Opinion
No. 04-2122 MMC.
September 7, 2004
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; VACATING HEARING (Docket No. 13)
Before the Court is the motion of defendants City of Albany and Albany Police Department to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Second through Fourth Causes of Action in plaintiff Kimberly Clark's First Amended Complaint ("FAC"). Plaintiff has filed opposition, to which defendants have replied. Having considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision thereon, VACATES the hearing scheduled for September 10, 2004, and rules as follows.
Defendants did not provide the Court with a chambers copy of their reply in support of the motion to dismiss, which the docket reflects was electronically filed on August 26, 2004. The Court, nonetheless, has considered the filing. For future reference, defendants are reminded of the following provision in the Court's Standing Orders: "In all cases that have been assigned to the Electronic Case Filing Program, the parties are required to provide for use in chambers one paper copy of each document that is filed electronically. The paper copy of each such document shall be delivered no later than noon on the day after the document is filed electronically. The paper copy shall be marked `Chambers Copy' and shall be delivered to the Clerk's Office in an envelope clearly marked with the judge's name, case number, and `E-Filing Chambers Copy.'"
BACKGROUND
Plaintiff, a former patrol officer with the Albany Police Department, alleges in her FAC that she "experienced hostility and disparate treatment from the very first day of her employment with the Albany Police Department, and [that] said treatment continued through and until her last day of employment on March 29, 2003 — when she was forced to resign." (See FAC ¶ 11.) Based on these allegations, plaintiff, in the First Cause of Action, alleges statutory claims of employment discrimination, specifically, violations of both 42 U.S.C. §§ 2000e, et seq. ("Title VII") and the California Fair Employment and Housing Act ("FEHA"). Additionally, plaintiff alleges a Second Cause of Action, for wrongful termination in violation of public policy, a Third Cause of Action, for intentional infliction of emotional distress, and a Fourth Cause of Action, for negligent infliction of emotional distress.
The Court, in its order granting defendants' motion to dismiss five of the six causes of action alleged in plaintiff's initial complaint, found the Second through Fourth Causes of Action were "subject to the claim presentation requirement of the California Tort Claims Act." (See Order Granting Defs.' Mot. to Dismiss, filed July 2, 2004, at 1:24-28.) The Court dismissed those three causes of action on the ground plaintiff had "not pleaded either compliance with the claims presentation requirement or a cognizable excuse therefrom." (See id. at 2:2-5.)
In her FAC, plaintiff has realleged the Second through Fourth Causes of Action. With respect to the claim presentation requirement, plaintiff alleges that she filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") and the California Department of Fair Employment and Housing ("DFEH"), (see FAC ¶¶ 20, 22), and, that if such filings do not constitute compliance with the claim presentation requirement, she is "excused from compliance" because FEHA "has its own procedures that assure adequate notice to the public entity," (see FAC ¶ 22.a) and because "California governmental immunity statutes may not be applied as against a claim brought under the federal Civil Rights Act," (see FAC ¶ 22.b).
DISCUSSION
Defendants argue that plaintiff's allegations are, as to the Second through Fourth Causes of Action, insufficient to plead either compliance with, or a cognizable excuse from, the claim presentation requirement.
Defendants do not seek dismissal of the First Cause of Action.
A. Compliance With Claim Presentation Requirement
The California Government Code provides that, subject to statutory exceptions inapplicable here, "no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented [to the public entity] until a written claim therefor has been presented to the public entity. . . ." See Cal. Gov't Code § 945.4.
As noted, plaintiff alleges in her complaint that, as a legal matter, she complied with the claim presentation requirement by filing a complaint with the EEOC and the DFEH prior to filing the instant action. In her opposition to defendants' motion, however, plaintiff does not argue that her filing of a complaint with the EEOC and the DFEH constitutes compliance with the claim presentation requirement. By failing to pursue such argument, plaintiff has foregone the opportunity to submit any authority in support of her allegation. In any event, the Court has located no such authority.
The filing of such a complaint is, of course a prerequisite to plaintiff's statutory claims, which are alleged in the First Cause of Action, but which are not the focus of defendants' motion.
California courts have recognized the doctrine of "substantial compliance" with respect to the claim presentation requirement. See State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1245 (2004). "[T]wo tests shall be applied: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance." City of San Jose v. Superior Court (Lands Unlimited), 12 Cal. 3d 447, 456-57 (1974) (emphasis in original). Here, plaintiff does not allege she complied with any of the statutory requirements set forth in the California Tort Claims Act. Accordingly, there is no basis for finding substantial compliance with the claims presentation requirement, and plaintiff has not argued such.
Accordingly, the Court finds that plaintiff, by alleging she filed a complaint with the EEOC and the DFEH before filing suit, has failed to plead compliance with the claim presentation requirement set forth in § 945.4.
B. Excuse From Claim Presentation Requirement
As noted, plaintiff alleges that because her claims arise from the same set of facts as those set forth in the complaint she filed with the EEOC and the DFEH, she should be excused from having to present a claim to the City of Albany, and thus be allowed to include non-statutory employment discrimination claims in the FAC. Although not clearly expressed, plaintiff appears to argue that because she has submitted to the EEOC and DFEH a complaint containing the facts on which the Second through Fourth Causes of Action are based, and such document presumably was provided by the EEOC and/or the DFEH to the City of Albany, plaintiff should be excused from having to present a separate claim to the City of Albany pursuant to § 945.4. Plaintiff cites no authority in support of her theory.
The California Supreme Court has held: "It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge — standing alone — constitutes neither substantial compliance nor basis for estoppel." See City of San Jose v. Superior Court (Lands Unlimited), 12 Cal. 3d 447, 455 (1974) (citing cases). In other words, assuming defendants obtained actual knowledge of the circumstances giving rise to the Second through Fourth Causes of Action by receipt of plaintiff's complaint filed with the EEOC and/or DFEH, such actual knowledge does not constitute a cognizable excuse for a failure to comply with the claims presentation requirement.
Accordingly, the Court finds that plaintiff, by alleging she filed a complaint with the EEOC and the DFEH before filing suit, has failed to plead a cognizable excuse from the claims presentation requirement set forth in § 945.4.
In light of this finding, the Court does not reach defendants' additional argument in support of dismissal of the Second Cause of Action.
CONCLUSION
For the reasons expressed above, defendants' motion to dismiss is hereby GRANTED, and the Second through Fourth Causes of Action are hereby DISMISSED, without prejudice.This order terminates Docket No. 13.