Rogers v. City of San Francisco

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] BRIAN F. ROGERS, 7 Case No. 23-cv-04997-JCS Plaintiff, 8 ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANTS’ 9 MOTION TO DISMISS PLAINTIFF’S CITY OF SAN FRANCISCO, et al., COMPLAINT FOR FAILURE TO 10 STATE A CLAIM Defendants. 11 Re: Dkt. No. 19 [12] 13 I. INTRODUCTION 14 In this employment discrimination case, Plaintiff Brian Rogers has sued the City of San 15 Francisco and the San Francisco Public Utilities Commission (“SFPUC”) (collectively, the 16 “City”), based on the SFPUC’s failure to hire him for a Senior Account Clerk position based on 17 his race. Defendants bring a motion to dismiss (“Motion”), asking the Court to dismiss Plaintiff’s 18 cause of action for intentional infliction of emotional distress (“IIED”), pursuant to Rule 12(b)(6) 19 of the Federal Rules of Civil Procedure, on the basis that Plaintiff failed to comply with the claim 20 presentation requirements of the Government Claims Act and furthermore, that municipalities 21 cannot be liable for common law torts. In the Motion, Defendants also ask the Court to strike 22 Plaintiff’s request for punitive damages under Rule 12(f) of the Federal Rules of Civil Procedure 23 on the basis that municipalities are not liable for punitive damages. 24 In opposition to the Motion, Plaintiff has supplied two letters from the San Francisco City 25 Attorneys’ Office reflecting that a claim that Plaintiff submitted on September 22, 2023 based on 26 an incident that occurred on March 8, 2023 was found to be untimely and that Plaintiff’s 27 subsequent request to file a late claim was denied. Plaintiff did not address Defendants’ assertion 1 The Court finds that the Motion is suitable for determination without oral argument and 2 therefore vacates the motion hearing set for March 1, 2024 pursuant to Civ. L. R. 7-1(b). The Case 3 Management Conference set for the same date will remain on calendar but will be conducted at 4 2:00 p.m. instead of 9:30 a.m. on that date. For the reasons set forth below, the Motion is 5 GRANTED in part and DENIED in part.1 6 II. BACKGROUND 7 In the Complaint, Plaintiff, “who is [a] [B]lack male[,]” alleges that he applied for a Senior 8 Account Clerk position with SFPUC on December 3, 2022, responding to a job posting indicating 9 that there were two openings for this position. Compl. ¶ 17. On January 26, 2023, Plaintiff was 10 interviewed for the position at the SFPUC headquarters by Accounting Services Director Vivian 11 Chen and two other individuals who did not identify themselves. Id. ¶ 19. Plaintiff alleges that he 12 was highly qualified for the position but Defendants nevertheless hired two individuals who were 13 far less qualified to fill the positions because those individuals were White and Asian. Id. ¶ 21. 14 According to Plaintiff, “[t]he only reason that [he] was NOT hired for the position [was] strictly 15 because of his race.” Id. ¶ 28. 16 Plaintiff alleges that Ms. Chen “gave no reasons” for declining to hire Plaintiff and neither 17 she nor the other two individuals had any contact with Plaintiff after the January 26 interview. Id. 18 ¶ 31. Plaintiff alleges in the Complaint that he filed a complaint with the Equal Employment 19 Opportunity Commission (“EEOC”) on June 28, 2023 and “waited for the SFPUC to conduct their 20 own investigation” but that it “never performed the investigation.” Id. ¶¶ 32-33. He also alleges 21 that SFPUC “has their own Equal Employment Opportunity department but they failed to 22 investigate this matter.” Id. ¶ 33. According to Plaintiff, the SFPUC’s Equal Employment 23 Opportunity department was “initially contacted” on March 8, 2023 and an employee of SFPUC 24 told Plaintiff an investigation would take two months, but “they never even started on the 25 investigation.” Id. ¶ 33. Plaintiff does not allege in his Complaint that he filed a claim with the 26 City under the California Government Claims Act. [27] 1 Plaintiff asserts five claims in his complaint: 1) violation of his Constitutional right to 2 equal protection; 2) discrimination under Title VII of the Civil Rights Act of 1964; 3) 3 discrimination under California’s Fair Employment and Housing Act (“FEHA”) on the basis of 4 sex; 4) IIED; and 5) discrimination under FEHA based on race and national origin.2 Id. ¶¶ 39-62. 5 Plaintiff seeks compensatory and punitive damages, as well as “all employment benefits he would 6 have enjoyed had he not been discriminated against[.]” Id. ¶¶ 67-74. 