Crawford v. City and County of San Francisco

Filing 30

ORDER by Judge Claudia Wilken ON 13 MOTION TO STRIKE AND 18 MOTION TO FILE UNDER SEAL. (granting in part and denying in part 13 ; granting 18 ). (ndrS, COURT STAFF) (Filed on 6/22/2016) Modified on 6/22/2016 to correct text (ndrS, COURT STAFF).

Download PDF
1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 WILLIE CRAWFORD, 5 Plaintiff, 6 7 8 United States District Court For the Northern District of California ORDER ON MOTION TO STRIKE AND MOTION TO FILE UNDER SEAL v. CITY AND COUNTY OF SAN FRANCISCO, et al., (Docket Nos. 13 & 18) Defendants. 9 10 No. C 16-1301 CW ________________________________/ 11 Defendant City and County of San Francisco 1 filed a motion to 12 strike Plaintiff Willie Crawford's state law causes of action 13 under California's anti-SLAPP statute, California Code of Civil 14 Procedure section 425.16. 15 the motion in part and denies it in part. 16 BACKGROUND 17 18 I. As explained below, the Court grants Factual Background Crawford, an African-American man, has worked for the San 19 Francisco Department of Public Health for thirty years. 20 been a Facilities Manager since approximately 2002. 21 He has Crawford's Second Amended Complaint (2AC) describes a pattern 22 of discrimination culminating in a biased investigation. 23 alleges that he outperforms his current classification, but was 24 denied a classification elevation on April 23, 2015. 25 also alleges that Department personnel spread untrue rumors about Crawford Crawford 26 1 27 28 Other Defendants included in the original Complaint and the First Amended Complaint were not included in the Second Amended Complaint. 1 him, which the City failed to stop. 2 that he "has a temper," and that people "should be careful if they 3 ever see" his son, a "gangster rapper." 4 recently, on January 26, 2016, Crawford's attorney received an 5 email stating that there was a rumor in the Department that 6 Crawford had passed away. 7 In particular, it is rumored 2AC ¶¶ 12-15. Most Next, Crawford describes several problematic elements of the 8 City's investigation. 9 2015, after Crawford had filed the original complaint in this The investigation began in late August United States District Court For the Northern District of California 10 case. 2 11 manufacture reasons for firing" him. 12 that the City Attorney investigator's witness summaries were broad 13 and biased. 14 witnesses while his tape-recorder was turned off; telling 15 witnesses what he wanted them to talk about." 16 states that the witness statement production to him was 17 incomplete; at least two witnesses whose statements were missing 18 from the production said positive things about Crawford. Crawford alleges that the "true purpose . . . was to Id. ¶ 18. Crawford alleges He also alleges that the investigator "questioned Id. ¶ 20. Crawford Later, 19 20 21 22 23 24 25 26 27 28 2 The City argues that it began the investigation when Stephanie Aquino, an employee whom Plaintiff previously supervised, filed complaints with the Controller's Office and the Department of Human Resources dated August 17 and 25, 2015, respectively. The motion to file these documents under seal (Docket No. 18) is GRANTED. See San Francisco Campaign and Governmental Conduct Code § 4.123(a)(ii) (stating that the City shall keep confidential "[c]omplaints or reports to the Whistleblower Program and information related to the investigation of the matter"); Docket No. 18-1, Dec. of Willie Ramirez ¶ 5 (declaring as the Department of Public Health's Labor Relations Director that it is his understanding that workplace complaints are not released to the general public). The motion is also GRANTED as to the resulting Controller's Office report. 2 1 on or about October 9, 2015, Crawford was placed on paid 2 administrative leave for misconduct, but was not given any 3 specifics on the alleged misconduct. 4 On December 1, 2015, the Director of Human Resources notified 5 Crawford that he was to report for an interview with the 6 investigator on December 8th. 3 7 Crawford's then-attorney stated that he was not available on 8 December 8, but offered two alternative dates. 