Opinion
No. CIV. S-05-1812 FCD JFM.
February 9, 2006
MEMORANDUM AND ORDER
This matter comes before the court on defendants City of Sacramento ("City"), Samuel L. Jackson ("Jackson"), Thomas Friery ("Friery"), Lydia Abreu ("Abreu"), William P. Carnazzo ("Carnazzo"), and Brett M. Witter's ("Witter") motion to dismiss plaintiff's first amended complaint ("complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff seeks leave to amend her first amended complaint pursuant to Rule 15(a). For the reasons set forth below, defendants' motions is GRANTED, and plaintiff's motion is GRANTED.
All further references to a "Rule" are to the Federal Rules of Civil Procedure.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
The facts of this case are taken from plaintiff's allegations in the complaint.
Plaintiff Deborah Schulte ("Schulte") is a licensed attorney in California. (Pl.'s 1st Am. Compl. ("FAC"), filed Oct. 20, 2005, ¶ 11). Schulte began employment with the City on August 9, 1999, where her primary duties were to develop expertise in municipal finance matters. (Id. ¶ 10). In October 2001, plaintiff left her employment with the City to work with the State Treasurer's office, but returned to work for the City in June 2002. (Id.) Plaintiff worked in the Special Projects Section, where only the most experienced attorneys who could handle the most complex matters were assigned. (Id. ¶ 33). Throughout the majority of her tenure with the City, plaintiff was consistently promoted and received excellent performance evaluations. (Id. ¶ 27).
During the course of her employment, plaintiff spoke out against the City complying with an agreement it had executed with Lennar Communities, Inc., and/or its wholly owned subsidiaries (collectively, "Lennar"). (Id. ¶ 11). Plaintiff objected to the enforcement of the Memorandum of Understanding ("MOU") between the City and Lennar on the grounds that the MOU required the City to pay Lennar over six million dollars in excess of money Lennar was lawfully entitled to recover. (Id. ¶¶ 11, 14, 16). This overpayment would violate state statutory and constitutional laws, as well as federal tax and securities laws. (Id. ¶ 11). Therefore, as part of her ethical and legal obligations as an attorney, plaintiff had a duty to counsel actions that appeared to be legal and just. (Id. ¶ 23). Plaintiff also had a professional duty to urge reconsideration of actions that may be or are illegal to the organization or refer such matter up her chain of command. (Id.)
Plaintiff alleges that, as a result of her speaking out against compliance with the MOU, City Attorney Jackson and her immediate supervisor, Witter, enacted a campaign of retaliation against plaintiff. (Id. ¶ 29). Defendants redirected inquiries and assignments that would normally have gone to plaintiff. (Id.) Defendants began soliciting negative information about plaintiff's performance in other areas of her work. (Id.) Finally, in July 2004, plaintiff was transferred out of the Special Projects Section to the Litigation Section, where less experienced attorneys handle more common cases. (Id. ¶ 33). It was known that the City Attorney considered such a transfer as a demotion because attorneys so transferred would not receive the same consideration for salary adjustments and promotions. (Id. ¶ 34). As such, plaintiff considered this transfer a demotion. (Id.) The transfer was done in such a manner as to communicate to City staff and other individuals that they could no longer have confidence in plaintiff's advice, causing significant injury to plaintiff's professional reputation. (Id. ¶ 35). Therefore, plaintiff alleges that she was constructively terminated. (Id. ¶ 38).
Plaintiff brings claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985 for violations of her First Amendment rights. Plaintiff also claims violations of California Labor Code § 1102.5, wrongful termination in violation of public policy, intentional infliction of emotional distress, and violation of Civil Code § 52.1. On November 9, 2005, defendants filed a motion to dismiss, seeking dismissal of plaintiff's § 1985 claim, intentional infliction of emotional distress claim, and claim for violation of § 52.1. On December 27, 2005, plaintiff filed a motion to amend her complaint.
STANDARDS
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See Id.
Given that the complaint is construed favorably to the pleader, the court may not dismiss the complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
Nevertheless, it is inappropriate to assume that plaintiff "can prove facts which it has not alleged or that the defendant ha[s] violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir. 1986).
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201.See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F.Supp.2d 1035, 1042 (C.D. Cal. 1998).
ANALYSIS
A. Intentional Infliction of Emotional Distress
Defendants argue that plaintiff's state tort claim for intentional infliction of emotional distress should be dismissed because plaintiff's complaint does not allege facts sufficient to state a claim. To succeed on a claim of intentional infliction of emotional distress, plaintiff must demonstrate:
(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 defendants' outrageous conduct.Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). "Outrageous conduct" requires that the conduct must be so extreme "as to exceed all bounds of that usually tolerated in a civilized community." Id.
Defendants also assert that plaintiff's claim is barred for failure to comply with the California Tort Claims Act. Because, as discussed infra, the court finds that plaintiff has not alleged sufficient facts to state a claim for intentional infliction of emotional distress, the court does not reach the merits of this argument.
