Khan v. SAP Labs, LLC

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 MUHAMMAD KHAN, Case No. 18-cv-07490-BLF 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION TO REMAND; AND GRANTING DEFENDANTS’ MOTION 10 SAP LABS, LLC; JENNY LE; and TO DISMISS FIRST AMENDED SANJAY SHIROLE, COMPLAINT, WITH LEAVE TO 11 AMEND IN PART AND WITHOUT Defendants. LEAVE TO AMEND IN PART [12] [Re: ECF 37, 41, 44] [14] 15 Plaintiff Muhammad Khan (“Khan”) worked for Defendant SAP Labs, LLC (“SAP”), from 16 2013 through December 1, 2015, when he left the company. The following month, Khan set fire 17 to the residence of his former SAP manager, Defendant Sanjay Shirole (“Shirole”), while Shirole 18 and his family were asleep inside. Khan was convicted of arson of an inhabited structure in 19 September 2017, and he is serving a nine-year term of imprisonment for that crime. Khan filed 20 this pro se employment discrimination action from prison approximately one year after his arson 21 conviction and more than two years after separating from SAP. His original complaint, which was 22 filed in the Santa Clara County Superior Court, alleged that while employed at SAP he was denied 23 leave and accommodation in violation of the federal Family Medical Leave Act (“FMLA”), and 24 was subjected to a hostile work environment, harassment, discrimination, and retaliation in 25 violation of California’s Fair Employment and Housing Act (“FEHA”) and other state laws. 26 Defendants removed the action to federal district court on the basis of both federal question 27 jurisdiction and diversity jurisdiction. Khan moves to remand the action to the state court, 1 diversity jurisdiction does not lie. Defendants oppose the motion to remand and seek dismissal of 2 the FAC for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Khan opposes 3 the motion to dismiss. The Court has taken both motions under submission without oral argument. 4 See Orders, ECF 40, 48. 5 For the reasons discussed below, Khan’s motion to remand is DENIED, and Defendants’ 6 motion to dismiss is GRANTED WITH LEAVE TO AMEND IN PART AND WITHOUT 7 LEAVE TO AMEND IN PART. 8 In reviewing the file, the Court discovered that a clerical error was made in the electronic 9 filing of Khan’s operative FAC. See FAC, ECF 41. In its order granting Khan’s motion for leave 10 to amend to file the FAC, the Court ordered that “[t]he Clerk shall file Khan’s proposed pleading 11 (ECF 36-2) as a separate docket entry titled ‘First Amended Complaint.’” Order, ECF 40. When 12 the Clerk electronically filed the FAC, several pages of the FAC and the exhibits to the FAC were 13 omitted. See FAC, ECF 41. The Clerk SHALL correct that clerical error by replacing the partial 14 document currently filed as ECF 41 with the entire FAC, including exhibits, which was submitted 15 by Khan at ECF 36-2. 16 I. BACKGROUND1 17 Khan’s Allegations 18 Khan began working for SAP in 2013, first as an intern, and later as a manager. FAC ¶ 8, 19 ECF 41. In April or May of 2014, Khan began reporting to Defendant Shirole, a high-level 20 software executive. FAC ¶ 11. h, i. Shirole was abusive toward Khan. FAC ¶ 11.i. Shirole made 21 comments about Khan’s body, stating that Khan was overweight, and forcing Khan to race him 22 (Shirole) up flights of stairs. FAC ¶ 11.j, k. Shirole also asked Khan about his sexuality, asked if 23 Khan was gay, and told Khan that he should “seriously consider coming out.” FAC ¶ 11.l. 24 Shirole told Khan about another SAP employee who had come out as gay later in life. FAC ¶ [26] 1 The background facts are drawn from the allegations of the FAC, which are accepted as true for purposes of the motion to dismiss, see Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681 , 690 [27] (9th Cir. 2011), and from documents incorporated into the FAC by reference and matters which 1 11.o. Shirole told colleagues that Khan was gay, and stated to colleagues that he (Shirole) liked to 2 “ride Khan like a tiger.” FAC ¶ 11.m, n, w. During the same time period, Shirole referred to 3 Khan and some other employees by derogatory Hindi epithets meaning “fool.” FAC ¶¶ 11.p, 14. 4 Shirole complained about other employees wearing traditional clothing to work. FAC ¶ 11.r. 5 Khan got the impression that Shirole believed in the caste system prominent in India. FAC ¶ 15. 6 Khan, a heterosexual, Pakistani, Muslim individual, felt that Shirole’s conduct created a 7 hostile work environment. FAC ¶¶ 10, 11.t. Khan interviewed for and accepted a position at 8 another company. FAC ¶ 11.t. When Shirole found out, he became upset and told Khan that 9 leaving SAP would not be good for Khan and would affect Khan’s efforts to obtain citizenship. 10 FAC ¶ 11.t, x. Khan became scared and did not show up for his start date at the other company. 11 FAC ¶ 11.x. Shirole threatened retaliation if Khan reported Shirole’s conduct. FAC ¶ 11.z. Khan 12 then started looking for other positions within SAP. FAC ¶ 15. Shirole told Khan that he would 13 not approve Khan going elsewhere in the company, and that Khan should work under Shirole or 14 quit. FAC ¶ 16. At that time, Shirole suddenly started giving Khan poor reviews, which was a 15 change from his prior excellent reviews. FAC ¶ 17. 16 Khan complained to the company’s human resources (“HR”) department from May 2015 17 through December 2015. FAC ¶ 19. Defendant Le was assigned to handle Khan’s complaint. Id. 18 Le put Khan on unpaid leave. Id. In November 2015, Khan learned that his position on Shirole’s 19 team had been given to a white male. FAC ¶ 20. Shirole told Khan that SAP needed a white 20 person to be the face of the project. Id. On December 1, 2015, Khan emailed HR and stated that 21 he felt compelled to leave his employment because of harassment and discrimination by Shirole 22 and the company’s failure to address his prior complaints. FAC ¶ 22.a. Khan could not find other 23 employment because Shirole and SAP stated that he had been fired and said negative things about 24 him. FAC ¶ 23. 25 On January 9, 2016, someone set fire to Shirole’s home while he and his family were 26 asleep inside. See People v. Khan, No. H045524, 2019 WL 5542840 , at *3 (Cal. Ct. App. Oct. 28, [27] 1 2019).2 Khan was arrested for the arson offense. See FAC ¶ 14.a, ECF 41; Def.’s RJN Exh. A, 2 ECF 44-1. SAP hired a law firm to help the district attorney prosecute Khan. FAC ¶ 24.b. SAP 3 acquired Khan’s private medical records and disclosed them to a “private practice Psychiatrist.” 4 FAC ¶ 24.c, d. SAP also provided a report regarding Khan’s medical records to the judge and 5 prosecution in Khan’s criminal case. FAC ¶ 24.e. Following a jury trial, Khan was convicted of 6 arson of an inhabited structure by use of a device designed to accelerate the fire, and he currently 7 is serving a nine-year term of imprisonment. See People v. Khan, 2019 WL 5542840 , at *1. 8 DFEH Complaint and Right-to-Sue Letter 9 In March 2017, more than a year after his December 1, 2015 separation from SAP, Khan 10 filed an administrative complaint with California’s Department of Fair Employment and Housing 11 (“DFEH”). See Def.’s RJN Exh. B, ECF 44-1. The DFEH Complaint named SAP as the only 12 respondent. See id. It alleged that Khan was “was subjected to Discrimination, Retaliation by 13 respondent, SAP LABS LLC due to one or more Fair Employment and Housing Act protected 14 bases: Disability [physical or mental], Family Care or Medical Leave.” Id. The DFEH 15 Complaint also alleged that Khan was “Denied a work environment free of discrimination and/or 16 retaliation, Terminated,” and that “[t]he most recent harm occurred on or around December 01, 17 2015.” Id. Finally, the DFEH Complaint alleged, “I believe I was terminated on the basis of my 18 disability and in retaliation for taking California Family Rights Act Leave. My beliefs are based 19 on the following: From June 1, 2015 to December 1, 2015, my physician place me on leave due to 20 my disability. On December 1, 2015, Jenny Lee, Human Resources told me I was being 21 terminated due to recent events.” Id. The DFEH Complaint made no reference to sexual 22 harassment, discrimination based on sexual orientation, racial harassment, or discrimination based 23 on race or national origin. See id. The DFEH Complaint did not allege misconduct on the part of 24 Le and did not mention Shirole at all. See id. [26] 2 The Court takes judicial notice of the California appellate decision affirming Khan’s conviction. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 746 n.6 (9th Cir. 2006) (“We may [27] take judicial notice of court filings and other matters of public record.”). 1 On July 24, 2017, the DFEH issued a right-to-sue letter, advising Khan that he had to file 2 any civil action within one year from the date of the right-to-sue letter. See Def.’s RJN Exh. C, 3 ECF 44-1. SAP was the only identified respondent. See id. 4 Filing of Complaint in State Court and Removal to Federal District Court 5 Khan filed this action in the state court on August 21, 2018, more than a year after the date 6 of the right-to-sue letter. See Notice of Removal Exh. A, ECF 1. Defendants removed the action 7 to federal district court and immediately filed a Rule 12(b)(6) motion to dismiss. See Notice of 8 Removal, ECF 1; Defs.’ Motion to Dismiss, ECF 7. While that motion was pending, Khan filed a 9 motion for leave to amend and a motion to remand. See Pl.’s Motion for Leave to Amend, ECF 10 35; Pl.’s Motion to Remand, ECF 37. The motion for leave to amend was unopposed by 11 Defendants. See Defs.’ Statement of Non-Opposition, ECF 39. The Court granted Khan’s motion 12 for leave to amend and terminated the motion to dismiss the original complaint as moot. See 13 Order Granting Motion for Leave to Amend, ECF 40. The Court also directed the Clerk to file 14 Khan’s proposed amended pleading as the operative FAC. See id. 15 First Amended Complaint 16 While the original complaint asserted both federal and state law claims, FAC asserts only 17 state law claims against SAP and two of its employees, Shirole and Jenny Le (“Le”): (1) sexual 18 harassment in violation of FEHA (against all Defendants); (2) discrimination on the basis of 19 sexual orientation in violation of FEHA (against all Defendants); (3) discrimination on the basis of 20 race or national origin in violation of FEHA (against all Defendants); (4) harassment on the basis 21 of race or national origin in violation of FEHA (against all Defendants); (5) disability 22 discrimination in violation of FEHA (against all Defendants); (6) failure to prevent discrimination, 23 harassment, and retaliation in violation of FEHA (against SAP only); (7) wrongful constructive 24 termination in violation of public policy (against SAP only); (8) violation of California Labor 25 Code § 1102.5, et seq. (against SAP only); (9) common law invasion of privacy (against SAP 26 only); (10) violation of the California Constitution, Article 1, § 1, Right to Privacy (against SAP 27 only); (11) intentional infliction of emotional distress (against all Defendants); and (12) retaliation 1 Pending Motions 2 Defendants filed both an opposition to Khan’s motion to remand, and a Rule 12(b)(6) 3 motion to dismiss the FAC. See Defs.’ Opp. to Remand, ECF 43; Defs.’ Motion to Dismiss, ECF 4 44. After several extensions of time for opposition were granted by the Court, Khan filed 5 opposition to the motion to dismiss his FAC. See Pl.’s Opp., ECF 55. Khan did not file a reply 6 with respect to his motion to remand. Briefing on the motions was completed when Defendants 7 filed a reply with respect to their motion to dismiss in September 2019. See Defs.’ Reply, ECF 57. 8 The Court submitted both the motion to remand and the motion to dismiss the FAC for disposition 9 without oral argument. See Orders, ECF 40, 48. 10 The Court addresses Khan’s motion to remand first, and then Defendants’ motion to 11 dismiss. 12 II. MOTION TO REMAND 13 A. Legal Standard 14 Generally, “any civil action brought in a State court of which the district courts of the 15 United States have original jurisdiction, may be removed by the defendant or the defendants, to 16 the district court of the United States for the district and division embracing the place where such 17 action is pending.” 28 U.S.C. § 1441 (a). “A defendant may remove an action to federal court 18 based on federal question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 19 F.3d 1039, 1042 (9th Cir. 2009) (citing 28 U.S.C. § 1441 ). 20 The Ninth Circuit recognizes a “strong presumption against removal.” Hunter, 582 F.3d at 21 1042 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). Thus, “‘the defendant 22 always has the burden of establishing that removal is proper,’ and . . . the court resolves all 23 ambiguity in favor of remand to state court.” Id. (quoting Gaus, 980 F.2d at 566 ). 24 B. Discussion 25 This action was removed on the bases of both federal question jurisdiction and diversity 26 jurisdiction. Khan points out that the federal FMLA claim that gave rise to federal question 27 jurisdiction has been dismissed, and he asks the Court to decline to exercise supplemental 1 lies. Defendants oppose remand, arguing that diversity jurisdiction does lie and that, even absent 2 diversity jurisdiction, the Court should exercise its discretion to retain supplemental jurisdiction 3 over Khan’s state law claims despite his dismissal of the federal FMLA claim. 4 The Court concludes that Defendants have met their burden of establishing that removal is 5 proper, because Defendants have shown that diversity jurisdiction exists and that, even absent 6 diversity jurisdiction, exercise of supplemental jurisdiction over Khan’s state law claims is 7 appropriate in this case. 8 1. Diversity Jurisdiction 9 a. Legal Standard 10 Federal district courts have diversity jurisdiction over civil actions between citizens of 11 different states where the amount in controversy exceeds $75,000, exclusive of interest and costs. [12] 28 U.S.C. § 1332 (a)(1). “Section 1332 requires complete diversity of citizenship; each of the 13 plaintiffs must be a citizen of a different state than each of the defendants.” Morris v. Princess 14 Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 15 “[O]ne exception to the requirement for complete diversity is where a non-diverse 16 defendant has been fraudulently joined.” Hunter, 582 F.3d at 1043 (internal quotation marks and 17 citation omitted). Joinder is fraudulent “if the plaintiff fails to state a cause of action against a 18 resident defendant, and the failure is obvious according to the settled rules of the state.” Id. 19 (internal quotation marks, citation, and alteration omitted). “In such a case, the district court may 20 ignore the presence of that defendant for the purpose of establishing diversity.” Id. However, “the 21 test for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) are not equivalent.” 22 Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 549 (9th Cir. 2018). “A claim 23 against a defendant may fail under Rule 12(b)(6), but that defendant has not necessarily been 24 fraudulently joined.” Id. 25 2. Discussion 26 Defendants argue that diversity jurisdiction lies under 28 U.S.C. § 1332 (a)(1) because 27 (1) Khan is a California citizen, (2) SAP is not a California citizen and thus is diverse from Khan, 1 rule, and (4) the amount in controversy exceeds $75,000. 