Hatfield et al v. DaVita Healthcare Partners, Inc.

Filing 23

ORDER by Judge Saundra Brown Armstrong GRANTING DEFENDANTS 7 MOTION TO DISMISS. (ndr, COURT STAFF) (Filed on 5/20/2014)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 OAKLAND DIVISION 7 8 SANDRA HATFIELD, an individual; LAUREL ANTONUCCI, an individual; and 9 MAUREEN PATRICIA MURPHY, an individual, 10 Plaintiffs, 11 vs. Case No: C 13-5206 SBA ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Dkt. 7 12 DaVITA HEALTHCARE PARTNERS, INC.; and Does 1 through 50, inclusive,, 13 Defendants. 14 15 16 Plaintiffs Sandra Hatfield (“Hatfield”), Laurel Antonucci (“Antonucci”) and 17 Maureen Patricia Murphy (“Murphy”) filed suit in state court alleging that they were 18 subjected to discrimination and retaliation, and ultimately were constructively discharged 19 by their former employer, DaVita Healthcare Partners, Inc. (“DaVita” or “Defendant”). 20 Defendant removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. 21 § 1332. 22 The parties are presently before the Court on Defendant’s Motion to Dismiss 23 Pursuant to FRCP 12(b)(6), or Alternatively, 12(e). Dkt. 7. Having read and considered 24 the papers filed in connection with this matter and being fully informed, the Court hereby 25 GRANTS the motion to dismiss and DENIES AS MOOT the alternative motion for a more 26 definite statement. Plaintiffs’ second through sixth causes of action are DISMISSED with 27 leave to amend. The Court, in its discretion, finds this matter suitable for resolution 28 without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b). 1 I. BACKGROUND1 2 Defendant operates kidney dialysis clinics throughout the United States, including 3 one located in the Bel-Aire Plaza Shopping Center in Napa, California, where each of the 4 Plaintiffs worked. Compl. ¶ 4, Dkt. 1. Hatfield moved from Indiana to California to work 5 as a dialysis nurse at the clinic in July 2012. Id. ¶ 5, 10, 46. Murphy began working at the 6 clinic in January 2012, also as a dialysis nurse. Id. ¶¶ 7, 12. Antonucci worked at the clinic 7 as a social worker beginning in December 2005. Id. ¶ 11. 8 9 Plaintiffs allege a myriad of complaints with respect to working at the Napa clinic. They claim to have experienced a hostile work environment which was “medically 10 dangerous,” and “rife with discrimination” as a result of the predominantly Filipino clinic 11 staff who were abusive Caucasian patients and staff. Id. ¶ 13. In addition, Plaintiffs allege 12 that: Defendant failed to accommodate Murphy’s disability, id. ¶ 13D; discriminated 13 against Antonucci on account of her sexual preference, id. ¶ 13E; and terminated Murphy 14 for complaining about the work environment, id. ¶ 13F. The work conditions allegedly 15 became sufficiently unbearable such that Hatfield was constructively discharged in April 16 2013; Antonucci in March 2013; and Murphy in October 2012. Id. ¶ 15. 17 On October 4, 2013, Plaintiffs filed the instant action against Defendant in the 18 County of Napa Superior Court alleging six state law causes of action for: (1) constructive 19 discharge in violation of public policy (by Hatfield and Antonucci only); (2) breach of 20 contract; (3) breach of the implied covenant of good faith and fair dealing; (4) retaliation, 21 failure to prevent harassment, discrimination; (5) fraudulent inducement to accept 22 employment (by Hatfield only); and (6) intentional infliction of emotional distress. 23 On November 8, 2013, Defendant removed the action on the basis of diversity 24 jurisdiction. Pursuant to Rule 12(b)(6), Defendant moves to dismiss the second through 25 sixth causes of action for failure to state a claim, or alternatively, for a more definite 26 statement under Rule 12(e). The motion has been fully briefed and is ripe for adjudication. 27 1 28 The following summary is taken from allegations of the Complaint which are presumed true for purposes of a Rule 12(b)(6) motion to dismiss. -2- 1 II. 2 LEGAL STANDARD “Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a 3 cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal 4 theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Rule 12(b)(6) is read 5 in conjunction with Rule 8(a), which requires not only ‘fair notice of the nature of the 6 claim, but also grounds on which the claim rests.’” Zixiang Li v. Kerry, 710 F.3d 995, 998- 7 99 (9th Cir. 2013) (quoting in part Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 8 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual 9 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570 (2007)). A complaint 11 must contain more than “labels and conclusions” or a “formulaic recitation of the elements 12 of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief 13 above the speculative level.” Twombly, 550 U.S. at 555. 