California courts have held that the question of whether the conduct alleged in the complaint is sufficiently "extreme and outrageous" is generally a factual issue for the jury. See Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1226 (1995). However, California courts have also held that "[a] simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged." Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 80 (1996). Personnel management actions include
actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, [and] deciding who will be laid off.Id. at 64-65. "Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society." Id. at 80.
Defendants contend that the allegedly tortious behavior asserted by plaintiff in her complaint all fall within the ambit of personnel management actions, and therefore, preclude a claim of intentional infliction of emotional distress. Plaintiff alleges that, as a result of her recommendations concerning the MOU, defendants enacted "a campaign of retaliation." (FAC ¶ 29). This campaign included a significant decrease in assignments and involvement with public financing and developers. (Id.) Plaintiff was also excluded from meetings. (Id.) Plaintiff's supervisors began soliciting negative information about her performance. (Id.) Finally, plaintiff was transferred out of the Special Projects Section and demoted to the Litigation Section, by which she was constructively terminated. (Id. ¶¶ 33, 34, 39).
California courts have construed all of the actions alleged by plaintiff as personnel management actions. See Janken, 46 Cal. App. 4th at 64-65 (finding that personnel management actions include "job or project assignments, . . . promotion or demotion, performance evaluations, . . . [and] deciding who will and who will not attend meetings); see also, Heglgeson v. Am. Int'l Group, Inc., 44 F. Supp. 2d 1091, 1095 (S.D. Cal. 1999) ("Performance reviews, counseling sessions, lay-off decisions, and work assignments are all decisions that businesses make everyday. . . . Even if these decisions were improperly motivated they fall far short of the necessary standard of outrageous conduct beyond all bounds of decency."). Therefore, plaintiff cannot sustain a claim of intentional infliction of emotional distress based upon these facts alone.
Plaintiff fails to address the cases cited by defendants, but instead relies on the older case of Wallis v. Superior Court, 160 Cal. App. 3d 1109, 1120 (1984). Wallis is factually distinguishable from plaintiff's case. InWallis, the employer breached its obligation to pay an agreed upon stipend for the plaintiff's agreement not to compete. Id. at 1112. The plaintiff brought a claim for intentional infliction of emotional distress, alleging that the employer intentionally abused its position of financial control over the plaintiff by breaching the contract. Id. at 1120. In overruling the trial court's demurrer, the court of appeals emphasized that the plaintiff's complaint alleged that the employer knew of the plaintiff's extremely vulnerable position because of his age, lack of other work skills and financial responsibilities, and intended to cause him emotional distress. Id. Plaintiff's complaint fails to allege such vulnerability and defendants' knowledge of such vulnerability as in Wallis.
Wallis was overruled on other grounds by Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988).
Plaintiff also relies on Monge v. Superior Court, 176 Cal. App. 3d 503 (1986). In Monge, the court faced the issue of whether a complaint stated sufficient facts for punitive damages in an employment discrimination case. The case did not address the pleading requirements of an intentional infliction of emotional distress claim. In light of existing state law that is directly on point, the court does not view the analogy made by plaintiff as persuasive.
Because the factual allegations supporting plaintiff's tort claim describe only personnel management actions by defendants, plaintiff does not plead sufficient facts to state a claim. Thus, defendants' motion to dismiss plaintiff's claim of intentional infliction of emotional distress is GRANTED. B. California Civil Code § 52.1
Defendants argue that plaintiff's claims for violations of California Civil Code § 52.1 should be dismissed because plaintiff does not allege facts that rise to the level of "threats, intimidation or coercion" within the meaning of the statute. Section 52.1 provides that "any individual whose exercise or enjoyment of [constitutional] rights . . . has been interfered with or attempted to be interfered with" by "threats, intimidation, or coercion" may bring a civil action on her own behalf. Cal. Civ. Code § 52.1. The section does not provide a definition for the terms "threat," "intimidation," or "coercion," but does state that "speech alone is not sufficient to support an action." Id.
Plaintiff alleges that defendants "interfered and attempted to interfere" with her First Amendment rights as well as her right to disclose illegal conduct "by threats, intimidation, and coercion." Specifically, plaintiff alleges that defendants decreased assignments, excluded her from meetings, solicited negative reviews of her and demoted her. Plaintiff also alleges that defendants' actions negatively affected her professional reputation with colleagues and clients. These acts do not rise to the level of "threats, intimidation, or coercion" contemplated by § 52.1 and do not support her conclusory allegations.
