1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 BARBARA HOWE, et al., Case No. 20-cv-02622-SI
13 Plaintiffs, ORDER RE DEFENDANTS’ MOTION 14 v. TO DISMISS
15 MENDOCINO COUNTY, et al., Re: Dkt. No. 9 16 Defendants.
17 18 On May 5, 2020, defendants County of Mendocino, Tammy Moss Chandler, and William 19 Schurtz (collectively, “defendants”) filed the instant motion to dismiss all 22 claims in plaintiff’s 20 complaint. Dkt. No. 9 (Mtn. to Dismiss). The motion is GRANTED in part and DENIED in part. 21 22 BACKGROUND 23 Plaintiffs Barbara Howe and Jani Sheppard filed a 130+ page complaint that, despite its 24 volume, says surprisingly little. Ms. Howe and Ms. Sheppard worked together at Mendocino 25 County’s Health and Human Services Agency (“HHSA”). Ms. Howe, a heterosexual female over 26 the age of 40, is the former Assistant HHSA Director and was allegedly terminated on May 30, 27 2019. Dkt. No. 1 ⁋⁋ 22 and 43. Ms. Sheppard, an African-American heterosexual female over the 1 Defendants are: (1) Mendocino County, (2) Tammy Moss Chandler, the current Director of 2 HHSA, and (3) William Schurtz, Mendocino County’s current Director of Human Resources. Id. 3 ⁋⁋ 25, 29, 30. Ms. Chandler and Mr. Schurtz are sued in their individual capacity. Dkt. No. 1 at 1.1 4 5 I. Facts Alleged Concerning Plaintiff Barbara Howe 6 From approximately October 16, 2017 to May 30, 2019, Ms. Howe was employed by 7 Mendocino County as HHSA Assistant Director. Dkt. No. 1 at ⁋ 48. In late April of 2019, Ms. 8 Howe learned about impending PG&E power shutoffs in anticipation of fire season. Id. ⁋ 79. As 9 Assistant Director of HHSA, Ms. Howe was charged with ensuring public health staff were prepared 10 for the power shutoffs. Id. ⁋⁋ 80-81. This included overseeing logistics and communication between 11 Public Health staff and PG&E,, as well as preparing plans to procure generators for hospitals to use 12 during the power shutoffs as necessary. Id. ⁋⁋ 87-91. Ms. Howe’s plan coalesced during a May 15, 13 2019 meeting. Id. ⁋⁋ 82-91. The complaint alleges Ms. Howe “planned to discuss and obtain buy- 14 in from” defendant Tammy Chandler regarding the generators at the next scheduled meeting on May 15 24, 2019. Id. ⁋ 97. However, on May 24, 2019, Ms. Chandler and the then Director of Human 16 Resources, Heidi Dunham, allegedly “worked for their own personal interests to terminate Ms. 17 Howe without any due process.” Id. ⁋ 98. The complaint alleges Ms. Chandler “dictated or drafted 18 a one sentence resignation letter with Heidi Dunham … cornered Ms. Howe in her office during a 19 regularly scheduled meeting and had Dunham introduce the resignation letter to [Ms. 20 Howe]…[who] reluctantly signed the one sentence resignation memo under the duress and menace 21 created illegally by [Ms. Chandler] and Heidi Dunham.” Id. ⁋⁋ 98 – 108. The complaint is silent 22 on what was said or done by Ms. Chandler or Ms. Dunham to create “menace,” “duress,” or 23 “illegality.” The complaint alleges defendants sought Ms. Howe’s termination essentially because 24 she was too good at her job and served the public too well, and because Ms. Howe’s “performance, 25 age, wisdom [and] sexual orientation … were a threat” to defendants. Id. ⁋⁋ 110-111, 26 At some point after Ms. Howe’s termination, the complaint alleges, Ms. Howe texted Ms. 27 1 Chandler “about the reason for [Ms. Howe’s] termination.” Id. ⁋ 168. The complaint does not 2 provide the full text sent by Ms. Chandler. Instead, the complaint alleges Ms. Howe stated in part 3 that Ms. Chandler “was going to be at ‘dis-ease’ for having implemented the wrongful termination 4 against her[.]” Id. ⁋ 169. The complaint alleges the term “dis-ease” meant stress that would be 5 brought on by Ms. Chandler’s alleged illegal and underhanded behavior. Id. ⁋ 170. The complaint 6 alleges Ms. Chandler expressed an irrational fear of the term “dis-ease” and construed it as Ms. 7 Howe making a threat to give Ms. Chandler a disease. Id. ⁋ 