Luciano v. California Department of Corrections and Rehabilitation

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 TRAVIS LUCIANO, Case No. 22-cv-734-MMA (RBB)

13 Plaintiff, ORDER GRANTING IN PART 14 v. DEFENDANT’S MOTION TO STRIKE; AND 15 CALIFORNIA DEPARTMENT OF

CORRECTIONS AND 16 [Doc. No. 20] REHABILITATION,

17 Defendant. GRANTING DEFENDANT’S 18 MOTION TO DISMISS CLAIM FOR PUNITIVE DAMAGES 19

20 [Doc. No. 21] 21 22 23 On January 30, 2023, Plaintiff Travis Luciano filed a Third Amended Complaint 24 against the California Department of Corrections and Rehabilitation (“Defendant” or 25 “CDCR”). See Doc. No. 19 (“TAC”). Defendant now moves to strike certain allegations 26 in Plaintiff’s Third Amended Complaint and dismiss Plaintiff’s request for punitive 27 damages. See Doc. Nos. 20, 21. Both motions are fully briefed, see Doc. Nos. 23–25, 28 and the Court took the matters under submission and without oral argument pursuant to 1 Civil Local Rule 7.1.d.1. See Doc. No 22. For the reasons set forth below, the Court 2 GRANTS IN PART Defendant’s motion to strike and GRANTS Defendant’s motion to 3 dismiss. 4 I. BACKGROUND1 5 This case is before the Court for review of Plaintiff’s third amended pleading and 6 Defendant’s third and fourth Rule 12 motions. See Doc. Nos. 2, 10, 13, 19, 20, 21. The 7 factual background set forth in the Court’s Order on Defendant’s Motion to Dismiss the 8 First Amended Complaint, see Doc. No. 9 (“First Dismissal Order”), and Order on 9 Defendant’s Motion to Dismiss the Second Amended Complaint, see Doc. No. 18 10 (“Second Dismissal Order”), remains virtually unchanged. The Court incorporates both 11 prior Dismissal Orders by reference here and provides the following abbreviated 12 summary. 13 The CDCR provides medical, dental, and mental health services to its prison 14 inmates through the California Correctional Health Care Services (“CCHCS”). TAC ¶ 9. 15 On May 10, 2013, Plaintiff began working for CCHCS as an Office Technician at the 16 Richard J. Donovan Correctional Facility. Id. ¶ 10. Plaintiff later worked as an Office 17 Services Supervisor II until he transferred to CalTrans on December 20, 2019, severing 18 his employment with the CDCR. Id.; see also id. ¶ 33. 19 Generally speaking, Plaintiff alleges that he was not promoted to a position he 20 applied for in November 2019 in retaliation for filing a grievance with respect to 21 numerous earlier instances wherein the CDCR failed to promote him, which Plaintiff 22 perceived as being due to sex discrimination. See id. ¶ 11, 26, 29. As a result, Plaintiff 23 asserts one claim against the CDCR for unlawful retaliation in violation of Title VII of 24 the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Id. at 8.2 25

