Shahrivar v. City of San Jose et al
Filing
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ORDER GRANTING 21 MOTION TO DISMISS WITH LEAVE TO AMEND. Signed by Judge Jeremy Fogel on 9/28/2011. (jflc2, COURT STAFF) (Filed on 9/28/2011)
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**E-Filed 9/28/2011**
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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FARID SHAHRIVAR,
ORDER1 GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND
Plaintiff,
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v.
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Case Number 5:10-cv-01029-JF (PSG)
CITY OF SAN JOSE, et al.,
Defendants.
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Defendants move to dismiss certain claims of the operative first amended complaint
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(“FAC”) pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons discussed below, the
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motion will be granted, with leave to amend.
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I. BACKGROUND
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Plaintiff has a Ph.D. in Structural Engineering and Structural Mechanics from the
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University of California at Berkeley, where he earned a grade point average of 3.9. FAC ¶ 3. He
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worked for the City of San Jose (“the City”) as a structural engineer from 2001 to 2009, when he
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was terminated. Id. ¶¶ 27, 208.
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Plaintiff filed the present action on March 10, 2010, and pursuant to stipulation filed a
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This disposition is not designated for publication in the official reports.
Case No. 5:10-cv-01029-JF (PSG)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC2)
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FAC on October 8, 2010. He claims that during the course of his employment by the City, he
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was subjected to discrimination based upon his race, national origin, and religion; he identifies
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himself as a “Muslim Iranian-American.” FAC ¶ 35, 38. He also claims that when he engaged
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in whistle-blowing activities and other protected conduct, he was subjected to retaliation. ¶¶ 67-
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69. He alleges that the discrimination and retaliation contributed to a hostile work environment.
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Id. ¶ 89.
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Plaintiff alleges the following: in 2003, his job responsibilities included supervising
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public works and structural inspectors, which entailed inspecting public facilities under
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construction for compliance with codes and approved plans. FAC ¶ 37. An individual named
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Susan Lacy was placed under his supervision. Id. ¶ 39. Plaintiff claims that Lacy was
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unqualified for the position, and that she acted in an inappropriately sexual manner, for example,
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by pressing her breasts against him and by displaying a “toy phallic organ” on her desk. Id. ¶¶
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40-41. 47. Plaintiff claims that when he attempted to get her removed, Lacy began making racist
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remarks. Id. ¶ 49. According to Plaintiff, he received no support from his superiors for a period
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of time, but ultimately Lacy was transferred out of his section. Id. ¶¶ 51-54.
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Plaintiff alleges systemic discrimination against employees of Middle Eastern descent,
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citing various examples of allegedly less qualified Caucasians getting promoted over Iranian-
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Americans. FAC ¶¶ 55-60. In 2004 and 2005, Plaintiff’s supervisor, Rodney Rapson, allegedly
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pressured Plaintiff and others not to report building code violations in order to meet deadlines.
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Id. ¶¶ 61-62. When Plaintiff objected, he began having problems with Rapson. Id. ¶¶ 65-68.
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Rapson and others allegedly made false charges that he had sexually harassed and discriminated
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against others in the workplace. Id. ¶ 69-73.
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In 2005, Plaintiff was placed under a new supervisor, Danny Tsao. FAC ¶ 75. In 2006,
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Plaintiff requested permission to perform outside work so that he could accept a teaching
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position at San Jose State. Id. 78. He claims that Tsao unreasonably denied this request. Id. In
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June 2006, Plaintiff filed complaints with the California Department of Fair Employment and
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Housing (“DFEH”) and the federal Equal Employment Opportunity Commission (“EEOC”). Id.
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¶¶ 102. Right to sue letters issued in October and November 2006. Id. Plaintiff filed a second
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Case No. 5:10-cv-01029-JF (PSG)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC2)
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EEOC complaint in January 2007; a right to sue letter issued in March 2009. Id. ¶ 140. He filed
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a third EEOC and FEHA complaint on July 1, 2008. Id. ¶ 182. During this time frame, Plaintiff
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did not file suit, although he continued to have numerous problems at work. He claims that he
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was transferred to a dirty, noisy trailer in a different department. Id. ¶ 137. Moreover, when his
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son had a near fatal car accident, Plaintiff was disciplined for arriving late to work the next
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morning, and he was denied leave to care for his son. Id. ¶¶ 167-70.