2 Taking these points in reverse order, the FAC does not specify the amount of damages 3 sought, alleging only that “[t]he amount demanded exceeds $25,000.” FAC, Prayer. “Where the 4 complaint does not specify the amount of damages sought, the removing defendant must prove by 5 a preponderance of the evidence that the amount in controversy requirement has been met.” 6 Abrego v. The Dow Chem. Co., 443 F.3d 676, 683 (9th Cir. 2006). Defendants point out that the 7 FAC contains numerous FEHA claims, and that in connection with each Khan claims lost earnings 8 and benefits, among other damages. See, e.g., FAC ¶¶ 34, 41, 47, 53, 59, 67. Defendants direct 9 the Court to evidence that Khan’s base salary alone exceeds $75,000. See FAC Exh. 4. Because 10 Khan separated from SAP nearly four years ago in December 2015, his lost earnings to date 11 exceed $300,000. Khan also seeks emotional distress damages, punitive damages, and attorneys’ 12 fees. See, e.g., FAC ¶¶ 35-37, 42-44, 48-50, 54-56, 60-62, 68-70. Other courts have found the 13 amount in controversy requirement satisfied when the plaintiff alleged multiple FEHA claims and 14 sought similar types of damages. See, e.g., Simmons v. PCR Tech., 209 F. Supp. 2d 1029 , 1035 15 (N.D. Cal. 2002) (jurisdictional minimum “clearly satisfied” when plaintiff asserting multiple 16 FEHA claims sought unspecified compensatory, punitive, and emotional distress damages as well 17 as attorneys’ fees). The Court concludes that Defendants have demonstrated by a preponderance 18 of the evidence that the jurisdictional minimum is satisfied. 19 The Court also finds persuasive Defendants’ showing that Le and Shirole are sham 20 defendants. As discussed below in connection with Defendants’ motion to dismiss, Khan has 21 failed to state a claim against either Le or Shirole and there is no possibility that Khan could do so 22 even if given further leave to amend. The sham defendant rule may be applied where it is shown 23 “that the individuals joined in the action cannot be liable on any theory,” Ritchey v. Upjohn Drug 24 Co., 139 F.3d 1313, 1318 (9th Cir. 1998), and that “there is no possibility that the plaintiff will be 25 able to establish a cause of action in state court against the alleged sham defendant,” Good v. 26 Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998). 27 Defendants have demonstrated diversity of citizenship between Khan and SAP. As an 1 Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“[A]n LLC is a citizen of every 2 state of which its owners/members are citizens.”). The sole member of Defendant SAP is SAP 3 America, Inc., which is a citizen of Delaware and Pennsylvania. Notice of Removal ¶¶ 8-9 and 4 Heck Decl. ¶¶ 3-5, ECF 1. Accordingly, SAP is a citizen of Delaware and Pennsylvania, but not 5 of California. 6 The only real question presented by Defendants’ showing is with respect to Khan’s 7 citizenship. In their notice of removal, Defendants assert that Khan is a California citizen based 8 on records showing that Khan currently resides at the Correctional Training Facility located in 9 Soledad, California; Khan’s allegations that he resided in California while working for SAP; and 10 records showing that Khan paid California state taxes while working at SAP. See Notice of 11 Removal ¶ 7 and Exhibits, ECF 1. While these documents establish that Khan was and is 12 domiciled in California, they do not establish that he is a citizen of California. “To be a citizen of 13 a state, a natural person must first be a citizen of the United States.” Kanter v. Warner-Lambert 14 Co., 265 F.3d 853, 857 (9th Cir. 2001). It appears from the face of the FAC and exhibits thereto 15 that Khan was in the process of applying for United States citizenship while working at SAP. See 16 FAC ¶ 11.x & Exh. 2. Defendants have not shown the Khan obtained United States citizenship, 17 and thus have not shown that he is a California citizen for purposes of establishing diversity 18 jurisdiction under 28 U.S.C. § 1332 (a)(1). 19 Even if Khan is a foreign national, however, federal courts’ diversity jurisdiction generally 20 extends to civil actions between “citizens of a State and citizens or subjects of a foreign state” 21 where the amount in controversy requirement is satisfied. 28 U.S.C. § 1332 (a)(2). The exception 22 to this rule is that diversity jurisdiction does not lie with respect to an action between “citizens of a 23 State” and foreign nationals “who are lawfully admitted for permanent residence in the United 24 States and are domiciled in the same State.” Id. It is unclear from this record whether Khan is 25 lawfully admitted for permanent residence in the United States. Even assuming that he is, 26 Defendant SAP is not a citizen of California and Defendants have established that the California 27 citizenship of Defendants Le and Shirole should be disregarded under the fraudulent joinder rule. 1 from that of Defendant SAP and the citizenship of Defendants Le and Shirole may be disregarded 2 under the fraudulent joinder rule. 3 Khan has not responded to any of these arguments, as he did not file a reply to Defendants’ 4 opposition to his remand motion. 5 Defendants have established all requirements for diversity jurisdiction, Khan’s motion to 6 remand is DENIED. Even if the Court were to find diversity jurisdiction to be lacking, it would 7 exercise supplemental jurisdiction over Khan’s state law claims for the following reasons. 8 B. Supplemental Jurisdiction 9 1. Legal Standard 10 A federal court’s exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367 . 11 Section 1367(a) provides that “in any civil action of which the district courts have original 12 jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so 13 related to claims in the action within such original jurisdiction that they form part of the same case 14 or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367 (a). A 15 district court may, in its discretion, decline to exercise supplemental jurisdiction over a state law 16 claim where one or more of the following circumstances exists: “(1) the claim raises a novel or 17 complex issue of State law, (2) the claim substantially predominates over the claim or claims over 18 which the district court has original jurisdiction, (3) the district court has dismissed all claims over 19 which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling 20 reasons for declining jurisdiction.” 28 U.S.C. § 1367 (c). 21 2. Discussion 22 Removal of this action clearly was proper based on federal question jurisdiction arising 23 from Plaintiff’s assertion of a federal FMLA claim in the original complaint. The Court therefore 24 may exercise supplemental jurisdiction over Khan’s state law claims if they are sufficiently related 25 to the FMLA claim as to form part of the same case or controversy. Khan’s original complaint 26 indicated that he suffered emotional distress, stress, anxiety, depression, and panic attacks as a 27 result of the alleged harassment and other misconduct of Defendants. See Notice of Removal Exh. 1 leave as a result of these issues, and he alleges that Defendants “prevented him from taking 2 FMLA/STD even though paperwork was available.” Id. at 6. Because the medical conditions 3 underlying Khan’s federal FMLA claim allegedly arose from the asserted harassing, 4 discriminatory, and retaliatory conduct underlying his FEHA and other state law claims, the Court 5 concludes that the federal and state law claims are sufficiently related to support the exercise of 6 supplemental jurisdiction. 7 “[E]xercising discretion and deciding whether to decline, or to retain, supplemental 8 jurisdiction over state law claims when any factor in subdivision (c) is implicated is a 9 responsibility that district courts are duty-bound to take seriously.” Acri v. Varian Assocs., Inc., [10] 114 F.3d 999, 1001 (9th Cir. 1997). The district court’s decision is informed by the “values of 11 economy, convenience, fairness, and comity” articulated by the United States Supreme Court in 12 United Mine Workers v. Gibbs, 383 U.S. 715 (1966). Acri, 114 F.3d at 1001 (internal quotation 13 marks and citation omitted). 