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finding that plaintiff's IIED claim for harassment and discrimination on the basis of gender, medical conditions, and lawful taking of protected leave were not preempted because such conduct fell outside the scope of employment
Summary of this case from Villegas v. CSW Contractors, Inc.Opinion
No. 2:14-cv-02559-JAM-KJN
05-22-2015
LESLIE ELOWSON, Plaintiff, v. JEA SENIOR LIVING, a Washington state corporation; JOHN MCNEIL; JERRY ERWIN; CODY ERWIN, and DOES 1-50, inclusive, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
Defendants Cody Erwin and Jerry Erwin (collectively "the Erwins") filed a motion to dismiss ("the Erwins' Motion to Dismiss") (Doc. #11) pursuant to Federal Rule of Civil Procedure 12(b)(2). In addition, Defendants JEA Senior Living ("JEA"), John McNeil ("McNeil") and the Erwins (collectively "Defendants") filed a joint motion to dismiss (Doc. #12) ("Defendants' Motion to Dismiss") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Leslie Elowson ("Plaintiff") filed a single opposition to both motions (Doc. #17), and Defendants filed a single reply (Doc. #18).
These motions were determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for April 22, 2015.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
JEA is a Washington state corporation that operated the Empire Ranch Alzheimer's Special Care Center where Plaintiff was employed as an administrator. McNeil and the Erwins were executives of JEA and direct supervisors of Plaintiff.
Due to a variety of medical conditions and complications, Plaintiff was forced to take medical leave on several occasions. She alleges that as a result, Defendants conspired to, and did in fact, compel her to leave her job in violation of her constitutional rights. Over the relevant time period, Plaintiff was subjected to harassment, discrimination and retaliatory actions on the basis of her gender, medical conditions, and lawful taking of protected leave. After being forced from her position, she alleges Defendants made knowingly false and damaging statements about her to third parties, including defamatory statements regarding Plaintiff's professional qualifications and abilities.
Plaintiff's First Amended Complaint (Doc. #10) ("FAC") contains three causes of action: (1) conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1985(3) ("§ 1985(3)"); (2) intentional infliction of emotional distress; and (3) defamation.
II. OPINION
A. The Erwins' Motion to Dismiss
The Erwins' Motion to Dismiss contends the Court lacks personal jurisdiction over Cody and Jerry Erwin.
A plaintiff bears the burden of establishing personal jurisdiction over a defendant. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). Personal jurisdiction in federal court must comport with Rule 4(k) of the Federal Rules of Civil Procedure, as well as with federal due process. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004). The long-arm statute of the state in which the district court sits must be applied when determining whether the court has jurisdiction over out-of-state defendants. Id. at 800 (citing Fed. R. Civ. P. 4(k)(1)(A)). The California long-arm statute is coextensive with federal due process. Id. at 800-01.
The overarching framework for personal jurisdiction asks whether the defendant has minimum contacts with the forum state such that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see also Boschetto, 539 F.3d at 1015-16. A plaintiff need only make a prima facie showing of jurisdictional facts to avoid the granting of a motion to dismiss. Boschetto, 539 F.3d at 1015-16; Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128 (9th Cir. 1995). "Uncontroverted allegations in [a plaintiff's] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor." Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010).
However, "the court need not consider merely conclusory claims, or legal conclusions in the complaint as establishing jurisdiction." NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 988 (E.D. Cal. 2012). The plaintiff "must show facts, which if true, would establish personal jurisdiction over defendants." Id. (citing Mattel, Inc. v. Greiner and Hausser GmbH, 354 F.3d 857, 862 (9th Cir. 2003)).
Personal jurisdiction may be either general or specific. See Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). General jurisdiction may be established when a defendant's contacts with a state are "substantial" or "continuous and systematic" such that the defendant "can be haled into court in that state in any action, even if the action is unrelated to those contacts." Id. "The standard for establishing general jurisdiction is fairly high, and requires that the defendant's contacts be of the sort that approximate physical presence." Id.
The Ninth Circuit has developed a three-prong test for analyzing a claim of specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;Schwarzenegger v. Fred Martin Motor Co., 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)).
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
The Erwins contend Plaintiff has not adequately alleged the Court has either general or specific personal jurisdiction over them. In the Opposition, Plaintiff responds to Defendants' arguments by citing to paragraph six of the FAC. The portion of that paragraph relevant to the issue of personal jurisdiction states:
Defendants McNEIL, J. ERWIN, and C. ERWIN had frequent, substantial and systematic contacts with Plaintiff, as ERASCC's General Manager, both in this jurisdiction and in Washington state. Defendants (McNEIL in particular) made frequent, substantial visits to California to meet with Plaintiff and members of her staff, evaluate ERASCC's operations, and also to oversee other businesses owned and/or operated by Defendants J. ERWIN and C. ERWIN. Defendants' purposeful, repeated and substantial contacts with this jurisdiction and availing of the laws, regulations, and protections of this jurisdiction make it proper for this Court to exercise personal jurisdiction over Defendants McNEIL, J. ERWIN, and C. ERWIN.FAC ¶ 6. Plaintiff contends this paragraph "sufficiently pleads the requisite minimum contacts for [the Erwins] such that specific personal jurisdiction is [] proper." Opp. at pp. 8-9 (emphasis added). The Court thus assumes Plaintiff is not arguing the Court has general jurisdiction over the Erwins even though the language quoted from the FAC clearly blends the standards for general and specific personal jurisdiction.
