Drevaleva v. The Narayan Travelstead Professional Law Corporation

Opinion

TATYANA EVGENIEVNA DREVALEVA, Case No. 22-cv-02068-EMC

Plaintiff, ORDER GRANTING DEFENDANTS’ v. MOTION FOR JUDGMENT ON THE PLEADINGS, AND DENYING THE NARAYAN TRAVELSTEAD PLAINTIFF’S MOTION FOR LEAVE PROFESSIONAL LAW CORPORATION, et TO FILE SUPPLEMENTAL al., BRIEFING Defendants. Docket Nos. 25, 27, 34, 38, 40, 41

Tatyana Drevaleva (“Plaintiff”) sued Narayan Travelstead Professional Law Corporation (“NTPC”), Timothy Travelstead, Julie Cho (collectively, the “NTPC Defendants”), and the Alameda Health System (“AHS”) primarily for their conduct in defending AHS in a previous suit brought by Plaintiff. Currently pending before the Court is Defendants’ motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The Court finds this matter appropriate for disposition without oral argument. See Civil L.R. 7-1(b). For the reasons below the Court GRANTS Defendants’ motion. The Court ORDERS Plaintiff to refrain from further filings on this or related cases involving AHS absent leave of the Court, as ordered in Drevaleva v. AHS, No. 22-cv-01585-EMC, slip. op. at 6 (N.D. Cal. Jul. 7, 2022). AHS hired Plaintiff as a part time employee in April 2013 and terminated her in September that year. (Docket No. 1 (“Compl.”) at 3, 4.) Soon afterwards, Plaintiff filed an administrative Enforcement (the “Agency”). (Id. at 3, 5.) She believes that AHS fired her for participating in legally protected activities. (Id. at 7.) The Agency dismissed her claim in 2016. (Id.) Plaintiff subsequently filed suit in this court alleging wrongful termination against AHS and mishandling of her administrative claim against the Agency. (Id. at 10, 11 (citing Drevaleva v. Alameda Health Sys., No. 3:16-cv-07414-LB (N.D. Cal.) (“Drevaleva I”)).) Since then, Plaintiff has brought numerous lawsuits relating to her termination in federal and state courts against AHS, its employees, and counsel. See Drevaleva v. Alameda Health Sys., No. 22-cv- 01585-EMC, 2022 U.S. Dist. LEXIS 121907, at *4–5 (N.D. Cal. Jul. 7, 2022) (summarizing relevant prior lawsuits).1 As to those lawsuits in state courts, Plaintiff was declared a vexatious litigant in September 2020 within the meaning of California Code of Civil Procedure section 391, subdivision (b)(3). (See Drevaleva v. Alameda Health System et al., No. A158862 (Cal. Ct. App. Nov. 14, 2019)).) As for those lawsuits filed in federal courts, this Court declared Plaintiff a vexatious litigant in July 2022. See Drevaleva v. AHS, No. 22-cv-01585-EMC, slip. op. at 6 (N.D. Cal. Jul. 7, 2022). Plaintiff’s over 200-page complaint here recounts the procedural history, the parties’ briefings, and Judge Beeler’s rulings in Drevaleva I, as well as the related appeals history. (Compl.). She brought this case against the defendants for their conduct in defending AHS in Drevaleva I. For example, Plaintiff alleges that AHS, in its motion to dismiss the initial complaint in that case, failed to cite a certain statute (id. at 16), contained hearsay (id. at 17), and characterized AHS’s status as a state as opposed to a local public agency (id. at 44–45). Plaintiff asserts 18 claims here. Specifically, she makes claims under 42 U.S.C. §§ 1981, 1983, and 1985, Cal. Penal Code § 484 (fraud), Cal. Civ. Code § 1572 (civil conspiracy), 18 U.S.C. § 1962(a) (RICO) against all defendants for making certain arguments and “citing the irrelevant case laws” in AHS’s motion briefs in Drevaleva I and related appeals. (Id. at 196–202.) Regarding the defendants’ litigation-related conduct in Drevaleva I, Plaintiff additionally 1 The Court may take judicial notice of the order under Federal Rule of Evidence 201(b). See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute asserts “[s]lavery and involuntary servitude” under the Thirteenth Amendment, “[c]ruel and unusual punishment” under the Eighth Amendment, “[d]eprivation of Liberty and Property” under the Fourteenth Amendment, intentional infliction of emotional distress, intentional interference with a prospective economic advantage, loss of consortium, and harassment under Cal. Code of Civ. P. § 527.6. (Id. at 202–05.) As relief, Plaintiff “demand[s] to be reinstated back to work” at AHS, lost salary, $250 million from each of AHS, NTPC, and Travelstead, as well as $10 million from Cho. (Id. at 205– 06.) The defendants moved for judgment on the pleadings under Fed. R. Civ. P. 12(c) for lack of subject matter jurisdiction and failure to state a claim. (Docket No. 25 (“Def’s Mot”).) The Court granted Plaintiff three 30-day extensions to file her response brief. (Docket No. 30.) Plaintiff has filed motions for permission to file nine supplemental briefs, totaling a few thousand pages, in support of her opposition to the motion. (Docket Nos. 27, 34, 38, 40, 41.) Under Federal Rule of Civil Procedure 12(c), “a party may move for judgment on the pleadings” after the pleadings are closed “but early enough not to delay trial.” A Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion to dismiss for failure to state a claim, and therefore the same legal standard applies. Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Plaintiff only alleges that the Court has jurisdiction “over [her] Complaint because multiple Federal statutes are involved.” (Compl. at 1.) In this case, she asserts the following federal claims: violations of 42 U.S.C. sections 1981,2 1983 (Count No. 2), and 1985 (Count Nos. 1, 3, 4, 6-9, 13, 14), 18 U.S.C. § 1962(a) (Count No. 10), and the Eighth (Count No. 12), Thirteenth (Count No. 11), and Fourteenth Amendments (Count No. 13) of the U.S. Constitution.3 As discussed below, the Court does not have subject matter jurisdiction over any of these federal claims. A. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Claims Plaintiff’s section 1983 claim fails. “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant was acting under color of state law at the time the acts complained of were committed, and that (2) the defendant deprived plaintiff of a right, privilege,