14 In assessing the sufficiency of the pleadings, “courts must consider the complaint in 15 its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) 16 motions to dismiss, in particular, documents incorporated into the complaint by reference, 17 and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & 18 Rights, Ltd., 551 U.S. 308, 322 (2007). The court is to “accept all factual allegations in the 19 complaint as true and construe the pleadings in the light most favorable to the nonmoving 20 party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 21 2007). Where a complaint or claim is dismissed, leave to amend generally is granted, 22 unless further amendment would be futile. Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 23 1087-88 (9th Cir. 2002). 24 III. DISCUSSION 25 A. 26 In general, employment relationships in California are presumed to be “at will,” BREACH OF CONTRACT 27 meaning that “employment may be ended by either party ‘at any time without cause,’ for 28 any or no reason, . . .” Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 335 (2000) (summarizing -3- 1 Cal. Lab. Code § 2922). The statutory presumption of at-will employment may be 2 overcome by “‘an agreement, express or implied, that . . . the employment relationship will 3 continue indefinitely, pending the occurrence of some event such as the employer’s 4 dissatisfaction with the employee’s services or the existence of some “cause” for 5 termination.’” Foley v. Interactive Data Corp., 47 Cal.3d 654, 680 (1988) (citation 6 omitted). “The mere existence of an employment relationship affords no expectation, 7 protectible by law, that employment will continue, or will end only on certain conditions, 8 unless the parties have actually adopted such terms.” Guz, 24 Cal. 4th at 350. 9 In their second cause of action for breach of contract, Plaintiffs allege that their 10 employment was governed by “written contracts” which provided that they could be 11 discharged only for good cause. Compl. ¶ 25. To state a claim for breach of contract, a 12 plaintiff must allege facts establishing the existence of a contract, her performance or 13 excuse for nonperformance, breach by the other party, and resulting damages. See First 14 Comm’l Mortgage Co. v. Reece, 89 Cal. App. 4th 731, 745 (2001). Here, Defendant 15 focuses on the first element, and contends that Plaintiffs’ allegations are insufficient to 16 demonstrate the existence of express employment agreements. 17 With regard to Hatfield, Plaintiffs allege that her written contract is comprised of the 18 job offer letter from Defendant, a copy of which is attached as Exhibit A to the Complaint. 19 Compl. Ex. A. The letter expressly states, however, that Hatfield’s employment is “at-will” 20 and can be terminated “at any time, for any reason or no reason, with or without notice.” 21 Id. The letter further confirms that nothing contained therein is “intended to create an 22 express or implied contract.” Id. Given the provisions affirming that Hatfield’s 23 employment is at-will, her offer letter is insufficient to establish the existence of an express 24 contract of employment. See Soliman v. CVS RX Servs., Inc., --- Fed.Appx. ---, 2014 WL 25 1568863, *1 (9th Cir. April 21, 2014) (affirming dismissal of breach of contract claim, 26 where the employee’s offer letter stated that the offer was for “at will employment such that 27 you or the Company may terminate your employment relationship at anytime and for any 28 reason.”). -4- 1 Antonucci’s breach of contract claim fares no better. The pleadings allege that 2 Antonucci’s written contract is embodied in her written job description, a copy of which is 3 attached to the Complaint as Exhibit B. Compl. Ex. B. However, this document is nothing 4 more than a general description of the job duties for the social worker position. This is 5 confirmed at the bottom of the job description, which recites that: “The above statements 6 are intended to describe the general nature and level of work assignment for this job.” Id. 7 There are no statements in the job description that create any express or implied contractual 8 obligations on the part of Defendant or suggest that Antonucci’s