14 Khan asks the Court to decline supplemental jurisdiction because all federal claims have 15 been dismissed, citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 , 350 n. 7 (1988), for the 16 proposition that “in the usual case in which all federal-law claims are eliminated before trial, the 17 balance of factors to be considered under the pendent jurisdiction doctrine – judicial economy, 18 convenience, fairness, and comity – will point toward declining to exercise jurisdiction over the 19 remaining state-law claims.” While Khan is correct that the cited factors ordinarily will result in 20 the declination of supplemental jurisdiction where all federal claims are eliminated before trial, the 21 Supreme Court made clear in Carnegie-Mellon that this is not “a mandatory rule to be applied 22 inflexibly in all cases.” See id. The Ninth Circuit has “consistently upheld decisions to retain 23 pendent claims on the basis that returning them to state court would be a waste of judicial 24 resources.” See Schneider v. TRW, Inc., 938 F.2d 986, 994 (9th Cir. 1991). “[A] district court 25 may exercise its discretion to retain pendent claims, on the basis of judicial economy” when the 26 case has been in federal court for periods ranging from four months to nine months to twenty-nine 27 months. Id. (collecting cases). 1 the range the Ninth Circuit has found sufficient to support exercise of supplemental jurisdiction. 2 See Schneider, 938 F.2d at 994 . While the case is at an early stage, the undersigned has issued 3 thirteen orders to date. See ECF 18, 26, 27, 29, 31, 33, 38, 40, 48, 50, 52, 53, 56. Some orders 4 addressed substantive motions such as Khan’s motions for leave to proceed in forma pauperis, for 5 leave to amend the complaint, and for appointment of counsel. See ECF 27, 40. Others were 6 issued in an effort to finalize the briefing on Defendants’ motions to dismiss the original complaint 7 and the FAC, as numerous delays were caused by Khan’s incarceration and requests for extensions 8 of briefing deadlines. See ECF 26, 29, 31, 33, 40, 48, 50, 52, 56. Now that the briefing on the 9 current motion to dismiss finally has been completed – more than five months after it was filed – 10 the Court finds that imposing further delay by remanding the action to state court would be 11 inefficient and unfair to Defendants. Moreover, as this Court necessarily evaluated the merits of 12 the motion to dismiss in order to determine the applicability of the fraudulent joinder rule in 13 connection with Khan’s motion to remand, judicial economy favors the exercise of supplemental 14 jurisdiction. 15 Accordingly, Khan’s motion to remand is DENIED on the additional basis that this Court 16 has determined that exercise of supplemental jurisdiction is appropriate in this case. 17 III. MOTION TO DISMISS 18 A. Legal Standard 19 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 20 claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force 21 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted). 22 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, [24] 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 25 claim is facially plausible when it “allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged.” Id. 27 When evaluating a Rule 12(b)(6) motion, the district court is limited to the allegations of 1 subject to judicial notice. Louisiana Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048 , 2 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 , 322 3 (2007)). 4 B. Discussion 5 Defendants move to dismiss the FAC under Rule 12(b)(6), asserting that Khan has failed to 6 exhaust administrative remedies with respect to most of his FEHA claims; all of his claims are 7 time-barred; the claims for invasion of privacy and intentional infliction of emotional distress are 8 barred by the workers’ compensation exclusivity rule; and Khan has failed to plead the requisite 9 elements of his claims. Defendants request that dismissal be granted without leave to amend, 10 arguing that Khan could not cure these defects by amendment. In opposition, Khan argues that he 11 has exhausted administrative remedies; he timely filed suit; the workers’ compensation exclusivity 12 rule does not apply; and all claims are adequately pled. 13 Before turning to the parties’ substantive arguments, the Court addresses Defendants’ 14 request for judicial notice and Defendants’ objections to Khan’s opposition brief and documents 15 attached thereto. The Court then takes up each of Defendants’ arguments and Khan’s response 16 thereto. 17 1. Defendants’ Request for Judicial Notice 18 Defendants have filed a request for judicial notice (“RJN”) in connection with their Rule 19 12(b)(6) motion to dismiss. See Def.’s RJN, ECF 44-1. Specifically, Defendants ask the Court to 20 take judicial notice of four documents, attached to the RJN as Exhibits A-D: the Felony Abstract 21 of Judgment showing Khan’s arson conviction; Khan’s DFEH administrative complaint; the 22 DFEH right-to-sue letter issued to Khan; and the complaint Khan filed in this action in the state 23 court. Judicial notice is proper as to all of these documents. See Reyn’s Pasta Bella, LLC v. Visa 24 USA, Inc., 442 F.3d 741 , 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and 25 other matters of public record.”); Dornell v. City of San Mateo, 19 F. Supp. 3d 900 , 904 n.3 (N.D. 26 Cal. 2013 ) (taking judicial notice of public documents including DFEH Complaint and DFEH 27 right-to-sue letter). Accordingly, Defendants’ RJN is GRANTED. 1 2. Defendants’ Objections to Khan’s Opposition Brief 2 Khan has appended twenty-two exhibits to his brief in opposition to Defendants’ motion to 3 dismiss. See Pl.’s Opp., ECF 55. Defendants object to the Court’s consideration of these exhibits, 4 correctly pointing out that the Court generally may not consider extrinsic evidence when 5 evaluating a Rule 12(b)(6) motion. As set forth above, on a Rule 12(b)(6) motion the Court is 6 limited to the face of the complaint, matters that may be judicially noticed, and documents that are 7 incorporated by reference into the complaint. See Wynn, 829 F.3d at 1063 . Khan has not 8 requested that the Court take judicial notice of the exhibits attached to his opposition, nor has he 9 demonstrated that those documents may be considered under the incorporation by reference 10 doctrine. Accordingly, the Court has not considered the exhibits attached to the opposition, with 11 the exception of those exhibits that also are attached to the FAC. For example, an email from 12 Robert Isenberg of the DFEH is both attached to the opposition as Exhibit 3 and attached to the 13 FAC as Exhibit 12. The Court has considered Mr. Isenberg’s email on the basis that it is attached 14 to and incorporated into the FAC. 15 Defendants also object to Khan’s opposition papers on the ground that they violate the 16 Court’s Civil Local Rules. Defendants correctly point out that Khan’s opposition brief, exclusive 17 of exhibits, is seventy-four pages in length. Even if allowance is made for the fact that the brief is 18 handwritten rather than typewritten, the brief clearly exceeds the twenty-five pages permitted by 19 Civil Local Rule 7-4. Defendants also note that Khan’s opposition brief does not include a table 20 of contents or table of authorities as required under Civil Local Rule 7-4. While these objections 21 are meritorious, the Court in the exercise of its discretion has considered the entirety of the 22 opposition brief, excluding the exhibits, in light of Khan’s pro se status and incarceration. 23 3. FEHA Claims (Claims 1-6, 12) 24 Khan asserts a number of FEHA claims: Claim 1 for sexual harassment in violation of 25 FEHA (against all Defendants); Claim 2 for discrimination on the basis of sexual orientation in 26 violation of FEHA (against all Defendants); Claim 3 for discrimination on the basis of race or 27 national origin in violation of FEHA (against all Defendants); Claim 4 for harassment on the basis 1 discrimination in violation of FEHA (against all Defendants); Claim 6 for failure to prevent 2 discrimination, harassment, and retaliation in violation of FEHA (against SAP only); and Claim 12 3 for retaliation in violation of FEHA (against SAP only). 4 Defendants argue that these claims are subject to dismissal for failure to exhaust 5 administrative remedies and as time-barred. Khan argues that he did exhaust administrative 6 remedies and that his claims are not time-barred. 