Guevarra v. Seton Medical Center et al

Filing 41

ORDER GRANTING MOTION TO DISMISS. ( 14 , 27 MOTION to Dismiss). ***Civil Case Terminated.*** Signed by Judge Claudia Wilken on 12/2/2013. (ndr, COURT STAFF) (Filed on 12/2/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BERNADET GUEVARRA,

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Plaintiff,

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No. C 13-2267 CW
ORDER GRANTING
MOTION TO DISMISS
(Docket No. 14,
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v.

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SETON MEDICAL CENTER; CALIFORNIA
UNEMPLOYMENT INSURANCE APPEALS
BOARD; and ROBERT DRESSER,

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Defendants.

United States District Court
For the Northern District of California

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________________________________/

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On July 18, 2013, Defendants California Unemployment

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Insurance Appeals Board (CUIAB) and CUIAB Chairman Robert Dresser

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moved to dismiss Plaintiff Bernadet Guevarra’s complaint.

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September 20, 2013, Defendant Seton Medical Center also moved to

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dismiss.

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papers submitted by all parties, the Court GRANTS Defendants’

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motions to dismiss with prejudice.

Guevarra opposed both motions.

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On

Have considered the

BACKGROUND

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Guevarra worked as a staff nurse at Seton Medical Center for

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twelve years.

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minutes before she went to work, she wrote a Facebook post at her

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home.

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On May 17, 2011 at 11 P.M., approximately thirty

The post stated:
Instead of spending my birthday celebrating, I will be
working all night cleaning up feces. I hate loathe that
effin heffer!!! Burn in hell you effed up spawn of
satan. I curse you and wish you a lifetime of pain and
suffering. That is not enough, right now I would give
anything you smack you down and pound you to
unconsciousness. ‘Tang ina mo!!!!!

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United States District Court
For the Northern District of California

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Thanks to the effin heifer who royally effed up my
schedule, not only am I working Mothers Day, my birthday
and my anniversary. And this Friday, I will be getting
the smallest paycheck I had in 12 years due to the 17
percent pay cut we had to endure.
Compl. ¶ 25; Def. CUIAB’s RJN, Ex. 6 at CUIAB 71.

The ”effin

heifer” refers to an administrator, and the Facebook post was
published to various “friends.”

A coworker who was connected with

Guevarra as a Facebook “friend” shared the content with Seton.
Compl. ¶¶ 16-19.

Seton called the police.

Guevarra was put on administrative leave.

Compl. ¶ 22-23.
Pl’s RJN, Ex. A at 8.

Guevarra had received no prior warnings or reprimands.

The next

day, Guevarra was told that, upon review of her case, she was
terminated immediately.

The same day, she was served with a

temporary restraining order.

Def. CUIAB’s RJN, Ex. 6 at CUIAB 80.

On June 19, 2011, Guevarra applied for unemployment benefits.
Under California Unemployment Insurance Code § 1256, an individual
is disqualified for benefits if he or she has been discharged for
misconduct connected with his or her most recent work.

On

September 28, 2011, the Employment Development Department (EDD)
mailed Seton a “Notice of Determination.”
at CUIAB 1.

Def. CUIAB’s RJN, Ex. 1

The EDD found Guevarra eligible for unemployment

insurance benefits and stated, “After considering the available
information, [EDD] finds the reasons for the discharge do not meet
the definition of misconduct connected with the work.”

Id.

On

September 30, 2011, Seton notified EDD of its intent to appeal
EDD’s decision.

Def. CUIAB’s RJN, Ex. 2 at CUIAB 4.

On December 21, 2011, the administrative law judge (ALJ) at
the EDD’s San Francisco Office of Appeals issued a decision

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reversing the EDD determination and finding that Guevarra was

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disqualified for benefits because of her Facebook statement.

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CUIAB’s RJN, Ex. 3 at CUIAB 7.

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connected with work” as a “substantial breach by the claimant of

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an important duty or obligation owed the employer, willful or

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wanton in character, and tending to injure the employer.”

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(citing Maywood Glass Col. v. Stewart, 170 Cal. App. 2d 719

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(1959)).

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claimant was dismissed must be distinguished from a single hot

Def.

The ALJ defined “misconduct

Id.

