Arce v. Valley Prune, LLC et al

Filing 31

ORDER signed by Judge John A. Mendez on 3/12/2014 ORDERING 26 the Court GRANTS in PART and DENIES in PART Plaintiffs' Motion for Leave to Amend. Plaintiffs must file their Amended Complaint within twenty (20) days from the date of this Order. Defendants should file their responsive pleading within twenty (20) days from the date the Amended Complaint is filed. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDGAR ARCE and CESAR
RODRIGUEZ, on behalf of
themselves and all others
similarly situated,

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Plaintiffs,
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No.

12-cv-02772 JAM-CMK

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR LEAVE TO AMEND

v.
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VALLEY PRUNE, LLC; TAYLOR
BROTHERS FARMS, INC.; and
DOES 1-20,

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Defendants.
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This matter is before the Court on Plaintiffs’ Edgar Arce

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and Cesar Rodriguez (collectively “Plaintiffs”) Motion for Leave

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to File a Second Amended Complaint (“SAC”) (Doc. #18).

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Defendants Valley Prune, LLC, and Taylor Brothers Farms

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(collectively “Defendants”) oppose the motion (Doc. #27) and

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Plaintiffs replied (Doc. #29). 1

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Plaintiffs’ motion is granted in part and denied in part.

For the following reasons,

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for February 19, 2014.
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I.

BACKGROUND

Plaintiff Edgar Arce filed this action on November 8, 2012,

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against Defendants (Doc. #1).

On August 26, 2013, pursuant to a

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stipulation, Plaintiff Edgar Arce filed a First Amended Complaint

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(“FAC”), the operative complaint, which added Cesar Rodriguez as

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a Plaintiff (Doc. #20).

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of action on behalf of themselves and all other similarly

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situated individuals: (1) violation of Title VII of the Civil

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Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and

In the FAC, Plaintiffs allege two causes

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(2) violation of the California Fair Employment and Housing Act

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(“FEHA”), Cal. Gov’t Code § 12940 et seq.

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Plaintiffs were employed by Defendants and were allegedly

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subject to a hostile work environment, which included harassing

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verbal conduct by their direct supervisor, Timothy Molarius (“Mr.

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Molarius”).

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received a declaration by Mr. Molarius describing the work

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environment from his hiring in 2002 until his termination on May

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1, 2012.

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2014, Plaintiffs moved for leave to amend their complaint in

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order to expand the class period for their Title VII and FEHA

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claims (Doc. #26).

FAC ¶¶ 18-25.

On November 20, 2013, Plaintiffs

See Molarius Decl. ¶ 3, Doc. #26-10.

On January 21,

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II.

OPINION

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A.

Legal Standard

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Under Federal Rule of Civil Procedure 15(a)(2), a party may

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amend its pleading only with the opposing party’s written consent

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or the court’s leave.

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prescribes that “[t]he court should freely give leave when

Fed. R. Civ. P. 15(a)(2).

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Rule 15(a)(2)

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justice so requires.”

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applied with extreme liberality.’”

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Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal

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citations omitted).

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the propriety of a motion for leave to amend.

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faith, undue delay, prejudice to the opposing party, and futility

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of amendment.”

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(9th Cir. 1987) (citing United States v. Webb, 655 F.2d 977, 979

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(9th Cir. 1981)).

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B.

Id.

“This [leave] policy is ‘to be
Eminence Capital, LLC v.

“Four factors are commonly used to determine
These are: bad

DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186

Analysis
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Class Period pursuant to Title VII

Plaintiffs request leave to amend the class definition in

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order to expand the class period.

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in this case is as follows:

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The current class definition

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All employees of Mexican heritage who were employed by
Defendants within 300 days of Plaintiff Edgar Arce’s
DFEH filing, August 10, 2012.