7 “In order to bring a civil action under FEHA, the aggrieved person must exhaust the 8 administrative remedies provided by law.” Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th 9 Cir. 2001) (internal quotation marks and citation omitted). “Exhaustion in this context requires 10 filing a written charge with DFEH within one year of the alleged unlawful employment 11 discrimination, and obtaining notice from DFEH of the right to sue.” Id. “The scope of the 12 written administrative charge defines the permissible scope of the subsequent civil action,” and 13 “[a]llegations in the civil complaint that fall outside of the scope of the administrative charge are 14 barred for failure to exhaust.” Id. 15 The DFEH must investigate the charges of unlawful employment discrimination set forth 16 in the administrative complaint. Rodriguez, 265 F.3d at 896 n.5. If the DFEH finds a charge of 17 employment discrimination to be valid, it may attempt conciliation and/or file an accusation to be 18 heard by the Fair Employment and Housing Commission. Id. If the DFEH takes neither of these 19 routes, it must give the claimant a right-to-sue letter. Id. The claimant then must file any civil 20 action based on the charge of discrimination “within one year after the DFEH issues a right-to-sue 21 letter for the defendants listed in the complaint.” Johnson v. Riverside Healthcare Sys., LP, 534 22 F.3d 1116, 1127 (9th Cir. 2008). 23 a. Khan Failed to Exhaust as to Le and Shirole 24 Khan filed his DFEH Complaint in March 2017. See Def.’s RJN Exh. B, ECF 44-1. The 25 DFEH Complaint named SAP as the only respondent. Id. It alleged that Khan was subjected to 26 discrimination and retaliation by SAP due to “Disability [physical or mental]”; he was “Denied a 27 work environment fee of discrimination and/or retaliation”; and he was “terminated on the basis of 1 Complaint mentioned Defendant Le in one sentence, alleging that “On December 1, 2015, Jenny 2 Lee [sic], Human Resources told me I was being terminated due to recent events.” Id. The DFEH 3 Complaint does not charge Le with any misconduct. See id. It does not mention Defendant 4 Shirole at all. Khan’s failure to name Le or Shirole as respondents, or to charge them with 5 misconduct in the administrative complaint, constitutes a failure to exhaust administrative 6 remedies as to Le and Shirole and is fatal to his FEHA claims against them. See Washington v. 7 Lowe's HIW Inc., 75 F. Supp. 3d 1240, 1249 (N.D. Cal. 2014) (holding that the plaintiff’s failure 8 to name individual employees in her DFEH Complaint “defeats her ability to show that she 9 exhausted her administrative remedies with respect to these defendants”). 10 b. Khan Failed to Exhaust as to SAP on all Claims Alleging 11 Discrimination or Harassment based on Sex, Sexual Orientation, 12 Race, or National Origin 13 Khan’s DFEH Complaint alleged that SAP discriminated against him based on “Disability 14 [physical or mental],” and that he was terminated on the basis of his disability and in retaliation 15 from taking leave related to his disability. See Def.’s RJN Exh. B, ECF 44-1. The DFEH 16 Complaint contains no reference whatsoever to any alleged discrimination or harassment based on 17 sex, sexual orientation, race, or national origin. In Rodriguez, the Ninth Circuit held that the 18 plaintiff’s DFEH Complaint that he was discriminated against because he was Mexican-American 19 could not be construed to encompass a claim of disability discrimination. See Rodriguez, 265 F.3d 20 at 897. The Ninth Circuit found that “[t]he two claims involve totally different kinds of allegedly 21 improper conduct, and investigation into one claim would not likely lead to investigation of the 22 other.” Id. Reasoning that it would not be proper to expand the claim to encompass “an entirely 23 new basis for the alleged discrimination,” the Ninth Circuit found that “Rodriguez failed to 24 exhaust his administrative remedies with respect to his claim for disability discrimination, because 25 that claim falls outside the scope of his timely administrative complaint alleging discrimination on 26 the ground that he was Mexican–American. Id. at 897-98 (internal quotation marks and citation 27 omitted). Applying Rodriguez to the present case, this Court concludes that Khan’s DFEH 1 encompass claims based on sex, sexual orientation, race, or national origin. Accordingly, Khan 2 failed to exhaust his FEHA claims based on such conduct, specifically, Claims 1-4, and Claims 6 3 and 12 to the extent based on such conduct. 4 c. Khan’s DFEH Complaint was Untimely 5 For the foregoing reasons, Khan failed to exhaust all FEHA claims except those asserted 6 against SAP based on alleged disability-related discrimination and retaliation, specifically, Claims 7 5, 6, and 12. Those claims are time-barred, however, because Khan filed his DFEH Complaint 8 more than one year after the events giving rise to those claims. Khan’s FEHA claims based on 9 disability-related discrimination and retaliation are grounded in events that occurred while he was 10 employed at SAP. See FAC ¶¶ 56-62, 63-70, 109-19. Khan separated from employment with 11 SAP on December 1, 2015. See FAC ¶ 22.a. He therefore had until December 1, 2016 to exhaust 12 administrative remedies. See Rodriguez, 265 F.3d at 896 (9th Cir. 2001) (a written complaint 13 must be filed with DFEH within one year of the alleged unlawful employment discrimination). 14 Khan did not file his DFEH Complaint until March 2017. See Def.’s RJN Exh. B, ECF 44-1. 15 Accordingly, he is barred from pursuing even those FEHA claims fairly encompassed in the 16 DFEH Complaint. 17 d. Kahn’s Arguments that he Timely Exhausted Administrative 18 Remedies, or that he is Entitled to Equitable Relief from the 19 Exhaustion Requirement, are Without Merit 20 i. Pre-Complaint Inquiry Insufficient to Exhaust 21 Khan argues that his discrimination and harassment claims were exhausted by a pre22 complaint inquiry he submitted to the DFEH in 2016. In support of that argument, he cites to 23 Exhibit 8 to his opposition brief, which is a November 29, 2016 “Acknowledgement of Inquiry 24 Filing” that the DFEH sent to Khan. See Pl.’s Opp. Exh. 8, ECF 55. For the reasons discussed 25 above, the Court may not consider the exhibits attached to Khan’s opposition in evaluating 26 Defendants’ Rule 12(b)(6) motion, except insofar as those exhibits also are attached to the FAC. 27 The Acknowledgement of Inquiry Filing is not attached to the FAC. 1 given leave amend, it is clear that the exhibit does not demonstrate exhaustion. Administrative 2 exhaustion requires the filing of “a verified complaint, in writing, that states the particulars of the 3 alleged discriminatory practice, and the names and addresses of those alleged to have committed 4 it.” Rodriguez, 265 F.3d at 897 n.5. Submission of information to the DFEH by means other than 5 a verified written complaint is not sufficient to satisfy the administrative exhaustion requirement. 6 See Watson v. Chubb & Sons, Inc., 32 F. App’x 827, 828 (9th Cir. 2002) (holding that submission 7 of a pre-complaint questionnaire was insufficient to exhaust administrative remedies with respect 8 to the plaintiff’s disability claims); Davenport v. Bd. of Trustees of State Ctr. Cmty. Coll. Dist., [9] 654 F. Supp. 2d 1073, 1089 (E.D. Cal. 2009) (“Neither unverified written information nor oral 10 information relayed to DFEH may substitute for a formal administrative charge.”). Accordingly, 11 Khan’s pre-complaint inquiry to the DFEH could not exhaust any claims beyond those 12 encompassed in his DFEH Complaint. 