leave to amend if they can do so consonant with Rule 11. 28 ///// 10 1 2 C. Plaintiff’s Twelfth Claim: Wrongful Termination in Violation of Public Policy Under California law, “an employer’s traditional broad authority to discharge an 3 at-will employee may be limited . . . by considerations of public policy.” Tameny v. Atl. Richfield 4 Co., 27 Cal. 3d 167, 172 (1980) (quoting Petermann v. Int’l Bhd. of Teamsters, Chauffeurs, 5 Warehousemen & Helpers of Am., Local 396, 174 Cal. App. 2d 184, 188 (1959)). To establish a 6 claim for wrongful termination in violation of public policy, a plaintiff must prove the following: 7 (1) an employer-employee relationship; (2) termination of the employee’s employment; (3) the 8 termination violated public policy; and (4) the termination caused plaintiff harm. Haney v. 9 Aramark Unif. Servs., Inc., 121 Cal. App. 4th 623, 637 (2004). Here, only Mr. Padron, Mr. Lara, 10 and Youth Centers are implicated by the instant motion. 11 1. 12 Mr. Padron’s claim cannot proceed against his alleged supervisor Mr. Lara. “As a Israel Lara 13 matter of law, only an employer can be liable for the tort of wrongful discharge in violation of 14 public policy.” Khajavi v. Feather River Anesthesia Med. Grp., 84 Cal. App. 4th 32, 53 (2000). 15 An individual supervisor cannot be sued for wrongful discharge in violation of public policy. 16 Reno v. Baird, 18 Cal. 4th 640, 664 (1998); Bruin v. Mills Coll., No. 06-05209, 2007 WL 419783, 17 at *8 (N.D. Cal. Feb. 6, 2007) (noting “the Court of Appeal of California unequivocally holds that 18 mere supervisors cannot be held liable for non-FEHA based Tameny claims”). 19 20 Accordingly, the court GRANTS defendants’ motion with prejudice to the extent plaintiffs seek to bring a Tameny claim against Mr. Lara. 21 2. 22 Mr. Padron’s Tameny claim against Youth Centers cannot proceed as pled because Youth Centers 23 the allegations do not establish Youth Centers took adverse action against Mr. Padron. The 24 relevant allegation states merely that when Mr. Lara informed Mr. Padron that PUSD had 25 terminated Mr. Padron’s contract, Mr. Padron asked why Youth Centers “failed to intervene on 26 his behalf . . . .” (Compl. ¶ 39.) It appears, therefore, the adverse employment action plaintiff 27 Padron seeks to attribute to Youth Centers is a “failure to intervene.” The allegations, however, 28 are too conclusory to put Youth Centers on notice of the alleged misconduct attributed to it. It is 11 1 not the province of this court to guess what plaintiffs allege. Accordingly, the court GRANTS 2 defendants’ motion to dismiss Mr. Padron’s twelfth claim against Youth Centers. Mr. Padron is 3 granted leave to amend if he can do so consonant with Rule 11. 4 V. CONCLUSION 5 For the foregoing reasons, the court orders as follows: 6 1. Plaintiffs’ second claim for negligent infliction of emotional distress is 7 8 9 10 11 12 13 14 15 DISMISSED with leave to amend. 2. Plaintiffs’ ninth claim brought under 42 U.S.C. § 1983 is DISMISSED with leave to amend. 3. Plaintiffs’ twelfth claim for wrongful termination in violation of public policy is DISMISSED with prejudice as alleged against Mr. Lara. 4. Plaintiffs’ twelfth claim for wrongful termination in violation of public policy is DISMISSED with leave to amend as alleged against Youth Centers. 5. Plaintiffs’ amended complaint is due within twenty-one (21) days of the date of this order. 16 6. This order resolves ECF No. 5. 17 7. Plaintiffs’ motion to amend the complaint (ECF No. 25) is denied as MOOT. 18 IT IS SO ORDERED. 19 DATED: August 26, 2015. 20 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 12

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?