Turner v. Redding Bank of Commerce

Filing 12

ORDER signed by District Judge Troy L. Nunley on 3/15/2018 ORDERING 4 Defendant's Motion is DENIED as set forth in this Order; Plaintiff may file an amended complaint, as requested, within 30 days of the date this Order is filed. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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2:17-cv-01047-TLN-CMK

JULIE TURNER,

ORDER

v.
REDDING BANK OF COMMERCE,

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Defendant.

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This matter is before the Court pursuant to Defendant Redding Bank of Commerce’s

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(“Defendant”) motion for an order dismissing and striking the complaint, or alternatively, for a

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more definite statement. (ECF No. 4.) Plaintiff Julie Turner (“Plaintiff”) opposes the motion.

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(ECF No. 5.) In doing so, Plaintiff asks to be allowed to file an amended complaint. The Court

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has carefully considered the arguments raised by the parties. For the reasons set forth below,

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Defendant’s motion is DENIED. However, the Court will permit Plaintiff to file an amended

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complaint as requested.

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I.

INTRODUCTION AND PROCEDURAL BACKGROUND
This civil rights action arises out of the allegedly unlawful termination of Plaintiff by

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Defendant. Defendant removed the instant action from the Superior Court of the State of

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California, County of Sacramento. (See ECF No. 1 at ¶ 1.) Defendant’s motion followed shortly

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thereafter. (ECF No. 4.) In order to efficiently address the parties’ substantive arguments a brief
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introduction is necessary.
The complaint is somewhat unusual. On the first page of the complaint, across from the

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caption, the following words appear: “COMPLAINT FOR DAMAGES, DISCRIMINATION,

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DUE TO DISABILITY FAILURE TO REASONABLY ACCOMMODATE; FAILURE TO

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ENGAGE IN THE INTERACTIVE PROCESS; IN VIOLATION OF THE ADA; FEHA;

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VIOLATION OF PUBLIC POLICY.” (ECF No. 1-4 at 6.) Having read that, Defendant

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surmised that Plaintiff wished to bring the following five causes of action: “(1) disability

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discrimination, (2) failure to reasonably accommodate, (3) failure to engage in the interactive

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process, (4) violation of the American’s [sic] with Disabilities Act, and (5) violation of public

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policy.” (ECF No. 4 at 3.) However, somewhat mysteriously, the fifteen enumerated paragraphs

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of the complaint are broken up by only two labeled sections. The first labeled section,

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“GENERAL ALLEGATIONS,” contains the first eight paragraphs. (See ECF No. 1-4 at ¶¶ 1–8.)

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The second labeled section, “FIRST CAUSE OF ACTION,” contains the remaining enumerated

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paragraphs along with the subheading “(Disability Discrimination in Violation of ADA, FEHA).”

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(See ECF No. 1-4 at ¶¶ 9–15.)
As Defendant puts it, “although Plaintiff’s Complaint appears to allege five (5) causes of

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action against [Defendant], the body of the complaint only contains one (1) cause of action.”

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(ECF No. 4 at 2.) Plaintiff acknowledges this was “arguably inartful pleading.” (ECF No. 5 at

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1.) Plaintiff clarifies that she is “not pursuing [a public policy claim] in this action.” (ECF No. 5

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at 2.) Consequently, there is no need to address Defendant’s argument with respect to such a

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claim. With this in mind the Court turns to the parties’ submissions.

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II.

ANALYSIS
Defendant’s motion seeks the following forms of relief: First, Defendant argues

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Plaintiff’s state law claims under California’s Fair Employment and Housing Act (“FEHA”)

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should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No.

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4 at 4–7.) Second, assuming its first argument is successful, Defendant argues the Court should

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strike all references in the complaint to “FEHA, to California law, to [California] Government

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Code § 12965(b) and Plaintiff’s prayer for ‘medical expenses.’” (ECF No. 4 at 8.) Third, in the
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alternative, Defendant argues Plaintiff should be required to separately plead each cause of action

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she intends to assert. (ECF No. 4 at 8–9.)

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The Court will first examine the parties’ submissions with respect to whether Plaintiff’s

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state law claims under FEHA should be dismissed. However, before doing so, the Court will

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briefly note the applicable standard for motions brought pursuant to Rule 12(b)(6), as a lengthy

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discussion is not necessary to resolve the instant motion. As Defendant correctly observes, under

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Rule 12(b)(6), “[d]ismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1988). However, the burden is on the Defendant to show that dismissal is

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proper under this standard. See 5B Charles A. Wright & Arthur R. Miller, Federal Practice and

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Procedure § 1357 (3d ed. 2004). As discussed below the Court finds Defendant has not met its

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burden.

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Defendant argues “Plaintiff’s state law claims should be dismissed because [she] has

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failed to allege that she exhausted her administrative remedies under the FEHA or that she

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obtained a right-to-sue notice from the [Department of Fair Employment and Housing

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(“DFEH”)].” (ECF No. 4 at 5.) Citing Martin v. Lockheed Missiles & Space Co., 29 Cal. App.

