Opinion
2:06-cv-2773-GEB-EFB.
March 7, 2007
ORDER
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Defendant Guenet Kelelatchen ("Kelelatchen") and Defendant Greg Hargrave ("Hargrave") move to dismiss Plaintiff's First Amended Complaint ("Complaint") under Federal Rule of Civil Procedure 12(b)(6). Defendant Interstate Management Company, LLC ("Interstate") moves for partial dismissal of the Complaint. Plaintiff opposes the motions.
Three separate motions to dismiss are pending.
BACKGROUND
Plaintiff Liisa Nikcevich is a former employee of Interstate who was granted family medical leave prior to the termination of her employment. (Compl. ¶¶ 10, 14, 17.) Kelelatchen and Hargrave were Plaintiff's supervisors. (Id. ¶¶ 5, 6.) Prior to the expiration of her family medical leave, Plaintiff's employment was terminated. (Id. ¶ 17.) Plaintiff alleges in this action wrongful termination and discrimination in violation of the California Family Rights Act ("CFRA") contained within the California Fair Employment and Housing Act ("FEHA"); intentional infliction of emotional distress ("IIED"); negligent infliction of emotional distress ("NIED"); wrongful termination in violation of public policy embodied in FEHA; and violation of California Labor Code section 201 et seq. (Id. ¶¶ 16-40.)DISCUSSION
Dismissal is appropriate under Rule 12(b)(6) if Plaintiff failed to (1) present a cognizable legal theory, or (2) plead sufficient facts to support a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). When considering a motion to dismiss, all material allegations in the Complaint must be accepted as true and construed in the light most favorable to Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). In addition, Plaintiff is given the benefit of every reasonable inference that can be drawn from the allegations in the Complaint. Retail Clerks Int'l Ass'n v. Shermahorn, 373 U.S. 746, 753 n. 6 (1963). Accordingly, a motion to dismiss must be denied "unless it appears beyond doubt that [Plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
I. FEHA and California Labor Code Section 201 et. seq. Claims
Interstate does not move to dismiss the statutory claims; it only moves to dismiss the IIED and NIED claims. (See Interstate's Mot. to Dismiss ("Interstate's Mot.") at 3:25-26, 5:16-19.)
Kelelatchen and Hargrave argue that Plaintiff cannot state a CFRA claim because the CFRA is only applicable to employers, not employees. (Kelelatchen's and Hargrave's Mot. ("Supervisors' Mot.") at 4:14-23.) They also argue that Plaintiff cannot state a claim for wrongful termination in violation of public policy because it "is only valid [if] brought directly under FEHA." (Id. at 5:8-11.) Finally, Kelelatchen and Hargrave seek dismissal of Plaintiff's California Labor Code section 201 et seq. claim "because the requirements and protections of California wage and hours laws . . . apply only when employer-employee relationship exists." (Id. at 7:11-13.)
Kelelatchen and Hargrave's motions and replies, as well as Plaintiff's oppositions to these motions, are identical; therefore, they are treated as one and the same for purposes of this Order.
Plaintiff concedes in her Opposition that "claims . . . for discrimination based upon violation of FEHA and violation of California Labor Code Section 201 et seq. must fail. . . ." (Opp'n to Supervisors' Mot. at 2:3-5.) Therefore, Plaintiff's claims against Kelelatchen and Hargrave for violation of the CFRA, wrongful termination in violation of public policy under FEHA, and violation of California Labor Code section 201 et. seq., are dismissed.
II. IIED and NIED Claims A. Kelelatchen and Hargrave
Kelelatchen and Hargrave argue that the IIED claim fails because they are not "liable for [their] alleged conduct under [] FEHA, and [Plaintiff] cannot circumvent these limitations on liability by asserting common law claims based upon the same conduct." (Supervisors' Mot. at 6:11-12.) They also argue that "Plaintiff's NIED claim fails [because] it is preempted by the California Workers' Compensation Act [which provides that] [a]ll industrial injuries caused by employer negligence are compensable exclusively within the workers' compensation system." (Id. at 7:1-4.) Plaintiff counters that "claims under California law for [IIED and NIED] are not preempted by the California workers' compensation statute when the claims implicate fundamental public policy considerations." (Opp'n to Supervisors' Mot. at 2:19-22.) Kelelatchen and Hargrave rejoin that Plaintiff's "argument fails as to both the IIED and NIED claims because the validity of those claims presupposes the validity of the underlying statutory claim for discrimination in violation of FEHA, and [Plaintiff] has conceded she has no FEHA claim." (Supervisors' Reply at 2:21-24.)
The Workers' Compensation Act (section 3600 et. seq. of the California Labor Code):
establishes an employee's right to workers' compensation, providing that "[l]iability for the compensation provided by this division, in lieu of any other liability whatsoever to any person . . . shall . . . exist against an employer for any injury sustained by his or her employees arising out of and in the course of employment." Further, California Labor Code [section] 3602 provides that, where [section] 3600 applies, "the right to recover such compensation is . . . the sole and exclusive remedy of the employee." [T]hese provisions apply to all injuries that result from an employment relationship, including injuries for [emotional distress].Miniace v. Pac. Maritime Ass'n, 424 F. Supp. 2d 1168, 1181 (N.D. Cal. 2006) (internal citations omitted); see also Livitsanos v. The Superior Court of Los Angeles County, 2 Cal. 4th 744, 754 (1992) ("an employee's emotional distress injuries are subsumed under the exclusive remedy provisions of workers' compensation."). However, if the employer's conduct "contravenes fundamental public policy[,]" the Act's exclusivity provisions do not apply. Livitsanos, 2 Cal. 4th at 754 (internal citations omitted). A fundamental "public policy that gives rise to a wrongful termination action [must] have `a basis in either constitutional or statutory provisions.'" Green v. Ralee Eng'g, Co., 19 Cal. 4th 66, 80 (1998) (internal citation omitted).