As indicated, the Court is not required to accept "conclusory claims" or "legal conclusions" in determining whether a plaintiff has met her burden in establishing personal jurisdiction. Since the portion of the FAC relied on by Plaintiff consists of conclusory claims and legal conclusions, the Court finds Plaintiff has failed to meet her burden in establishing this Court's personal jurisdiction over the Erwins under the Ninth Circuit's three-prong test. However, because the Court is not convinced amendment would be futile, the Erwins' Motion to Dismiss is granted with leave to amend.
B. Defendants' Motion to Dismiss
Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) challenges each of Plaintiff's causes of action. They will be discussed in turn.
1. November 2012 Release
Defendants first argue that all of Plaintiff's claims are barred by a November 2012 release, entitled "Severance, Release and Confidentiality Agreement" ("the Release"), which Plaintiff admits was signed by her. MTD at pp. 3-4. In her Opposition, Plaintiff challenges the enforceability of the Release, contending "she was not possessed of all her faculties and was in an untenable situation when Defendants ordered her to sign the Release." Opp. at pp. 10-11.
The actual Release was offered by Defendants in an attached request for judicial notice (Doc. #12-1). The Court finds that further factual development is necessary in order to determine what effect, if any, the Release has on Plaintiff's claims. Therefore, Defendants' request for judicial notice and motion to dismiss on this ground are denied.
2. Conspiracy
Section 1985(3) creates a civil action for damages caused by two or more persons who "conspire . . . for the purpose of depriving" the injured person of "the equal protection of the laws, or of equal privileges and immunities under the laws" and take or cause to be taken "any act in furtherance of the object of such conspiracy." "The elements of a § 1985(3) claim are: (1) the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; (2) an act in furtherance of the conspiracy and (3) a resulting injury." Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000) (citing Scott v. Ross, 140 F.3d 1275, 1284, rehearing den., 151 F.3d 1247 (9th Cir. 1998)). "A complaint that contains vague, conclusory allegations of conspiracy, without any specification of the agreement forming the conspiracy, will not survive a motion to dismiss under § 1985(3)." Lester v. Mineta, No. C 04-3074 SI, 2006 WL 463515, at *3 (N.D. Cal. 2006).
Defendants move to dismiss Plaintiff's conspiracy claim because (1) she has not properly alleged such a claim; and (2) the claim is barred by the "intra-corporate conspiracy doctrine." MTD at pp. 4-5. Defendants argue Plaintiff's allegations are vague and fail to meet the requisite specificity standard. The FAC alleges there existed a systematic and coordinated effort by Defendants to force Plaintiff out of her position, including meetings between Defendants to form a plan for carrying out this common goal. FAC 55 24-35. The Court finds these factual allegations adequately state a claim for conspiracy pursuant to § 1985(3) and denies Defendants' Motion to Dismiss on this ground.
Defendants next argue the "intra-corporate conspiracy doctrine" bars Plaintiff's conspiracy claim. "The intra-corporate conspiracy doctrine was first developed in the antitrust context, and precludes a corporation from being charged with conspiracy to violate antitrust laws . . . ." Lester, 2006 WL 463515, at *3. Numerous circuits have extended this doctrine to civil rights cases; however the Ninth Circuit has expressly reserved the issue. See Portman v. Cnty. of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993). Similar to other district courts in California, this Court declines to extend the scope of the intra-corporate conspiracy doctrine here. See Ibarra v. City of Watsonville, No. 5:12-CV-02271-EJD, 2013 WL 623045, at *8 (N.D. Cal. 2013); Brown v. Alexander, No. 13-01451 SC, 2013 WL 6578774, at *14 (N.D. Cal. 2013). The motion is denied on this ground.
3. Intentional Infliction of Emotion Distress
Under California law, a claim for intentional infliction of emotional distress ("IIED") is comprised of the following elements: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Ferretti v. Pfizer Inc., No. 11-CV-04486, 2012 WL 3638541, at *10 (N.D. Cal. 2012).
Defendants challenge Plaintiff's IIED claim on two grounds. They first contend that the claim is preempted by California's workers' compensation scheme. MTD at p. 6. They also argue Plaintiff has failed to adequately allege extreme and outrageous conduct or emotional distress, as required for an IIED claim. Id. at pp. 7-8.