2 Plaintiff asserts this claim on the cover page but does not recite or support it in the body of her complaint. Given Plaintiff’s pro se status, the Court considers this claim.

3 In their briefing, the defendants also seek to dismiss claims under the National Labor Relations Act (“NLRA”) and Labor Management Relations Act (“LMRA”). The Court does not read the complaint as alleging those claims but merely mentioning them in passing. (See, e.g., Compl. at 198 (“Fraud, Penal C. § 484; Civ. C. § 1572, conspiracy that was aimed to prevent me from obtaining relief pursuant to the Federal laws the National Labor Relations Act and the Labor- Management Relations Act, 42 U.S.C. § 1985.”).) To the extent that Plaintiff is asserting NLRA or immunity secured by the Constitution or laws of the United States.” Briley v. California, 564 F.2d 849, 853 (9th Cir. 1977). Plaintiff does not suggest that the defendants were acting under the color of any state law when defending AHS in Drevaleva I, so she cannot state a claim under 42 U.S.C. § 1983. Plaintiff cannot plausibly state a claim under 42 U.S.C. §§ 1981 or 1985 either. “The Supreme Court made it clear . . . that § 1985 was not ‘intended to apply to all tortious, conspiratorial interferences with the rights of others,’ but only to those which were founded upon ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus.’” Briley, 564 F.2d at 859 (quoting Griffin v. Breckenridge, 403 U.S. 88, 101–02 (1971)). Similarly, § 1981 “can be violated only by purposeful discrimination.” General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982). Nowhere does Plaintiff suggest that the defendants, when defending for itself or for their client against the lawsuit she brought, litigated Drevaleva I with the purpose of discriminating on the basis of a protected class. Her §§ 1981 and 1985 claims must be dismissed. The rest of Plaintiff’s federal claims are equally frivolous. The defendants have a constitutional right of access to the Court, and, in any event, filing motions and making arguments are not racketeering activities within the definition of 18 U.S.C. § 1961. The defendants did not coerce her to “work as a Caregiver” that Plaintiff frivolously claims to be slavery under the Thirteenth Amendment. (Compl. at 202.) They also did not punish Plaintiff for any convicted crime in violation of the Eighth Amendment. And by merely defending AHS against Plaintiff’s prior suit, the defendants did not deprive her of liberty or property.4 Plaintiff therefore fails to state a claim under RICO, Eighth Amendment, Thirteenth Amendment, or Fourteenth Amendment.