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4th 1718, 1724 (1994), Defendant argues that “exhaustion of administrative remedies is a

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jurisdictional prerequisite to filing suit in state or federal court” for a FEHA claim. (ECF No. 4

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at 5 (emphasis retained).)

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Defendant’s citation to Martin is puzzling. What Martin actually says at the pin-cited

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page is as follows: “We have recognized, in the context of the Fair Employment and Housing

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Act, that the failure to exhaust an administrative remedy is a jurisdictional, not a procedural,

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defect, and thus that failure to exhaust administrative remedies is a ground for a defense summary

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judgment.” Martin, 29 Cal. App. 4th at 1724 (emphasis added) (internal alterations and quotation

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marks omitted). Consequently, Defendant’s reliance upon Martin for the proposition that

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Plaintiff must affirmatively plead exhaustion to survive a Rule 12(b)(6) is misplaced.

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Accordingly, Defendant has failed to meet its burden to show that dismissal is appropriate for

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failure to include such an allegation. Due to the poverty of briefing on this point, the Court
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declines to definitively resolve whether a plaintiff is required to plead exhaustion under FEHA to

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survive a Rule 12(b)(6) motion. See Williams v. Eastside Lumberyard & Supply Co., 190 F.

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Supp. 2d 1104, 1114 (S.D. Ill. 2001).

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Because Defendant has not shown that dismissal is appropriate, the Court’s remaining

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discussion of Defendant’s motion will be brief. Indeed, only two points warrant mention. First,

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Defendant’s argument in support of its motion to strike pursuant to Rule 12(f) presupposes the

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success of its Rule 12(b)(6) argument on exhaustion. (See ECF No. 4 at 8.) For that reason

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alone, Defendant’s argument fails. However, for the sake of completeness, the Court will make

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one additional observation. In relevant part, Rule 12(f) provides as follows: “The court may

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strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or

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scandalous matter.” Defendant cites Whittlestone, Inc. v. Handi-Craft Co. (“Whittlestone”), 618

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F.3d 970, 973 (9th Cir. 2010), to support of its contention that the success of its Rule 12(b)(6)

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argument would have required the striking of the following from the complaint: “Plaintiff’s

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references to . . . FEHA, to California law, to Government Code § 12965(b) and Plaintiff’s prayer

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for ‘medical expenses’ . . . . as . . . immaterial, impertinent, and redundant.” (ECF No. 4 at 8.)

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Whittlestone stands for precisely the opposite proposition. There, as here, it was “quite clear that

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none of the [Rule 12(f)] categories covers the allegations in the pleading sought to be stricken by”

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Defendant. Whittlestone, 618 F.3d at 974. In essence, Defendant is suggesting that items may be

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stricken from a complaint if they relate to a claim that should be dismissed under Rule 12(b)(6).

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(ECF No. 4 at 8.) The Ninth Circuit squarely rejected this position in Whittlestone. As the Ninth

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Circuit made clear, such arguments are “better suited for a Rule 12(b)(6) motion or a Rule 56

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motion, not a Rule 12(f) motion.” Id. Consequently, for the reasons set forth above, Defendant’s

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motion to strike must be denied.

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Second, the Court will briefly address Defendant’s request that Plaintiff provide a more

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definite statement pursuant to Rule 12(e). (ECF No. 4 at 8–9.) This requires an examination of

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Plaintiff’s opposition. The thrust of Plaintiff’s opposition is to ask the Court to allow her to

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“more artfully plead” her claims either by granting Defendant’s request for a more definite

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statement or, in the alternative, granting her leave to file an amended complaint. (ECF No. 5 at
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1.) Particularly, Plaintiff expresses a desire to plead her ADA and FEHA claims separately.

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(ECF No. 5 at 2.) In doing so, Plaintiff represents to the Court that “she did indeed file an

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administrative complaint with DFEH and was issued a Right to Sue letter by DFEH” and argues

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that she should be given the opportunity to so plead. (ECF No. 5 at 2.) Plaintiff does not contest

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Defendant’s suggestion that she should have to plead exhaustion. Instead, Plaintiff contends her

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failure to do so was a “clerical oversight” and it would be a “draconian result” to not allow her to

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cure this supposed error. (ECF No. 5 at 2.) Again, the Court need not decide whether Plaintiff

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needs to plead exhaustion. Assuming she does, Plaintiff is plainly correct that she should be

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given leave to amend to cure this deficiency. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)

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(en banc) (“‘[A] district court should grant leave to amend even if no request to amend the

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pleading was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.’”) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
Consequently, Plaintiff will be granted leave to file an amended complaint as requested.

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As Plaintiff has indicated that she will identify each of the causes of action she intends to pursue

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in her second amended complaint, the Court need not determine whether it would have granted

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Defendant’s motion pursuant to Rule 12(e).

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III.

CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED as follows:

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1. Defendant’s Motion is DENIED as set forth above.

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2. Plaintiff may file an amended complaint, as requested, within 30 days of the date this

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Order is filed.

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Dated: March 15, 2018

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Troy L. Nunley
United States District Judge

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