The ALJ reasoned that “the statement for which the

United States District Court
For the Northern District of California

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headed remark or a remark to a co-worker critical of the employer.

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This is because the claimant published the statements to a broad

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audience which included co-workers.”

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Guevarra’s remarks were “incendiary, derogatory, and served to

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undermine the morale of the employer’s workforce.”

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Id.

The ALJ stated that

Id.

On February 28, 2012, the CUIAB upheld the decision of the

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ALJ and supplemented the ALJ’s findings by noting that one of

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Guevarra’s “Facebook friends” was a manager, and that Seton had a

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policy prohibiting “threatening, intimidating, coercing,

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harassing, [and] using abusive language or behavior[.]”

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CUIAB’s RJN, Exh. 4 at CUIAB 13.

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Guevarra had violated the employer’s policy because her posting

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“was to persons including co-workers and the claimant’s manager

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and was not analogous to a private communication conducted outside

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of work or the workplace, such as one made in confidence to a

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family member.”

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claim that she was not discharged for misconduct but rather for

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protesting working conditions and exercising her legal rights.

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Id.

Id.

Def.

The CUIAB concluded that

Additionally, the CUIAB rejected Guevarra’s

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PROCEDURAL BACKGROUND

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I.

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On August 27, 2012, Guevarra filed a petition for writ of

Guevarra’s Action Against CUIAB

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mandate in the San Mateo County Superior Court.

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Exh. 5 at CUIAB 17.

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demurrer to the writ petition.

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had failed to name her employer, Seton, as the real party in

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interest, and the six month statute of limitation had run.

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CUIAB’s RJN, Ex. 7 at CUIAB 137-140.

Def. CUIAB’s RJN,

On October 18, 2012, the CUIAB filed a
The demurrer argued that Guevarra

Def.

On February 1, 2012, the San

United States District Court
For the Northern District of California

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Mateo County Superior Court issued an order sustaining the

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demurrer, dismissing the case with prejudice and directing

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judgment in favor of the CUIAB and against Guevarra.

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RJN, Ex. 10 at CUIAB 179-180.

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its Notice of Entry of Judgment.

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8.104(a) Guevarra had sixty days to file a notice of appeal and

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did not do so.

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II.

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On August 12, 2011, Guevarra filed a complaint in San Mateo

Def. CUIAB’s

On May 14, 2013, the CUIAB filed
Under California Rule of Court

Guevarra’s Action Against Seton

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County Superior Court against Seton, alleging hostile work

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environment, defamation, aiding and abetting, wrongful termination

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in violation of public policy, discrimination, intentional

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infliction of emotional distress, retaliation, whistleblower

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protection, breach of contract and breach of the implied covenant

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of good faith and fair dealing.

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court granted summary judgment on, among other things, Guevarra’s

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claim for wrongful termination in violation of public policy,

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finding that she had been discharged for publishing “an angry and

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profane Facebook posting which threatened physical violence,

Def. CUIAB’s RJN, Ex. C, D.

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The

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because she had difficulty in requesting time off for her

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birthday.”

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section 301 of the Labor Management Relations Act (LMRA), 29

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U.S.C. § 185(a) preempted Guevarra’s breach of contract and

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implied covenant of good faith and fair dealing.

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employment was governed by a collective bargaining agreement (CBA)

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between her union, the California Nurses Association, and Seton.

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Compl. ¶ 1, Ex. A.

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terminate Guevarra’s employment for “just cause.”

Pl’s RJN, Ex. A.

The state court also found that

Guevarra’s

Pursuant to the CBA, Seton could only
Id. § 43.6.1.

United States District Court
For the Northern District of California

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The CBA states that any disputes arising under the CBA were to be

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resolved pursuant to the grievance procedure and arbitration.

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Declaration of Richard Robinson, Ex. A. § 43.2.

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Guevarra and Seton proceeded to a bench trial on three

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claims: retaliation in violation of the Fair Employment and

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Housing Act, intentional infliction of emotional distress, and

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negligent supervision.

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issued an oral tentative ruling in which he dismissed the three

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remaining claims.

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court found that Guevarra had posted a credible threat of violence

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against her supervisor and that she had not engaged in

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whistleblowing.

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and federal law the Facebook posting’s threats to injure or kill

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. . . was not constitutionally protected free speech[.]”

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61 (citation omitted).

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the court has not yet issued the final decision.