employment with 9 Defendant was anything other than at-will. 10 Finally, Plaintiffs have failed to establish the existence of an express contract of 11 employment between Defendant and Murphy. Defendant contends that Plaintiffs have 12 failed to state a cause of action for breach of contract as to Murphy on the grounds that 13 Plaintiffs have not alleged verbatim the contract terms allegedly breached or attached a 14 copy of the contract to the pleadings. Opp’n at 6.2 While this rule applies in state court 15 actions, see Otworth v. Southern Pac. Transportation Company, 166 Cal. App. 3d 452, 459 16 (1985), it is not entirely clear that it is germane to federal court actions, which are governed 17 by Rule 8(a), see Daly v. United Healthcare Insurance Company, No. C 10-3032 LHK, 18 2010 WL 4510911, *3 (N.D. Cal. Nov. 1, 2010) (“Federal procedural law . . . does not 19 require plaintiffs to attach a copy of the contract to a complaint alleging breach of that 20 contract or to recite the contract terms verbatim”). That notwithstanding, the pleadings fail 21 to allege any facts regarding the nature and terms of the express contract between Murphy 22 and Defendant that allegedly was breached. 23 It bears noting that Plaintiffs fail to respond directly to Defendant’s arguments for 24 dismissing any of their claims for breach of contract. Instead, Plaintiffs counter that 25 “California courts have allowed contract claims to stand despite the at-will nature of a 26 plaintiff’s employment agreement where the plaintiff alleged a claim for wrongful 27 2 28 Unlike Hatfield and Antonucci, Murphy “does not have her written contract in her possession.” Compl. ¶ 25. -5- 1 discharge in violation of public policy.” Opp’n at 5. This assertion is illogical and legally 2 untenable. In Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980), “the California 3 Supreme Court carved out an exception to the at-will rule by recognizing a tort cause of 4 action for wrongful terminations that violate public policy.” Freund v. Nycomed 5 Amersham, 347 F.3d 752, 758 (9th Cir. 2003) (emphasis added).3 The duty underlying a 6 Tameny claim “is not based on the terms and conditions of the contract, but rather arises 7 out of a duty implied in law on the part of the employer to conduct its affairs in compliance 8 with public policy[.]” Koehrer v. Super. Ct., 181 Cal. App. 3d 1155, 1166 (1986). As such, 9 Plaintiffs’ ability to bring a claim for wrongful termination in violation of public policy has 10 no bearing on whether they have satisfied the pleading requirements to state a claim for 11 breach of contract. 12 Given Plaintiffs’ failure to address the deficiencies in their breach of contract cause 13 of action, it is unclear whether their lack of response indicates their desire to abandon their 14 contract claim. See Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197, 1210 (N.D. Cal. 15 2013) (finding that the failure to respond to argument amounts to a concession that the 16 argument has merit). In view of this ambiguity, the Court, out of an abundance of caution, 17 grants Plaintiffs leave to amend to allege facts sufficient to establish the existence of an 18 express contract if they are able. Plaintiffs should be aware that any pleading filed in this 19 Court is subject to Federal Rule of Civil Procedure 11, and therefore, Plaintiffs may allege 20 additional facts only to the extent that they have a good faith basis for doing so. If 21 Plaintiffs no longer desire to pursue their breach of contract claim, they should omit such 22 claim from the amended complaint. See London v. Coopers & Lybrand, 644 F.2d 811, 814 23 3 The elements of a claim for wrongful termination in violation of public policy are: (1) an employer-employee relationship; (2) an adverse employment action, (3) that the 25 adverse employment action violated public policy, and (4) the adverse employment action caused the employee damages. Haney v. Aramark Uniform Servs., Inc., 121 Cal. App. 4th 26 623, 641 (2004). Here, Plaintiffs’ first cause of action is for wrongful constructive discharge in violation of public policy on behalf of Hatfield and Antonucci. That claim is 27 not being challenged by Defendant in the instant motion to dismiss. 24 28 -6- 1 (9th Cir. 1981) (“[A] plaintiff waives all causes of action alleged in the original complaint 2 which are not alleged in the amended complaint.”). Accordingly, Plaintiffs’ second cause 3 of action for breach of contract is DISMISSED with leave to amend. 