Drevaleva v. Alameda Health System et al

Filing 76

ORDER by Judge Laurel Beeler granting 63 Motion to Dismiss. The plaintiff's claims against the individual DLSE defendants are dismissed with prejudice. This leaves the plaintiff without a viable claim in this court. The court will enter a separate judgment to terminate this case. See attached order for fuller discussion. (lblc3S, COURT STAFF) (Filed on 7/7/2017)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

United States District Court
Northern District of California

11
TATYANA EVGENIEVNA DREVALEVA,

12

Case No. 16-cv-07414-LB

Plaintiff,

13

ORDER DISMISSING CLAIMS

v.

14

ALAMEDA HEALTH SYSTEM, et al.,

15

Re: ECF No. 63

Defendants.

16

INTRODUCTION

17

This is an employment dispute. Plaintiff Tatyana Drevaleva is an electrocardiogram technician

18
19

who was fired from her position with Alameda Health Systems (AHS). The four individual

20

defendants — Bobit Santos, Catherine Daly, Joan Healy, and Eric Rood — move to dismiss the

21

plaintiff‘s claims against them.1 These defendants are employees of the California Department of

22

Industrial Relations — Division of Labor Standards Enforcement (―DLSE‖). They are the

23

regulatory employees who, roughly speaking, investigated the plaintiff‘s administrative grievance

24

concerning AHS and decided that she had not been fired wrongfully. They are sued here ―in their

25
26
27
28

ECF No. 63. Record citations refer to material in the Electronic Case File (―ECF‖); pinpoint citations
are to the ECF-generated page numbers at the top of documents. The claims against these defendants
appear in the Amended Complaint (ECF No. 40).
1

ORDER – No. 16-cv-07414-LB

1

personal capacit[ies].‖2 All these defendants have either been served with a summons and the

2

complaint (Mr. Santos) or have waived service.3 The plaintiff and these DLSE defendants have

3

consented to magistrate jurisdiction.4 The court can decide this motion without oral argument. See

4

Civil L.R. 7-1(b). For the reasons given below, the court dismisses the plaintiff‘s claims against

5

these defendants with prejudice.

6
STATEMENT

7

The court has twice previously addressed the plaintiff‘s claims.5 Twice the court has dismissed

8
9

those claims, or most of them, and has given the plaintiff leave to amend her complaint to state
viable causes of action. This discussion assumes that the reader is familiar with the court‘s earlier

11
United States District Court
Northern District of California

10

orders. For present purposes, the court highlights only the following points.
After AHS fired her, the plaintiff filed an administrative grievance with DLSE claiming (as she

12
13

does in this suit) that she was fired in retaliation for participating in legally protected activity. The

14

DLSE defendants investigated her claim and decided that there was insufficient evidence that AHS

15

had fired her in retaliation for protected conduct. The DLSE‘s letter to the plaintiff reporting its

16

conclusion gives an adequate sense of the department‘s investigation, its assessment of the

17

plaintiff‘s and AHS‘s respective positions, and the DLSE‘s conclusion.6

18

The plaintiff now claims that the DLSE defendants denied her due process under the federal

19

Constitution; she also claims that their decision embodied various state-law torts against her. At

20

bottom, her grievance plainly reduces to disagreeing with the DLSE‘s decision. She alleges, for

21

example, that the DLSE defendants ―did not want to take into their consideration all the[] facts.‖7

22
23
2

24

Am. Compl. – ECF No. 40 at 2, 28.

Reply Br. – ECF No. 75 at 1–2 n. 1 (citing ECF No. 63 at 2 n. 1). The defendants have not waived
service of other papers. Id.
3

25

4

ECF Nos. 10, 71.

5

ECF Nos. 36, 58.

27

6

See Am. Compl. (Ex. 17) – ECF No. 40-17.

28

7

Am. Compl. – ECF No. 40 at 13.

26

ORDER – No. 16-cv-07414-LB

2

1

But even the material that the plaintiff attaches to her complaint8 shows the opposite. The DLSE

2

defendants did evaluate the pertinent facts. They merely reached a conclusion that the plaintiff

3

disagrees with. The DLSE defendants correctly write that the ―only acts‖ they are charged with are

4

the ―investigation and determination of her claims within the scope of their employment and

5

pursuant to statutory authority.‖9

6

The court previously dismissed the plaintiff‘s claims against the DLSE itself.10 ―Disagreeing

7

with an agency‘s conclusion,‖ the court reasoned, ―does not state a claim.‖11 The court also held

8

that the DLSE was immune from suit under the Eleventh Amendment to the U.S. Constitution.12

9

In an effort to evade that immunity, the plaintiff now sues the individual DLSE employee
defendants ―in their personal capacit[ies].‖13 For the reasons given below, none of her claims

11
United States District Court
Northern District of California

10

against them are legally viable.