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On April 26, 2013, the state court judge

Declaration of Neda Dal Cielo, Ex. A.

The

The judge reasoned that “under both California

Id. at

Seton submitted a proposed decision, and

Two weeks later, on May 17, 2013, Guevarra filed the instant

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case.

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speech under the First Amendment under 42 U.S.C. § 1983, alleged

She alleged four causes of action: (1) violation of free

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against the CUIAB and Dresser only; (2) violation of due process

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under the Fourteenth Amendment under § 1983, against the CUIAB and

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Dresser only; (3) breach of contract and covenant of good faith

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and fair dealing against Seton only; and (4) violation of her

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right to free speech under the California Constitution, against

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Seton only.

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the CUIAB and general and special damages.

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and Seton now move to dismiss Guevarra’s complaint.

She seeks declaratory and injunctive relief against

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LEGAL STANDARD

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United States District Court
For the Northern District of California

The CUIAB, Dresser,

A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Dismissal is also appropriate under Federal Rule of Civil

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Procedure 12(b)(1) when the district court lacks subject matter

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jurisdiction over the claim.

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threshold issue that goes to the power of the court to hear the

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case.

Subject matter jurisdiction is a

Therefore, a Rule 12(b)(1) challenge should be decided
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before other grounds for dismissal, because those grounds become

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moot if dismissal is granted.

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160 (9th Cir. 1975); 5A Charles Alan Wright & Arthur R. Miller,

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Federal Practice & Procedure § 1350, p. 210 (2d ed. 1990).

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action should not be dismissed for lack of subject matter

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jurisdiction without giving the plaintiff an opportunity to amend

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unless it is clear that the jurisdictional deficiency cannot be

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cured by amendment.

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F.2d 1211, 1216 (9th Cir. 1980).

United States District Court
For the Northern District of California

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I.

Alvares v. Erickson, 514 F.2d 156,

An

May Dep't Store v. Graphic Process Co., 637

DISCUSSION
Guevarra’s Causes of Action Against Defendants CUIAB and
Dresser

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Guevarra’s first two causes of action against Defendants

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CUIAB and Dresser allege that they have violated her free speech
right under the First Amendment and violated her due process right
under the Fourteenth Amendment.

Guevarra’s first cause of action

alleges that these Defendants applied Unemployment Insurance Code
§ 1256 “in an overbroad manner that renders the statute uncertain,
ambiguous and impermissibly burdens speech.”

Compl. ¶ 45.

Guevarra’s second cause of action alleges that Defendants CUIAB
and Dresser deprived her of due process in reversing the original
decision of the EDD and expanding the ALJ’s decision.
¶ 47.

Compl.

Guevarra alleges that the CUIAB failed to follow its own

precedential decisions that found that a hotheaded outburst of
anger should be considered a “minor peccadillo” insufficient to
disqualify an individual for benefits.

Compl. ¶ 51.

Guevarra

argues additionally that “her Filipino culture was not
considered,” and that the CUIAB’s decision finding that there was
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no pretext or discriminatory reason for the discharge violated her

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rights to due process and equal protection.

Compl. ¶¶ 49-50.

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A. Subject Matter Jurisdiction

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The CUIAB and Dresser contend that Guevarra’s claims are

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barred by the Rooker-Feldman doctrine because, in order to

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adjudicate this case, the Court would have to engage in the review

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of state court determinations regarding Guevarra’s claims against

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the CUIAB and Dresser.

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Under the Rooker-Feldman doctrine, a federal district court,

United States District Court
For the Northern District of California

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as a court of original jurisdiction, has no authority to review

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the final determinations of a state court in judicial proceedings,

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even when the challenge alleges that the state court's action was

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unconstitutional.

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Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co.,

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263 U.S. 413, 415 (1923); Worldwide Church of God v. McNair, 805

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F.2d 888, 891 (9th Cir. 1986).

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doctrine is that the only federal court with the power to hear

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appeals from state courts is the United States Supreme Court."

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Bennett v. Yoshina, 140 F.3d 1218, 1223 (9th Cir. 1998). “The

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Rooker–Feldman doctrine, generally speaking, bars a plaintiff from

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bringing a § 1983 suit to remedy an injury inflicted by the state

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court's decision.”

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2002).

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See District of Columbia Court of Appeals v.