4 B. 5 Every contract imposes upon each party a duty of good faith and fair dealing in its BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 6 performance and its enforcement. Carma Developers (Cal.), Inc. v. Marathon Devel. Calif., 7 Inc., 2 Cal.4th 342, 371-72 (1992). The existence of a contract is a necessary element of a 8 claim for breach of the implied covenant of good faith and fair dealing. See Racine & 9 Laramie, Ltd. v. Dep’t of Parks & Recreation, 11 Cal. App. 4th 1026, 1031 (1992) (“The 10 implied covenant of good faith and fair dealing rests upon the existence of some specific 11 contractual obligation.”). In view of the Court’s finding that Plaintiffs have failed to state a 12 claim for breach of contract, Plaintiffs’ third cause of action for breach of the implied 13 covenant of good faith and fair dealing is DISMISSED with leave to amend. 14 C. 15 Plaintiffs’ fourth cause of action is styled as “Retaliation; Failure to Prevent DISCRIMINATION/FAILURE TO PREVENT HARASSMENT/RETALIATION 16 Harassment; Discrimination.” In fact, these are distinct legal claims, which, for purposes of 17 clarity, should have been alleged as separate causes of action. Janken v. GM Hughes 18 Elecs., 46 Cal.App.4th 55, 64-65 (1996) (noting that a harassment claim is distinct from a 19 discrimination or retaliation claim). Defendant’s arguments for dismissal of these claims 20 are discussed below. 21 22 23 1. Discrimination a) Race, Sexual Orientation and Medical Condition Under California’s Fair Employment and Housing Act (“FEHA”), it is “an unlawful 24 employment practice . . . [f]or an employer, because of the race, religious creed, color, 25 national origin, ancestry, physical disability, mental disability, medical condition, genetic 26 information, marital status, sex, gender, gender identity, gender expression, age, sexual 27 orientation, or military and veteran status of any person . . . to discriminate against the 28 person in compensation or in terms, conditions, or privileges of employment.” Cal. Gov’t -7- 1 Code § 12940(a) (emphasis added).4 The Complaint alleges that: (1) all Plaintiffs were 2 subjected to discrimination on account of their race and for opposing Defendant’s 3 “unlawful and discriminatory employment practices,” Compl. ¶¶ 13B, 36; (2) Murphy was 4 subjected to discrimination on account of her whistleblowing and an unspecified “medical 5 condition,” id. ¶¶ 13D, 13F, 38; and (3) Antonucci was allegedly subjected to 6 discrimination on account of her unspecified “sexual preference,” id. ¶¶ 37.5 7 With regard to Plaintiffs’ FEHA claims of race, sexual orientation and medical 8 condition discrimination, Defendant contends that Plaintiffs have failed to allege facts 9 establishing a prima facie case of discrimination under McDonnell Douglas Corp v. Green, 10 411 U.S. 792 (1973). See Guz, 24 Cal.4th at 354-55 (noting that California has adopted the 11 McDonnell Douglas framework in employment discrimination cases). Though Plaintiffs 12 fail to address this contention, the Court notes that “[t]he prima facie case under McDonnell 13 Douglas . . . is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. 14 Sorema N.A., 534 U.S. 506, 509 (2002). “Consequently, the ordinary rules for assessing 15 the sufficiency of a complaint apply.” Id. Under those “ordinary rules,” plaintiff must 16 properly allege factual allegations which “allow[ ] the court to draw the reasonable 17 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 18 Applying the federal standards for pleading in accordance with Rule 8(a), the Court 19 finds that the allegations of the Complaint are too conclusory to state a claim for 20 discrimination under FEHA. Though generally alleging that the predominantly Filipino 21 staff at Defendant’s clinic in Napa discriminated against Caucasians, Plaintiffs do not 22 4 The Complaint does not specify whether Plaintiffs’ discrimination claim is brought under FEHA or its federal analog, Title VII of the Civil Rights Act of 1964 (“Title VII”), or 24 both. Since Plaintiffs filed suit in state court, they presumably are relying solely on state law. However, “Title VII and FEHA operate under the same guiding principles.” Brooks v. 25 City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). Therefore, the Court’s analysis is the same, regardless of whether Plaintiffs’ discrimination claim is construed under FEHA 26 or Title VII. 23 5 Plaintiffs’ allegations of discrimination based on opposing Defendant’s allegedly illegal practices and being a whistleblower are more accurately framed as retaliation claims, 28 and will be discussed in the subsection below. 