12
13

GOVERNING LAW

14

A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a

15

complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A claim will normally survive a

16

motion to dismiss if it offers a ―short and plain statement . . . showing that the pleader is entitled to

17

relief.‖ See Fed. R. Civ. P. 8(a)(2). This statement ―must contain sufficient factual matter, accepted

18

as true, to ‗state a claim to relief that is plausible on its face.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678

19

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). ―A claim has facial

20

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

21

inference that the defendant is liable for the misconduct alleged.‖ Iqbal, 556 U.S. at 678. ―The

22

plausibility standard is not akin to a ‗probability requirement,‘ but it asks for more than a mere

23
24

8

See especially ECF No. 40-17.

25

9

ECF No. 36 at 4.

10

Id. at 3–4.

11

Id. at 4.

27

12

Id.

28

13

Am. Compl. – ECF No. 40 at 2, 28.

26

ORDER – No. 16-cv-07414-LB

3

1

possibility that a defendant has acted unlawfully.‖ Id. (quoting Twombly, 550 U.S. at 556). ―Where

2

a complaint pleads facts that are ‗merely consistent with‘ a defendant‘s liability, it ‗stops short of

3

the line between possibility and plausibility of ‗entitlement to relief.‘‘‖ Iqbal, 556 U.S. at 678

4

(quoting Twombly, 550 U.S. at 557). Finally, while the court construes pro se pleadings more

5

―leniently,‖ the court cannot salvage claims that are fatally deficient. See De la Vega v. Bureau of

6

Diplomatic Sec., 2007 WL 2900496, at *1 (N.D. Cal. Oct. 1, 2007) (―Although the judicial policy

7

of treating pro se litigants leniently suggests allowing leave to amend, even the substitution of the

8

United States as a defendant, would not cure the jurisdictional defects.‖).

9
ANALYSIS

10

United States District Court
Northern District of California

11

1. Due Process
The plaintiff claims that the DLSE defendants deprived her of due process under the

12
13

Fourteenth Amendment to the U.S. Constitution.14 She claims that the defendants ―deprived [her]

14

of liberty and property.‖15 There is absolutely no suggestion in the record that the plaintiff was

15

ever in threat of losing her liberty in connection with being fired by AHS. Her due-process claim

16

for property deprivation, for its own reasons, also fails as a matter of law.

17

A procedural due-process claim ―hinges on proof of two elements: (1) a protect[ed] liberty or

18

property interest . . . and (2) a denial of adequate procedural protections.‖ Pinnacle Armor, Inc. v.

19

United States, 648 F.3d 708, 716 (9th Cir. 2011) (quoting Foss v. Nat’l Marine Fisheries Serv., 161

20

F.3d 584, 588 (9th Cir. 1998) (citing in turn Bd. of Regents v. Roth, 408 U.S. 564, 569–71 (1972)).

21

Under her own allegations, the plaintiff‘s due-process claim fails on both heads. Several

22

related observations will show how. The plaintiff does not dispute that the DLSE carried out its

23

statutory duty to investigate her grievance. She merely disagrees with the conclusion. But it does

24

not impugn the soundness of the DLSE‘s procedure — including what these individual defendants

25

actually did — that they reached a conclusion that the plaintiff dislikes. As fundamentally, the

26
27

14

Id. at 26–27.

28

15

Id. at 27.

ORDER – No. 16-cv-07414-LB

4

1

plaintiff has no property interest in any particular conclusion. In the Supreme Court‘s definitive

2

term, she can have ―no legitimate claim of entitlement‖ to the agency coming down one way

3

instead of another. Cf. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). (If the

4

rule were different, every regulatory decision would immediately spawn a viable due-process

5

claim.) So the DLSE‘s contrary conclusion cannot have wrongfully deprived her of a cognizable

6

interest in the due-process sense. Finally, it is undisputed that the DLSE‘s regulatory decision did

7

not impede the plaintiff‘s ability to sue her former employer. She was able to sue them before

8

filing her DLSE administrative grievance; and the DLSE‘s conclusion (that there was no wrongful

9

retaliation) did not preclude or procedurally hamper her lawsuit against AHS.16 In short, the

10

DLSE‘s decision impacted no property right.
The plaintiff has no viable due-process claim against these DLSE employees. Furthermore, the

United States District Court
Northern District of California

11
12

nature of her claim — which ultimately disputes the correctness of their conclusion — cannot be

13

saved by amendment. The court therefore dismisses the due-process claims with prejudice.

14
15

2. State-Law Claims — Absolute Immunity and Privilege

16

The plaintiff‘s California-law claims against the DLSE defendants fail to state a claim on

17

which relief can be granted. These defendants are absolutely immune from civil liability for their

18

discretionary conduct in investigating and reaching a decision on the plaintiff‘s administrative

19

grievance. Cal. Gov‘t Code § 820.2. Furthermore, the statements that these defendants made in

20

connection with their work carry an absolute privilege. Cal. Civ. Code § 47. They cannot

21

undergird tort claims, such as libel, defamation, or fraud. The court must therefore dismiss the

22

plaintiff‘s state-law claims against the DLSE defendants with prejudice.