“The rationale behind this

Jensen v. Foley, 295 F.3d 745, 747 (7th Cir.

The Rooker–Feldman doctrine applies when a plaintiff in

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federal court alleges a “de facto appeal” of a state court

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judgment by (1) asserting errors by the state court as an injury

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and (2) seeking relief from the state court judgment as a remedy.

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Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004).
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When determining whether a plaintiff has asserted an error by the

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state court as her injury, the court must distinguish between “a

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legal error by the state court” and “a wrongful act by the adverse

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party.”

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the action, not how [the plaintiff] chooses to frame the action”

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when determining whether a plaintiff's injury emanates from state-

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court error or independently wrongful conduct.

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Orlando, 2009 WL 2031779 (N.D. Cal.)(citing Feldman, 460 U.S. at

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483).

United States District Court
For the Northern District of California

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Id. at 1140–41.

A court must consider “the essence of

Hettinga v.

Here, Guevarra’s complaint against the CUIAB and Dresser

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constitutes a de facto appeal that asks the Court to review the

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state court’s denial of her prior claims.

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petition Guevarra alleged that the CUIAB decision regarding her

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unemployment insurance benefits violated her right to free speech

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under the First Amendment and violated her due process right by

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failing to follow its own precedential decisions.

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RJN, Ex. 6 at CUIAB 1,3,4,7,9, 10-15.

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Superior Court sustained the demurrer without leave to amend and

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dismissed Guevarra’s petition with prejudice.

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in her federal complaint now repeat those of her state court

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petition; she alleges that the CUIAB and Dresser violated her

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First Amendment and due process rights.

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factual allegations giving rise to Guevarra’s injuries in the

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instant case have already been adjudicated in the state action.

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Thus, Guevarra is essentially asking the Court to reverse the

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judgment of the San Mateo County Superior Court.

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is (1) asserting errors by the state court as an injury, and

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In her state court

Def. CUIAB’s

The San Mateo County

Guevarra’s claims

Complaint ¶¶ 47, 51.

The

Because Guevarra

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(2) seeking relief from the state court judgment as a remedy, the

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Court finds that the Rooker-Feldman doctrine deprives the Court of

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jurisdiction.

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CUIAB and Dresser’s motion to dismiss Guevarra’s § 1983 claims for

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this reason.

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B.

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Defendants CUIAB and Dresser also contend that Guevarra has

Kougasian, 359 F.3d at 1140.

The Court grants the

Failure to State a Claim

failed to state a claim because (1) the CUIAB is immune from suit

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under the Eleventh Amendment and is not a person who can be sued

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United States District Court
For the Northern District of California

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under § 1983, (2) Guevarra has stated no claim against Dresser,

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and (3) Dresser enjoys qualified immunity.

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1. Eleventh Amendment

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The Eleventh Amendment bars the entire action against the

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CUIAB.

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not a “person” under § 1983.

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Police, 491 U.S. 58, 90 (1989).

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state actor in his official capacity is no different from a suit

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against the state itself, the Eleventh Amendment also bars damages

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actions against state officials in their official capacity.

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at 71; see also See Flint v. Dennison, 488 F.3d 816, 824-25 (9th

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Cir. 2007).

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official capacity.

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to dismiss on these grounds and bars claims against Dresser for

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money damages.

As a state agency, the CUIAB is an “arm of the state” and
See Will v. Michigan Dep't of State
Further, because a suit against a

Id.

Guevarra’s complaint purports to sue Dresser in his
Accordingly, the Court grants CUIAB’s motion

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2. Claim Against Dresser

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Guevarra has not stated a claim against Dresser for equitable

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relief and could not sue him for money damages in his personal

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capacity.

A person deprives another of a constitutional right,
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“within the meaning of § 1983, ‘if he does an affirmative act,

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participates in another’s affirmative act, or omits to perform an

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act which he is legally required to do that causes the deprivation

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of which complaint is made.’”

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Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson

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v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

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merely states that Dresser is “the highest executive office[r] of

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the CUIAB with decision making power over the agency.”

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¶ 11.

Preschooler II v. Clark Cnty. Sch.

Here, Guevarra

Compl.

This is not sufficient to survive a motion to dismiss.