27 -8- 1 specifically identify themselves as Caucasian—or any other race. Compl. ¶ 13B. Plaintiffs 2 also do not allege that the actions of Filipino employees occurred in their presence or were 3 directed at them because of their race. Similarly, no facts are alleged establishing 4 Antonucci’s sexual orientation or Murphy’s medical condition. The Complaint also does 5 not set forth any facts regarding the actions of Defendant were because of their sexual 6 orientation and/or medical condition. Id. ¶¶ 13D, 13E. In view of the paucity of facts 7 alleged in the Complaint, Plaintiffs’ race, sexual orientation and medical condition 8 discrimination claims are DISMISSED with leave to amend. 9 b) Failure to Accommodate 10 Plaintiffs allege that “[Defendant] failed to provide [Murphy] with reasonable 11 accommodations despite being able to do so.” Compl. ¶ 13D. A claim for failure to 12 accommodate is governed by California Government Code § 12940(m). The essential 13 elements of such a claim are: (1) the plaintiff has a disability covered by FEHA; (2) the 14 plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate 15 the plaintiff’s disability. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 255-56 (2000). 16 A claim under § 12940(m) is similar to one for discrimination under § 12940(a) in that the 17 plaintiff must suffer from a disability covered by FEHA and is a qualified individual, but 18 differs in that an adverse employment action need not be shown. Id. Here, Plaintiffs fail to 19 allege any facts specifying Murphy’s alleged disability, that she is a qualified individual or 20 how Defendant failed to accommodate her disability. Accordingly, said claim is 21 DISMISSED with leave to amend. 22 23 2. Failure to Prevent Harassment FEHA makes it unlawful for “an employer . . . to fail to take all reasonable steps 24 necessary to prevent discrimination and harassment from occurring.” Cal. Gov. Code 25 § 12940(k). A plaintiff seeking to recover damages based on a claim of failure to prevent 26 harassment or discrimination must show three essential elements: (1) she was subjected to 27 discrimination, harassment or retaliation; (2) the defendant failed to take all reasonable 28 steps to prevent discrimination, harassment or retaliation; and (3) defendant’s failure caused -9- 1 plaintiff to suffer injury, damage, loss or harm. Lelaind v. City and County of San 2 Francisco, 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008) (citing BAJI 12.11). Plaintiffs 3 allege, without elaboration, that Defendant “failed to take reasonable steps to prevent the 4 aforementioned harassment, discrimination and retaliation.” Compl. ¶ 38.6 5 As noted, the first element of a cause of action under § 12940(k) requires the pleader 6 to establish that he or she was subjected to harassment. To establish a prima facie claim of 7 harassment under FEHA, a plaintiff must allege five elements: “(1) plaintiff belongs to a 8 protected group; (2) plaintiff was subject to unwelcome [ ] harassment; (3) the harassment 9 complained of was based on [a protected classification]; (4) the harassment complained of 10 was sufficiently pervasive so as to alter the conditions of employment and create an abusive 11 working environment; and (5) respondeat superior.” Fisher v. San Pedro Peninsula Hosp., 12 214 Cal. App. 3d 590, 608 (1989); see Cal. Gov’t Code § 12940(j)(1) (proscribing 13 harassment on account of an employee or applicant’s protected classification). 14 It is not entirely clear from the pleadings what type of harassment is being alleged. 15 For instance, the Complaint appears to allege harassment on account of race, as exemplified 16 by Plaintiffs’ claims that Filipino employees “would regularly berate” Caucasian 17 employees. Compl. ¶ 13B. However, Plaintiffs do not identify themselves as Caucasian 18 nor do they allege that they were subjected to or witnessed the various alleged acts of race- 19 based harassment. Id. Similarly, Plaintiffs claim that Antonucci was allegedly “treated 20 abusively and unfairly” and was “excluded from meetings [] and was the object of scorn 21 and derision” because of her sexual orientation. Id. ¶ 13E. Again, however, Plaintiffs fail 22 to identity Antonucci’s sexual orientation. Moreover, the allegations regarding Antonucci’s 23 alleged mistreatment are conclusory, and otherwise fail to establish that the alleged 24 25 6 As discussed, to state a claim for failure to prevent discrimination, harassment are retaliation, Plaintiffs must allege facts sufficient to state a claim for discrimination, 27 harassment and retaliation. Plaintiffs’ claim for discrimination is discussed above, and their claim for retaliation is discussed below. Therefore, this section specifically focusses on 28 Plaintiffs’ claim for harassment. 