1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ZOYA KOVALENKO, Case No. 22-cv-05990-HSG
8 Plaintiff, ORDER DENYING MOTION FOR RELIEF FROM PRETRIAL ORDER; 9 v. DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS; AND 10 KIRKLAND & ELLIS LLP, et al., DENYING MOTION FOR LEAVE TO FILE MOTION FOR 11 Defendants. RECONSIDERATION
12 Re: Dkt. Nos. 98, 102, 133
13 14 Before the Court are Defendants Michael De Vries, Michael W. De Vries, P.C., Adam 15 Alper, and Adam Alper, P.C.’s motion for leave to file motion for reconsideration, Defendants’ 16 motion to dismiss Plaintiff’s amended complaint, and Defendant Kirkland and Ellis LLP’s motion 17 for relief from a non-dispositive pretrial order of a Magistrate Judge. See Dkt. Nos. 98, 102, 133. 18 The Court DENIES the motion for leave to file a motion for reconsideration, Dkt. No. 98, and 19 DENIES the motion for relief, Dkt. No. 133. The Court DENIES IN PART AND GRANTS IN 20 PART the motion to dismiss, Dkt. No. 102. 21 I. BACKGROUND 22 In October 2022, Plaintiff Zoya Kovalenko brought her first complaint against her former 23 employer Kirkland & Ellis LLP (“Kirkland”) alleging that Defendants fired her in retaliation for 24 complaining of sex-based discrimination she experienced and observed at the law firm. See Dkt. 25 No. 1 (“Compl.”) ¶¶ 1–5, 7–19. She also named various firm partners and some of their 26 individual professional corporations, including Michael De Vries and Michael W. De Vries, P.C.; 27 Adam Alper and Adam R. Alper, P.C.; Akshay Deoras and Akshay Deoras, P.C.; Leslie Schmidt 1 action for sex discrimination in violation of Title VII, the California Fair Employment and 2 Housing Act (“FEHA”), the San Francisco Ordinance, and the federal Equal Pay Act; retaliation in 3 violation of Title VII, FEHA, and the San Francisco Ordinance; sex harassment constituting 4 hostile work environment in violation of Title VII; failure to prevent discrimination and retaliation 5 in violation of FEHA; defamation, and intentional and negligent infliction of emotional distress 6 (“IIED”). Id. ¶¶ 2–6, 301–69. This Court’s prior order on Defendants’ motions to dismiss 7 discussed the factual allegations in the complaint in more detail. See Kovalenko v. Kirkland & 8 Ellis LLP, No. 22-CV-05990-HSG, 2023 WL 5444728, at *1–3 (N.D. Cal. Aug. 23, 2023) 9 (“Order”). 10 Defendants moved to dismiss. See Dkt. Nos. 24, 30, 31, 34, 35, 36. In August 2023, the 11 Court granted in part and denied in part the motions as follows: 12 • Dismissed the San Francisco Ordinance claims without leave to amend. See Order at 10. 13 • Dismissed the negligent infliction of emotional distress cause of action as 14 preempted by workers’ compensation without leave to amend. See id. at 19. 15 • Dismissed the Equal Pay Act and defamation claim against Defendant Alper without leave to amend. See id. at 15, 25. 16 • Dismissed Defendants Leslie Schmidt and Leslie Schmidt, P.C., for lack of 17 personal jurisdiction without leave to amend. See id. at 25. 18 • Allowed the Title VII and FEHA claims against Kirkland to proceed but dismissed them as to all other Defendants without leave to amend. See id. at 12. 19 • Allowed the IIED claim to proceed against the remaining Defendants, finding that 20 it was adequately pled and not preempted by workers’ compensation. See id. at 22–23. 21 • Allowed the defamation claim to proceed against the remaining Defendants. See 22 id. at 15–17. 23 Plaintiff filed a first amended complaint in September 2023. Dkt. No. 94. About a week 24 later, Defendants Michael De Vries, Michael W. De Vries, P.C., Adam Alper, and Adam R. Alper, 25 P.C. brought a motion for leave to file a motion for reconsideration regarding aspects of the 26 Court’s order on the motions to dismiss Plaintiff’s original complaint. Dkt. No. 98. Plaintiff 27 opposed. Dkt. No. 101. Defendants then jointly moved to dismiss Plaintiff’s amended complaint 1 in October 2023. Dkt. No. 102. 2 Meanwhile, the parties began engaging in discovery, and Plaintiff objected to subpoenas 3 Defendant Kirkland served on two former employers of Plaintiff. Dkt. No. 83 at 1. This Court 4 referred the discovery issues to Magistrate Judge Thomas Hixson. See Dkt. No. 86. Plaintiff then 5 brought a motion to quash the subpoenas and for a protective order, Dkt. No. 113, which Judge 6 Hixson granted. Dkt. No. 128. Kirkland filed a motion for relief from Judge Hixson’s order. Dkt. 7 No. 133. 8 The Court will first address Defendant Kirkland’s motion for relief, then turn to the joint 9 motion to dismiss, before finally addressing Defendant De Vries and Defendant Alper’s motion 10 for reconsideration, which repeats arguments made in the motion to dismiss. 