United States District Court
For the Northern District of California

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Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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Guevarra has not alleged that Dresser directed particular

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decision-making or explained how his actions have a “causal

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connection” with her constitutional deprivation.

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885 F.2d 642, 646 (9th Cir. 1978).

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based on supervisory liability.

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only upon a showing of personal participation by the defendant

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. . . .

18

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)(citations

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omitted).

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connecting Dresser to her alleged injury.

Hansen v. Black,

Nor could Guevarra sue Dresser

“Liability under § 1983 arises

There is no respondeat superior liability under § 1983.”

Accordingly, Guevarra has failed to set forth facts

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3. Qualified Immunity

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The defense of qualified immunity protects “government

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officials . . . from liability for civil damages insofar as their

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conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have

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known.”

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of qualified immunity protects “all but the plainly incompetent or

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those who knowingly violate the law,” and defendants can have a

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

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The rule

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reasonable, but mistaken, belief about the facts or about what the

2

law requires in any given situation.

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194, 202 (2001).

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Saucier v. Katz, 533 U.S.

Dresser is not alleged to have taken any action that violated

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any clearly established right of Guevarra’s.

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had stated a claim against him over which this Court had

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jurisdiction, Dresser would be entitled to the protections

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afforded by qualified immunity from suit for damages.

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4.

United States District Court
For the Northern District of California

10

Thus, even if she

Leave to Amend Denied

The Court will not permit Guevarra to amend the complaint to

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add the ALJ or the CUIAB panel members.

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performing quasi-judicial functions enjoy absolute immunity.

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Mitchell v. Forsyth, 472 U.S. 511, 520 (1986).

14

extended absolute judicial immunity “to officers whose functions

15

bear a close association to the judicial process,” and

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specifically to administrative law judges.

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F.2d 155, 156 (9th Cir. 1985).

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Judges and officials

Courts have

Demoran v. Witt, 781

Dismissal of a complaint without leave to amend can be

19

granted where the defect cannot be cured by amendment.

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Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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Because the defects here cannot be cured, the Court dismisses

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Guevarra’s complaint against the CUIAB and Dresser without leave

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to amend.

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II.

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Eminence

Causes of Action Against Defendant Seton Medical Center
Defendant Seton Medical Center moved to dismiss the third

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cause of action for breach of contract for failure to exhaust

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contractual remedies, a “nonenumerated” Rule 12(b) motion, citing

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Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 738 F.2d
12

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365, 368 (9th Cir. 1998).

2

fourth cause of action due to the “absence of sufficient facts

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alleged under a cognizable legal theory,” citing Balistreri v.

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Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).

5

alternative, Seton also moved to stay this case pursuant to the

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Colorado River doctrine.

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United States District Court
For the Northern District of California

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Seton moved to dismiss Guevarra’s

In the

A. Breach of Contract and of the Covenant of Good Faith and
Fair Dealing
Guevarra’s third cause of action alleges that Seton breached
its contract and the covenant of good faith and fair dealing.
Seton points out that members of a collective bargaining unit
cannot claim a breach of the CBA without first exhausting
contractual grievance procedures, which Guevarra failed to do.
Accordingly, Guevarra is barred from bringing a claim.

29 U.S.C.

§ 185; Young v. Anthony’s Fish Grotto of La Jolla, 830 F.2d 993,
997 (9th Cir. 1987).
Section 301 of the LMRA provides federal jurisdiction over
“[s]uits for violation of contracts between an employer and a
labor organization.”

Federal law exclusively governs a suit for

breach of a collective bargaining agreement under § 301, the
preemptive scope of which displaces any state cause of action
based on a collective bargaining agreement, as well as any state
claim whose outcome depends on analysis of the terms of the
agreement.

Id. at 997.

Although courts generally may not look beyond the complaint
when deciding a motion pursuant to Federal Rule of Civil Procedure
12(b)(6), the Court considers the full collective bargaining

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13

1

agreement.

2

complaint, but does not attach it, the moving party may introduce

3

the exhibit as part of its motion attacking the pleading.

4

Stac Electronics Securities Litig., 89 F.3d 1399, 1405, fn. 4 (9th

5

Cir. 1996).

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attaching portions of it to her complaint, the Court considers the

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full CBA.

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9

Where a plaintiff relies on a document in the

In re

Because Guevarra herself referred to the CBA by

Guevarra’s failure to use the grievance procedures bars her
from pursuing remedies in court.