9 Director responded that the investigators were available on the Id. ¶ 23. On December 2, Id. ¶ 24. The United States District Court For the Northern District of California 10 7th, that the interview could not take place later than the 7th, 11 and that the interview would take place on the 7th. 12 then agreed to the 8th even though his attorney could not attend. 13 Crawford's attorney argued that it would be unethical to proceed 14 in the absence of an attorney in light of this pending lawsuit, to 15 no avail. 16 Id. Crawford Crawford arrived at the interview to find that there was a 17 court reporter, although he had not been notified of this. 18 Crawford alleges that the scope of the questioning "clearly showed 19 that there was nothing specific. 20 designed to uncover some kind of misconduct or impropriety." 21 ¶ 27. 22 financial situation, including the financial situation of his 23 nephew who lives in China. 24 filed a motion to disqualify the City Attorney from representing This was a fishing expedition Id. There were many questions about Crawford's assets and In January 2016, Crawford's attorney 25 26 3 27 28 Paragraph 23 states that the interview was originally planned for the 4th, but Paragraph 24 describes the 8th as the date "that was initially offered." 3 1 Defendants. 2 an opposition. 3 The City Attorney voluntarily withdrew without filing The 2AC contains other allegations that do not relate to the 4 investigation of Crawford. 5 leave from December 9, 2015 through February 29, 2016, the City 6 served him with a notice of intent to dismiss and notice of a 7 Skelly 4 hearing to be conducted in early January 2016. 8 hearing occurred as scheduled without Crawford, in spite of 9 Crawford's attorney's objections. United States District Court For the Northern District of California 10 11 Although Crawford was granted medical Id. ¶ 32. This The main participants were allegedly "tainted by bias." Id. ¶ 33. Further, the Human Resources Director allegedly "took the 12 extraordinary step of intervening and protecting" certain 13 employees whom Crawford supervised and whom Crawford was planning 14 on disciplining. 15 investigation of a man who made the following statement about 16 Crawford: "I wish he was dead, I hate this guy." 17 that investigation, the City interviewed Crawford first, even 18 though he had not heard the comment, and then did not discipline 19 the man who made the statement. Id. ¶¶ 36-38. Crawford also cites the City's Id. ¶ 40. In 20 21 22 23 24 25 26 27 28 4 Skelly v. State Pers. Bd., 15 Cal. 3d 194, 215 (1975), holds that "the taking of punitive action against a permanent civil service employee" must fulfill certain due process requirements, including "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond." The notice of intent to dismiss sent to Crawford on December 18, 2015 stated that evidence supported that he made statements that threatened bodily harm, engaged in a controlling, intimidating and fearful pattern of practice, misused City resources and was untruthful in the course of his interview. Dec. of Willie Ramirez at Ex. B. 4 1 Finally, Crawford cites two incidents that he also attributes 2 to the alleged discrimination and harassment against him. 3 November 2014, Crawford discovered he had not been paid his 4 salary, which the Human Resources Director attributed to a 5 "payroll glitch" although it did not impact anyone else's salary. 6 Id. ¶¶ 43-44. 7 were deleted from the department servers but had been sent to "one 8 Arlena Winn, purportedly by him." 9 "being read by others and forwarded to others." United States District Court For the Northern District of California 10 II. In Additionally, three months of Crawford's emails Thus, he claims, his emails are Id. ¶¶ 45-46. Procedural History 11 In 2012, Crawford filed an official complaint with the 12 California Department of Fair Employment and Housing (DFEH) 13 alleging racial discrimination; in 2014, he amended the complaint 14 to include harassment and retaliation. 15 right to sue letter. 16 The DFEH issued him a On March 3, 2015, Crawford filed a complaint in San Francisco 17 Superior Court. 