175.2 8 The complaint goes on to allege Katharine Elliot, the Mendocino County Counsel, was 9 enlisted by Ms. Chandler and Ms. Dunham in an “attempt to cover-up their illegal conduct and … 10 to further harm and damage Ms. Howe.” Id. ⁋ 113. Ms. Elliot allegedly filed for a restraining order3 11 against Ms. Howe in furtherance of a “plan to destroy” her “personally, professionally, [and] 12 maliciously.” Id. ⁋ 114. Presumably in connection with the restraining order, the complaint alleges 13 pictures of Ms. Howe were posted in county offices “to defame and slander her as if she were a 14 criminal… [and] to intimidate other county staff about the fate they would suffer at the hands of 15 defendants” Id. ⁋⁋ 130-131. It seems no restraining order was ever obtained. Id. ⁋ 138 (“civil 16 harassment case was dismissed because the COUNTY was not a proper petitioner”) (emphasis in 17 original). The complaint alleges that defendants have worked to “disappear” important witnesses, 18 such as Ms. Elliot and Ms. Dunham, to other states to impede Ms. Howe’s claims but give no further 19 explanation or details regarding the allegation. Id. ⁋ 146. 20 On August 27, 2019, Ms. Howe filed her Original Government Claim. Id. ⁋ 183. 21 22 II. Facts Alleged Concerning Plaintiff Jani Sheppard 23 Plaintiff Jani Sheppard began working for HHSA in May 2018 as a Senior Program 24 2 The complaint fails to provide any dates/chronology giving context to these events or 25 helping the reader to understand alleged cause and effect.
26 3 While it seems likely that the grounds for the restraining order could have included Ms. Howe’s text to Ms. Chandler, this is not made clear in the complaint. Indeed, the complaint does 27 not provide specifics regarding the restraining order and the little information that is provided is 1 Specialist. Id. ⁋ 23. She was later promoted to Senior Program Manager, the title she currently 2 holds. Id. The complaint alleges Ms. Sheppard became a target for defendants because during Ms. 3 Howe’s tenure at HHSA, she supported Ms. Sheppard. Id. ⁋ 179. Therefore, defendants allegedly 4 viewed Ms. Sheppard as a “source and advocate for Ms. Howe and a threat” to defendants. Id. The 5 complaint alleges Ms. Chandler “enlisted Meredith Reinhard4 to make allegations of discriminatory 6 conduct by Ms. Sheppard”5 and “failed to correct insubordination by Ms. Sheppard’s direct reports.” 7 Id. ⁋⁋ 184, 191. The complaint alleges: “Ms. Sheppard commented to Carol Mordhorst6 that Ms. 8 Reinhart’s7 insubordination, [Ms. Chandler]’s failure to address the insubordination and the 9 statement8 that Ms. Sheppard was ‘just an angry black woman’ were discriminatory and racist.” Id. 10 ⁋ 192. The complaint further alleges that at some point the County hired an outside law firm to 11 conduct a discrimination investigation into Ms. Sheppard and that on March 4, 2020, Ms. Sheppard 12 “was cleared by [the law firm] of any wrongdoing.” Id. ⁋⁋ 195-197. However, the complaint goes 13 on to allege defendants 14 retaliated against Ms. Sheppard by implementing adverse employment actions, including reassignment consistent with a two-position demotion. Ms. Johnson told 15 Ms. Sheppard that she was there to watch over Ms. Sheppard and that [Ms. Chandler and other defendants] were very upset that the COUNTY had to spend $52,000 to 16 investigate claims of discrimination leveled at Ms. Sheppard and other individuals under her supervision… Ms. Sheppard was denied a position, for which she applied, 17 was qualified and was due a preference under the COUNTY’s ordinance and civil service rules … The open position was provided to Jody Johnson, a person who did 18 not have the basic requirements or other relevant experience to qualify for or perform the job. 19 Id. ⁋⁋ 202-206.9 The complaint goes on to allege that defendants 20
21 4 This is the complaint’s only mention of Ms. Reinhard. The complaint is silent regarding Ms. Reinhard’s job title or role, if any, within HHSA. 22
