Elowson v. JEA Senior Living et al

Filing 21

ORDER signed by Judge John A. Mendez on 05/22/15 ORDERING that the 11 , 12 Motions to Dismiss are GRANTED IN PART and DENIED IN PART as follows: Court GRANTS the Erwins' Motion to Dismiss with leave to amend. The Court DENIES defendants� 39; Motion to Dismiss plaintiff's causes of action for conspiracy and defamation. The Court DENIES defendants' Motion to Dismiss the IIED claim to the extent it is based on gender discrimination, but GRANTS the motion to the extent the IIED claim is based on the various other forms of misconduct alleged in the FAC. Due to the 20 suspension of plaintiff's counsel until 06/25/15, plaintiff has until 07/06/15 to file an amended complaint. If any amended complaint is filed, defendants' responsive pleading is due within 20 days thereafter. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LESLIE ELOWSON,

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2:14-cv-02559-JAM-KJN

Plaintiff,

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No.

v.
JEA SENIOR LIVING, a
Washington state corporation;
JOHN MCNEIL; JERRY ERWIN;
CODY ERWIN, and DOES 1-50,
inclusive,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTIONS TO DISMISS

Defendants.

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Defendants Cody Erwin and Jerry Erwin (collectively “the

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Erwins”) filed a motion to dismiss (“the Erwins’ Motion to

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Dismiss”) (Doc. #11) pursuant to Federal Rule of Civil Procedure

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12(b)(2).

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John McNeil (“McNeil”) and the Erwins (collectively “Defendants”)

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filed a joint motion to dismiss (Doc. #12) (“Defendants’ Motion

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to Dismiss”) pursuant to Federal Rule of Civil Procedure

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12(b)(6). 1

In addition, Defendants JEA Senior Living (“JEA”),

Plaintiff Leslie Elowson (“Plaintiff”) filed a single

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These motions were determined to be suitable for decision
without oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for April 22, 2015.
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opposition to both motions (Doc. #17), and Defendants filed a

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single reply (Doc. #18).

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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

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JEA is a Washington state corporation that operated the

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Empire Ranch Alzheimer’s Special Care Center where Plaintiff was

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employed as an administrator.

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executives of JEA and direct supervisors of Plaintiff.

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McNeil and the Erwins were

Due to a variety of medical conditions and complications,

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Plaintiff was forced to take medical leave on several occasions.

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She alleges that as a result, Defendants conspired to, and did in

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fact, compel her to leave her job in violation of her

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constitutional rights.

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was subjected to harassment, discrimination and retaliatory

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actions on the basis of her gender, medical conditions, and

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lawful taking of protected leave.

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position, she alleges Defendants made knowingly false and

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damaging statements about her to third parties, including

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defamatory statements regarding Plaintiff’s professional

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qualifications and abilities.

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Over the relevant time period, Plaintiff

After being forced from her

Plaintiff’s First Amended Complaint (Doc. #10) (“FAC”)

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contains three causes of action: (1) conspiracy to violate her

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civil rights pursuant to 42 U.S.C. § 1985(3) (“§ 1985(3)”); (2)

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intentional infliction of emotional distress; and

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(3) defamation.

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II.

OPINION

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A.

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The Erwins’ Motion to Dismiss contends the Court lacks

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The Erwins’ Motion to Dismiss

personal jurisdiction over Cody and Jerry Erwin.
A plaintiff bears the burden of establishing personal

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jurisdiction over a defendant.

Boschetto v. Hansing, 539 F.3d

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1011, 1015 (9th Cir. 2008).

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court must comport with Rule 4(k) of the Federal Rules of Civil

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Procedure, as well as with federal due process.

Personal jurisdiction in federal

Schwarzenegger

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v. Fred Martin Motor Co., 374 F.3d 797, 800–01 (9th Cir. 2004).

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The long-arm statute of the state in which the district court

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sits must be applied when determining whether the court has

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jurisdiction over out-of-state defendants.