23
24
25
26
27
28

See Am. Compl. (Ex. 17) – ECF No. 40-17; see generally Kamar v. RadioShack Corp., 2008 WL
2229166, at *6 (C.D. Cal. May 15, 2008) (describing dual judicial and administrative avenues of relief
for unpaid-wage claims).
16

ORDER – No. 16-cv-07414-LB

5

1

2.1 Absolute Discretionary-Act Immunity — Cal. Gov’t Code § 820.2

2

The DLSE defendants are absolutely immune from the plaintiff‘s state-law claims. Section

3

820.2 of the California Government Code provides:
Except as otherwise provided by statute, a public employee is not liable for an
injury resulting from his act or omission where the act or omission was the result of
the exercise of the discretion vested in him, whether or not such discretion be
abused.

4
5
6
7

Cal. Gov‘t Code § 820.2 ―Under [§ 820.2], absolute immunity is created for injury resulting from

8

a public employee‘s exercise of discretion ‗whether or not such discretion be abused.‘‖ Kim v.

9

Walker, 208 Cal. App. 3d 375, 382 (1989) (quoting § 820.2) (emphasis added).17
The challenged acts here — the DLSE defendants‘ investigation and decision — were

10

United States District Court
Northern District of California

11

discretionary acts that fall within the protection of § 820.2. On this point the plaintiff‘s own

12

allegations leave no doubt: The challenged conduct consisted of an ―actual act of discretion‖ —

13

namely, an evaluative, ―considered decision‖ of whether the plaintiff had been fired wrongfully.

14

See Caldwell v. Montoya, 10 Cal. 4th 972, 983 (1995) (―actual act‖) (citing Johnson v. State of

15

California, 69 Cal.2d 782, 794 n. 8 (1968) (―considered decision‖)). Immunity is not lost merely

16

because a complainant alleges that a regulatory decision was not ―correct.‖ See Caldwell, 10 Cal.

17

4th at 983–84 (citing Hardy v. Vial, 48 Cal.2d 577, 582–83 (1957)).
Section 820.2 absolutely immunizes the DLSE defendants against the plaintiff‘s state-law

18
19

claims. The statute compels this court to dismiss those claims with prejudice.

20
21

2.2 Absolute Privilege — Cal. Civ. Code § 47

22

For a subset of the plaintiff‘s claims, another California statute leads to the same result.

23

Section 47 of the California Civil Code draws an ―absolute privilege‖ over statements that the

24

DLSE defendants made in investigating, resolving, and reporting their decision on the plaintiff‘s

25

administrative grievance. See, e.g., Braun v. Bureau of State Audits, 67 Cal. App. 4th 1382, 1388–

26

94 (1998). Section 47 provides that, ―A privileged publication or broadcast is one made: (a) In the

27
17

28

Kim was disapproved on other grounds by State of California v. Super. Ct. of Kings Cnty., 32 Cal.
4th 1234, 1241 n. 8 (2004).
ORDER – No. 16-cv-07414-LB

6

1

proper discharge of an official duty [or] . . . (b) In any . . . official proceeding authorized by law.‖

2

Cal. Civ. Code § 47. This statute bars claims based upon (among other things) statements made by

3

official regulatory bodies in the course of their duly authorized work. See, e.g., Braun, 67 Cal.

4

App. 4th at 1388–94 (affirming no-claim dismissal) (state ―investigative audit‖ was ―official

5

proceeding‖ under § 47; ―all statements made in furtherance of‖ the audit and its ―report‖ were

6

―protected by the absolute privilege‖ of § 47).
The plaintiff repeatedly takes issue with statements that specific DLSE defendants made in

7

carrying out their investigation; which is to say, statements that they made in describing the

9

plaintiff‘s grievance or in reporting the DLSE‘s analysis and decision to her.18 Section 47 gives the

10

DLSE defendants an ―absolute privilege‖ to make such statements. They cannot form the basis of

11
United States District Court
Northern District of California

8

an actionable claim. To the extent that the plaintiff rests her claims on statements that the DLSE

12

defendants made in carrying out their administrative work, the court dismisses those claims with

13

prejudice.19

14

* * *

15

CONCLUSION
The court grants the DLSE defendants‘ motion. The plaintiff‘s claims against these defendants

16
17

are dismissed with prejudice. This order leaves the plaintiff without a viable claim in this court.

18

The court will therefore enter a separate judgment that terminates this case.

19

This disposes of ECF No. 63.

20

IT IS SO ORDERED.

21

Dated: July 7, 2017
______________________________________
LAUREL BEELER
United States Magistrate Judge

22
23
24
25
26
27

18

See, e.g., Am. Compl. – ECF No. 40 at 11 (―pure lie and defamation‖; ―libel‖).

28

19

The court expresses no opinion on the DLSE defendants‘ other due-process or state-law arguments.

ORDER – No. 16-cv-07414-LB

7