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Plaintiff filed his final DFEH/EEOC complaint on February 18, 2010. FAC ¶ 216. He
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filed this action on March 10, 2010. He sues the City and nineteen individual City employees,
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asserting claims for: (1) retaliation (pursuant to 42 U.S.C. §§ 1983, 1985, and 1988); (2)
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deprivation of equal protection (pursuant to 42 U.S.C. §§ 1983, 1985, and 1988); (3) deprivation
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of due process (pursuant to 42 U.S.C. §§ 1983, 1985, and 1988); (4) violation of Cal. Const., Art.
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I, Secs. 1, 2, and 8, and Cal. Civ. Code § 52.1; (5) violation of FEHA; (6) retaliation and
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wrongful termination in violation of Cal. Lab. Code § 1102.5; (7) negligence; (8) negligent or
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intentional infliction of emotional distress; (9) breach of contract; (10) breach of the implied
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covenant of good faith and fair dealing; and (11) conspiracy. Defendants move to dismiss a
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number of these claims for lack of subject matter jurisdiction and for failure to state a claim.
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II. LEGAL STANDARDS
A.
Rule 12(b)(1)
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air For Everyone v.
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Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the moving party asserts that the
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allegations in the complaint are insufficient on their face to invoke federal jurisdiction. Id. In a
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factual attack, the moving party disputes the truth of the allegations in the complaint, which
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otherwise would be sufficient to invoke federal jurisdiction. Id. In resolving a facial attack, the
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Court accepts the allegations in the complaint as true. Whisnant v. United States, 400 F.3d 1177,
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1179 (9th Cir. 2005). In resolving a factual attack, the Court need not presume the truthfulness
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of the allegations set forth in the complaint and may consider evidence beyond the face of the
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complaint without converting the motion to dismiss into a motion for summary judgment. Id.;
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Safe Air, 373 F.3d at 1039. Once the moving party has presented affidavits or other evidence
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Case No. 5:10-cv-01029-JF (PSG)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC2)
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tending to show that subject matter jurisdiction does not lie, the plaintiff must present affidavits
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or other evidence sufficient to establish subject matter jurisdiction. Safe Air, 373 F.3d at 1039.
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B.
Rule 12(b)(6)
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Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon
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which relief may be granted. “Dismissal can be based on the lack of a cognizable legal theory or
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the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica
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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). For purposes of evaluating a motion to dismiss,
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the court “must presume all factual allegations of the complaint to be true and draw all
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reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d
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556, 561 (9th Cir. 1987).
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However, mere conclusions couched in factual allegations are not sufficient to state a
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cause of action. Papasan v. Allain, 478 U.S. 265, 286 (1986); see also McGlinchy v. Shell Chem.
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Co., 845 F.2d 802, 810 (9th Cir. 1988). The complaint must plead “enough facts to state a claim
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to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
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claim is plausible on its face “when the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
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v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thus, “for a complaint to survive a motion to dismiss, the
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non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly
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suggestive of a claim entitling the plaintiff to relief. ” Moss v. U.S. Secret Serv., 572 F.3d 962,
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969 (9th Cir. 2009).
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III. DISCUSSION
A.
First, Second, and Third Claims – Federal Civil Rights Statutes
Plaintiff’s first, second, and third claims allege constitutional violations under 42 U.S.C.
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§§ 1983 and 1985.2 Defendants argue that any such claims based upon events that occurred more
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than two years prior to the filing of the complaint are time-barred. The statute of limitations
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These claims also are brought pursuant to 42 U.S.C. § 1988; this statute authorizes an
award of attorneys’ fees to a party who prevails on a civil rights action under federal statute.