13 ii. Uncompleted Attempt to Amend DFEH Complaint does 14 not Cure Failure to Exhaust 15 Khan also suggests that his uncompleted attempt to amend his DFEH Complaint somehow 16 cures his failure exhaust. In his opposition, Khan asserts that he started the process to amend his 17 DFEH Complaint in or around September 2017, and that a DFEH intake consultant named Robert 18 Isenberg sent Khan an email dated September 7, 2017 indicating that Khan needed to sign the 19 proposed amendment. See Opp. at 5, ECF 55. Khan submits Mr. Isenberg’s email as Exhibit 3 to 20 his opposition brief. See Pl.’s Opp. Exh. 3, ECF 55. As discussed above, the Court will consider 21 Mr. Isenberg’s email because it also is attached as Exhibit 12 to the FAC. 22 Mr. Isenberg’s email does not advance Khan’s position. Khan concedes in his opposition 23 that he never signed the proposed amendment to his DFEH Complaint referenced in Mr. 24 Isenberg’s email and never finished the amendment process. See Pl.’s Opp. at 5-6. Khan has not 25 cited, and the Court has not discovered, any authority for the proposition that an uncompleted 26 attempt to amend an administrative complaint can expand the scope of the administrative 27 complaint. 1 iii. DFEH’s Acceptance of Untimely Administrative Charge 2 not Binding on the Court 3 Khan argues that the DFEH’s acceptance of his administrative charge indicates that it was 4 timely. “However, that argument lacks merit, because the administrative agency’s acceptance 5 and/or investigation of an untimely charge is not binding on the court with respect to the question 6 of timeliness.” Muhammad v. Sams Club, No. 2:14-CV-0213-TLN-KJN, 2014 WL 7150254 , at 7 *4 (E.D. Cal. Dec. 15, 2014) (collecting cases). 8 iv. No Basis for Equitable Relief 9 To the extent that Khan asserts that he is entitled to equitable relief from the administrative 10 exhaustion requirement, such assertion is wholly unsupported on this record. In Rodriguez, the 11 Ninth Circuit observed that “[t]he administrative time limits prescribed by FEHA are treated as 12 equivalent to statutes of limitations and are subject to equitable doctrines such as waiver, estoppel, 13 and tolling.” Rodriguez, 265 F.3d at 900 . For example, equitable relief from the administrative 14 exhaustion requirement may be available to “a discrimination plaintiff who (1) diligently pursued 15 his claim; (2) was misinformed or misled by the administrative agency responsible for processing 16 his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing 17 him to fail to exhaust his administrative remedies; and (4) was acting pro se at the time.” Id. at 18 902. Thus in Rodriguez, the Ninth Circuit reversed summary judgment for the defendant for lack 19 of timely administrative exhaustion based on the plaintiff’s affidavit stating that he failed to file a 20 timely administrative charge of mental disability discrimination because the DFEH misled him 21 into believing that he could not pursue such a charge under FEHA. See id. at 900-02 . 22 Here, Khan did not even submit his initial inquiry to DFEH until November 29, 2016, just 23 days before expiration of the one-year period to file his administrative complaint. See Pl.’s Opp. 24 at 11 and Exh. 8, ECF 55. Khan suggests that his lack of diligence should be excused because of 25 his incarceration, but he states in his opposition that he was not remanded to state custody until 26 September 2017, long after the December 1, 2016 deadline for administrative exhaustion. See 27 Pl.’s Opp. at 5-6, ECF 55. Nothing in Khan’s FAC or the record suggests that Khan’s failure to 1 anyone else at DFEH). To the contrary, Khan asserts in his opposition that he acted on advice of 2 counsel when he decided to wait until November 29, 2016 to begin the administrative exhaustion 3 process with his submission of an inquiry filing. See Pl.’s Opp. at 11. He also concedes that the 4 reason he never amended his DFEH Complaint was because he was remanded to state custody 5 following his criminal conviction. See Pl.’s Opp. at 5-6. 6 Khan has failed to show that he timely exhausted his administrative remedies as to any of 7 his FEHA claims, or that he is entitled to equitable relief from the exhaustion requirement. 8 e. Khan’s Complaint was Untimely 9 Even if Khan had timely exhausted his administrative remedies (which he did not), his 10 FEHA claims would be time-barred because he did not file this action within one year of the 11 DFEH’s issuance of the right-to-sue letter. The right-to-sue letter was issued on July 24, 2017. 12 See Def.’s RJN Exh. C, ECF 44-1. Khan therefore had until July 24, 2018 to file a civil action. 13 See Johnson, 534 F.3d at 1127 (holding that a claimant who intends to file a civil FEHA action 14 “must file the claims within one year after the DFEH issues a right-to-sue letter”). He did not file 15 suit until August 21, 2018. See Notice of Removal Exh. A, ECF 1. While “equitable tolling will 16 be warranted where the defendants have induced the plaintiff to delay filing until after the statute 17 of limitations has run,” the Court can “discern nothing in the record to suggest that the defendants’ 18 conduct caused” Khan’s untimely filing in this case. Johnson, 534 F.3d at 1127. 19 Khan argues that he attempted to file suit within the limitations period by sending a letter 20 complaint to the Santa Clara County Superior Court on July 20, 2018. See Opp. at 6, ECF 55. 21 Khan submits the Santa Clara County Superior Court’s “New Complaint Return Letter” dated 22 August 1, 2018, indicating that the letter complaint had been rejected because it was not on 23 pleading paper and was not accompanied by a fee waiver request. See Opp. Exh. 10, ECF 55. The 24 Court cannot consider this evidence in evaluating Defendants’ motion to dismiss the FAC. 25 However, even accepting the “New Complaint Return Letter” as a proffer of allegations that Khan 26 could add to the FAC if given leave to amend, Khan’s unsuccessful attempt to file suit within the 27 limitations period does not cure the time bar. Khan has not cited, and the Court has not 1 the limitations period is somehow rendered timely if the inmate submitted a defective complaint 2 within the limitations period, where the defective complaint was rejected and unfiled by the 3 superior court. 4 Khan’s reliance on Houston v. Lack, 487 U.S. 266 (1988), is misplaced. In Houston, the 5 Supreme Court established the prison mailbox rule as an exception to the general rule that a 6 document is filed when the Clerk of Court receives it. See Houston, 487 U.S. at 270 . The purpose 7 of the rule was to addresses an inmate’s inability to control delay between his or her delivery of a 8 document to prison officials for mailing to the court, and the prison’s mailing it to the court. See [9] id. at 270-71 . The Supreme Court deemed the inmate’s notice of appeal to be filed at the time he 10 delivered it to prison authorities for forwarding to the Clerk of Court, rather than on the date the 11 notice of appeal actually was received by the Clerk. Id. at 276 . Nothing in Houston suggests that 12 the mailbox rule may be used as an end-run around a superior court’s rejection of a defective 13 complaint. Thus while Khan may rely on the mailbox rule to show that his letter complaint should 14 be deemed received by the superior court on July 20, 2018, the date Khan allegedly gave it to 15 prison officials for mailing, that letter complaint was rejected by the superior court as defective 16 and it was never filed. Under those circumstances, operation of the mailbox rule does Khan little 17 good. 18 f. All FEHA Claims are Subject to Dismissal 19 Based on the foregoing, the Court concludes that all of Khan’s FEHA claims are subject to 20 dismissal for failure to timely exhaust administrative remedies. Even if Khan had exhausted 21 administrative remedies (and he did not), his FEHA claims nonetheless would be time-barred 22 because he did not file suit within the one-year limitations period. 23 The motion to dismiss is GRANTED as to Claims 1-6 and 12.3 24 4. Wrongful Termination in Violation of Public Policy (Claim 7) 25 In Claim 7, Khan asserts that he was wrongfully discharged in violation of public policy. [27] 3 Having determined that the FEHA claims are subject to dismissal as unexhausted and as time1 Defendants argue that this claim is barred by the applicable two-year statute of limitations. Khan 2 asserts that the claim is subject to a three-year statute of limitations. 