The general rule is that “a

United States District Court
For the Northern District of California

10

bargaining unit employee may not bring an action for breach of the

11

collective bargaining agreement unless he has exhausted the

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contractual grievance procedures.”

13

Gas Co., 881 F.2d 638, 646 (9th Cir. 1989).

14

that the grievance procedures were not mandatory is incorrect.

15

The CBA prescribes that its procedure for grievance is binding and

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mandatory: “The parties shall use the following procedure in an

17

effort to resolve any grievances which may arise during the term

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of the Agreement . . . The decision of the impartial arbitrator

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shall be final and binding upon the parties.”

20

A, §§ 43.2.1, 43.3.1.

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shall have the right to discharge or assess disciplinary action

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for just cause.”

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any disagreements arise that cannot be resolved between the

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parties, the matter shall be resolved according to the arbitration

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procedure described in this section.”

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the grievance procedures are mandatory.

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28

Jackson v. Southern California
Guevarra’s contention

Robinson Dec., Ex.

Section 43.6.1 states, “The Medical Center

Id. § 43.6.1.

Section 44.6.3 states, “Should

Id. § 44.6.3.

Accordingly,

Guevarra contends with a single sentence in her response
brief that her union failed to grieve for her.
14

Pl’s Resp. at 20.

1

In support of this contention, Guevarra cites from her complaint

2

and deposition without providing any further details.

3

complaint states that “Plaintiff contacted her union

4

representative to discuss the termination but was emotionally

5

devastated, tearful and not very coherent,” and that “Plaintiff

6

alleges that the union’s failure to grieve the termination was

7

arbitrary and contrary to Plaintiff’s preference.”

8

27.

9

to advise her of the need to file a grievance.

Guevarra’s

Compl. ¶¶ 26,

In Guevarra’s deposition she states that the union neglected
Pl’s RJN, Ex. O.

United States District Court
For the Northern District of California

10

“An exception to the general requirement of exhaustion exists

11

. . . where the employee demonstrates that the union representing

12

the employee in the grievance/arbitration procedure [has acted] in

13

such a discriminatory, dishonest, arbitrary, or perfunctory

14

fashion as to breach its duty of fair representation.”

15

v. Thrifty Payless, Inc., 509 F.3d 978, 986 (9th Cir.

16

2007)(internal citation and quotation marks omitted).

17

Sipes, 386 U.S. 171 (1967), held that “the wrongfully discharged

18

employee may bring an action against his employer in the face of a

19

defense based upon the failure to exhaust contractual remedies,

20

provided the employee can prove that the union as bargaining agent

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breached its duty of fair representation in its handling of the

22

employee's grievance.”

23

to bring an individual suit against an employer for breach of the

24

CBA must allege and prove that the union reached its duty of fair

25

representation.

Id. at 186.

Soremekun

Vaca v.

Thus, an employee who seeks

Soremekun, 509 F.3d at 986.

26

Here, neither Guevarra’s state court action nor the instant

27

action against Seton alleges that her union breached the duty of

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15

1

fair representation.

2

union’s breach of its duty of fair representation, her § 301 claim

3

would be barred by the statute of limitations, which is six months

4

and has expired.

5

Brotherhood of Teamsters, 462 U.S. 151, 169-70 (1983).

6

Further, even if Guevarra could allege the

29 U.S.C. § 160(b); DelCostello v. Int'l

Because Guevarra has failed to exhaust the mandatory

7

grievance procedures prescribed in the CBA and has not alleged the

8

union’s breach of its duty of fair representation and it is too

9

late to do so now, there is no reason to grant Guevarra leave to

United States District Court
For the Northern District of California

10

amend her complaint.

11

of the contract and breach of the covenant of good faith and fair

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dealing must be dismissed.

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B.

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Guevarra’s claims against Seton for breach

Violation of Free Speech Right Under the California
Constitution

Guevarra’s fourth and final cause of action alleges that
Seton violated her right to free speech under the California
Constitution.

Article I, Section 2(a) of the California

Constitution provides, “Every person may freely speak, write and
publish his or her sentiments on all subjects, being responsible
for the abuse of this right.”

Seton argues that Guevarra’s

complaint should be dismissed because the California Constitution
does not apply to private employers, noting that the section
provides, “A law may not restrain or abridge liberty of speech or
press.”