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Fed. R. Civ. P. 4(k)(1)(A)).

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coextensive with federal due process.

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Id. at 800 (citing

The California long-arm statute is
Id. at 800–01.

The overarching framework for personal jurisdiction asks

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whether the defendant has minimum contacts with the forum state

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such that the exercise of jurisdiction “does not offend

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traditional notions of fair play and substantial justice.”

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Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see also

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Boschetto, 539 F.3d at 1015-16.

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prima facie showing of jurisdictional facts to avoid the granting

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of a motion to dismiss.

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v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir.

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1995).

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must be taken as true, and conflicts between the facts contained

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in the parties' affidavits must be resolved in [the plaintiff's]

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favor.”

Int'l

A plaintiff need only make a

Boschetto, 539 F.3d at 1015-16; Caruth

“Uncontroverted allegations in [a plaintiff's] complaint

Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d
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1124, 1127 (9th Cir. 2010).
However, “the court need not consider merely conclusory

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claims, or legal conclusions in the complaint as establishing

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jurisdiction.”

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Supp. 2d 977, 988 (E.D. Cal. 2012).

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facts, which if true, would establish personal jurisdiction over

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defendants.”

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GmbH, 354 F.3d 857, 862 (9th Cir. 2003)).

NuCal Foods, Inc. v. Quality Egg LLC, 887 F.
The plaintiff “must show

Id. (citing Mattel, Inc. v. Greiner and Hausser

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Personal jurisdiction may be either general or specific.

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See Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082,

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1086 (9th Cir. 2000).

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when a defendant's contacts with a state are “substantial” or

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“continuous and systematic” such that the defendant “can be haled

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into court in that state in any action, even if the action is

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unrelated to those contacts.”

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establishing general jurisdiction is fairly high, and requires

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that the defendant's contacts be of the sort that approximate

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physical presence.”

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General jurisdiction may be established

Id.

“The standard for

Id.

The Ninth Circuit has developed a three-prong test for
analyzing a claim of specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct
his activities or consummate some transaction with the
forum or resident thereof; or perform some act by which
he purposefully avails himself of the privilege of
conducting activities in the forum, thereby invoking
the benefits and protections of its laws;

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(2) the claim must be one which arises out of or
relates to the defendant's forum-related activities;
and

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(3) the exercise of jurisdiction must comport with fair
play and substantial justice, i.e. it must be
reasonable.

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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d at 802 (quoting

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Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)).

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The Erwins contend Plaintiff has not adequately alleged the

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Court has either general or specific personal jurisdiction over

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them.

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arguments by citing to paragraph six of the FAC.

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that paragraph relevant to the issue of personal jurisdiction

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states:

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In the Opposition, Plaintiff responds to Defendants’
The portion of

Defendants McNEIL, J. ERWIN, and C. ERWIN had frequent,
substantial and systematic contacts with Plaintiff, as
ERASCC’s General Manager, both in this jurisdiction and
in Washington state. Defendants (McNEIL in particular)
made frequent, substantial visits to California to meet
with Plaintiff and members of her staff, evaluate
ERASCC’s operations, and also to oversee other
businesses owned and/or operated by Defendants J. ERWIN
and C. ERWIN. Defendants’ purposeful, repeated and
substantial contacts with this jurisdiction and
availing of the laws, regulations, and protections of
this jurisdiction make it proper for this Court to
exercise personal jurisdiction over Defendants McNEIL,
J. ERWIN, and C. ERWIN.

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FAC ¶ 6.

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the requisite minimum contacts for [the Erwins] such that

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specific personal jurisdiction is [] proper.”

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(emphasis added).

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arguing the Court has general jurisdiction over the Erwins even

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though the language quoted from the FAC clearly blends the

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standards for general and specific personal jurisdiction.