3 Defendants are correct. “Under California law, claims of wrongful termination in violation 4 of public policy are governed by the two-year statute of limitations for personal injury claims.” 5 James v. Tempur Sealy Int’l, Inc., No. 18-CV-07130-SI, 2019 WL 176340 , at *3 (N.D. Cal. Jan. 6 11, 2019); see also Prue v. Brady Co./San Diego, 242 Cal. App. 4th 1367, 1382 (2015) (claims for 7 wrongful termination in violation of public policy are governed by California Code of Civil 8 Procedure § 335.1, “providing a two-year statute of limitations for tort actions based on injuries to 9 plaintiffs caused by the wrongful act or neglect of others”). Khan alleges that he was 10 constructively discharge on December 1, 2015. See FAC ¶ 22.a. Accordingly, he had until 11 December 1, 2017 to file suit. He did not file suit until August 21, 2018. See Notice of Removal 12 Exh. A, ECF 1. His claim for wrongful termination therefore is time-barred. 13 The motion to dismiss is GRANTED as to Claim 7. 14 5. Violation of Labor Code § 1102.5 (Claim 8) 15 Claim 8 asserts a claim under California Labor Code § 1102.5, California’s “whistleblower 16 statute that protects an employee who discloses illegal conduct by prohibiting an employer from 17 retaliating against an employee for such action.” Dowell v. Contra Costa Cty., 928 F. Supp. 2d 18 1137, 1152 (N.D. Cal. 2013). The statute prohibits retaliation for disclosure of illegal conduct to 19 “a government or law enforcement agency, to a person with authority over the employee or 20 another employee who has the authority to investigate.” Cal. Lab. Code § 1102.5 (b). “To 21 establish a prima facie case under § 1102.5, a plaintiff must show (1) she engaged in a protected 22 activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal 23 link between the two.” Dowell, 928 F. Supp. 2d at 1154 (internal quotation marks and citation 24 omitted). Khan alleges that he “raised complaints of illegality while he worked for defendants, 25 and defendants retaliated against him by discriminating against him, harassing him, and taking 26 adverse employment actions, including employment termination, against him.” FAC ¶ 79. 27 Defendants argue that the claim is barred by the applicable three-year limitations period, 1 not time-barred and is adequately alleged. 2 “Section 1102.5 does not provide its own statute of limitations.” Newton v. Bank of Am., 3 No. CV 16-09581-AB (RAOx), 2018 WL 6219946 , at *3 (C.D. Cal. Jan. 18, 2018). California 4 courts and federal district courts are split as to whether to apply a three-year limitations period or a 5 one-year period. Id. Defendants in the present case argue that a three-year period applies, and 6 application of a three-year period is consistent with several recent decisions of district courts 7 within the Ninth Circuit. See, e.g., Newton, 2018 WL 6219946 , at *5; Ayala, 263 F. Supp. 3d at 8 917. This Court therefore applies a three-year limitations period to Khan’s § 1102.5 claim. 9 The § 1102.5 claim, which is asserted only against SAP, is based on alleged retaliatory 10 conduct during Khan’s employment. See FAC ¶ 79. As discussed above, Khan alleges 11 constructive termination on December 1, 2015. Khan therefore had until December 1, 2018 to file 12 suit. Khan’s original complaint was filed on August 21, 2018, within the three-year limitations 13 period, and although it did not specifically allege a claim under § 1102.5, it did allege a claim of 14 “whistleblower retaliation.” See Notice of Removal Exh. A, ECF 1. In the FAC, Khan expressly 15 alleged a whistleblower claim under § 1102.5 See FAC, ECF 41. Defendants contend that the 16 current iteration of the § 1102.5 claim in the FAC is so substantially different from the 17 “whistleblower” claim in the original complaint that the current § 1102.5 claim does not relate 18 back to the filing of the original complaint. Absent relation back, the current § 1102.5 claim 19 would be time-barred, as the FAC was filed after expiration of the three-year limitations period. 20 Defendants cite Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008), for the 21 proposition that a claim relates back to earlier-filed claims only if the two sets of claims “share a 22 common core of operative facts such that the plaintiff will rely on the same evidence to prove each 23 claim.” Defendants argue that the § 1102.5 claim in the FAC does not relate back to claims in the 24 original complaint. However, it appears to the Court that the § 1102.5 claim in the FAC, which is 25 based on Defendants’ alleged harassment, discrimination, retaliation, and termination of Khan’s 26 employment, does share a common core of operative facts with Khan’s other claims of 27 harassment, discrimination, retaliation, and termination. The Court therefore concludes that it is 1 The Court agrees with Defendants, however, that the § 1102.5 claim does not plead 2 adequate facts. Khan does not allege what protected activity he engaged in, that is, what illegality 3 he complained of and to whom. See FAC ¶¶ 77-82. He likewise does not allege what specific 4 adverse employment action he suffered, nor does he allege facts showing a causal connection 5 between his protected activity and the adverse action. See id. The § 1102.5 claim is subject to 6 dismissal on those bases. 7 Defendants’ motion to dismiss is GRANTED as to Claim 8. 8 6. Invasion of Privacy (Claims 9-10) 9 Claims 9 is for common law invasion of privacy, and Claim 10 is for violation of the right 10 to privacy guaranteed by the California Constitution, Article 1, § 1. Defendants argue that Khan 11 has not pled the requisite elements of these claims, the claims are preempted by workers’ 12 compensation exclusivity, and the claims are time-barred. Khan argues that he has adequately 13 pled the claims, workers’ compensation exclusivity does not apply, and the claims are timely. 14 In order to plead a common law invasion of privacy tort claim, a plaintiff must allege “(1) 15 intrusion into a private place, conversation or matter (2) in a manner highly offensive to a 16 reasonable person.” Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1025 (N.D. Cal. 2012). To 17 allege a violation of California’s constitutional right to privacy, a plaintiff must allege: “(1) a 18 legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; 19 and (3) conduct by the defendant that amounts to a serious invasion of the protected privacy 20 interest.” Id. at 1024 . Neither the common law privacy right nor the constitutional privacy right is 21 absolute – an otherwise actional invasion of privacy may be legally justified if furthers a 22 legitimate competing interest. See Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 26 , 38 23 (1994). 24 Khan alleges that his privacy rights were violated when SAP accessed and disclosed his 25 “protected health information.” See FAC ¶¶ 84, 94. It is unclear from the allegations of Claims 9 26 and 10 themselves what health information is at issue. Earlier in the FAC Khan alleges that SAP 27 acquired Khan’s private medical records and disclosed them to a “private practice Psychiatrist,” 1 Khan’s criminal case. FAC ¶ 24.c, d, e. Defendants correctly point out that these allegations do 2 not provide sufficient information regarding the medical records at issue, or the circumstances of 3 the alleged disclosure, to state a claim for invasion of privacy. Consequently, the Court concludes 4 that Defendants have demonstrated that Khan’s invasion of privacy claims fail to state a claim. 5 Defendants argue that disclosure of Khan’s medical records to the judge and the 6 prosecution in Khan’s criminal case was pursuant to a legitimate competing interest. See 7 Baughman v. State of California, 38 Cal. App. 4th 182, 190 (1995) (“Among the legitimate 8 competing societal interests is the public interest in exposing and prosecuting serious crime.”). 