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Case No. 5:10-cv-01029-JF (PSG)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC2)
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applicable to Plaintiff’s claims under §§ 1983 and 1985 is two years. See Jones v. Blanas, 393
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F.3d 918, 927 (9th Cir. 2004) (the statute of limitations for § 1983 claims is governed by the
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forum state’s statute of limitations for personal injury claims, which is two years under California
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law); Taylor v. Regents of the Univ. of Cal., 993 F.2d 710, 711-12 (9th Cir. 1993) (the limitations
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period that governs § 1983 claims also governs claims under §§ 1981 and 1985). Accordingly,
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absent tolling, claims arising from conduct that occurred prior to March 10, 2008, are time-
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barred.
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Plaintiff contends that he is entitled to sue based upon conduct dating back to 2003 under
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the continuing violations doctrine. “The continuing violations doctrine permits a plaintiff to sue
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for all discriminatory acts that occurred during the limitations period, even if the policy or other
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event giving rise to the discrimination occurred outside the limitations period.” The Committee
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Concerning Community Improvement v. City of Modesto, 583 F.3d 690, 701 (9th Cir. 2009).
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Similarly, the doctrine permits a plaintiff to bring a hostile workplace claim even if some of the
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conduct that contributed to the hostile environment occurred outside the limitations period, so
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long as some of the contributing conduct occurred inside the period. See Nat’l R.R. Passenger
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Corp. v. Morgan, 536 U.S. 101, 117 (2002). However, the doctrine does not permit a plaintiff to
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sue for discrete acts of discrimination or retaliation that occurred outside the limitations period
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solely because they are related to other discrete acts that occurred inside the limitations period.
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See id. at 113-14 (“discrete discriminatory acts are not actionable if time barred, even when they
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are related to acts alleged in timely filed charges”); see also Committee Concerning Community
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Improvement, 583 F.3d at 701 (“discrete discriminatory acts will not create a pattern of
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discrimination without more”).
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None of the claims in question is based upon a hostile workplace – the first claim asserts
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retaliation, the second claim asserts deprivation of equal protection, and the third claim asserts
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deprivation of due process. As alleged, these claims are based upon discrete acts by a number of
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different supervisors and City personnel. Accordingly, Plaintiff’s allegations are insufficient to
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implicate the continuing violations doctrine. The claims will be dismissed, with leave to amend,
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so that Plaintiff may refocus them on conduct that occurred within the limitations period, or may
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Case No. 5:10-cv-01029-JF (PSG)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC2)
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allege facts sufficient to implicate the continuing violations doctrine.
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B.
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Fifth Claim – FEHA
Plaintiff’s fifth claim alleges that Defendants discriminated against him, failed to prevent
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discrimination, retaliated against him, and failed to accommodate him, all in violation of
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California’s Fair Employment and Housing Act (“FEHA”), Cal. Govt. Code §§ 12900 et seq. A
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plaintiff must file a FEHA claim within one year after the DFEH issues a right-to-sue letter.
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Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1127 (9th Cir. 2008). Thus it appears
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that Plaintiff’s claims based upon charges addressed by the 2006 right-to-sue letter are time-
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barred. Plaintiff’s FEHA claim will be dismissed so that Plaintiff may clarify upon which right-
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to-sue letters he is proceeding and may allege facts demonstrating that the present lawsuit was
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filed within one year of the issuance of those letters.
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C.
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Seventh and Eighth Claims – State Law
Plaintiff’s state law claims for negligence (7th claim) and for negligent or intentional
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infliction of emotional distress (8th claim) are subject to a two-year statute of limitations. See
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Cal. Civ. P. Code § 335.1 (two-year statute of limitations for claims based upon personal injury).
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Accordingly, these claims will be dismissed, with leave to amend, so that Plaintiff may limit
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them to conduct that occurred within two years of the filing of his complaint.
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D.
Four Individual Defendants
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Plaintiff concedes that he has failed to allege facts sufficient to state a claim against four
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of the individual defendants, Allen Demers, Mark Danaj, Robert Fabela, and Angela Chen. He
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requests leave to amend. Accordingly, all claims against these individuals will be dismissed,
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with leave to amend.
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IV. ORDER
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The motion to dismiss is GRANTED, WITH LEAVE TO AMEND. Any amended
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pleading shall be filed within thirty days of the date of this order.
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Dated: 9/28/2011
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__________________________________
JEREMY FOGEL
United States District Judge
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Case No. 5:10-cv-01029-JF (PSG)
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
(JFLC2)
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