While no California court has interpreted the terms "threats, coercion, or intimidation," "the context of this section makes it clear that the statute is meant to protect against violence or the threat of violence." Rabkin v. Dean, 856 F. Supp. 543, 552 (N.D. Cal. 1994); see also Cole v. Doe 1 thru 2 Officers of the Emeryville Police Dept., 387 F. Supp. 2d 1084, 1103-04 (N.D. Cal. 2005) (finding sufficient facts alleged where police used law enforcement authority to effectuate a stop, detention, and search without probable cause). Plaintiff argues that California courts have found facts sufficient to state a claim under § 52.1 where the acts by defendants did not include violence or a threat of violence. Plaintiff cites to Venegas v. County of Los Angeles, in which the court found sufficient allegations of misconduct under § 52.1 where police officers handcuffed, detained, and arrested plaintiff without probable cause. 32 Cal. 4th 820, 827 (2004). While the plaintiff did not allege a claim of excessive force against the officers inVenegas, the plaintiff did allege use of physical force, the threat of arrest, and actual arrest. Id. Plaintiff's allegations fall far short of this type of conduct. Plaintiffs' allegations (and any reasonable inferences drawn therefrom) do not provide a factual basis for her claims that defendants interfered or attempted to interfere with her rights through threats, intimidation, or coercion. Plaintiff does not allege that defendants made any threats, express or implied, subjected her to any physical confrontations, or used any actual force. Therefore, defendants' motion to dismiss plaintiff's § 52.1 claim is GRANTED.
California state or federal courts have not reached the issue of whether allegations of economic coercion are sufficient to state a claim under § 52.1 in any published opinions. However, the Massachusetts Supreme Court has interpreted the Massachusetts Civil Rights Act of 1979, upon which § 52.1 was modeled, to include economic coercion in certain circumstances. See Buster v. George W. Moore, Inc., 783 N.E.2d 399, 410 (Mass. 2003) (dismissing claim for failure to allege sufficient facts).
[T]he rule of deference to another state's interpretation of a statute that provided a model for a California state establishes only a presumption of legislative intent. Even when the presumption properly operates, it does not compel the adoption of the judicial construction of the other jurisdiction's statute.Jones v. Kmart Corp., 17 Cal. 4th 329, 337 (1998) (internal quotations omitted). In the absence of any California state or federal authority and any evidence of legislative intent to include such conduct in the purview of § 52.1, the court does not broaden the scope of the statute to include such claims.
C. 42 U.S.C. § 1985 Claim
Plaintiff does not oppose defendants' motion to dismiss her claims brought under 42 U.S.C. § 1985. Therefore, defendants' motion to dismiss is GRANTED.
D. Leave to Amend
Plaintiff seeks leave to amend her complaint to allege a conspiracy claim under 42 U.S.C. § 1983. Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
Defendants argue that it would be futile to allege a conspiracy claim under § 1983 because the intra-corporate conspiracy doctrine precludes such a claim in this case. The intra-corporate conspiracy doctrine bars individual government employees of a single entity from forming a conspiracy with one another.Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993). Federal circuits have split on whether the doctrine applies to civil rights claims, and the Ninth Circuit has declined to address the issue. Id. There is, however, some legal authority holding that the intra-corporate conspiracy doctrine is inapplicable to civil rights claims. Id. Thus, the doctrine does not automatically bar plaintiff's § 1983 conspiracy claim. Further, circuits that have adopted the intra-corporate conspiracy doctrine have also recognized that there are exceptions to the doctrine. Dickerson v. Alachua County Comm'n, 200 F.3d 761, 769-70 (11th Cir. 2000). Because plaintiff may plead facts that fit into one of these exceptions, amendment of plaintiff's complaint to add a conspiracy claim is not futile.
Defendants also argue that plaintiff's claims center around her allegations that the MOU was illegal, and that plaintiff is precluded from making this "bald assertion." Defendants contend that, because of this, plaintiff's conspiracy claims are futile and plaintiff's First Amendment violations should be dismissed. As an initial matter, defendants did not raise this argument in their motion to dismiss plaintiff's complaint. Therefore, the court does not consider this argument as it applies to plaintiff's claims of First Amendment violations. Further, plaintiff alleges sufficient facts to substantiate her claims that the MOU was illegal. Defendants' argument that the agreement's legality cannot be challenged because it was authorized and adopted pursuant to the City's plenary and exclusive power does not preclude plaintiff's allegations that the content of the agreement was illegal under state and federal laws. Therefore, amendment of plaintiff's complaint is not futile.
Finally, defendants argue that plaintiff does not allege sufficient facts to state a claim for a § 1983 conspiracy in her proposed complaint. This argument is more appropriately brought on a motion to dismiss, not as an opposition to a motion to amend. Given that plaintiff has alleged at least some facts giving rise to a conspiracy claim in her proposed complaint, the court cannot find that the addition of such a claim would be futile. Therefore, plaintiff's motion to amend her complaint is GRANTED.
CONCLUSION
For the foregoing reasons, defendants' motion is GRANTED. Plaintiff's motion to amend her first amended complaint is GRANTED to add only the claim for conspiracy under 42 U.S.C. § 1983. Plaintiff is granted fifteen (15) days from the date of this order to file a second amended complaint in accordance with this order. Defendants are granted thirty (30) days from the date of service of plaintiff's second amended complaint to file a response thereto.
IT IS SO ORDERED.