11 II. MOTION FOR RELIEF 12 Defendant Kirkland & Ellis LLP (“Kirkland”) seeks relief from Magistrate Judge Hixson’s 13 February 16, 2024 Order granting Plaintiff’s motion to quash subpoenas Kirkland issued to non- 14 parties Fish & Richardson P.C. and Paul Hastings LLP, her former employers, and issuing an 15 order prohibiting the discovery the subpoenas sought. See Dkt. No. 115. Kirkland asks this Court 16 to reverse Judge Hixson’s ruling as to two sets of documents sought from the former employers: 17 (1) personnel documents “showing Plaintiff’s work performance, experience, skills, training, and 18 any criticisms/disciplinary action,” and (2) documents regarding Plaintiff’s leaves of absence and 19 medical records. See Dkt. No. 133 at 1–2. In considering Defendant’s objections to the order, the 20 Court must determine whether Judge Hixson made clearly erroneous factual determinations or 21 reached legal conclusions that were contrary to law. See Fed. R. Civ. P. 72(a). 22 As to the first set of documents, the Court finds it was not clear error or contrary to law for 23 Judge Hixson to determine that such personnel documents implicate Plaintiff’s privacy and are not 24 directly relevant to this case. The Court agrees that Plaintiff’s performance at other law firms 25 during the four years prior to her employment at Kirkland is, at best, only marginally relevant to 26 her performance and treatment at Kirkland. See Dkt. No. 115 at 6–8. 27 Regarding the leave of absence and medical records, the Court also finds it was not clear 1 showing that Plaintiff is claiming more than garden variety emotional distress to justify seeking 2 such extremely sensitive personal information at this early stage. See Dkt. No. 115 at 10–11. This 3 determination is entirely consistent with this Court’s prior ruling that Plaintiff adequately pled 4 severe emotional distress for purposes of her IIED claim, as plaintiffs who sufficiently state their 5 IIED claims may suffer emotional distress at varying degrees of severity. See Order at 23. 6 The Court accordingly DENIES Defendant Kirkland’s motion for relief from Judge 7 Hixson’s pretrial order, Dkt. No. 133. 8 III. MOTION TO DISMISS 9 A. Legal Standard 10 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 11 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 12 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 13 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 14 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 15 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 16 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 17 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 18 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 20 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 21 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 22 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 23 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 24 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 25 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 26 B. Discussion 27 Plaintiff’s first amended complaint remains largely the same as her first and appears to 1 (“FAC”); Dkt. No. 110 (“Opp.”) at 11 (“Plaintiff did not add new substantive matter to the FAC, 2 and the claims at issue here (as alleged in the FAC) are substantively identical to the claims in the 3 Complaint.”). Defendants nonetheless raise several new grounds for dismissal in their joint 4 motion to dismiss, Dkt. No. 102 (“Mot.”). Plaintiff argues that pursuant to Fed. R. Civ. P. 12(g), 5 Defendants’ motion should be denied because they have waived their arguments that could have 6 been (but were not) presented in their previous motions to dismiss. Opp. at 2–3. To be clear, the 7 Court is of the view that Defendants could have (and for the most part, should have) raised most, 8 if not all, of these arguments in their prior extensive motions to dismiss. But the tiresome reality 9 is that denying the motion on this ground would result in yet another round of pleading litigation 10 if, as seems likely, Defendants filed Rule 12(c) motions. In that scenario, “the parties would 11 repeat the briefing they have already undertaken, and the Court would have to address the same 12 questions in several months.” In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318–19 (9th Cir. 13 2017) (quoting Allstate Ins. Co. v. Countrywide Fin. Corp., 824 F.Supp.2d 1164, 1175 (C.D. Cal. 14 2011)). Therefore, to “avoid [further] repetitive motion practice, delay, and ambush tactics” in 15 accordance with purpose of Rule 12(g), the Court decides the motion on the merits. Id. at 318. 16 i. Professional Corporation Defendants 17 Defendants argue that Plaintiff’s defamation and IIED claims against the individual 18 partners’ corporations (Michael W. De Vries, P.C., Adam R. Alper, P.C., and Akshay Deoras, 19 P.C., or “PC Defendants”) must be dismissed because Plaintiff “fails to allege any specific 20 wrongful conduct by the Individual Partner PCs.” Mot. at 8. Relying on Sonora Diamond Corp. 21 v. Super. Ct., 83 Cal. App. 4th 523, 538 (2000), Defendants state that a corporation is a legal 22 entity, separate and distinct from its stockholders, officers and directors, with separate and distinct 23 liabilities and obligations such that Plaintiff’s failure to distinguish individual Defendants Adam 24 Alper, Michael De Vries, and Akshay Deoras from their respective professional corporations is 25 fatal to her claims against the corporations. See id. But Plaintiff’s amended complaint does not 26 assert that the individual corporations engaged in wrongful acts separate and distinct from those of 27 their partner-owners. Instead, the complaint alleges that each of the individual partners committed 1 “sole owner, director, and officer,” see FAC ¶ 20, and in turn, the professional corporations 2 engaged in the tortious conduct through their relationship or partnership with Defendant Kirkland 3 to “engage in the profession of law.”1 The Court finds that these allegations support the 4 “reasonable inference” that a relationship existed between the partners, the professional 5 corporations, and Kirkland such that the PC Defendants may be liable for the partners’ acts on 6 behalf of Kirkland. See Brown v. Nano Hearing Tech Opco, LLC, No. 3:24-CV-00221-BTM-JLB, 7 2024 WL 3367536, at *4 (S.D. Cal. July 9, 2024) (“Though the precise details of the agency 8 relationship need not be pleaded to survive a motion to dismiss, sufficient facts must be offered to 9 support a reasonable inference that an agency relationship existed.”). To the extent discovery 10 reveals a basis for seeking summary judgment as to these entities, Defendants can raise their 11 arguments at that stage. 12 The Court DENIES the motion to dismiss the PC Defendants from Plaintiff’s defamation 13 and IIED causes of action.2 14 ii. Defamation 15 a. Statute of Limitations 16 Defendants next argue Plaintiff’s defamation claim should be dismissed as time-barred 17 under California law. According to Defendants, the one-year deadline for Plaintiff to bring her 18 claim began to accrue on August 16, 2021, the date Plaintiff alleges Defendants shared the 19 purportedly defamatory performance reviews at a firm meeting, but Plaintiff did not file her 20
21 1 See, e.g., FAC ¶¶ 26 (“Defendant Akshay S. Deoras, P.C. is a partner of Kirkland. Akshay S. Deoras, P.C. is a professional corporation organized under the laws of the State of 22 California…[T]he purpose of Akshay S. Deoras, P.C. is ‘to engage in the profession of [l]aw and any other lawful activities . . . .’”), 27 (“Defendant Akshay Deoras is the president, chief executive 23 officer, secretary, chief financial officer, and sole director of Akshay S. Deoras, P.C. Akshay Deoras and Akshay S. Deoras, P.C. (collectively, ‘Mr. Deoras’) share the aforementioned place of 24 business located at Kirkland’s Bay Area office in San Francisco. Akshay Deoras acted as an agent and/or authorized representative of and/or formed a partnership, association, joint venture, agency, 25 and/or other instrumentality with Kirkland or with Kirkland and any one or more of its co- Defendants. At all relevant times, Mr. Deoras supported Mr. Alper’s and Mr. De Vries’ subset of 26 the Firm’s IP litigation practice, e.g., by managing cases and other matters for and reporting to Mr. Alper and Mr. De Vries. Plaintiff reported to Mr. Deoras on most of her work at Kirkland.”). 27 1 original complaint until October 12, 2022. See Mot. at 11 (citing FAC ¶ 210). Plaintiff counters 2 that because she had no way of knowing about of the publication of the performance reviews until 3 they were shared with her on October 11, 2021, the discovery rule applies, making the accrual date 4 October 11, 2021. See Opp. at 14. Plaintiff thus contends that she timely filed her complaint on 5 October 12, 2022, within a year of the accrual date. Id. at 15. 6 As an initial matter, because Defendants fail to offer any facts to counter Plaintiff’s 7 discovery rule argument, see Mot. at 12, the Court finds Plaintiff has adequately pled the 8 application of the discovery rule and that the accrual date of her defamation claim is October 11, 9 2021. See Shively v. Bozanich, 31 Cal. 4th 1230, 1237 (2003), as modified (Dec. 22, 2003) 10 (discovery rule may apply “when the defamatory statement is made in secret or is inherently 11 undiscoverable”). But the Court agrees with Defendants that Plaintiff’s one-year filing deadline 12 based on this accrual date was October 11, 2022, not October 12, 2022. California law requires 13 that a claim for defamation “be filed within one year of accrual of the cause of action.” Shively, 14 31 Cal. 4th at 1246. Plaintiff is correct that in California, “[t]he time in which any act provided by 15 law is to be done is computed by excluding the first day, and including the last,” Cal. Civ. Proc. 16 Code § 12, and that one “year” means 365 days, Cal. Gov’t Code § 6803, yet her application of 17 these rules is incorrect. Here, Plaintiff’s deadline for filing is calculated by excluding the first day 18 (i.e. the accrual date), October 11, 2021, and counting 365 days starting with October 12, 2021, as 19 the first day. The 365th day, which is included and marks the deadline, is October 11, 2022.3 20 Thus, Plaintiff’s defamation claim, originally filed on October 12, 2022, was one day late. 21 Plaintiff argues, however, that even if she missed the deadline, her defamation claim is 22 automatically subject to equitable tolling because she had to exhaust administrative remedies 23 before filing suit in court. See Opp. at 15. The Court disagrees that the application of equitable 24 tolling to her state law claims is “automatic” given that there is no exhaustion requirement for 25 these claims. See Rojo v. Kliger, 52 Cal. 3d 65, 88 (1990) (“[A]though an employee must exhaust 26 the FEHA administrative remedy before bringing suit on a cause of action under the act or seeking 27 1 the relief provided therein, exhaustion is not required before filing a civil action for damages 2 alleging nonstatutory causes of action.”). But even so, equitable tolling might still apply if 3 Plaintiff makes “a showing of three elements: timely notice, and lack of prejudice, to the 4 defendant, and reasonable and good faith conduct on the part of the plaintiff.” McDonald v. 5 Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88 (internal quotation marks omitted). 6 Relying on Arnold v. United States, 816 F.2d 1306 (9th Cir. 1987), Defendants claim that 7 Plaintiff cannot meet the second element of the test (lack of prejudice) as a matter of law. See 8 Reply at 11, 12. In Arnold, the Ninth Circuit held that equitable tolling based on the plaintiff’s 9 Title VII claims would not apply to her state law tort claims, which included an IIED claim, 10 because the wrongs underlying the types of claims were too “distinct.” Arnold, 816 F.2d at 1312. 11 The Court held that the plaintiff’s state law claims, which sought to vindicate “her right to be free 12 from bodily or emotional injury caused by another person,” were too “different” from her Title VII 13 claims, which sought to vindicate “her right to be free from discrimination in the workplace.” Id. 14 at 1306. Defendants maintain that Arnold would thus preclude tolling as to Plaintiff’s IIED claim 15 based on her Title VII and FEHA claims as a matter of law, and that it also bars equitable tolling 16 of Plaintiff’s defamation claim for the same reason. See Reply at 12. 17 The Court agrees that Arnold bars tolling of Plaintiff’s defamation claim based on her 18 administrative complaints under Title VII and FEHA. Plaintiff’s amended complaint states that in 19 February 2022, she filed complaints with the EEOC and DFEH alleging “sex discrimination 20 because of sex/gender, harassment constituting a hostile work environment because of sex/gender, 21 and retaliation.” See FAC ¶ 31. As alleged on the face of the amended complaint, the Court finds 22 nothing in these administrative complaints would have notified Defendants of Plaintiff’s intent to 23 bring a defamation claim based on the statements in her performance review. See Cervantes v. 24 City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993) (facts of the two claims must be “‘at least so 25 similar that the defendant’s investigation of the first claim will put him in a position to fairly 26 defend the second’”) (quoting Collier v. City of Pasadena, 142 Cal. App. 3d 917, 925 (1983)). 27 Plaintiff’s assertion that she previously discussed with Kirkland the alleged “falsehoods” in the 1 “the wrong underlying a defamation claim—injury to reputation—is distinct from ‘[Plaintiff’s] 2 right to be free of discrimination in the workplace,’” making tolling unavailable as a matter of law. 3 See Belete v. Oaks Corner, No. 16-CV-04850-JCS, 2016 WL 6393510, at *7 (N.D. Cal. Oct. 28, 4 2016) (quoting Arnold, 816 F.2d at 1318). Accordingly, the Court GRANTS the motion to 5 dismiss Plaintiff’s defamation claim as time-barred. 6 b. Defamation Claim Against De Vries Defendants 7 Having dismissed Plaintiff’s defamation claim as time-barred, the Court does not need to 8 address Defendants’ separate arguments regarding the defamation claim against Defendant De 9 Vries. Nevertheless, the Court emphasizes that many of these arguments attempt to relitigate 10 issues the Court clearly addressed in its prior Order.4 Defendants make little effort to hide this fact 11 considering that Defendant De Vries raises these arguments in essentially identical form in the 12 motion for leave to file a motion for reconsideration. Compare Mot. 16–20 with Dkt. No. 98 at 13 5–7. This is not a proper basis for a motion to dismiss (or, for that matter, a motion for 14 reconsideration), and wastes judicial resources. 15 iii. Intentional Infliction of Emotional Distress 16 a. Statute of Limitations 17 Defendants argue that Plaintiff’s IIED claim should also be dismissed as time-barred 18 because it is “dependent” on her untimely filed defamation claim, which the Court’s Order 19 ostensibly “made clear” by “holding that Plaintiff’s pleading of deliberately falsified performance 20 reviews is enough to allege extreme and outrageous conduct.” Mot. at 12, citing Order at 19–21. 21 Defendants misconstrue the Court’s discussion of the performance reviews in relation to 22 Plaintiff’s IIED claim. The Court did find that Plaintiff’s allegations regarding the falsified 23 performance reviews were enough to make out her IIED claim, but these were not the only facts 24 pled supporting the determination that the IIED claim could proceed. As is apparent from the 25 Order, the Court ruled more generally that “workplace discrimination and retaliation in violation 26 4 For example, Defendants claim that the Court failed to “consider the special treatment 27 performance reviews receive under California law,” citing Jensen v. Hewlett-Packard Co., 14 Cal. 1 of FEHA” can support an IIED claim, citing Light v. Dep’t. of Parks & Recreation, 14 Cal. App. 2 5th 75, 101. Order at 22. The amended complaint includes several other allegations of 3 discrimination and harassment beyond the performance reviews that the Court finds sufficient to 4 plead an IIED claim, including, for example: intentionally and knowingly assigning work to 5 Plaintiff during her vacation to avoid disturbing a male associate’s vacation; giving her an extreme 6 and unreasonable workload compared to male associates, escalating the amount of work when she 7 complained, then freezing her out of work completely; and terminating her without the customary 8 probationary period. FAC ¶¶ 116, 131–132, 147–149, 168, 187. See Light, 14 Cal. App. 5th at 9 102 (reversing grant of summary adjudication in favor of supervisor on IIED claim where “a 10 reasonable trier of fact could find [supervisor] ostracized [plaintiff] in the workplace…and the 11 trier of fact could conclude this conduct was extreme and outrageous”); see also Webber v. Nike 12 USA, Inc., No. 12-CV-00974 BEN WVG, 2012 WL 4845549, at *3 (S.D. Cal. Oct. 9, 2012) 13 (allegation that supervisor set goals for plaintiff that the supervisor “understood to be 14 unattainable” sufficiently pled IIED claim). And, as stated previously in the Order, the question of 15 whether the alleged conduct fell within regular business and management practices is 16 appropriately resolved at a later stage. See Order at 21–22. Plaintiff’s IIED claim is therefore 17 subject to the two-year personal injury statute of limitations, Cal. Civ. Proc. Code § 335.1, and the 18 Court DENIES Defendants’ motion to dismiss it as time-barred.5 19 b. IIED Claims Against Individual Defendants and Defendant Alper 20 Doubling down on their argument that Plaintiff’s IIED claim is wholly derivative of her 21 defamation claim, Defendants seek dismissal of Plaintiff’s IIED claim against the Individual 22 Defendants, on the grounds that the amended complaint fails to allege specific facts to plausibly 23 plead that each Defendant deliberately falsified Plaintiff’s performance reviews. Mot. at 15–16. 24 Defendants also make an identical yet separate request as to the claim against Defendant Alper. 25 Id. at 19–20. These arguments similarly fail. As discussed, the Court finds that the amended 26 5 Defendants also argue that Arnold precludes the equitable tolling of Plaintiff’s IIED claim. See 27 Mot. at 11–12. Because the Court finds that the IIED claim is not derivative of the defamation 1 complaint adequately alleges discriminatory and retaliatory conduct as to each Individual 2 Defendant (and Defendant Alper), including but not limited to the falsification of performance 3 reviews, so as to make out an IIED claim at this stage. See discussion supra, pp. 9–10; see also 4 FAC ¶¶ 25 (alleging Defendant Alper deliberately assigned Plaintiff additional work during 5 vacation), 31–32 (alleging Defendant Alper told Plaintiff she had done excellent work, but 6 deliberately failed to communicate this feedback to partners evaluating Plaintiff’s performance on 7 Defendant’s cases), 43-44 (alleging Defendant Alper deliberately excluded Plaintiff from all-male 8 charter flight). Moreover, Plaintiff specifically alleges that all Defendants played a role in the 9 falsification, and not just the actual writing, of the reviews, including Defendant Alper.6 The 10 Court therefore DENIES Defendants’ motion to dismiss Plaintiff’s IIED claim against the 11 Individual Defendants and Defendant Alper. 12 c. Preemption 13 Finally, Defendants argue that Plaintiff’s IIED claims against the Individual Defendants 14 should be dismissed because they are preempted by the workers’ compensation law. According to 15 Defendants, because the Court previously ruled that an exception to the worker’s compensation 16 scheme applies only where the complaint states a viable FEHA claim, Plaintiff’s IIED claim 17 against the Individual Defendants is preempted given that the Court has dismissed Plaintiff’s 18 FEHA claims against them. Mot. at 13–14. Defendants once again mischaracterize the Court’s 19 Order. The Court held that workers’ compensation will not preempt a plaintiff’s IIED claim 20 6 See FAC ¶ 204 (“In addition, Ms. Schmidt’s “evaluation” demonstrated that she, Mr. Deoras, 21 and Mr. Fahey coordinated with Mr. Alper and Mr. De Vries in discriminating, harassing, retaliating, and defaming Plaintiff. For example, Ms. Schmidt’s “evaluation” further alleged that 22 Plaintiff ‘does not produce usable work,” which ‘has required us to cut a substantial amount of her time’ on the ITC Investigation. In or around June 2021, Mr. Fahey told Plaintiff he handled 23 billing for the ITC Investigation and met weekly with the client regarding the same. Accordingly, on information and belief, Mr. Fahey coordinated with Ms. Schmidt and Mr. Deoras to cut 24 Plaintiff’s hours on the ITC Investigation, in order to fabricate ex post facto support for their defamatory evaluations of Plaintiff. In addition, because Mr. De Vries and Mr. Alper were lead 25 counsel on the ITC Investigation, they had knowledge of Plaintiff’s good work on the same. In addition, Mr. Alper and Mr. De Vries knew or reasonably should have known about Ms. 26 Schmidt’s and Mr. Fahey’s discriminatory and retaliatory write-off(s) because at all relevant times Mr. Alper and Mr. De Vries were on the Firm’s Finance Committee, which ‘reviews’ ‘client write- 27 offs.’ Mr. Alper and Mr. De Vries sanctioned, or, at minimum, intentionally overlooked, the 1 where “the conduct at issue violates FEHA and also satisfies the elements of the claim.” Order at 2 20, quoting Light, 14 Cal. App. 5th at 101 (emphasis added). While the Court did dismiss the 3 Individual Defendants from the FEHA claims because they are not “employers” subject to liability 4 under the statute, see Order at 12, the Court also ruled that Plaintiff’s amended complaint 5 sufficiently alleges that all Defendants, including the Individual Defendants, engaged in conduct a 6 reasonable trier of fact could find both in violation of FEHA and sufficient to allege an IIED 7 claim. See id. at 21; supra discussion at pp. 9–11. Accordingly, Plaintiff’s IIED claim against the 8 Individual Defendants is not preempted by workers’ compensation. See Light, 14 Cal. App. 5th at 9 101.7 10 iv. Title VII and FEHA Retaliation Claims Against Kirkland 11 Defendants argue that Plaintiff’s Title VII and FEHA retaliation claims, and her failure to 12 prevent retaliation under FEHA claim, against Defendant Kirkland must be dismissed because 13 none of the complaints Plaintiff alleges she made in various communications to her employer 14 amounted to a “protected activity” under the statutes. See Mot. at 20; Dawson v. Entek Int’l, 630 15 F.3d 928, 936 (9th Cir. 2011) (setting out Title VII retaliation standard); Kelley v. The Conco Cos., 16 196 Cal. App. 4th 191, 209 (2011) (similar FEHA retaliation standard). Defendants attack the 17 sufficiency of each of the incidents in which Plaintiff alleges she complained about discrimination 18 and harassment, but their disputes essentially boil down to the same argument: Plaintiff’s 19 7 Defendants cite several cases in support of their argument that workers’ compensation preempts 20 an IIED claim against individuals not considered “employers” subject to a FEHA retaliation or discrimination statutes, but in all of these cases, the courts applied the same principle from Light 21 that this Court applied and which Defendants misrepresent: whether “the conduct at issue violates FEHA” determines the preemption of IIED claims by workers’ compensation. Light, 14 Cal. App. 22 5th at 101. See Voellger v. Dignity Health, No. 19-CV-07089-RS, 2020 WL 13505420, at *6 (N.D. Cal. July 27, 2020) (dismissing FEHA retaliation claim against supervisor but allowing 23 plaintiff opportunity leave to amend complaint to revive IIED claim against supervisor by showing his conduct was beyond the scope of personnel management); Kennedy v. MUFG Union Bank, 24 No. E070775, 2020 WL 218521, at *11-12 (Cal. Ct. App. Jan. 15, 2020) (IIED claim dismissed because plaintiff failed to show conduct in violation of FEHA); Kasperzyk v. Shetler Sec. Servs., 25 Inc., No. C-13-3358 EMC/TEH, 2015 WL 1348503, at *12 (N.D. Cal. Mar. 25, 2015) (IIED claim dismissed because “ no reasonable jury could conclude” that the supervisor likely retaliated 26 against plaintiff); Vargas v. Vons Companies, Inc., No. B315167, 2022 WL 17685801, at *14 (Cal. Ct. App. Dec. 15, 2022) (IIED claim failed because undisputed evidence showed plaintiff 27 suffered no adverse employment action sufficient to state FEHA discrimination or retaliation 1 retaliation claims fail because she did not explicitly allege gender-based discrimination in any of 2 her complaints. See, e.g., Mot. at 21 (Plaintiff “did not raise gender discrimination”), 22 (Plaintiff 3 did not state “plainly” that she “was being treated differently because she was a woman,” and 4 complained about matters that “had nothing to do with gender”), 23 (Plaintiff failed to “make her 5 (alleged) belief known that she was being treated unfairly because of her gender”). 6 The Court rejects this argument and finds Plaintiff has adequately pled that her complaints 7 to Kirkland amounted to protected activity for Title VII and FEHA purposes. Plaintiff engaged in 8 a protected activity if she “alerted [her] employer to [her] belief that discrimination, not merely 9 unfair personnel treatment, had occurred.” See Gutierrez v. Kaiser Found. Hosps., Inc., No. C 11- 10 3428 CW, 2012 WL 5372607, at *6 (N.D. Cal. Oct. 30, 2012). However, “an employee is not 11 required to use legal terms or buzzwords when opposing discrimination. The court will find 12 opposing activity if the employee’s comments, when read in their totality, oppose discrimination.” 13 See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1047, 116 P.3d 1123, 1134 (2005) (citation 14 omitted); see also E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983) 15 (noting that “[c]ourts have not imposed a rigorous requirement of specificity in determining 16 whether an act constitutes ‘opposition’” under Title VII). 17 Under this standard, the Court finds that Plaintiff has adequately plead that her complaints 18 to Kirkland’s employees put it on notice of her belief that she was subject to gender discrimination 19 at the firm, so as to constitute protected activity. Plaintiff’s amended complaint alleges that in two 20 April 23, 2021 meetings with Defendant Deoras, Plaintiff “made clear” that she was suffering 21 “due to her being subjected to unfair treatment and having to deal with a disproportionate 22 workload at trial,” and more specifically, that she “complained about her unfair treatment, 23 particularly with respect to Ms. Schmidt’s lies as to whether Plaintiff had been subjected to 24 disparate treatment at trial.” FAC ¶ 121. Similarly, it alleges that during a July 23, 2021 phone 25 call with Defendant Deoras, she again “complained of unfair treatment with respect to workload— 26 i.e., having an inordinately larger workload than male associates, let alone any other associate” 27 and “raised concerns regarding being asked to take on work for male associates (including those 1 allegations as true and construing them in the light most favorable to Plaintiff, these statements 2 create a reasonable inference that Plaintiff put Kirkland on notice of her discriminatory treatment. 3 Defendant Kirkland’s factual disputes about the true nature of these conversations, what Plaintiff 4 really said to Defendants, and whether her complaints of unfair treatment did alert or should have 5 alerted Kirkland to her allegations of discrimination, are properly resolved at summary judgment 6 or trial. The Court therefore DENIES Defendants’ motion to dismiss Plaintiff’s Title VII and 7 FEHA retaliation claims and failure to prevent retaliation under FEHA claim against Defendant 8 Kirkland. 9 v. Equal Pay Act 10 Defendants also argue that Plaintiff’s Equal Pay Act (“EPA”) claim against Defendant 11 Kirkland should be dismissed on two grounds. 12 First, Defendants assert that Plaintiff has failed to plead she performed “equal work” as to 13 any of the five male associates included in her amended complaint as alleged comparators because 14 she does not identify enough “common” tasks between their jobs. See Mot. at 25 (citing Stanley v. 15 Univ. of S. Cal., 178 F.3d 1069, 1073–74 (9th Cir. 1999)). The Court disagrees. The two-part test 16 for equal work asks first “whether a significant portion of the two jobs is identical,” then whether 17 “any additional tasks, incumbent on one job but not the other, make the two jobs substantially 18 different.” Stanley, 178 F.3d at 1074 (internal citations and quotations omitted). Plaintiff has 19 alleged that the male comparators received higher pay, bonuses, and benefits than she did, even 20 though they were at a similar experience level (all graduated from law school within one year of 21 Plaintiff), worked on the same litigation team as she did (IP Litigation), and were assigned to 22 some of the same IP matters as she was. FAC ¶¶ 57–62, 277. These allegations sufficiently plead 23 that Plaintiff and the comparators performed substantially similar work at the firm. While 24 Defendants argue that the specific assignments Plaintiff describes as sharing with the comparators 25 are insufficiently numerous to adequately plead equal work, see Mot. at 26, the Court finds it 26 reasonable to infer that Plaintiff more likely included these projects as examples of similar 27 assignments to help illustrate that her allegations of equal work are not conclusory, rather than to 1 their jobs. More importantly, a finding of “equal work” does not require a one-to-one match 2 between all tasks performed by a plaintiff and alleged comparators. See Stanley, 178 F.3d at 1074 3 (holding that jobs shared “common core of tasks” based on finding that they had the same “basic 4 responsibilities”); see also Freyd v. Univ. of Oregon, 990 F.3d 1211, 1222 (9th Cir. 2021) 5 (reversing summary judgment on EPA claim because a reasonable jury could find that professors 6 shared the same “overall job” even if they performed different tasks). Looking at the “basic 7 responsibilities” of the jobs Plaintiff and the male comparator associates performed as alleged in 8 the amended complaint, the Court finds that Plaintiff has sufficiently pled that a significant portion 9 of the jobs was identical. See Sangster v. Hewlett Packard Enter. Co., No. 23-CV-05438-HSG, 10 2024 WL 3408216, at *7 (N.D. Cal. July 11, 2024) (plaintiff sufficiently pled equal work by 11 alleging she “was a salesperson” and that “her male sales counterparts were given lighter sales 12 goals that enabled them to earn greater pay”). In addition, Defendants do not point to any facts 13 showing that additional tasks outside general shared job duties made Plaintiff’s and the male 14 associates’ roles at Kirkland substantially different. Thus, the Court finds Plaintiff’s amended 15 complaint meets the EPA’s “equal work” requirement for pleading purposes. See Freyd, 990 F.3d 16 at 1222 (describing equal work analysis as “one fraught with judgment, not law” and thereby 17 holding that the court “[did] not have the tools to resolve [such a] dispute without intruding on the 18 civil jury’s function”). 19 Second, Defendants argue Plaintiff’s complaint fails to meet the EPA’s “single 20 establishment” requirement because she does not plead that Kirkland is a distinct physical place of 21 business, or that exceptional circumstances apply such that Kirkland should nonetheless be 22 considered a “single establishment.” Mot. 21–22. The Court also finds that this argument does 23 not warrant dismissal of Plaintiff’s EPA claim. “[G]eographically separate offices may be treated 24 as a single establishment where they are operationally interrelated.” Davis v. Inmar, Inc., No. 21- 25 CV-03779 SBA, 2022 WL 3722122, at *5, fn. 2 (N.D. Cal. Aug. 29, 2022) (citing Foster v. 26 Arcata Associates, Inc., 772 F. 2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048, 106 27 (1986), overruled on other grounds by, Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1 by teams comprised of partners across separate offices, as evidenced by her experience working 2 with IP partners and male comparators based in various offices in different locations and her 3 allegations of firm-wide policies and practices that ostensibly applied across distinct offices. See 4 FAC ¶¶ 187, 252. The Court finds that these allegations are sufficient to plead that Kirkland is 5 operationally interrelated and should be treated as a “single establishment” for the purposes of 6 Plaintiff’s EPA claim. See Davis, 2022 WL 3722122, at *5, fn. 2 (“Thus, the fact Davis and her 7 comparator work in different offices/cities does not itself warrant dismissal of the claims.”) As 8 with the bulk of Defendants’ other arguments, “[w]hether admissible evidence supports this 9 assertion is more appropriately addressed on summary judgment.” See Williams v. Robert Half 10 Int’l Inc., No. 4:20-CV-03989-KAW, 2021 WL 5414307, at *2 (N.D. Cal. Oct. 5, 2021). 11 Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiff’s EPA claim 12 against Defendant Kirkland. 13 IV. MOTION FOR RECONSIDERATION 14 Defendants De Vries and Alper and their professional corporations also bring a motion for 15 leave to file a motion for reconsideration of parts of the Order on the previous motions to dismiss. 16 See Dkt. No. 98. Defendant De Vries asks the Court to reconsider the portion of the Order 17 denying the motion to dismiss Plaintiff’s defamation claim, while Defendant Alper seeks 18 reconsideration of the denial of the motion to dismiss the IIED claim. See id. at 4. Both assert 19 grounds for reconsideration under Civil Local Rule 7–9(b)(3): “A manifest failure by the Court to 20 consider material facts or dispositive legal arguments which were presented to the Court before 21 such interlocutory order.” See id. at 2; Civ. L.R. 7–9(b)(3). 22 As noted, the Court’s order on Defendants’ motion to dismiss the amended complaint 23 already addresses all of the arguments Defendants assert in their entirely duplicative motion for 24 reconsideration. Compare Dkt. No. 98 at 5–7 with Mot. 16–20. Moreover, Defendants appear to 25 have repackaged some of these arguments from those they asserted in their previous motions to 26 dismiss and which the Court rejected in its prior Order. See supra pp. 9–11; Order at 15–16, 27 20–21. Defendants are thus asking the Court to rule on several issues for a third time. The Court 1 arguments made on a motion to dismiss.” Chaiwong v. Hanlees Fremont, Inc., No. 16-CV-04074- 2 HSG, 2019 WL 1960340, at *2 (N.D. Cal. May 2, 2019) (internal quotations and citation omitted). 3 There already has been more than enough ink spilled on aggressive pleading litigation in this case, 4 and it is past time to proceed to the merits. For the reasons discussed, see supra pp. 9-11, 5 Defendants De Vries and Alper have not come close to showing that the Court failed to consider 6 || material facts or dispositive legal arguments, and their motion for leave to file a motion for 7 reconsideration is DENIED. 8 IT IS SO ORDERED.
10 Z Hasparsrd Ld, HAYWOOD S. GILLIAM, JR. United States District Judge 12
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