5 The complaint is silent as to what the allegations against Ms. Sheppard were or when they 23 were made.
24 6 The complaint is silent on who Carol Mordhorst is and what role, if any, she had at HHSA.
25 7 It is unclear whether this is a typo and Ms. Reinhart is the same person as Ms. Reinhard. See Dkt. No. 1 ⁋⁋ 184 and 192. 26
8 The complaint is silent regarding who made this statement. 27 failed to timely provide promised reports to Ms. Sheppard about the sources of 1 complaints against her, especially complaints that rely on confidential information that was incorrectly cited or intentionally misrepresented to create the pre-text for 2 Ms. Sheppard’s adverse employment actions, a two-position demotion, exclusion from meetings and projects core to Ms. Sheppard’s responsibilities and threatened 3 termination. 4 Id. ⁋ 210. 5 The complaint alleges that in approximately August 2019, “in the turbulence after the 6 retaliatory termination of Ms. Howe, Ms. Sheppard had an oral agreement” with the Community 7 Foundation to provide independent services to put on an Executive Leadership Training. Id. ⁋ 615. 8 Allegedly, the Community Foundation’s executive director, Megan Allende, Ms. Chandler’s “close 9 personal friend,” promised to pay Ms. Sheppard $12,000 for her services. Id. ⁋⁋ 615, 618. The 10 funds from which Ms. Sheppard would be paid were allegedly controlled by Ms. Chandler. Id. 11 ⁋ 619. The complaint alleges Ms. Chandler contacted “Ms. Allende to cancel Ms. Sheppard’s 12 agreement to conduct the Executive Leadership Program.” Id. ⁋ 625. While Ms. Allende did not 13 cancel Ms. Sheppard’s role altogether, Ms. Sheppard’s workload was significantly reduced and she 14 allegedly was only paid $2,000. Id. ⁋ 626. 15 On or about January 27, 2020, Ms. Sheppard joined Ms. Howe in the filing of a Second 16 Amended Government Claim. Id. ⁋ 182. 17 18 III. Allegations Regarding Heidi Corrado 19 The complaint alleges that in early 2019, Ms. Howe and Ms. Sheppard experienced 20 performance issues with Heidi Corrado, a newly hired Program Administrator. Id. ⁋ 222. The issues 21 included underperformance, insubordination, and misrepresentations on grant proposals – these 22 issues were reported by plaintiffs to defendants Ms. Chandler and Mr. Schurtz for them to act. Id 23 ⁋⁋ 222, 225, 228, 229. Allegedly, no action was taken against Ms. Corrado, and plaintiffs were 24 concerned Ms. Corrado’s misrepresentations could jeopardize a grant proposal as well as future 25 grants. Id. ⁋ 225. The complaint alleges Ms. Corrado was given preferential treatment because she 26 is a lesbian and that Ms. Corrado’s “protected and favorable treatment in the face of egregious 27 1 underperformance and gross insubordination” evidences defendants “acting in their individual best 2 interests … and not serving the public at large.” Id. ⁋⁋ 234, 320. Stated another way, the complaint 3 alleges plaintiffs were humiliated and shamed as heterosexuals in “a predominately European, 4 lesbian environment.” Id. ⁋ 320. 5 IV. Allegations Regarding Grand Jury Report 6 7 The complaint also discusses a May 31, 2019 Grand Jury Report regarding the Board of 8 Supervisor’s failure “to properly oversee and correct the systemic failure of management’s human 9 and personnel practices while ignoring the mounting social, mental health, and economic problems 10 facing the citizens of Mendocino County.” Id. ⁋ 117. From the complaint, it is unclear (1) what 11 exactly the Grand Jury Report concluded and (2) what if anything the Grand Jury Report said about 12 defendants. For example, couched between paragraphs allegedly stating conclusions from the 13 Report, is a paragraph stating: “the funded position of Assistant CEO remained unfilled because 14 such a person would be a check and balance on the power of [Ms. Chandler] and [Mr. Schurtz].” Id. 15 ⁋ 120. It is unclear whether the statement is plaintiffs’ conclusion or the Grand Jury’s. 16 17 LEGAL STANDARD 18 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 19 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 20 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 21 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 22 