4 Defendants argue that Plaintiff’s 14th Amendment claim should be dismissed because AHS was a private actor not subject to the Amendment. Plaintiff, in response, seeks to file a supplemental brief regarding the status of AHS. (Docket No. 27.) For the reason stated in this order, Plaintiff B. The Court Dismisses The Complaint With Prejudice Plaintiff cannot possibly cure her complaint’s defects by alleging other facts because her claims, resting entirely on the defendants’ prior litigation conduct, would be barred by the Noerr- Pennington Doctrine. Under that doctrine, “[l]itigants are immune from liability that arises out of their petitioning activity, i.e.[,] the filing of a lawsuit, as well as conduct ‘incidental to the prosecution of the suit,’ unless such activity is a ‘sham.’” Gamble v. Kaiser Found. Health Plan, Inc., 348 F. Supp. 3d 1003, 1027 (N.D. Cal. 2018) (quoting Theofel v. Farey-Jones, 359 F.3d 1066, 1071 (9th Cir. 2004); Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009)). Petitioning activity includes “[a] complaint, an answer, a counterclaim and other assorted documents and pleadings, in which plaintiffs or defendants make representations and present arguments to support their request that the court do or not do something . . . .” Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005). All of Plaintiff’s claims rest on the defendants’ protected petitioning activity in Drevaleva I. (See, e.g., Compl. at 196 (alleging conspiracy under § 1985 because the defendants asserted that the court did not have subject matter jurisdiction over Plaintiff’s complaint in Drevaleva I), id. at 197 (alleging fraud and conspiracy under § 1985 against defendants for “asserting that [Plaintiff] could not state the elements of a Prima Facie Case in [her] Title VII Cause of action t a pleading stage” in Drevaleva I).) The accused conduct—“making representations and presenting arguments to support their request that the court do or not do something”—squarely qualifies as petitioning activity protected by the Noerr-Pennington Doctrine.5 Freeman, 410 F.3d at 1184. Their activity also is not a “sham” as it is not “objectively baseless.” Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–61 (1993). To the contrary, both this court and the Ninth Circuit found for AHS in Drevaleva I. Accordingly, the Noerr-Pennington Doctrine would bar Plaintiff’s federal claims even if the Court allows her leave to amend. Her complaint therefore is dismissed with prejudice. Cook, 5 Plaintiff’s proposed second supplemental brief fails on the merit for the same reason (besides being procedurally improper for exceeding the page limit set forth in L.R. 7-3). It seeks to address Perkiss, & Liehe, Inc. v. N.Cal. Collection Serv. Inc., 911 F. 2.d 242, 247 (9th Cir. 1990). Without viable federal claims, the Court lacks (and in any event refuses to exercise) supplemental jurisdiction to adjudicate any of Plaintiff’s state claims. The Court’s ruling does not turn on the topics that Plaintiff’s proposed first and third through ninth supplemental briefs address—namely, the status of AHS as a state public agency during her employment and claim preclusion.6 The Court therefore denies the motions to file them as moot. C. Plaintiff Must Refrain From Further Filings Absent Leave Of The Court The Court declared Plaintiff a vexatious litigant in July 2022 and entered a pre-filing order against her. See Drevaleva v. AHS, No. 22-cv-01585-EMC, slip. op. at 6 (N.D. Cal. Jul. 7, 2022). “Plaintiff [was] ORDERED to seek pre-filing approval in this Court prior to filing cases or new motions in the Northern District of California pro se against AHS and DIR . . . or any of their employees, officers, agents, or counsel regarding Plaintiff’s prior employment with AHS . . . .” Id. That order was “narrowly tailored to the ‘group of defendants’ Drevaleva has targeted and to the ‘type[s] of claims [Drevaleva] ha[s] been filing vexatiously.’” Id. (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1061 (9th Cir. 2007)). In this action, one of the parties against whom Plaintiff has filed her suit pro se is AHS. Plaintiff has also filed some of the same types of claims here that she has been filing vexatiously. Compare Compl. at 202-205 (stating that AHS forced her into slavery in violation of the Thirteenth Amendment and that claiming “[c]ruel and unusual punishment” in violation of the Eighth Amendment), with Drevaleva, No. 22-cv-01585-EMC, slip. op. at 5 (noting that Drevaleva “asserts frivolous claims, including those under the Eighth and Thirteenth Amendment”). Thus, the pre-filing order applies in this action. Plaintiff is reminded to refrain from further filings on this or related cases involving AHS absent leave of the Court. Should Plaintiff file absent leave of the

6 Since the parties previously appeared to litigate the conduct on which some of Plaintiff’s claims are based in Drevaleva I, claim preclusion would likely bar certain of Plaintiff’s claims. See Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (Claim preclusion “bars Court, she will expose herself to a contempt hearing and other possible sanctions, and her filing will be subject to dismissal. The Court GRANTS Defendants’ Motion for Judgment on the Pleadings with prejudice, and DENIES Plaintiff’s motions to file supplemental briefs. The Court ORDERS Plaintiff to refrain from further filings on this or related cases involving AHS absent leave of the Court. This order disposes of Docket Nos. 25, 27, 34, 38, 40, and 41. The Clerk is instructed to enter Judgment and close the case. Dated: March 10, 2023 ______________________________________ EDWARD M. CHEN United States District Judge