26 - 10 - 1 harassment was “sufficiently pervasive so as to alter the conditions of employment.” See 2 Fisher, 214 Cal. App. 3d at 608. 3 The vague and conclusory allegations of harassment fail to afford fair notice to 4 Defendant of the nature and factual basis for this claim. Plaintiffs’ claims for failure to 5 prevent harassment as well as the failure to prevent discrimination and retaliation are 6 therefore DISMISSED with leave to amend. 7 8 9 3. Retaliation The anti-retaliation provision of FEHA prohibits employers from taking any adverse employment action against an employee who “has opposed any practices forbidden under 10 [§ 12940] or because the person has filed a complaint, testified, or assisted in any 11 proceeding under this part.” Cal. Gov’t Code § 12940(h). “To state a claim of retaliation 12 under FEHA, a plaintiff must show: (1) he engaged in a protected activity, (2) he was 13 subjected to an adverse employment action, and (3) there is a causal link between the 14 protected activity and the adverse employment action.” Rope v. Auto-Chlor Sys. of Wash., 15 Inc., 220 Cal. App. 4th 635, 651 (2013). A similar yet distinct claim for retaliation in 16 violation of public policy may be alleged where the alleged employer misconduct involves 17 an adverse employment action that is less severe than discharge. Garcia v. Rockwell 18 Internat. Corp., 187 Cal. App. 3d 1556, 1562 (1986), abrogated on other grounds, Gantt v. 19 Sentry Insurance, 1 Cal.4th 1083 (1992).7 Such a claim is analyzed under the same test 20 applicable to a FEHA retaliation claim. See Loggins v. Kaiser Permanente Int’l, 151 Cal. 21 App. 4th 1102, 1109 (2007). 22 In the instant case, Plaintiffs allege that they were “subjected to harassing 23 conduct . . . because they opposed Defendant DaVita’s unlawful and discriminatory 24 employment practices and communicated such opposition to it.” Compl. ¶ 36. The 25 specific, objectionable practices allegedly communicated to Defendant are not clearly 26 7 Where the adverse employment action is a termination, the claim is one for wrongful termination in violation of public policy, as opposed to retaliation. See Scott v. 28 Phoenix Schools, Inc., 175 Cal. App. 4th 702, 714 (2009). 27 - 11 - 1 specified in the paragraphs that comprise this cause of action. Nonetheless, the Court notes 2 that elsewhere in the Complaint there are allegations that Plaintiffs were subjected to a 3 “medically dangerous environment,” “intolerable conditions” and racially-abusive conduct 4 by Filipino employees. E.g., id. ¶ 13A, 13B, 13C. What is absent, however, are allegations 5 that Plaintiffs actually complained about these practices to Defendant or precisely how 6 Defendant allegedly harassed or retaliated against Plaintiffs for making such complaints 7 (assuming they were made). In this regard, the allegations of the Complaint are particularly 8 confusing, as Plaintiffs allege only that “Murphy was terminated because of complaints she 9 made to Defendant DaVita regarding some of the conditions described above.” Compl. 10 11 ¶ 13F (emphasis added). In sum, the allegations in support of Plaintiff’s retaliation claim fail to provide 12 Defendant with fair notice of the factual basis therefor. To the extent that Plaintiffs intend 13 to pursue a claim of retaliation, it is incumbent upon them to allege facts that specify the 14 nature of the complaint or complaints made to Defendant by each Plaintiff, the adverse 15 employment action resulting from making such complaint, and facts from which it may be 16 plausibly inferred that the adverse employment action is linked to those complaints. Given 17 the absence of such allegations in the Complaint, Plaintiffs’ cause of action for retaliation is 18 DISMISSED with leave to amend. 