7 III. ANALYSIS 8 A. Whether IIED Claim Should be Dismissed 9 1. Legal Standards Under Rule 12(b)(6) 10 A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure 11 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss 12 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 13 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage 14 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 15 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 16 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 17 In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and 18 takes “all allegations of material fact as true and construe[s] them in the light most favorable to the 19 non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 20 Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that 21 would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 22 1990). A complaint must “contain either direct or inferential allegations respecting all the material 23 elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 , 25 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation [27] 2 In the complaint, the second and third claims are both labelled “Second Cause of Action”; the 1 of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 2 (quoting Twombly, 550 U.S. at 555 ). “[C]ourts ‘are not bound to accept as true a legal conclusion 3 couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 4 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of 5 ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 ) 6 (alteration in original). Rather, the claim must be “‘plausible on its face,’” meaning that the 7 plaintiff must plead sufficient factual allegations to “allow[] the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. 9 at 570 ). 10 2. Discussion 11 Under the California Government Claims Act, Cal. Gov’t Code §§ 810-996.6, a public 12 entity is not liable for any injury, including common law torts, except as otherwise provided by 13 statute. Cal. Gov’t Code § 815(a); Milosky v. Regents of the Univ. of Cal., 44 Cal.4th 876 , 900– 14 01 (2008). However, a public entity may be found vicariously liable for an employees’ tortious 15 acts taken within the scope of their employment, except where the employee is immune from 16 liability. Cal. Gov’t Code § 815.2. A public employee is immune where the injury resulted from a 17 discretionary act. Cal. Gov’t Code § 820.2. 18 Where immunity has been waived under the Government Claims Act, an individual 19 seeking to assert a state law tort claim against a public entity must follow certain procedures 20 before doing so. This includes submitting a written claim to the public entity at issue within six 21 months of the date on which the cause of action accrued. Cal. Gov’t Code § 911.2. An individual 22 may file a civil suit only after the governing body of the public entity acts upon the claim or 23 rejects the claim. Cal. Gov’t Code § 945.4. An individual’s failure to meet these requirements 24 bars them from bringing a civil action for the same claim in state or federal court. Karim–Panahi 25 v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir.1988) (holding that state law tort claims 26 against public entities and public employees are barred unless the plaintiff pleads facts showing 27 that they filed written claims with the public entity in accordance with the California Government 1 [a plaintiff] must allege either that [they] complied with the claims presentation requirement, or 2 that a recognized exception or excuse for noncompliance exists.” Gong v. City of Rosemead, 226 3 Cal. App. 4th 363, 374 (2014). 4 Here, Defendants argue that Plaintiff’s IIED claim fails because: 1) municipalities are 5 immune from liability for common-law torts, including IIED; and 2) Plaintiff has not alleged in 6 his Complaint that he timely submitted a claim under the Government Claims Act with the City 7 before filing this action. The Court rejects Defendants’ first argument but agrees with the second 8 one. 9 While municipalities are generally immune from liability for common-law torts under the 10 Government Claims Act, they may be held vicariously liable for the torts of their employees where 11 the employee caused an injury in the course and scope of their employment by a non-discretionary 12 act, as discussed above. See Randolph v. City of E. Palo Alto, No. C 06-07476 SI, 2008 WL 13 618908, at *10 (N.D. Cal. Mar. 1, 2008). “Discretionary act immunity is ‘reserved for basic 14 policy decisions which have been expressly committed to coordinate branches of government,’ 15 ‘areas of quasi-legislative policy-making [which] are sufficiently sensitive’ to call for judicial 16 abstention.” Id. (quoting Caldwell v. Montoya, 10 Cal.4th at 976) (quoting Johnson v. California, [17] 69 Cal.2d 782 , 794, (1968)). “In contrast, there is no immunity for ministerial decisions that 18 ‘merely implement a basic policy already formulated.’ ” Id. (quoting Caldwell v. Montoya, 10 19 Cal.4th at 976). In Randolph, the court found that the hiring and supervision of police officers by 20 the city was not a discretionary act under these principles and therefore, that the city was not 21 immune from the plaintiff’s claim for negligent hiring, training and supervision. Id. at *11. 22 Similarly, nothing in the current record suggests that the decision not to hire Plaintiff was the 23 result of a “basic policy decision” as required to establish discretionary act immunity. The Court 24 also notes that Defendants have not argued that the failure to hire Plaintiff was the result of any 25 discretionary act. Therefore, the Court rejects Defendants’ first argument, namely, that they are 26 immune from liability on the IIED claim because it is a common law claim. 27 On the other hand, Defendants are correct as to their second argument. Plaintiff does not 1 recognized excuse for noncompliance exists. Therefore, he has not adequately alleged compliance 2 with the prerequisites of the Government Claims Act and his IIED claim fails to state a claim for 3 that reason. 4 B. Whether Punitive Damages Should be Stricken 5 Under California Government Code Section 818, “a public entity is not liable for 6 [exemplary damages] or other damages imposed primarily for the sake of example and by way of 7 punishing the defendant.” Defendants therefore seek to strike Plaintiffs’ request for punitive 8 damages (Compl. ¶¶ 58, 64, 71) pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. 9 The Ninth Circuit has held, however, that “Rule 12(f) does not authorize district courts to strike 10 claims for damages on the ground that such claims are precluded as a matter of law.” 11 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 , 974–75 (9th Cir. 2010). Accordingly, the 12 Court DENIES the Motion as to Defendants’ request. 13 C. Whether Plaintiff Should Be Granted Leave to Amend 14 The remaining question is whether Plaintiff should be permitted to amend his complaint to 15 cure the defects in his allegations relating to compliance with the Government Claims Act. 16 Although leave to amend is freely granted, the Court may deny leave to amend where it finds that 17 amendment is futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Here, the Court concludes that 18 Plaintiff should be permitted to amend his complaint. 19 As a preliminary matter, the Court notes that the letters Plaintiff attached to his Opposition 20 brief do not establish that he presented a timely claim based on the conduct that is at issue in this 21 case. First, Plaintiff did not supply a copy of the underlying claim, making it impossible to 22 determine whether the claim referenced in the letters, based on an incident that occurred on March 23 8, 2023, involved the same conduct that is the basis for the IIED claim asserted in this case. 24 Second, the letters indicate that the claim Plaintiff submitted as to the March 8, 2023 incident was 25 submitted on September 22, 2023 -- more than six months after the incident date -- and was 26 therefore untimely. Third, the letters indicate Plaintiff’s application for leave to file a late claim 27 was denied. 1 his complaint to plead facts showing that he submitted a timely claim or that a recognized 2 || exception or excuse for noncompliance with the Government Claims Act exists. 3 || IV. CONCLUSION 4 For the reasons stated above, the Motion is GRANTED in part and DENIED in part. The 5 Court GRANTS the Motion as to Plaintiff's IED claim, which is dismissed, without prejudice, for 6 || failure to state a claim. The Court DENIES the Motion as to Defendants’ request that the Court 7 strike Plaintiff's request for punitive damages. Plaintiff may file an amended complaint to address 8 the deficiencies in his allegations with respect to his compliance with the Government Claims Act. 9 || Plaintiff's amended complaint shall be filed no later than April 5, 2024. 10 Plaintiff, who is not represented by counsel, is encouraged to consult with the Federal Pro 11 Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal courthouses 12 || for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th 13 floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in 14 || Room 470S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be made 3 15 by calling (415) 782-8982 or emailing federalprobonoproject@ sfbar.org. Lawyers at the Legal a 16 || Help Center can provide basic assistance to parties representing themselves but cannot provide 3 17 legal representation. 18 IT IS SO ORDERED. [19] 20 || Dated: February 23, 2024 21 ss LA € Ml J PH C. SPERO 22 nited States Magistrate Judge