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Plaintiffs’ proposed definition is the following:

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All employees of Mexican national origin who were
employed by Defendants from January 1, 2004 through
May 1, 2012 at Defendants’ 4075 Oren Avenue, Corning,
CA 96021 location.

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They argue that the class definition should start on January

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1, 2004, because that date is the earliest date Plaintiffs were

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exposed to Defendants’ unlawful workplace practice and because

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Defendants waived their right to assert statute of limitations

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defenses for the putative class’s Title VII claims by

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“affirmatively perpetuating” the hostile work environment at

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Valley Prune.

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1429, modified, 742 F.2d 520 (9th Cir. 1984), Defendants argue

Citing Domingo v. New England Fish Co., 727 F.2d

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that Plaintiffs’ proposed amendment is futile because the

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expanded class includes individuals whose claims are time-barred.

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In their reply, Plaintiffs argue that the Ninth Circuit in

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Douglas v. California Department of Youth Authority, 271 F.3d 812

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(9th Cir. 2001), retreated from the holding in Domingo. As

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described below, the Court finds Plaintiffs’ argument

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unpersuasive.

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“Discrimination claims under Title VII ordinarily must be
filed with the EEOC within 180 days of the date on which the

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alleged discriminatory practice occurred.”

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Hotel & Casino, Inc., 186 F.3d 1172, 1174 (9th Cir. 1999)

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(citing 42 U.S.C. § 2000e-5(e)(1)).

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first ‘institutes proceedings’ with a state agency that enforces

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its own discrimination laws-a so-called ‘deferral’ state-then

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the period for filing claims with the EEOC is extended to 300

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days.”

Id. (citations omitted).

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state.

Josephs v. Pac. Bell, 443 F.3d 1050, 1054 (9th Cir.

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2006).

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Laquaglia v. Rio

“However, if the claimant

California is a deferral

In Domingo, the Ninth Circuit considered a class action

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suit against a cannery operator involving allegations of

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discrimination on the basis of race in hiring and promotions.

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The plaintiffs argued that “if a continuing violation has been

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demonstrated a class member should be able to recover regardless

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of when the class member was employed.”

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court held that the defendants’ conduct constituted a continuing

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violation of Title VII, but rejected the plaintiffs’ argument

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because “each class member must demonstrate, by fact of

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employment or otherwise, that he or she had been discriminated
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727 F.2d at 1443.

The

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against during the limitation period or was a member of a group

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exposed to discrimination during that time.”

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Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.

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1982) (“If in those cases the victims can show no way in which

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the company policy had an impact on them within the limitations

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period, the continuing violation doctrine is of no assistance or

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applicability, because mere ‘continuing impact from past

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violations is not actionable.

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opinion modified on denial of reh’g, 79-4110, 1982 WL 308873

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Id.; see also

Continuing violations are.’”)

(9th Cir. June 11, 2082).
Relying in part on Domingo, the Ninth Circuit held in

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Douglas, 271 F.3d at 822, “The continuing violations doctrine

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extends the accrual of a claim if a continuing system of

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discrimination violates an individual’s rights up to a point in

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time that falls within the applicable limitations period.”

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The court further explained that “the critical inquiry is whether

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in this case, [the plaintiff] has introduced facts, which if

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viewed in the light most favorable to him, raise material

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questions about whether he was ‘exposed’ to [the defendant’s]

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discriminatory policy during the period of limitations.”

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824 (emphasis added).

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Id.

Id. at

Therefore, Douglas is consistent with Domingo because both

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cases require a plaintiff to be exposed to the discriminatory

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policy during the period of limitations.

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expanding the class definition to beyond 300 days would permit

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people who were not exposed to the policy within the period of

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limitations to be part of the class, which is impermissible under

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Domingo.

In the case at bar,

Continuing violation theory, “does not extend the
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appropriate limitation period, however; it merely allows

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discriminatory conduct outside the limitations period to be used

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for evidentiary purposes.”