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Plaintiff contends this paragraph “sufficiently pleads

Opp. at pp. 8-9

The Court thus assumes Plaintiff is not

As indicated, the Court is not required to accept

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“conclusory claims” or “legal conclusions” in determining whether

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a plaintiff has met her burden in establishing personal

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jurisdiction.

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Plaintiff consists of conclusory claims and legal conclusions,

Since the portion of the FAC relied on by

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the Court finds Plaintiff has failed to meet her burden in

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establishing this Court’s personal jurisdiction over the Erwins

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under the Ninth Circuit’s three-prong test.

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Court is not convinced amendment would be futile, the Erwins’

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Motion to Dismiss is granted with leave to amend.

However, because the

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B.

Defendants’ Motion to Dismiss

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Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6)

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challenges each of Plaintiff’s causes of action.

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discussed in turn.

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1.

They will be

November 2012 Release

Defendants first argue that all of Plaintiff’s claims are

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barred by a November 2012 release, entitled “Severance, Release

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and Confidentiality Agreement” (“the Release”), which Plaintiff

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admits was signed by her.

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Plaintiff challenges the enforceability of the Release,

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contending “she was not possessed of all her faculties and was in

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an untenable situation when Defendants ordered her to sign the

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Release.”

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MTD at pp. 3-4.

In her Opposition,

Opp. at pp. 10-11.

The actual Release was offered by Defendants in an attached

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request for judicial notice (Doc. #12-1).

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further factual development is necessary in order to determine

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what effect, if any, the Release has on Plaintiff’s claims.

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Therefore, Defendants’ request for judicial notice and motion to

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dismiss on this ground are denied.

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2.

The Court finds that

Conspiracy

Section 1985(3) creates a civil action for damages caused by

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two or more persons who “conspire . . . for the purpose of

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depriving” the injured person of “the equal protection of the
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laws, or of equal privileges and immunities under the laws” and

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take or cause to be taken “any act in furtherance of the object

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of such conspiracy.”

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(1) the existence of a conspiracy to deprive the plaintiff of the

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equal protection of the laws; (2) an act in furtherance of the

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conspiracy and (3) a resulting injury.”

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Inc., 198 F.3d 1130, 1141 (9th Cir. 2000) (citing Scott v. Ross,

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140 F.3d 1275, 1284, rehearing den., 151 F.3d 1247 (9th Cir.

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1998)).

“The elements of a § 1985(3) claim are:

Addisu v. Fred Meyer,

“A complaint that contains vague, conclusory allegations

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of conspiracy, without any specification of the agreement forming

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the conspiracy, will not survive a motion to dismiss under §

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1985(3).”

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*3 (N.D. Cal. 2006).

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Lester v. Mineta, No. C 04-3074 SI, 2006 WL 463515, at

Defendants move to dismiss Plaintiff’s conspiracy claim

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because (1) she has not properly alleged such a claim; and (2)

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the claim is barred by the “intra-corporate conspiracy doctrine.”

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MTD at pp. 4-5.

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vague and fail to meet the requisite specificity standard.

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FAC alleges there existed a systematic and coordinated effort by

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Defendants to force Plaintiff out of her position, including

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meetings between Defendants to form a plan for carrying out this

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common goal.

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allegations adequately state a claim for conspiracy pursuant to

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§ 1985(3) and denies Defendants’ Motion to Dismiss on this

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ground.

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Defendants argue Plaintiff’s allegations are

FAC ¶¶ 24-35.

The

The Court finds these factual

Defendants next argue the “intra-corporate conspiracy

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doctrine” bars Plaintiff’s conspiracy claim.

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corporate conspiracy doctrine was first developed in the
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“The intra-

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antitrust context, and precludes a corporation from being charged

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with conspiracy to violate antitrust laws . . . .”

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WL 463515, at *3.

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to civil rights cases; however the Ninth Circuit has expressly

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reserved the issue.

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F.2d 898, 910 (9th Cir. 1993).