9 Defendants also argue in their reply brief that Khan’s privacy claims are barred by California’s 10 litigation privilege, California Civil Code § 47, to the extent the claims are based on SAP’s 11 participation in Khan’s criminal proceedings. The Court concludes that it cannot determine, at this 12 stage of the proceedings and on this record, whether SAP’s alleged conduct was pursuant to a 13 legitimate competing interest or whether it was protected by the litigation privilege of Civil Code 14 § 47. 15 Defendants also argue that the invasion of privacy claims are barred by workers’ 16 compensation exclusivity. Workers’ compensation provides the exclusive remedy “against an 17 employer for any injury sustained by his or her employees arising out of and in the course of the 18 employment.” Operating Engineers Local 3 v. Johnson, 110 Cal. App. 4th 180, 185 (2003). “[A] 19 two-step analysis normally is required to determine whether a claim is within the exclusive 20 jurisdiction of the Workers’ Compensation Appeals Board (WCAB).” Id. First, the court must 21 determine whether the plaintiff is asserting a claim “for personal injury or death sustained in and 22 arising out of the course and scope of employment.” Id. at 185-86 . If so, the court must 23 “determine whether the acts or motives giving rise to the injury constitute a risk reasonably 24 encompassed within the compensation bargain.’ Id. at 186 . Khan alleges conduct on the part of 25 SAP after termination of his employment, and SAP’s provision of Khan’s medical records for use 26 in his criminal prosecution does not appear to constitute a risk reasonably encompassed within the 27 employment bargain. 1 limitations for an invasion of privacy claim is two years. See Saling v. Royal, No. 2:13-CV-10392 TLN-EFB, 2015 WL 5255367 , at *3 (E.D. Cal. Sept. 9, 2015) (“Under California law, the statute 3 of limitations for a claim of tortious invasion of privacy is two years.”). It is not clear from the 4 face of the FAC when Defendants allegedly acquired Khan’s medical records and provided them 5 to others. See FAC ¶ 24. Thus it is not apparent that the alleged invasion of privacy occurred 6 more than two years before Khan filed suit on August 21, 2018. 7 However, as discussed above, Khan has failed to plead facts sufficient to state a claim for 8 invasion of privacy. Accordingly, the motion to dismiss is GRANTED as to Claims 9 and 10. 9 7. IIED (Claim 11) 10 Claim 11 is for intentional infliction of emotional distress (“IIED”). Defendants argue that 11 this claim is barred by the statute of limitations and by workers’ compensation exclusivity. Khan 12 argues that the claim is not time-barred and not subject to workers’ compensation exclusivity. 13 The statute of limitations for an IIED claim is two years. Torres v. Unum Life Ins. Co. of 14 Am., No. C 08-1940 MHP, 2009 WL 69358 , at *3 (N.D. Cal. Jan. 9, 2009). Khan’s IIED claim is 15 based on Defendants’ alleged “discriminatory, harassing, and retaliatory actions” during the 16 course of Khan’s employment. See FAC ¶¶ 104-06. Khan’s employment with SAP terminated on 17 December 1, 2015. See FAC ¶ 22.a. Khan therefore had until December 1, 2017 to file suit. He 18 did not file this action until August 21, 2018. See Notice of Removal Exh. A, ECF 1. The claim 19 therefore is time-barred. Having reached this conclusion, the Court need not address Defendants’ 20 alternative argument based on workers’ compensation exclusivity. 21 The motion to dismiss is GRANTED as to Claim 11. 22 8. Leave to Amend is Granted Only as to Claims 8, 9, and 10 23 Having determined that Khan’s claims are subject to dismissal, the Court must decide 24 whether leave to amend is warranted. Leave ordinarily must be granted unless one or more of the 25 following factors is present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure 26 to cure deficiencies by amendment, (4) undue prejudice to the opposing party, and (5) futility of 27 amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Eminence Capital, LLC v. 1 The Court finds no undue delay (factor 1) or bad faith (factor 2). However, despite 2 Defendants’ prior motion to dismiss the original complaint, and Khan’s subsequent filing of the 3 FAC, Khan has not come close to alleging a viable claim (factor 3). Moreover, as to most of 4 Khan’s claims, it is clear that he would not be able to cure the defects noted herein even if granted 5 further leave to amend. There is no possibility that Khan could allege exhaustion of 6 administrative remedies with respect to his FEHA claims, or that he could plead around the statute 7 of limitations bars to his FEHA, wrongful termination, and IIED claims. Under these 8 circumstances, allowing Khan further leave to amend Claims 1-7 or 11-12 would be futile (factor 9 5) and thus unduly prejudicial to Defendants (factor 4). 10 However, futility of amendment is not absolutely clear with respect to Claim 8 for 11 violation of Labor Code § 1102.5 and Claims 9-10 for violation of privacy rights. The Court has 12 grave reservations about Khan’s ability to allege additional facts necessary to cure the defects in 13 those claims, as the facts contained in Khan’s opposition brief and exhibits thereto are not 14 sufficient to state a claim for relief. 15 With respect to Claim 8, it is entirely unclear what whistleblowing activities Khan engaged 16 in that would give rise to a claim under Labor Code § 1102.5. Nor does Khan allege facts 17 sufficient to show that he was subjected to adverse employment action because of whistleblowing 18 activity. If Khan chooses to amend his § 1102.5 claim, he must allege specifically what illegality 19 he disclosed, to whom, and the circumstances of that disclosure. He also must allege facts 20 showing that he suffered adverse employment action because of his whistleblowing activity and 21 what that adverse employment action was. 22 With respect to Claims 9 and 10, Khan accuses SAP of invading his privacy rights by 23 disclosing medical information to the judge and prosecutor involved in his criminal case, but his 24 opposition brief suggests that his own lawyer may have disclosed the medical information. See 25 Pl.’s Opp. at 57, ECF 55 (stating that “defense attorney Nafiz Ahmed” gave Khan’s medical 26 records to the district attorney). One of the exhibits Khan attaches to his opposition brief appears 27 to be a partial transcript from his criminal proceedings, and it indicates that Khan agreed to 1 Opp. Exh. 19. If Khan chooses to amend Claims 9 and 10, he must allege with specificity what 2 records SAP obtained, to whom SAP gave the records, and the circumstances of the disclosure. 3 Khan also must allege that his medical records were not provided to the prosecutor and/or the 4 || court by his own lawyer or in response to his lawyer’s request for a medical evaluation. 5 Defendants’ motion to dismiss is GRANTED. WITHOUT LEAVE TO AMEND as to 6 || Claims 1-7 and 11-12 and WITH LEAVE TO AMEND as to Claims 8-10. 7 Il. ORDER 8 (1) The Clerk shall correct the clerical error with respect to the electronic filing of the 9 FAC, noted at page 2, above; 10 (2) Plaintiff's motion to remand this case to the Santa Clara County Superior Court is 11 DENIED; 12 (3) Defendant’s motion to dismiss the FAC is GRANTED, WITHOUT LEAVE TO 5 13 AMEND as to Claims 1-7 and 11-12 and WITH LEAVE TO AMEND as to Claims 14 8-10; 15 (4) Khan must give any amended complaint to prison staff for mailing to the Court 16 on or before December 5, 2019; and 3 17 (5) Leave to amend is limited to Claims 8-10 asserted against SAP. Plaintiff MAY 18 NOT reassert any claims against Le or Shirole, and may NOT reassert claims 19 against SAP other than Claim 8-10. Plaintiff may not add any new claims or 20 parties in the amended complaint. If Plaintiff submits an amended complaint that 21 violates this order, such amended complaint will be stricken immediately. [22] 23 Dated: November 4, 2019 24 heh Lys amen) ETH LABSON FREEMAN 25 United States District Judge