19 D. 20 California Labor Code § 970 prohibits the making of knowingly false statements to FRAUDULENT INDUCEMENT TO ACCEPT EMPLOYMENT 21 induce or persuade someone to change their residence for purposes of employment. The 22 statute provides, in pertinent part: 23 24 25 No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change ... from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: 26 (a) The kind, character, or existence of such work; 27 28 (b) The length of time such work will last, or the compensation therefor[.] - 12 - 1 Cal. Lab. Code § 970. This provision “has a public purpose: to protect the community from 2 the harm inflicted when a fraudulently induced employment ceases and the former 3 employee is left in the community without roots or resources and becomes a charge on the 4 community.” Mercuro v. Super. Ct., 96 Cal. App. 4th 167, 180 (2002). Because this claim 5 sounds in fraud, it must be alleged with particularity under Rule 9(b). Kearns v. Ford 6 Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). To comport with Rule 9(b), the plaintiff 7 must allege “the who, what, when, where, and how” of the alleged fraudulent conduct. 8 Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). 9 The Complaint alleges that Defendant fraudulently induced Hatfield to move from 10 Indiana to California based on false promises that: (1) Defendant’s Napa clinic was 11 compliant with California law; (2) the clinic was “a good place to work”; (3) the clinic “had 12 a reputation as a facility with a statue [sic] and respect in the public’s eye”; (4) Hatfield 13 would find her job “fulfilling and satisfying”; and (5) “the clinic conditions were 14 professional.” Compl. ¶ 43, 46. Absent from the Complaint are allegations regarding when 15 and who made each of these statements, or facts supporting the inference that Defendant 16 knew the statements were false when made. See Hsu v. OZ Optics, 211 F.R.D. 615, 620 17 (N.D. Cal. 2002) (dismissing claim for promissory fraud where plaintiff failed to allege 18 facts showing that the defendant had no intention of being bound by its contractual 19 promises). 20 Plaintiffs argue that Rule 9(b)’s particularity requirements should be relaxed because 21 “the facts lie more in the knowledge of the Defendant.” Opp’n at 7.8 “Rule 9(b) may be 22 relaxed to permit discovery in a limited class of corporate fraud cases where the evidence 23 of fraud is within a defendant’s exclusive possession.” U.S. ex rel. Lee v. SmithKline 24 Beecham, Inc. 245 F.3d 1048, 1052 (9th Cir. 2001). In such situations, plaintiffs [cannot] 25 8 In support of this proposition, Plaintiffs cite California case law. Plaintiffs should be aware that “federal courts sitting in diversity apply state substantive law and federal procedural rules.” Gasperini v. Center for Humanities, 518 U.S. 415, 427 (1996). In this 27 instance, however, the state rule cited by Plaintiffs is the same under federal law. See Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989) (“[Rule 9(b)] may 28 be relaxed as to matters within the opposing party’s knowledge.”). 26 - 13 - 1 be expected to have personal knowledge of the relevant facts.” Neubronner v. Milken, 6 2 F.3d 666, 672 (9th Cir. 1993). That rule does not apply here, as the allegedly false 3 representations that form the basis of the instant claim were allegedly made to Hatfield. 4 Compl. ¶ 43. As such, she should be in a position to identify when and by whom the 5 statements were made. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir. 6 2010) (holding that “it was not unreasonable” to expect plaintiffs who received the 7 fraudulent telephone calls to have personal knowledge of and to allege who made the calls). 8 In view of Plaintiffs’ failure to allege fraud with specificity as required under Rule 9(b), 9 their fifth cause of action for fraudulent inducement to accept employment is DISMISSED 10 with leave to amend. 11 E. 12 The elements of cause of action for intentional infliction of emotional distress INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 13 (“IIED”) are: (1) extreme and outrageous conduct by the defendant with the intention of 14 causing, or reckless disregard of the probability of causing, emotional distress; (2) severe or 15 extreme emotional distress suffered by the plaintiff; and (3) actual and proximate causation 16 of the emotional distress by the defendant’s outrageous conduct. Hughes v. Pair, 46 Cal.4th 17 1035, 1050 (2009). A defendant’s conduct is “outrageous” when it is “so extreme as to 18 exceed all bounds of that usually tolerated in a civilized community.” Potter v. Firestone 19 Tire & Rubber Co., 6 Cal.4th 965, 1001 (1993) (internal quotations omitted). 