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in California, this Court declines to extend the scope of the

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intra-corporate conspiracy doctrine here.

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Watsonville, No. 5:12-CV-02271-EJD, 2013 WL 623045, at *8 (N.D.

Lester, 2006

Numerous circuits have extended this doctrine

See Portman v. Cnty. of Santa Clara, 995
Similar to other district courts

See Ibarra v. City of

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Cal. 2013); Brown v. Alexander, No. 13-01451 SC, 2013 WL 6578774,

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at *14 (N.D. Cal. 2013).

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3.

The motion is denied on this ground.

Intentional Infliction of Emotion Distress

Under California law, a claim for intentional infliction of

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emotional distress (“IIED”) is comprised of the following

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elements: “(1) extreme and outrageous conduct by the defendant

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with the intention of causing, or reckless disregard of the

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probability of causing, emotional distress; (2) the plaintiff's

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suffering severe or extreme emotional distress; and (3) actual

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and proximate causation of the emotional distress by the

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defendant's outrageous conduct.”

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11-CV-04486, 2012 WL 3638541, at *10 (N.D. Cal. 2012).

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Ferretti v. Pfizer Inc., No.

Defendants challenge Plaintiff’s IIED claim on two grounds.

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They first contend that the claim is preempted by California’s

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workers’ compensation scheme.

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Plaintiff has failed to adequately allege extreme and outrageous

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conduct or emotional distress, as required for an IIED claim.

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Id. at pp. 7-8.

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MTD at p. 6.

They also argue

“Following the California Supreme Court's holding in Miklosy
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[v. Regents of Univ. of California, 44 Cal. 4th 876 (2008)],

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California courts have held that California IIED claims are

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barred by [California’s Workers’ Compensation Act’s] exclusivity

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provisions, even if they are based on conduct that allegedly

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violates a fundamental public policy . . . .”

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Exp. Corp., No. CV 14-08105 MMM FFMX, 2015 WL 1006367, at *10

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(C.D. Cal. 2015).

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faced with an IIED claim brought against the plaintiffs’

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employer:

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Langevin v. Fed.

In Miklosy, the California Supreme Court was

Plaintiffs allege defendants engaged in “outrageous
conduct” that was intended to, and did, cause
plaintiffs “severe emotional distress,” giving rise to
common law causes of action for intentional infliction
of emotional distress. The alleged wrongful conduct,
however, occurred at the worksite, in the normal course
of the employer-employee relationship, and therefore
workers' compensation is plaintiffs' exclusive remedy
for any injury that may have resulted.

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Miklosy, 44 Cal. 4th at 902; see also Webb v. Cnty. of Trinity,

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734 F. Supp. 2d 1018, 1034-35 (E.D. Cal. 2010).

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Plaintiff argues that an employer’s unlawful discrimination

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is not a normal incident of employment, and thus her claim is not

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preempted under Miklosy.

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Opp. at p. 11.

“Discrimination based on race, religion, age, or gender is

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not a normal risk inherent in employment, and therefore workers'

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compensation is not the exclusive remedy since any injury from

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such discrimination [] falls outside the scope of employment.”

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Silva v. Solano Cnty., No. 2:13-CV-02165-MCE, 2014 WL 5501225, at

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*4 (E.D. Cal. 2014).

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criticism and retaliation is a part of and within the risks

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inherent in the employment relationship; thus, the exclusivity

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rule bars emotional distress claims based on such conduct.

However, misconduct such as demotions,

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See

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id.; Miklosy, 44 Cal. 4th at 902-03; Ferretti v. Pfizer Inc., No.

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11-CV-04486, 2012 WL 3638541, at *11-12 (N.D. Cal. 2012).

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Plaintiff’s IIED claim therefore survives but is limited to

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any injury caused by Defendant’s alleged discriminatory conduct

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based on Plaintiff’s gender since the exclusivity rule is

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inapplicable under these circumstances.