"Following the California Supreme Court's holding in Miklosy [v. Regents of Univ. of California, 44 Cal. 4th 876 (2008)], California courts have held that California IIED claims are barred by [California's Workers' Compensation Act's] exclusivity provisions, even if they are based on conduct that allegedly violates a fundamental public policy . . . ." Langevin v. Fed. Exp. Corp., No. CV 14-08105 MMM FFMX, 2015 WL 1006367, at *10 (C.D. Cal. 2015). In Miklosy, the California Supreme Court was faced with an IIED claim brought against the plaintiffs' employer:
Plaintiffs allege defendants engaged in "outrageous conduct" that was intended to, and did, cause plaintiffs "severe emotional distress," giving rise to common law causes of action for intentional infliction of emotional distress. The alleged wrongful conduct, however, occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers' compensation is plaintiffs' exclusive remedy for any injury that may have resulted.Miklosy, 44 Cal. 4th at 902; see also Webb v. Cnty. of Trinity, 734 F. Supp. 2d 1018, 1034-35 (E.D. Cal. 2010).
Plaintiff argues that an employer's unlawful discrimination is not a normal incident of employment, and thus her claim is not preempted under Miklosy. Opp. at p. 11.
"Discrimination based on race, religion, age, or gender is not a normal risk inherent in employment, and therefore workers' compensation is not the exclusive remedy since any injury from such discrimination [] falls outside the scope of employment." Silva v. Solano Cnty., No. 2:13-CV-02165-MCE, 2014 WL 5501225, at *4 (E.D. Cal. 2014). However, misconduct such as demotions, criticism and retaliation is a part of and within the risks inherent in the employment relationship; thus, the exclusivity rule bars emotional distress claims based on such conduct. See id.; Miklosy, 44 Cal. 4th at 902-03; Ferretti v. Pfizer Inc., No. 11-CV-04486, 2012 WL 3638541, at *11-12 (N.D. Cal. 2012).
Plaintiff's IIED claim therefore survives but is limited to any injury caused by Defendant's alleged discriminatory conduct based on Plaintiff's gender since the exclusivity rule is inapplicable under these circumstances. However, to the extent this IIED claim is based on various other forms of misconduct alleged in the FAC, such as criticism and retaliation, the motion is granted.
As for Defendants' arguments regarding the sufficiency of Plaintiff's allegations, the Court disagrees. Plaintiff has adequately alleged the requisite elements of an IIED claim under California law. FAC ¶¶ 14-16; 19-38; 47-51. The motion on this ground is denied.
4. Defamation
"Under California law, a tort of defamation involves '(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and that (5) has a natural tendency to injure or that causes special damages.'" Silva, 2014 WL 5501225, at *5 (quoting Taus v. Loftus, 40 Cal.4th 683, 720 (2007)).
Defendants contend the Court should dismiss this cause of action because Plaintiff has failed to identify the alleged defamatory statements and the claim is based on opinions, not facts, as required for a claim of defamation. Despite Plaintiff's meager opposition, the Court finds the FAC adequately states a cause of action for defamation.
"While the exact words or circumstances of the slander need not be alleged to state a claim for defamation, the substance of the defamatory statement must be alleged." Silicon Knights, Inc. v. Crystal Dynamics, Inc., 983 F. Supp. 1303, 1314 (N.D. Cal. 1997). "'Even under liberal federal pleading standards, "general allegations of the defamatory statements" which do not identify the substance of what was said are insufficient.'" Charlson v. DHR Int'l Inc., No. C 14-3041 PJH, 2014 WL 4808851, at *5 (N.D. Cal. 2014) (quoting Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198, 1216 (C.D. Cal. 2004)).
The factual allegations made by the plaintiff in Scott v. Solano Cnty. Health & Soc. Servs. Dep't, 459 F. Supp. 2d 959 (E.D. Cal. 2006) ("Scott") are analogous to those in this case and the Court's reasoning in Scott is persuasive. In Scott, the plaintiff alleged that the "defendants 'published false information about plaintiff's performance and falsely accused plaintiff of dishonesty and lack of integrity.'" Id. at 973. The court found it was clear that the plaintiff was complaining about "statements allegedly made about her performance at work and her character." Id. The Scott court concluded that "[a]lthough terse, [the plaintiff's] allegations [were] sufficient to provide defendants sufficient notice of the issues to enable preparation of a defense." Id.
As in Scott, the Court finds Plaintiff's terse allegations herein of Defendants' defamatory statements regarding her work performance and qualifications to be sufficient. The Court does not find the allegations reference merely opinions rather than facts, and finds Defendants' arguments to the contrary unpersuasive. Defendants' Motion to Dismiss Plaintiff's defamation claim is denied.
III. ORDER
For the reasons set forth above, the Court GRANTS the Erwins' Motion to Dismiss with leave to amend. The Court DENIES Defendants' Motion to Dismiss Plaintiff's causes of action for conspiracy and defamation. The Court DENIES Defendants' Motion to Dismiss the IIED claim to the extent it is based on gender discrimination, but GRANTS the motion to the extent the IIED claim is based on the various other forms of misconduct alleged in the FAC.
Due to the suspension of Plaintiff's counsel until June 25, 2015 (Doc. #20), Plaintiff shall have until July 6, 2015 to file her amended complaint. If any amended complaint is filed, Defendants' responsive pleading is due within twenty days thereafter.
IT IS SO ORDERED. Dated: May 22, 2015
/s/ _________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE