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).

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4

WILLIE CRAWFORD,

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Plaintiff,

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7
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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.

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10

No. C 16-1301 CW

________________________________/

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Defendant City and County of San Francisco 1 filed a motion to

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strike Plaintiff Willie Crawford's state law causes of action

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under California's anti-SLAPP statute, California Code of Civil

14

Procedure section 425.16.

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the motion in part and denies it in part.

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BACKGROUND

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18

I.

As explained below, the Court grants

Factual Background
Crawford, an African-American man, has worked for the San

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Francisco Department of Public Health for thirty years.

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been a Facilities Manager since approximately 2002.

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He has

Crawford's Second Amended Complaint (2AC) describes a pattern

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of discrimination culminating in a biased investigation.

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alleges that he outperforms his current classification, but was

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denied a classification elevation on April 23, 2015.

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also alleges that Department personnel spread untrue rumors about

Crawford

Crawford

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1

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Other Defendants included in the original Complaint and the
First Amended Complaint were not included in the Second Amended
Complaint.

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him, which the City failed to stop.

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that he "has a temper," and that people "should be careful if they

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ever see" his son, a "gangster rapper."

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recently, on January 26, 2016, Crawford's attorney received an

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email stating that there was a rumor in the Department that

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Crawford had passed away.

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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

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manufacture reasons for firing" him.

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that the City Attorney investigator's witness summaries were broad

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and biased.

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witnesses while his tape-recorder was turned off; telling

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witnesses what he wanted them to talk about."

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states that the witness statement production to him was

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incomplete; at least two witnesses whose statements were missing

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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,

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27
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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

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specifics on the alleged misconduct.

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On December 1, 2015, the Director of Human Resources notified

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Crawford that he was to report for an interview with the

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investigator on December 8th. 3

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Crawford's then-attorney stated that he was not available on

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December 8, but offered two alternative dates.

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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,

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and that the interview would take place on the 7th.

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then agreed to the 8th even though his attorney could not attend.

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Crawford's attorney argued that it would be unethical to proceed

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in the absence of an attorney in light of this pending lawsuit, to

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no avail.

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Id.

Crawford

Crawford arrived at the interview to find that there was a

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court reporter, although he had not been notified of this.

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Crawford alleges that the scope of the questioning "clearly showed

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that there was nothing specific.

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designed to uncover some kind of misconduct or impropriety."

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¶ 27.

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financial situation, including the financial situation of his

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nephew who lives in China.

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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

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Skelly 4 hearing to be conducted in early January 2016.

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hearing occurred as scheduled without Crawford, in spite of

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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

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on disciplining.

15

investigation of a man who made the following statement about

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Crawford: "I wish he was dead, I hate this guy."

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that investigation, the City interviewed Crawford first, even

18

though he had not heard the comment, and then did not discipline

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the man who made the statement.

Id. ¶¶ 36-38.

Crawford also cites the City's

Id. ¶ 40.

In

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21
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24
25
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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

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salary, which the Human Resources Director attributed to a

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"payroll glitch" although it did not impact anyone else's salary.

6

Id. ¶¶ 43-44.

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were deleted from the department servers but had been sent to "one

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Arlena Winn, purportedly by him."

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"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

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In 2012, Crawford filed an official complaint with the

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California Department of Fair Employment and Housing (DFEH)

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alleging racial discrimination; in 2014, he amended the complaint

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to include harassment and retaliation.

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right to sue letter.

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The DFEH issued him a

On March 3, 2015, Crawford filed a complaint in San Francisco

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Superior Court. 5

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The City answered his subsequent 2AC and removed the action to

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federal court because it contains a federal Family Medical Leave

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Act claim.

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discrimination, harassment and retaliation claims under

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California's Fair Employment and Housing Act, an intentional

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infliction of emotional distress claim, and a claim for wrongful

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termination in violation of public policy.

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//

At that point, he alleged only state law claims.

The 2AC also contains five state law claims, including

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5

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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
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18
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(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."

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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

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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