5 18 The City answered his subsequent 2AC and removed the action to 19 federal court because it contains a federal Family Medical Leave 20 Act claim. 21 discrimination, harassment and retaliation claims under 22 California's Fair Employment and Housing Act, an intentional 23 infliction of emotional distress claim, and a claim for wrongful 24 termination in violation of public policy. 25 // At that point, he alleged only state law claims. The 2AC also contains five state law claims, including 26 5 27 28 The Court takes judicial notice of the state court complaints. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Docket No. 21. 5 1 DISCUSSION 2 California’s anti-SLAPP statute provides, 3 A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. 4 5 6 7 8 Cal. Civ. Proc. Code § 425.16(b)(1). 9 motions to strike are available to litigants proceeding in federal United States District Court For the Northern District of California 10 court. 11 California anti-SLAPP Cir. 2005). 12 Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1206 (9th Courts analyze these motions in two steps. “First, the 13 defendant must make a prima facie showing that the plaintiff's 14 suit arises from an act in furtherance of the defendant’s rights 15 of petition or free speech.” 16 F.3d 590, 595 (9th Cir. 2010) (citation and internal quotation 17 marks omitted). 18 facie showing, the burden shifts to the plaintiff to demonstrate a 19 probability of prevailing on the challenged claims.” 20 Mindys Cosmetics, Inc. v. Dakar, 611 “Second, once the defendant has made a prima Id. “At [the] second step of the anti-SLAPP inquiry, the required 21 probability that [a party] will prevail need not be high.” 22 v. Hallmark Cards, 599 F.3d 894, 908 (9th Cir. 2009). 23 must show “only a ‘minimum level of legal sufficiency and 24 triability.’” 25 Oil Co., 23 Cal. 4th 429, 438 n.5 (2000)). 26 only “state and substantiate a legally sufficient claim.” 27 598-99 (citation and internal quotation marks omitted). 28 conducting its analysis, the “court ‘does not weigh the Hilton A plaintiff Mindys, 611 F.3d at 598 (quoting Linder v. Thrifty 6 The plaintiff need Id. at In 1 credibility or comparative probative strength of competing 2 evidence,’ but ‘should grant the motion if, as a matter of law, 3 the defendant’s evidence supporting the motion defeats the 4 plaintiff’s attempt to establish evidentiary support for the 5 claim.’” 6 Chidester, 28 Cal. 4th 811, 821 (2002)). 7 considers "the pleadings, and supporting and opposing affidavits 8 stating the facts upon which the liability or defense is based." 9 Id. at 598 (quoting Cal. Civ. Proc. Code § 425.16(b)(2)). United States District Court For the Northern District of California 10 11 I. Id. at 599 (quoting Wilson v. Parker, Covert & At this stage, the court Protected Activity Under the anti-SLAPP statute, the phrase "act in furtherance 12 of a person's right of petition or free speech under the United 13 States or California Constitution in connection with a public 14 issue" includes: 15 16 17 18 19 (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [or] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . . 20 Cal. Civ. Proc. Code § 425.16(e). 21 "preparatory to or in anticipation of the bringing of an official 22 proceeding are within the protection of section 425.16." 23 v. Cal. Dep't of Corr. & Rehab., 171 Cal. App. 4th 1537, 1544 24 (2008). 25 investigations. 26 (2008). 27 28 Written or oral statements Hansen This category includes communications seeking official Salma v. Capon, 161 Cal. App. 4th 1275, 1286 An internal proceeding may constitute an "official proceeding." Hansen, 171 Cal. App. 4th at 1544. 7 Specifically, a 1 city's investigation into an employee's conduct and its 2 determination that he had engaged in misconduct on the job may 3 satisfy the first prong of section 425.16. 4 L.A., 169 Cal. App. 4th 1373, 1383 (2008). 5 See Miller v. City of Here, many of Crawford's allegations relate to statements 6 made in connection with an official proceeding authorized by law. 7 For example, under the Charter of the City and County of San 8 Francisco, the Civil Service Commission adopted a policy on 9 workplace safety requiring investigation of "any reported United States District Court For the Northern District of California 10 incidents of threats or acts of violence by any employees." 11 Docket No. 16-1, Request for Judicial Notice Ex. A. 6 12 investigation of the co-worker who wished he were dead falls under 13 this umbrella. 14 investigation of Crawford's acts constitute protected activity. 15 The City's Similarly, statements connected to the City's Further, the Charter grants the City Controller authority to 16 receive complaints concerning "misuse of City government funds, 17 and improper activities by City government officers and 18 employees." 19 Controller to refer complaints that may constitute violations of 20 criminal law to the District Attorney and violations of 21 governmental ethics laws to the Ethics Commission and the City 22 Attorney. Id. Ex. E, Charter § F1.107. Id. It also requires the The Controller must "investigate and otherwise 23 24 25 26 27 28 6 The Court grants the City's request for judicial notice of all attachments filed in Docket Number 16. See Tollis, Inc. v. Cty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007) (granting judicial notice of municipal ordinances); Az. Libertarian Party v. Reagan, 798 F.3d 723, 727 n.3 (9th Cir. 2015), cert. denied, 136 S. Ct. 823 (2016) (taking judicial notice of "information posted on a governmental website" where its accuracy was undisputed). 8 1 attempt to resolve such individual complaints," with exceptions 2 not applicable here. 3 investigation of Crawford was a "legally-required investigation of 4 a whistleblower allegation against Crawford, regarding abuse of 5 authority and misuse of City resources." 6 Br. at 10. 7 Id. According to the City, the Docket No. 13, Opening In addition, the Charter directs that the Human Resources 8 Director "shall review and resolve allegations of discrimination" 9 and "shall investigate all employee complaints concerning job- United States District Court For the Northern District of California 10 related conduct of City and County employees." 11 The City argues that it followed these procedures in response to 12 Crawford's discrimination complaints. 13 into Crawford's and Aquino's complaints constitutes the City's 14 protected activity. 15 Charter § 10.103. The City's investigation Crawford argues that the investigation of him is not 16 protected because it was unlawful or done for an unlawful purpose. 17 He argues that it was a pretext for retaliation. 18 the alleged unlawfulness of the investigation removes his 19 allegations from the ambit of an anti-SLAPP motion. 20 California Supreme Court has concluded that an activity's alleged 21 unlawfulness renders the activity unprotected where "either the 22 defendant concedes, or the evidence conclusively establishes, that 23 the assertedly protected speech or petition activity was illegal 24 as a matter of law." 25 (2006). 26 have concluded that defendants may show that activity is protected 27 "even when their conduct was allegedly unlawful." 28 Prods., Inc., 730 F.3d 946, 954 (9th Cir. 2013). He claims that However, the Flatley v. Mauro, 39 Cal. 4th 299, 320 As the Ninth Circuit has clarified, California courts 9 Doe v. Gangland Flatley presents 1 an "exception" to that rule. 2 conceded that the investigation was illegal, and the Court cannot 3 conclude as a matter of law that it was. Id. n.2 Here, the City has not 4 Notably, several of Crawford's allegations regarding the 5 City's actions do not constitute protected activity, including the 6 City's failure to elevate his classification, the failure to stop 7 rumors spread about him and his son, the "payroll glitch," the 8 deletion of his emails and the transfer of employees he 9 supervised. The Court must decide whether the causes of actions United States District Court For the Northern District of California 10 at issue are "mixed" and therefore subject to anti-SLAPP 11 protection, or based on so few protected allegations that the 12 causes of action are not protected. 13 subject to section 425.16 if at least one of the underlying acts 14 is protected conduct, unless the allegations of protected conduct 15 are merely incidental to the unprotected activity." 16 Cal. App. 4th at 1287. 