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92-1962 MHP, 1994 WL 515347, at *5 (N.D. Cal. May 18, 1994)

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(citing Domingo, 727 F.2d at 1443).

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Adams v. Pinole Point Steel Co., C-

Plaintiff also relies on Havens Realty Corp. v. Coleman, 455

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U.S. 363 (1982), and several district court cases.

However,

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Havens interprets the Fair Housing Act, not Title VII.

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except for E.E.O.C. v. Kovacevich “5” Farms, CV-F-06-165 OWW/TAG,

Further,

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2007 WL 1174444 (E.D. Cal. Apr. 19, 2007), the district court

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cases cited by Plaintiffs are either out-of-circuit cases or do

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not take Domingo into consideration.

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defendant argued that only women who could prove that they were

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not hired because of their gender and those who were deterred

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from applying for an available position within the 300-day period

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are eligible to recover damages.

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factual development through discovery was needed and therefore,

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it denied the defendant’s motion on the issue without prejudice.

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Id. at *19.

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misplaced since the court did not rule on the issue.

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Further, in Kovacevich, the

Id. at *2.

The court held that

Therefore, plaintiffs reliance on this case is

Finally, Plaintiffs argue that Defendants waived their right

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to assert a statute of limitations defense for the putative

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class’s Title VII claims by “affirmatively perpetuating” the

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hostile work environment at Valley Prune.

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specifically address this argument in their opposition.

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Plaintiffs cite E.E.O.C. v. Home Insurance Co., 553 F. Supp. 704,

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713 (S.D.N.Y. 1982), for the proposition that “the continued

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nature of the policy represents its ‘affirmative perpetuation,’
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Defendants do not

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. . . and is susceptible to characterization as a conscious

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waiver of limitations period protection.”

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internal quotation marks omitted).

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Insurance Co. held that, “because defendant maintained the

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allegedly unlawful policy throughout the terminations being sued

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upon, the relevant date for each employee is his date of

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termination; for the complaint to be deemed timely, it would have

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to have been filed within the applicable limitations period as

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measured by that date.”

Id. (citations and

Id. at 714.

However, the court in Home

Therefore, even if a

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defendant affirmatively perpetuates a hostile work environment,

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the limitations period is not eliminated.

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Accordingly, the Court finds that the class definition

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cannot be expanded to start on January 1, 2004, under Title VII

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and denies Plaintiffs’ request to amend this claim.

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the Court acknowledges but need not address Defendants’ arguments

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of undue delay and bath faith as to the Title VII claim.

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2.

In addition,

FEHA Class Period

Plaintiffs also request leave to amend the class definition

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under FEHA in order to expand the class period.

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that the FEHA class period should be extended to either (1) the

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earliest date Plaintiffs were exposed to Defendants’ unlawful

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workplace practice, January 1, 2004; (2) three years prior to

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Plaintiff Arce’s DFEH filing; or (3) one year prior to Plaintiff

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Arce’s DFEH filing.

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Plaintiffs argue

First, Plaintiffs argue that because there is no authority

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on the issue, the Court should look to federal authority in order

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to extend the class period to the earliest date Plaintiffs were

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exposed to Defendants’ unlawful workplace practice, January 1,
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2004.

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Circuit authority, Plaintiffs must show that they were exposed to

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the policy during the limitations period.

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Saticoy Lemon Ass’n, 747 F. Supp. 1373, 1386 (C.D. Cal. 1990)

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(“In order to avoid exposing an employer to an open-ended period

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of liability, it is appropriate that a plaintiff show some

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application of the illegal policy to him within the 300 days

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preceding the filing of his complaint.”) Therefore, the class

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period should not extend to January 1, 2004.

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However, for the reasons mentioned above, under Ninth

See Sandoval v.

Second, Plaintiffs argue that the class definition should be

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extended to three years based on Vaughn v. Gen. Mills

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Restaurants, Inc., C-94-0076 MHP, 1994 WL 589449, at *3 (N.D.