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted 23 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened 24 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the 25 speculative level.” Twombly, 550 U.S. at 555, 570. In deciding whether the plaintiff has stated a 26 claim upon which relief can be granted, the court must assume that the plaintiff’s allegations are 27 true and must draw all reasonable inferences in the plaintiff’s favor. See Usher v. City of Los 1 conclusory [allegations], unwarranted deductions of fact, or unreasonable inferences.” In re Gilead 2 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 3 4 DISCUSSION 5 The complaint fails to present a coherent timeline, is replete with conclusory statements, and 6 fails to support the majority of the causes of action. 7 8 I. Federal Causes of Action – Claims 1-13 9 Claims 1-13 are all brought under §1983 and are largely duplicative. The first 13 claims are: 10 1. Illegal Intrusion on First Amendment Right to Free Speech 11 2. Retaliation – Free Speech Monell Action – Based on an Official Policy, Practice or Custom 12 3. Retaliation – Free Speech Monell Action – Based on Act of Final Policymaker 4. Retaliation – Free Speech Monell Action – Based on Ratification 13 5. Retaliation – Free Speech Monell Action – Based on Policy of Failure to Train or Supervise 14 6. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – Violation of 14th 15 Amendment Right to Property and Equal Protection – Official Policy, Practice, or Custom 16 7. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – Violation of 14th Amendment Right to Property and Equal Protection – Act of Final Policymaker 17 8. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – Violation of 14th 18 Amendment Right to Property and Equal Protection – Based on Ratification 19 9. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – Violation of 14th Amendment Right to Property and Equal Protection – Policy of Failure to Train or Supervise 20 10. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – Violation of 14th 21 Amendment Right to Due Process – Official Policy, Practice or Custom 22 11. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – in Violation of 14th Amendment Right to Due Process – Act of Final Policymaker 23 12. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – in Violation of 14th 24 Amendment Right to Due process – Ratification 25 13. Wrongful Termination (Howe) – Wrongful Reduction (Sheppard) – in Violation of 14th Amendment Right to Due Process – Policy of Failure to Train or Supervise 26 A. Claim 1: Illegal Intrusion to First Amendment Free Speech 27 “The First Amendment shields public employees from employment retaliation for their 1 protected speech activities.” Hagen v. City of Eugene, 736 F.3d 1251, 1257 (9th Cir. 2013). The 2 Ninth Circuit “follow[s] a sequential five-step inquiry to determine whether an employer 3 impermissibly retaliated against an employee for engaging in protected speech.” Ellins v. City of 4 Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013). However, only the first three steps, which are 5 plaintiffs’ burden, are relevant here. “First, the plaintiff bears the burden of showing: (1) whether 6 the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen 7 or public employee; and (3) whether the plaintiff's protected speech was a substantial or motivating 8 factor in the adverse employment action.” Id. (quoting Robinson v. York, 566 F.3d 817, 822 (9th 9 Cir. 2009) (internal quotation marks and citations omitted). 10 First, the complaint fails to establish what specific protected statement(s) plaintiffs made, let 11 alone that those statements amounted to a substantial motivating factor in the adverse employment 12 action. The complaint is silent regarding exactly what statements Ms. Howe and Ms. Sheppard 13 made and when. Second, the facts regarding the alleged adverse employment actions against 14 plaintiffs are fuzzy at best. The complaint makes sweeping conclusory statements like defendant 15 Mendocino County “deprived [plaintiffs] of their rights under the First Amendment … when it 16 terminated Ms. Howe and retaliated against Ms. Sheppard for having voiced concerns against a 17 hostile work environment, unlawful employment practices, violations of Public Health laws for the 18 State of California.” Dkt. No. 1 ⁋ 253. While the complaint alleges Ms. Sheppard was “demoted”, 19 she still works for the HHSA and holds the same title. Id. ⁋⁋ 23, 286. Further, the complaint states 20 defendant County “took adverse employment action against Ms. Sheppard … including … reducing 21 her access to information for and participation in meetings related to her employment.” Id. ⁋ 255. 