Cal. Const. Art. I, Sec. 2.

However, each of the cases

Seton cites in support of its argument discusses the state actor
limitation of the First Amendment to the United States
Constitution, or discusses the divide among California courts of

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16

1

appeal with respect to whether Article 1, Section 2 contains such

2

a limitation.

3

Cal. App. 4th 72, 81 (2004) (analyzing First Amendment rights);

4

Eisenberg v. Alameda Newspapers, 74 Cal. App. 4th 1359, 1391

5

(1999) (same); Warwick v. Univ. of the Pac., 2008 U.S. Dist. LEXIS

6

97207, *16 (N.D. Cal.) (noting that “California courts of appeal

7

are somewhat divided” on the issue).

8
9

See, e.g., Grinzi v. San Diego Hospice Corp., 120

Plaintiff counters that the right to free speech under the
California Constitution is broader than the federal right and

United States District Court
For the Northern District of California

10

extends to private employers.

11

California Supreme Court enforced Article I, Section 2 against a

12

private entity.

13

on privately owned property that had been opened to the public.

14

See, e.g., Press v. Lucky Stores, 24 Cal. 3d 311 (1983) (dealing

15

with circulation of petitions in a privately owned shopping

16

center); Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 910

17

(1979) (“Shopping centers to which the public is invited can

18

provide an essential and invaluable forum for exercising [free

19

speech] rights.”).

20

discusses the application of Article I, Section 2 to private

21

actors.

22

owners placed on people exercising speech rights on private

23

property . . . that had been opened to the public such that the

24

private property in essence becomes a public forum.”

25

Feld Entm’t, Inc., 2013 U.S. Dist. LEXIS 145495, *22-*23 (N.D.

26

Cal.); see also Cuvello v. City of Stockton, 2008 U.S. Dist. LEXIS

27

116537, *23 (E.D. Cal.) (finding that Article I, Section 2

Plaintiff cites cases in which the

However, each of those cases involved free speech

There is nothing in those cases that broadly

Instead, they discuss “restrictions private property

28
17

Campbell v.

1

“extends to those private actors who open their land to the public

2

and, in so doing, resemble state actors.”).

3

Accordingly, the Court finds that Article I, Section 2 does

4

not provide a cause of action in this case.

5

a number of other federal district and California courts have

6

found that a state action limitation is required under Article I,

7

Section 2.

8

(“Article I, Section 2 protects only against interference by state

9

actors of citizens’ exercise of speech rights in a public

The Court notes that

See, e.g., Campbell, 2013 U.S. Dist. LEXIS at *24

United States District Court
For the Northern District of California

10

forum.”); Bolbol v. Feld Entmt, Inc., 2013 U.S. Dist. LEXIS 9800,

11

*17-18 (N.D. Cal.) (same) ; Ennis v. City of Daly City, 2011 U.S.

12

Dist. LEXIS 15824, *16 (N.D. Cal.) (finding that “the California

13

Constitution's free speech clause has a state action limitation”);

14

Thornbrough v. W. Placer Unified Sch. Dist., 2010 U.S. Dist. LEXIS

15

53136, *19 (E.D. Cal.) (“California's free speech clause

16

predicates a violation upon state action.”); Yu v. Univ. of La

17

Verne, 196 Cal. App. 4th 779, 790 (2011) (“A person's free speech

18

rights under the federal and state constitutions are not infringed

19

unless there is state action.”).

20

The Court dismisses Guevarra’s fourth cause of action.

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22

CONCLUSION
The Court GRANTS the CUIAB and Dresser’s motion for dismissal

23

with prejudice on the grounds of lack of subject matter

24

jurisdiction and Eleventh Amendment immunity.

25

Seton’s motion for dismissal with prejudice of the third cause of

26

action on the grounds that Guevarra failed to exhaust the

27

grievance procedures pursuant to the CBA and her time to do so has

28

expired.

The Court GRANTS

The Court GRANTS Seton’s motion for dismissal of the
18

1

fourth cause of action with prejudice because Seton is a private

2

employer, not a government actor.

3

and close the file.

4

suit.

The clerk shall enter judgment

Both parties shall bear their own costs of

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6

IT IS SO ORDERED.

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9

Dated:

12/2/2013

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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