Plaintiff has not alleged any basis for her contention that the IIED and NIED claims are grounded in fundamental public policy, particularly in light of her concession that she cannot state claims for violations of FEHA and California Labor Code section 201 et. seq. (See Opp'n to Supervisors' Mot. at 2:3-5.) Accordingly, the IIED and NIED claims against Kelelatchen and Hargrave are dismissed.
B. Interstate
Interstate argues that the NIED claim should be dismissed because "it is preempted by the California's Workers' Compensation Act" since "[a]ll industrial injuries caused by employer negligence are compensable exclusively within the workers' compensation system." (Interstate's Mot. at 5:7-10.) Plaintiff responds that the NIED claim is "not preempted by the California workers' compensation statute [because it] implicate[s] fundamental public policy considerations." (Opp'n to Interstate at 2:13-15.)
Interstate's conduct allegedly violates FEHA and thus has "`a basis in [a] statutory provision[]'" implicating a violation of a fundamental public policy. Green, 19 Cal. at 80; see also Ely v. Wal-Mart, 875 F. Supp. 1422, 1426 (C.D. Cal. 1995) ("a claim for relief premised on a violation of [FEHA] is based upon clear public policy which is fundamental. . . ."). Therefore, Plaintiff's NIED claim is not barred by the exclusivity provisions of the Workers' Compensation Act. See Livitsanos, 2 Cal. 4th at 754 (the Act's exclusivity provisions do not apply where the alleged wrongful conduct is in violation of a fundamental public policy); see also Phillips v. Gemini Moving Specialists, 63 Cal. App. 4th 563, 577 (1998) ("a plaintiff can recover [outside the exclusive remedies of the worker's compensation law] for infliction of emotional distress if he or she has a tort cause of action for . . . wrongful termination in violation of an express statute.").
Interstate also argues that Plaintiff's NIED claim fails on the merits "because the conduct on which the claim is based, specifically the allegedly wrongful termination of [Plaintiff's] employment and alleged denial of family medical leave, is inherently intentional rather than negligent and therefore cannot support a cause of action for [NIED]." (Interstate's Mot. at 4:28, 5:1-3.) "`An employer's supervisory conduct is inherently `intentional.' Thus, where the conduct alleged is intentional, it cannot be used as a basis for a negligent infliction of emotional distress claim." Edwards v. U.S. Fidelity Guar. Co., 848 F. Supp. 1460, 1466 (N.D. Cal. 1994) (quoting Semore v. Pool, 217 Cal. App. 3d 1087, 1105 (1990)). Accordingly, Plaintiff's NIED claim is dismissed.
Interstate further contends that the IIED claim fails on the merits because "the conduct alleged was personnel management activity and not extreme and outrageous as a matter of law." (Interstate's Mot. at 4:9-10.) To state a claim for IIED, Plaintiff must show "(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Trerice v. Blue Cross of Cal., 209 Cal. App. 3d 878 at 883 (1989) (internal citation omitted). Conduct is outrageous if it is "so extreme as to exceed all bounds of that usually tolerated in a civilized society." Id.
"[A] claim for IIED is possible even if the alleged wrongdoing by [Interstate] consists only of personnel management activity such as a termination." Jelincic v. Xerox Corp., 2004 WL 2217643, at *6 (N.D. Cal. Oct. 1, 2004) (relying on Phillips, 63 Cal. App. 4th at 577). However, "the [C]omplaint does not delineate the outrageous conduct by [Interstate] or its employees giving rise to the IIED claim." Id. at *7; (see Compl. ¶ 26, where it states that the alleged conduct was "intentional and malicious" and "done with wanton and reckless disregard for the consequences to Plaintiff and were uncivilized and illegal."). Accordingly, since Interstate "is entitled to fair notice of the general conduct which [Plaintiff] asserts as [her] IIED claim, [Plaintiff] is ordered to provide a more definite statement in support of this claim." Jelincic, 2004 WL 2217643, at *7; see Fed.R.Civ.P. 12(e); see also Wright Miller, Fed. Prac. Proc. Civ. 3d § 1378 ("when a party moves to dismiss for failure to state a claim under Rule 12(b)(6) but the district judge feels that a motion under Rule 12(e) would be more appropriate, some courts automatically treat the motion as one for a more definite statement."). Plaintiff shall file the more definite statement no later than twenty (20) days after this Order is filed.
CONCLUSION
For the reasons stated, Kelelatchen and Hargrave's motions to dismiss are granted and Interstate's motion is granted in part and denied in part. Further, if Plaintiff can cure any of the deficiencies identified herein, she may amend those claims in the Amended Complaint to be filed in the time prescribed above.
In her Opposition to Defendants' motions, Plaintiff requests "that the case be remanded to the state court." (Opp'n to Supervisors' Mot. at 3:13-14, Opp'n to Interstate's Mot. at 3:6-7.) Plaintiff has not explained why her request should be granted. Therefore, her request for remand to the state court is denied.