22 But the complaint does not explain which meetings Ms. Sheppard was kept from, how she was kept 23 from them, or when. 24 The first cause of action is therefore DISMISSED without prejudice. 25 26 B. Claims 2 -5: Retaliation for Free Speech 27 “A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their 1 Amendment rights.” Arizona Students' Assoc. v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th 2 Cir. 2016). To prove retaliation in violation of the First Amendment, a plaintiff must show: 3 (1) [that] he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary 4 firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the 5 adverse action. 6 Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010). “To rise to a constitutional violation, 7 the defendant’s adverse action ‘must be of a nature that would stifle someone from speaking out.’” 8 Id. at 544. 9 Again, plaintiffs fail to plead sufficient facts to support their claims. The complaint fails to 10 state exactly what plaintiffs said that was protected speech and when. Further, the complaint fails 11 to provide anything more than conclusory statements regarding alleged adverse actions taken against 12 plaintiffs as discussed above. As such, claims 2-5 are DISMISSED without prejudice. 13 C. Claims 6-13: 14th Amendment Due Process Claims (Wrongful Termination – 14 Howe; Wrongful Reduction – Sheppard) 15 To state a procedural due process claim, a plaintiff must allege the existence of “(1) a liberty 16 or property interest protected by the Constitution; (2) a deprivation of the interest by the government; 17 and (3) lack of process.” Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (internal quotation 18 marks and citation omitted). 19 Defendants argue plaintiffs’ claims are “vague and difficult to decipher.” Dkt. No. 9 at 19. 20 The Court agrees. Defendants further argue plaintiffs cannot bring due process claims because Ms. 21 Howe technically resigned, and Ms. Sheppard is still employed. This is not a fair characterization 22 the complaint’s allegations. The complaint alleges, albeit inarticulately, that Ms. Howe was coerced 23 into resigning and that Ms. Sheppard was demoted. As discussed above, if plaintiffs can provide 24 some meat to these bare bone allegations they may have viable claims. As such, claims 6-13 are 25 DISMISSED without prejudice. 26 27 1 D. Other Issues With Federal Claims 2 1. Claim 2, 6, 10: Official Policy, Practice or Custom 3 Plaintiff’s 2nd, 6th, and 10th claims fail because plaintiffs do not adequately allege how 4 defendants employed an official policy, practice, or custom to deprive plaintiffs of their rights. 5 Plaintiffs allude to general findings in the grand jury report, but provide few, if any, specifics of 6 how the grand jury report supports the allegations in the complaint. 7 2. Claim 5, 9, and 13: Failure to Train or Supervise 8 Plaintiff’s 5th, 9th, and 13th claims must be dismissed because plaintiffs do not adequately 9 allege how defendants failed to adequately train or supervise their employees. Plaintiffs allude to 10 what could be viable allegations against defendants for failing to reprimand Heidi Corrado. 11 However, these allegations are murky at best and no timeline or other specifics are provided. 12 II. California State Law Causes of Action – Claims 14-22 13 Plaintiffs’ California state claims 14-22 are largely duplicative. As stated in the complaint, 14 claims 14-22 are: 15 14. Retaliation in Violation of Labor Code §1102.5 16 15. Race Discrimination in Violation of FEHA Gov. Code §12940 17 16. Retaliation in Violation of FEHA Gov. Code § 12940(h) 18 17. Hostile Work Environment/Harassment in Violation of FEHA Gov. Code §12940(j)(1) 19 18. Intentional Infliction of Emotional Distress 20 19. Breach of Oral, Implied, and Implied-in-Fact Contracts 21 20. Willful Violations of California Labor Code §§ 204 and 510 22 21. Willful Violations of California Labor Code § 226.7 23 22. Intentional Interference with Prospective Economic Advantage and Contract 24