17 investigations authorized under law are not "merely incidental" to 18 the other allegations at issue. 19 first step of the anti-SLAPP inquiry; they comprise mixed causes 20 of action and are subject to protection. 21 22 II. "A mixed cause of action is Salma, 161 Here, the allegations related to official Thus, the allegations satisfy the Probability of success There are two main approaches to the second step on mixed 23 causes of action. 24 mixed cause of action satisfies the second prong of anti-SLAPP, 25 the entire cause of action continues." 26 1382398, at *1 n.2 (9th Cir.) (following Wallace v. McCubbin, 196 27 Cal. App. 4th 1169, 1212 (2011)); see also Haight Ashbury Free 28 Clinics, Inc. v. Happening House Ventures, 184 Cal. App. 4th 1539, Under the first approach, "if any part of a 10 Liberi v. Taitz, 2016 WL 1 1554 (2010); Burrill v. Nair, 217 Cal. App. 4th 357, 382 (2013). 2 That is, if the plaintiff has a probability of success on either 3 the allegations of protected activity or the allegations of 4 unprotected activity, the entire cause of action continues. 5 the second approach, where a plaintiff has established a 6 probability of prevailing on allegations of unprotected activity 7 but not on allegations of protected activity, the protected 8 activity allegations may be parsed from the causes of action and 9 stricken, while the allegations related to unprotected activity Under United States District Court For the Northern District of California 10 may remain part of the complaint. 11 Singletary, 206 Cal. App. 4th 751, 774 (2012); Cho v. Chang, 219 12 Cal. App. 4th 521, 527 (2013). 13 Court is expected to answer this question within the next few 14 months, 7 the Court follows the first approach in an abundance of 15 caution. See City of Colton v. Although the California Supreme 16 The City argues that, due to California's litigation 17 privilege, Crawford's state law claims have no probability of 18 prevailing and thus cannot meet the second prong of the anti-SLAPP 19 test. 20 . . . may present a substantive defense a plaintiff must overcome 21 to demonstrate a probability of prevailing."). 22 broadcast made "in any . . . official proceeding authorized by 23 law" is privileged. 24 "grants absolute immunity from tort liability." 25 4th at 324; see also Ribas v. Clark, 38 Cal. 3d 355, 364 (1985) See Flatley, 39 Cal. 4th at 323 ("The litigation privilege Cal. Civ. Code § 47(b). A publication or The privilege Flatley, 39 Cal. 26 27 28 7Oral argument in Baral v. Schnitt, Case No. S225090, was heard on May 5, 2016. 11 1 (applying the privilege to statutory causes of action). 2 the litigation privilege is similar to the description of 3 protected activity in the anti-SLAPP statute, the two are not 4 coterminous in all respects. 5 Rather, the privilege applies to communications made (1) in 6 judicial or quasi-judicial proceedings; (2) by litigants or other 7 participants authorized by law; (3) to achieve objects of the 8 litigation; and (4) that have some connection or logical relation 9 to the action. Although See Flatley, 39 Cal. 4th at 320-25. Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990); United States District Court For the Northern District of California 10 Feldman v. 1100 Park Lane Assocs., 160 Cal. App. 4th 1467, 1485 11 (2008). 12 Here, the statements made in connection with the protected 13 investigation are subject to the litigation privilege. 14 litigation privilege encompasses "a communication concerning 15 possible wrongdoing, made to an official governmental agency . . . 16 and which communication is designed to prompt action by that 17 entity." 18 It also encompasses statements made in or about many different 19 types of governmental investigations. 20 Audits, 67 Cal. App. 4th 1382, 1389 (1998) (collecting cases). 21 Further, the privilege is not limited to statements made during 22 the proceeding, but may extend to steps taken prior to or after 23 the proceeding. 24 the City cannot be held liable based on statements made to 25 initiate proceedings, statements within the proceedings, 26 statements regarding the proceedings or statements that are the 27 result of the proceedings unless an exception applies. 28 non-communicative acts, such as the fact of an investigation or The Williams v. Taylor, 129 Cal. App. 3d 745, 753 (1982). Braun v. Bureau of State Feldman, 160 Cal. App. 4th at 1485. 12 Therefore, Notably, 1 the fact of the appearance of a court reporter, would not fall 2 under this privilege. 3 As explained above, many of Crawford's allegations fall 4 outside of official proceedings. 5 for viability, without considering the allegations of 6 communications that are subject to the litigation privilege. 7 8 9 The Court examines each claim a. Racial discrimination (FEHA) The City argues that Crawford's racial discrimination claim should be stricken. In employment discrimination cases, courts United States District Court For the Northern District of California 10 typically use the burden-shifting framework described in McDonnell 11 Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and Texas 12 Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 13 (1981). 14 evaluate Title VII claims, California courts have since adopted it 15 to analyze FEHA claims, as well. 16 Cal. 4th 317, 354 (2000); Bradley v. Harcourt, Brace & Co., 104 17 F.3d 267, 270 (9th Cir. 1996). 18 provide evidence that (1) he was a member of a protected class, 19 (2) he was qualified for the position he sought or was performing 20 competently in the position he held, (3) he suffered an adverse 21 employment action and (4) some other circumstance suggests 22 discriminatory motive. 23 Although this framework was originally created to Guz v. Bechtel Nat’l Inc., 24 The plaintiff must generally Guz, 24 Cal. 4th at 355. The allegations in the 2AC are insufficient to suggest a 24 discriminatory motive. 25 careful of Crawford because his son was a rapper could be 26 considered racially charged, Crawford does not allege that the 27 City knew of this rumor. 28 discrimination to be drawn from the City's failure to discipline While the rumor that people should be There is no inference of race 13 1 Crawford’s co-worker following an investigation into a report that 2 he wished Crawford were dead. 3 on this claim, with leave to amend. 4 Covad Commc'ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004) ("granting 5 a defendant's anti-SLAPP motion to strike a plaintiff's initial 6 complaint without granting the plaintiff leave to amend would 7 directly collide with Fed. R. Civ. P. 15(a)'s policy favoring 8 liberal amendment"). 9 United States District Court For the Northern District of California 10 The Court GRANTS the City's motion Cf. Verizon Del., Inc. v. b. Harassment (FEHA) To evaluate a plaintiff’s claims of racial harassment under 11 FEHA, California courts rely on federal case law interpreting 12 Title VII. 13 Crawford must prove that (1) he was subjected to verbal or 14 physical conduct related to his membership in a protected class; 15 (2) the conduct was unwelcome; and (3) the conduct was 16 sufficiently severe or pervasive to alter the conditions of his 17 employment and create an abusive work environment. 18 Cty. of L.A., 349 F.3d 634, 642 (9th Cir. 2003) (citing Gregory v. 19 Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)). 20 Etter v. Veriflo, 67 Cal. App. 4th 457, 464 (1998). Vasquez v. This claim qualifies for anti-SLAPP protection at the first 21 step because Crawford alleges that the City’s investigation of him 22 constituted racial harassment. 23 related to Crawford's race pertain to failure to stop rumors that 24 his son was a rapper. 25 severe or pervasive to alter the conditions of employment and 26 create an abusive environment. 27 triable. 28 harassment claim, with leave to amend. But again, the only allegations This alleged conduct is not sufficiently Thus, no part of the claim is The Court GRANTS the City's motion to strike Crawford's 14 1 2 c. Retaliation (FEHA) It is unlawful for "any employer . . . to discharge, expel, 3 or otherwise discriminate against any person because the person 4 has opposed any practices forbidden under [FEHA] or because the 5 person has filed a complaint . . . ." 6 Claims for retaliation under FEHA are analyzed under the burden- 7 shifting framework established in McDonnell Douglas, 411 U.S. 792. 8 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). 9 establish a prima facie case of retaliation, a plaintiff must Cal. Gov. Code § 12940(h). To United States District Court For the Northern District of California 10 “show (1) he or she engaged in a ‘protected activity,’ (2) the 11 employer subjected the employee to an adverse employment action, 12 and (3) a causal link existed between the protected activity and 13 the employer’s action.” 14 establishes a prima facie case, a presumption of retaliatory 15 intent arises. 16 defendant must come forward with a legitimate, non-retaliatory 17 reason for the employment decision. 18 provides that explanation, the presumption disappears and the 19 plaintiff must demonstrate that the defendant acted with 20 retaliatory intent. 21 See id. Id. at 1042. Once a plaintiff To overcome this presumption, the Id. If the defendant See id. Here, the 2AC states that filing formal complaints and filing 22 this lawsuit constitute Crawford's protected activity. 23 Allegations that the City retaliated against Crawford by pursuing 24 the investigation against him squarely implicate anti-SLAPP 25 protection. 26 retaliatory investigation and report. 27 Medina, 152 Cal. App. 4th 600, 617 (2007). The litigation privilege applies to the allegedly 28 15 See Gallanis-Politis v. However, the privilege 1 would not protect the City from suit based on an allegedly 2 retaliatory termination if Crawford is fired. 3 Nonetheless, Crawford has demonstrated that his retaliation 4 claim is triable. 5 after he filed his lawsuit, which alone demonstrates a possibility 6 of success. 7 possible retaliatory intent. 8 the City's motion to strike Crawford's retaliation claim. 9 Further, the timing of the investigation demonstrates For these reasons, the Court DENIES d. Intentional Infliction of Emotional Distress 10 United States District Court For the Northern District of California The City served Crawford with a Skelly notice To state a claim for intentional infliction of emotional 11 distress, a plaintiff must allege (1) extreme or outrageous 12 conduct with intent to cause, or with reckless disregard for the 13 probability of causing, emotional distress, (2) that he actually 14 suffered severe emotional distress, and (3) actual and proximate 15 causation. 16 1001 (1993). 17 Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, To illustrate, "mere insult, indignity, annoyance, or even 18 threats, where the case is lacking in other circumstances of 19 aggravation" do not constitute extreme or outrageous conduct. 20 Yurick v. Super. Ct., 209 Cal. App. 3d 1116, 1128 (1989). 21 Outrageous conduct is "that which is the most extremely 22 offensive." 23 allegations listed here, even including the protected activity, 24 constitute such extremely offensive conduct. 25 STRIKES this cause of action, but grants leave to amend. 26 // 27 // 28 // Id. at 1129. It cannot be said that Crawford's 16 Therefore, the Court 1 2 e. Wrongful Termination in Violation of Public Policy California Government Code section 815 bars Tameny 8 actions 3 against public entities. 4 Cal. 4th 876, 900 (2008); see also Anthoine v. N. Cent. Ctys. 5 Consortium, 605 F.3d 740, 754 (9th Cir. 2010) (same). 6 Crawford conceded at oral argument that this claim is not viable, 7 the Court GRANTS the City's motion to strike this cause of action. 8 CONCLUSION 9 Miklosy v. Regents of Univ. of Cal., 44 Because For the foregoing reasons, the Court GRANTS the City's motion United States District Court For the Northern District of California 10 to strike Crawford's claims of discrimination, harassment, and 11 intentional infliction of emotional distress, with leave to amend, 12 and dismisses his claim for wrongful termination without leave to 13 amend. 14 retaliation (Docket No. 13). 15 It DENIES the City's motion as to Crawford's claim of The Court GRANTS the City's motion to file certain documents 16 under seal (Docket No. 18). 17 IT IS SO ORDERED. 18 19 Dated: June 22, 2016 CLAUDIA WILKEN United States District Judge 20 21 22 23 24 25 26 27 8 28 Tameny v. Atl. Richfield Co., 27 Cal. 3d 167 (1980). 17

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?