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Cal. Oct. 19, 1994).

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limitations period.

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be recovered under FEHA for a period of three years prior to the

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date that a complaint is filed with the DFEH” even though the

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limitations period is one year.

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Plaintiffs argue that Vaughn’s holding is not limited to back

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pay, the court in Vaughn made clear that the issue before it was

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“whether [the plaintiff] may seek back pay damages for more than

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the one-year period prior to his filing of a DFEH complaint.”

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Id. at *1.

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three years prior to Plaintiff Arce’s DFEH filing.

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However, Vaughn applied to back pay not the
In Vaughn, the court held “that back pay may

Id.

Although in their reply

Therefore, the class period should not extend to

Finally, Plaintiffs argue that the FEHA class period should

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be extended to one year prior to Plaintiff Arce’s DFEH filing.

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Courts have held that the statute of limitations and therefore,

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the temporal scope of a class action under FEHA is one year.

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Cal. Gov’t Code § 12960(d)(providing that complaints must be
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See

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filed within “one year from the date upon which the alleged

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unlawful practice or refusal to cooperate occurred”); Alch v.

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Superior Court, 122 Cal.App.4th 339, 367-68 (2004) (“The

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fundamental issue to be decided is whether FEHA’s one-year

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statute of limitations prevents non-applicant writers (deterred

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applicants) from prosecuting a claim . . . .”); Adams v. Pinole

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Point Steel Co., C-92-1962 MHP, 1994 WL 515347, at *5 (N.D. Cal.

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May 18, 1994) (“Therefore, the court holds that the temporal

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scope for . . . FEHA claims is one year.”)

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Therefore, the Court finds that the FEHA class period may be

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extended to one year.

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request to amend their FEHA claim.

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3.

Accordingly, the Court grants Plaintiffs’

Undue Delay and Bad Faith

Defendants oppose Plaintiffs’ request to extend the FEHA

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class period to one year because of undue delay and bad faith.

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Opp. at 9.

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previously advised Plaintiffs about Domingo, Plaintiffs took five

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months to file this motion, and no new facts have arisen.

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Plaintiffs argue that they filed this motion only two months

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after they received Mr. Molarius’s declaration and therefore

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there is no undue delay or bad faith.

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that this claim is questionable because “[P]laintiffs are not

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proposing to amend the FAC to include any new factual allegations

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based on Mr. Molarius’s declaration or allege any new causes of

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action.”

Specifically, Defendants argue that they had

However, Defendants argue

Opp. at 7.

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Although Plaintiffs do not propose any new factual

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allegations based on Mr. Molarius’s declaration, Plaintiffs’

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argument to expand the class definition both under Title VII and
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FEHA is based on the declaration because it supports the

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allegation that Defendants encouraged or permitted a

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discriminatory work-place policy.

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Molarius’s declaration gave rise to new facts and Plaintiffs only

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delayed two months, which, the Court finds is a reasonable delay.

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See mot. at 1.

Therefore, Mr.

In addition, Defendants argue that they advised Plaintiffs

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about Domingo and that expanding the class definition to start on

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January 1, 2004, would increase the class from about 18 to about

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300-400 individuals.

However, these arguments do not apply to

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the FEHA claim because Domingo does not discuss FEHA and the FEHA

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class period may be extended to only one year prior to Plaintiff

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Arce’s DFEH filing.

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Accordingly, the Court finds that there is no undue delay or
bad faith as to the FEHA claim.

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III. ORDER
For the reasons set forth above, the Court GRANTS in part

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and DENIES in part Plaintiffs’ Motion for Leave to Amend.

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Plaintiffs must file their Amended Complaint within twenty (20)

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days from the date of this Order.

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responsive pleading within twenty (20) days from the date the

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Amended Complaint is filed.

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IT IS SO ORDERED.

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Dated:

March 12, 2014

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Defendants should file their