25 A. 14th and 16th Claims – Retaliation 26 Like the federal claims for retaliation, the 14th and 16th claims for California State 27 retaliation are insufficiently plead. For example, the complaint alleges defendant “County retaliated 1 against Ms. Howe and Ms. Sheppard because they opposed non compliance with the civil service 2 rules regarding incompetent employees failing to efficiently and competently serve the public at 3 large, falsifying grant and audit reports to the state and misrepresenting to the State their roles and 4 responsibilities in the County.” Dkt. No. 1 ⁋ 495. These vague and ambiguous allegations do not 5 meet federal pleading standards. Plaintiffs’ opposition to the instant motion provides some more 6 information, though still insufficient, stating plaintiffs were retaliated against for reporting 7 “individuals [who] were falsifying reports and making misrepresentations to State Auditors 8 jeopardiz[ing] State and Federal grants.” Dkt. No. 17 at 27 (Opposition). The complaint and 9 opposition beg the questions: When were these reports allegedly falsified, who falsified them (just 10 Heidi Corrado or others?), and what about the reports were false? 11 Plaintiffs’ 14th and 16th claims are therefore DISMISSED without prejudice. 12
13 B. 15th Claim – Race, Age, and Sex Discrimination 14 The 15th cause of action is brought by both plaintiffs. Ms. Howe is a heterosexual white 15 woman over the age of 40. Dkt. No. 1 at ⁋ 43. The complaint does not include any allegations 16 detailing instances of defendants discriminating against Ms. Howe due to her age or race. Ms. 17 Sheppard is a heterosexual African American woman over the age of 40. Id. at ⁋ 154. The complaint 18 does not include any allegations of defendants discriminating against Ms. Sheppard due to her age. 19 The closest the complaint comes to alleging Ms. Sheppard was racially discriminated against is an 20 unnamed person saying Ms. Sheppard was “just an angry black woman.” Dkt. No. 1 at 192. 21 Finally, the complaint makes the conclusory allegations that (1) Ms. Corrado is a lesbian and 22 was given preferential treatment because she is a lesbian (⁋⁋228-230), plaintiffs worked in a 23 “predominantly lesbian environment” (⁋ 320), and Ms. Sheppard was passed over for a promotion 24 in favor of a lesser qualified, but unidentified, lesbian (⁋421). The complaint also alleges plaintiffs 25 were “treated differently than other similarly situated non-Caucasion, non-heterosexual, male and 26 younger employees.” Id. ⁋⁋ 511-512. 27 In light of these insufficient, barebones allegations the 15th cause of action is DISMISSED 1 C. 17th Claim – Hostile Work Environment 2 FEHA makes it unlawful for any employer or person to harass an employee because of, inter 3 alia, age, race, or disability. Cal. Gov't Code § 12940(j)(1). A prima facie case of harassment under 4 FEHA is stated when plaintiffs allege: (1) they are members of a protected group; (2) they were 5 subjected to harassment because they belonged to this group; and (3) “the alleged harassment was 6 so severe that it created a hostile work environment.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 7 1235, 1244 (9th Cir. 2013). 8 Plaintiffs fail to allege they were subjected to harassment because of a protected status with 9 any particularity. The complaint is silent as to who, when, or where they were harassed. 10 As such, the 17th cause of action is DISMISSED without prejudice. 11 12 D. 18th Claim –Intentional Infliction of Emotional Distress (IIED) 13 To prevail on an IIED claim, a plaintiff must prove: “(1) extreme and outrageous conduct 14 by the defendant with the intention of causing, or reckless disregard of the probability of causing 15 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual 16 and proximate causation of the emotional distress by the defendant's outrageous conduct.” Avina v. 17 United States, 681 F.3d 1127, 1131 (9th Cir. 2012) (applying California law). 18 The complaint makes conclusory allegations regarding defendants’ alleged “extreme and 19 outrageous” conduct, namely: “placing mugshots around county offices when criminal conduct was 20 absent, abusing county resources to pursue a civil harassment TRO and workplace TRO … faking 21 lack of knowledge about ‘dis-ease,’ all to destroy Ms. Howe … reducing [Ms. Sheppard’s] 22 employment, falsely accusing her of helping Ms. Howe obtain evidence that contradicted [Ms. 23 Chandler]” etc. Id. at 582-583. Plaintiffs’ allegations about their emotional distress are likewise 24 devoid of specifics or proof, merely alleging defendants’ “conduct caused Ms. Howe and Ms. 25 Sheppard pain, anxiety, inconvenience, mental distress, severe emotional distress, loss of enjoyment 26 of life, loss of consortium, damage to career, damage to self image, misery, and other non-economic 27 damages including suffering.” Id. at 581. 1 E. 19th Claim – Breach of Oral, Implied, and Implied-In-Fact Contract 2 “The elements of a breach of oral contract claim are the same as those for a breach of written 3 contract: a contract; its performance or excuse for nonperformance; breach; and damages.” Stockton 4 Mortg., Inc. v. Tope, 233 Cal. App. 4th 437, 453 (2014); see also Ladas v. Cal. State Auto. Ass'n, 5 19 Cal. App. 4th 761, 770 (1993) (“Under basic contract law an offer must be sufficiently definite, 6 or must call for such definite terms in the acceptance that the performance promised is reasonably 7 certain.”) (internal citation and quotation marks omitted). “A cause of action for breach of implied 8 contract … is not expressed in words but is implied from the promisor's conduct.” Yari v. Producers 9 Guild of Am., Inc., 161 Cal. App. 4th 172, 182 (2008). However, “[t]here cannot be a valid, express 10 contract and an implied contract, each embracing the same subject matter, existing at the same time.” 11 Wal-Noon Corp. v. Hill, 45 Cal. App. 3d 605, 613 (1975). "The reason for this rule is simply that 12 where the parties have freely, fairly, and voluntarily bargained for certain benefits in exchange for 13 certain obligations, it would be inequitable to imply a different liability and to withdraw from one 14 party benefits for which he has bargained and to which he is entitled.” Id. 15 Plaintiffs’ complaint does not articulate what the terms of the alleged oral contract were nor 16 does it state who, when, or how the terms were allegedly breached. 17 Therefore, the 19th cause of action is hereby DISMISSED without prejudice. 18 F. 20th and 21st Claims: Violations of California Labor Code §§ 204 & 510 and 19 § 226.7 (Ms. Sheppard Only) 20 In the 20th cause of action, Ms. Sheppard alleges defendant County owes her “unpaid 21 compensation … for her overtime and double overtime. Because of DEFENDANT COUNTY’s 22 willful misclassification and failure to accurately record hours worked…” Id. ⁋ 599. In the 21st 23 cause of action, Ms. Sheppard also alleges she was denied meal and rest break periods. Id. ⁋ 606 24 (emphasis in original). 25 Ms. Sheppard waives her claim as to Labor Code §204 but maintains her claims under §510 26 for unpaid overtime. Dkt. No. 17 at 30 (Opposition). With respect to the §510 claim, the complaint 27 does not allege any information, let alone details, regarding why Ms. Sheppard was not paid, 1 all occurred. Further, even if Ms. Sheppard provided these details, she still fails to respond to 2 defendants’ arguments that the §510 claim is invalid since the language of the statute does not 3 expressly make it applicable to public agencies. 4 Ms. Sheppard does not oppose or otherwise respond to defendants’ arguments regarding 5 claim 21 for violations of California Labor Code §226.7 – failure to provide meal and rest breaks. 