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this IIED claim is based on various other forms of misconduct

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alleged in the FAC, such as criticism and retaliation, the motion

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is granted.

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However, to the extent

As for Defendants’ arguments regarding the sufficiency of

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Plaintiff’s allegations, the Court disagrees.

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adequately alleged the requisite elements of an IIED claim under

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California law.

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ground is denied.

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4.

FAC ¶¶ 14-16; 19-38; 47-51.

Plaintiff has

The motion on this

Defamation

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“Under California law, a tort of defamation involves ‘(1) a

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publication that is (2) false, (3) defamatory, (4) unprivileged,

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and that (5) has a natural tendency to injure or that causes

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special damages.’”

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v. Loftus, 40 Cal.4th 683, 720 (2007)).

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Silva, 2014 WL 5501225, at *5 (quoting Taus

Defendants contend the Court should dismiss this cause of

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action because Plaintiff has failed to identify the alleged

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defamatory statements and the claim is based on opinions, not

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facts, as required for a claim of defamation.

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Plaintiff’s meager opposition, the Court finds the FAC adequately

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states a cause of action for defamation.

Despite

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“While the exact words or circumstances of the slander need

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not be alleged to state a claim for defamation, the substance of
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the defamatory statement must be alleged.”

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v. Crystal Dynamics, Inc., 983 F. Supp. 1303, 1314 (N.D. Cal.

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1997).

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allegations of the defamatory statements” which do not identify

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the substance of what was said are insufficient.’”

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DHR Int'l Inc., No. C 14-3041 PJH, 2014 WL 4808851, at *5 (N.D.

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Cal. 2014) (quoting Jacobson v. Schwarzenegger, 357 F.Supp.2d

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1198, 1216 (C.D. Cal. 2004)).

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Silicon Knights, Inc.

“‘Even under liberal federal pleading standards, “general

Charlson v.

The factual allegations made by the plaintiff in Scott v.

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Solano Cnty. Health & Soc. Servs. Dep't, 459 F. Supp. 2d 959

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(E.D. Cal. 2006) (“Scott”) are analogous to those in this case

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and the Court’s reasoning in Scott is persuasive.

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plaintiff alleged that the “defendants ‘published false

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information about plaintiff's performance and falsely accused

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plaintiff of dishonesty and lack of integrity.’”

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The court found it was clear that the plaintiff was complaining

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about “statements allegedly made about her performance at work

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and her character.”

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“[a]lthough terse, [the plaintiff’s] allegations [were]

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sufficient to provide defendants sufficient notice of the issues

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to enable preparation of a defense.”

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Id.

In Scott, the

Id. at 973.

The Scott court concluded that

Id.

As in Scott, the Court finds Plaintiff’s terse allegations

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herein of Defendants’ defamatory statements regarding her work

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performance and qualifications to be sufficient.

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not find the allegations reference merely opinions rather than

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facts, and finds Defendants’ arguments to the contrary

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unpersuasive.

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defamation claim is denied.

The Court does

Defendants’ Motion to Dismiss Plaintiff’s

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III.

ORDER

For the reasons set forth above, the Court GRANTS the Erwins’

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Motion to Dismiss with leave to amend.

The Court DENIES

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Defendants’ Motion to Dismiss Plaintiff’s causes of action for

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conspiracy and defamation.

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to Dismiss the IIED claim to the extent it is based on gender

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discrimination, but GRANTS the motion to the extent the IIED

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claim is based on the various other forms of misconduct alleged

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in the FAC.

The Court DENIES Defendants’ Motion

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Due to the suspension of Plaintiff’s counsel until June 25,

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2015 (Doc. #20), Plaintiff shall have until July 6, 2015 to file

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her amended complaint. If any amended complaint is filed,

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Defendants’ responsive pleading is due within twenty days

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thereafter.

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IT IS SO ORDERED.
Dated: May 22, 2015

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