20 In their cause of action for IIED, Plaintiffs simply allege that “Defendant DaVita’s 21 conduct as hereinabove alleged was outrageous.” Compl. ¶ 55. Though the section of the 22 Complaint comprising the IIED claim fails to allege what particular acts were outrageous, 23 Plaintiffs contend that by incorporating by reference all of the previous paragraphs of the 24 Complaint, they have satisfied their obligation of providing fair notice to Defendant of the 25 conduct that forms the basis of their IIED claim. Opp’n at 8-9. Not so. The pleadings 26 contain a litany of discursive allegations regarding purported wrongdoing by Defendant— 27 and it is far from clear which of the numerous acts alleged were directed against Plaintiffs. 28 For example, the Complaint alleges that: “Filipino employees would regularly berate - 14 - 1 Caucasians, and using profanity and oftentimes addressing Caucasians in Tagalog. . . . 2 This was directed to both patients and staff.” Compl. ¶ 13B. But Plaintiffs do not allege 3 that such conduct was directed at them, took place in their presence with knowledge of 4 Defendant, or was intended to cause them severe emotional distress. See Christensen v. 5 Superior Court, 54 Cal.3d 868, 903 (1991) (“It is not enough that the conduct be intentional 6 and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a 7 plaintiff of whom the defendant is aware.”). The other instances of purported misconduct 8 suffer from similar deficiencies. The Court will grant Plaintiffs leave to amend to cure 9 these deficiencies. 10 Alternatively, Defendant contends that Plaintiffs’ claim for IIED is barred by the 11 exclusivity provisions of California’s workers’ compensation law. See Cal. Labor Code 12 §§ 3600, 3602. Defendant’s blanket argument is not entirely accurate. “When the 13 misconduct attributed to the employer is actions which are a normal part of the employment 14 relationship, such as demotions, promotions, criticism of work practices, and frictions in 15 negotiations as to grievances, an employee suffering emotional distress causing disability 16 may not avoid the exclusive remedy provisions of the Labor Code by characterizing the 17 employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause 18 emotional disturbance resulting in disability.” Cole v. Air Oaks Fire Prot. Dist., 43 Cal.3d 19 148, 160 (1987). 20 The California Supreme Court has recognized that there are exceptions to the 21 workers’ compensation exclusivity for “conduct that ‘contravenes fundamental public 22 policy’. . . [and] conduct that ‘exceeds the risks inherent in the employment relationship.’” 23 Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 902 (2008). For instance, acts of 24 harassment and discrimination predicated on a plaintiff’s membership in a protected class 25 are deemed to exceed the risks inherent in the employment relationship and thus are not 26 preempted. See City of Moorpark v. Superior Ct., 18 Cal.4th 1143, 1155 (1998). 27 However, in Miklosy the court held that a whistleblower retaliation claim falls into neither 28 - 15 - 1 of the two aforementioned exceptions to workers’ compensation exclusivity, and therefore, 2 emotional distress claims premised on such conduct are preempted. 44 Cal.4th at 903. 3 At this juncture, the factual basis underlying Plaintiffs’ IIED claim is unclear. The 4 Court therefore said claim is DISMISSED with leave to amend. In amending this claim, 5 Plaintiffs shall remain mindful of whether their claims are subject to workers’ 6 compensation preemption, as discussed above. 7 IV. CONCLUSION 8 For the reasons set forth above, 9 IT IS HEREBY ORDERED THAT: 10 1. Defendant’s motion to dismiss is GRANTED. Plaintiffs’ second through 11 sixth causes of action of the Complaint are DISMISSED with leave to amend. Defendant’s 12 alternative motion for a more definite statement is DENIED AS MOOT. 13 2. Plaintiffs shall have twenty-one (21) days from the date this Order is filed to 14 file a First Amended Complaint, consistent with the Court’s rulings. Plaintiffs are advised 15 that any additional factual allegations set forth in their amended complaint must be made in 16 good faith and consistent with Federal Rule of Civil Procedure 11. To avoid unnecessary 17 motion practice, the parties shall meet and confer in good faith regarding the sufficiency of 18 Plaintiffs’ amended allegations in their forthcoming First Amended Complaint. 19 20 IT IS SO ORDERED. Dated: May 19, 2014 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 21 22 23 24 25 26 27 28 - 16 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?