6 As with the §510 claim, Ms. Sheppard’s §226.7 claim fails because the statute includes no language 7 making it applicable to public agencies. See Cal. Correctional Peace Officers’ Ass’n v. State, 188 8 Cal.App. 4th 646, 653 (2010) (“[P]ublic entities are not subject to a general statute unless expressly 9 included.”); see also Wells v. One2One Learning Found., 39 Cal.4th 1164, 1192 (2006) (“[A]bsent 10 express words to the contrary, governmental agencies are not included within the general words of 11 a statute.”); see also Campbell v. Regents of Univ. of California, 35 Cal.4th 311, 330 (2005) 12 (“Generally . . . provisions of the Labor Code apply only to employees in the private sector unless 13 they are specifically made applicable to public employees.”). 14 As such, Ms. Sheppard’s claims under §§ 204, 226.7, and 510, the 20th and 21st causes of 15 action, are DISMISSED with prejudice. 16 G. 22nd Claim – Intentional Interference with Prospective Economic Advantage 17 (Ms. Sheppard Only) 18 Intentional interference with prospective economic advantage requires that plaintiff plead: 19 (1) an economic relationship between the plaintiff and some third party, with the probability of 20 future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) 21 intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption 22 of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the 23 defendant. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003). 24 The complaint alleges that in approximately August 2019, “in the turbulence after the 25 retaliatory termination of Ms. Howe, Ms. Sheppard had an oral agreement” with the Community 26 Foundation to provide independent services to put on an Executive Leadership Training. Id. ⁋ 615. 27 Allegedly, the Community Foundation’s executive director, Megan Allende, Ms. Chandler’s “close 1 funds from which Ms. Sheppard would be paid were allegedly controlled by Ms. Chandler. 7d. 2 || P619. The complaint alleges Ms. Chandler contacted “Ms. Allende to cancel Ms. Sheppard’s 3 agreement to conduct the Executive Leadership Program.” Jd. □ 625. While Ms. Allende did not 4 || cancel Ms. Sheppard’s role altogether, Ms. Sheppard’s workload was significantly reduced and she 5 was only allegedly paid $2,000. Jd. P 626. These allegations are sufficient and render Ms. 6 || Sheppard’s 22™ cause of action viable for purposes of the instant motion to dismiss. 7 8 CONCLUSION” 9 Based on the forgoing, the Court hereby DISMISSES claims 1-19 WITHOUT prejudice. 10 The 20th and 21st claims are DISMISSED WITH prejudice. 11 The motion to dismiss is DENIED with respect to the 22"4 cause of action. 12 Defendants’ Request for Judicial Notice is DENIED. Dkt. No. 9-1.
13 Any amended complaint must be filed on or before August 14, 2020. The Court does not
v 14 || typically grant this much time to amend but does so in this instance in the hope plaintiffs will use it
15 to streamline and clarify their complaint, and to reduce redundancy. F.R.Civ.P. 1. 16 IT IS SO ORDERED.
17 |) Dated: July 8, 2020 Site WU tee
Z 18 SUSAN ILLSTON 19 United States District Judge 20 21 ‘0 Defendants seek dismissal of Ms. Chandler and Mr. Schurtz insofar as they are sued in their individual capacity. An “employee/supervisor ... cannot be held individually liable under Title 99 || Vil and similar statutory schemes.” Reno v. Baird, 18 Cal.4" 640, 649 (1998) (quoting Wathen v. General Elec. Co., 115 F.3d 400, 404 (6 Cir. 1997) (internal quotation marks omitted). As such, 3 any claims brought against Ms. Chandler and Mr. Schurtz in their individual capacity pursuant to FEHA or Title VII are DISMISSED WITH PREJUDICE. 24 Plaintiff can bring suit against defendants in their individual capacity under § 1983. Hafer v. Melo, 502 U.S. 21, 31 (1993). However, “the distinction between official-capacity suits and 25 || personal-capacity suits is more than a mere pleading device.” McAllister v. Los Angeles Unified School Dist., 216 Cal.App.4® 1198, 1212 (2013) (citing Hafer, 502 U.S. at 27) (internal citation and 26 || quotation marks omitted). As plead, the complaint does not allege any facts or claims against Ms. Chandler and Mr. Schurtz outside the context of their official duties as Mendocino County 97 || employees. Thus, the Court DISMISSES Ms. Chandler and Mr. Schurtz in their individual capacity WITHOUT prejudice. Any renewed claims against Ms. Chandler or Mr. Schurtz in their individual 28 capacity should be made on facts not currently before the Court.