26 1 Because this matter is before the Court on a motion to dismiss, the Court must accept as true the 27 allegations set forth in the Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740 (1976). 28 1 II. LEGAL STANDARDS 2 A Rule 12(b)(6)3 motion tests the legal sufficiency of the claims made in a 3 complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must 4 contain “a short and plain statement of the claim showing that the pleader is entitled to 5 relief . . . .” Fed. R. Civ. P. 8(a)(2). However, plaintiffs must also plead “enough facts to 6 state a claim to relief that is plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl. 7 Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard demands more 8 than “a formulaic recitation of the elements of a cause of action,” or “naked assertions 9 devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (internal quotation marks omitted). Instead, the complaint “must contain allegations of 11 underlying facts sufficient to give fair notice and to enable the opposing party to defend 12 itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In reviewing a 13 motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual 14 allegations and must construe them in the light most favorable to the nonmoving party. 15 See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court need 16 not take legal conclusions as true merely because they are cast in the form of factual 17 allegations. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, 18 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a 19 motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). Where dismissal 20 is appropriate, a court should grant leave to amend unless the plaintiff could not possibly 21 cure the defects in the pleading. See Knappenberger v. City of Phoenix, 566 F.3d 936, 22 942 (9th Cir. 2009) (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). 23 Additionally, “[t]he Court may strike from a pleading . . . any redundant, 24 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). For the purposes 25 of this rule, “‘[i]mmaterial’ matter is that which has no essential or important relationship 26 27 28 1 to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 2 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal 3 Practice and Procedure § 1382, at 706-07 (1990)), rev’d on other grounds by Fogerty v. 4 Fantasy, Inc., 510 U.S. 517 (1994); see also Whittlestone, Inc. v. Handi-Craft Co., 618 5 F.3d 970, 974 (9th Cir. 2010). “‘Impertinent’ matter consists of statements that do not 6 pertain, and are not necessary, to the issues in question.” Fantasy, Inc., 984 F.2d at 1527 7 (quoting 5 Charles A. Wright & Arthur R. Miller, at 711); see also Whittlestone, Inc., 618 8 F.3d at 974. 9 The purpose of a Rule 12(f) motion is “to avoid the expenditure of time and money 10 that must arise from litigating spurious issues by dispensing with those issues prior to 11 trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). “Motions 12 to strike are generally disfavored, unless ‘it is clear that the matter to be stricken could 13 have no possible bearing on the subject matter of the litigation.’” Haghayeghi v. Guess?, 14 Inc., No. 14-cv-00020 JAH-NLS, 2015 U.S. Dist. LEXIS 43243, at *11–12 (S.D. Cal. 15 Mar. 24, 2015) (quoting LeDuc v. Kentucky Cent. Life Ins. Co., 814 F. Supp. 820, 830 16 (N.D. Cal. 1992)); see also Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013, 1037 (C.D. 17 Cal. 1998)). 18 In ruling on a motion to strike, the Court may only consider the face of the 19 pleading or matters subject to judicial notice. See Fantasy, Inc., 984 F.2d at 1528. “With 20 a motion to strike, just as with a motion to dismiss, the court should view the pleading in 21 the light most favorable to the nonmoving party.” Snap! Mobile, Inc. v. Croghan, No. 22 18-cv-04686-LHK, 2019 U.S. Dist. LEXIS 28759, at *9 (N.D. Cal. Feb. 22, 2019) 23 (quoting Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 24 2004)). Ultimately, the decision about whether to strike allegations is a matter within the 25 district court’s discretion. Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 26 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (citing Fantasy, Inc., 984 F.2d at 1528); see also 27 Whittlestone, Inc., 618 F.3d at 974 (quoting Nurse v. United States, 226 F.3d 996, 1000 28 (9th Cir. 2000)). 1 III. DISCUSSION 2 As an initial matter, Defendant moves to dismiss Plaintiff’s request for punitive 3 damages. See Doc. No. 21-1 at 3. Here, while Plaintiff’s prayer for relief includes a 4 request for punitive damages, see TAC at 9, he does not oppose Defendant’s motion to 5 dismiss. See Doc. No. 24. In any event, the CDCR is a government agency and Title VII 6 expressly bars an award of punitive damages against a government agency. 42 U.S.C. 7 § 1981a(b)(1); Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999). Accordingly, the 8 Court GRANTS Defendant’s motion and DISMISSES Plaintiff’s request for punitive 9 damages. 10 Turning to Defendant’s motion to strike, Defendant challenges either portions or 11 the entirety of twenty-four (24) paragraphs in Plaintiff’s Third Amended Complaint. See 12 Doc. No. 20 at 2–6; see also Doc. No. 20-1 at 10–14. Defendant contends that these 13 allegations are both immaterial and impertinent for a variety of reasons. See id. at 14–17. 14 Before turning to the propriety of the allegations and Defendant’s challenges, the 15 Court begins with an overview of the posture of this case. Plaintiff initiated this action in 16 the San Diego County Superior Court on March 7, 2021. See St. Ct. Case No. 37-2022- 17 00008426. On April 4, 2022, Plaintiff filed a First Amended Complaint in state court. 18 See Doc. No. 1-2 at 3–10. By way of the First Amended Complaint, Plaintiff asserted 19 one claim for sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 20 42 U.S.C. § 20000e-2(a). See id. In May 2022, Defendant removed the action to this 21 Court. See Doc. No. 1. 22 In the First Dismissal Order, the Court found that based upon Plaintiff’s March 20, 23 2020 EEOC Complaint, Plaintiff’s only timely discriminatory act was the November 24 2019 allegation that he was not selected for an unidentified SSA/AGPA position. Doc. 25 No. 9 at 9. Accordingly, while the Court dismissed Plaintiff’s claim to the extent it was 26 based upon the untimely acts, the Court nevertheless held that these instances may be 27 used as evidence to the extent they are relevant to and support a viable claim. See id. 28 The Court also found that, to the extent Plaintiff sought to assert a constructive discharge 1 claim, the Court lacked jurisdiction because it was not reasonably related to the EEOC 2 Complaint. Id. at 10–11. In the First Dismissal Order, the Court included a lengthy 3 footnote identifying a related issue with the First Amended Complaint that was not 4 briefed: Plaintiff’s EEOC Complaint charged retaliation and yet Plaintiff’s sole claim was 5 for sex discrimination. See id. at 12 fn.5. Nonetheless, the Court declined to sua sponte 6 address and rule on the issue. Id. As to the plausibility of Plaintiff’s sex discrimination 7 claim, the Court found that Plaintiff just narrowly failed to survive dismissal. See id. at 8 14. Accordingly, for these reasons, the Court dismissed Plaintiff’s claim with leave to 9 amend. 10 On September 30, 2022, Plaintiff filed a Second Amended Complaint, again 11 asserting only one claim for sex discrimination. See Doc. No. 10. Defendant moved to 12 dismiss, mainly arguing the issued identified by the Court in the First Dismissal Order 13 footnote: whether Plaintiff’s EEOC retaliation charge served to duly exhaust his claim for 14 sex discrimination. See Doc. No. 18 at 5. However, the matter was left for another day 15 as it was unclear from Plaintiff’s opposition what claim(s) he sought to pursue. See id. at 16 6. Accordingly, the Court again dismissed Plaintiff’s claim with leave to amend. 17 Plaintiff has now filed the Third Amended Complaint, electing to pursue only a 18 claim for retaliation in violation of Title VII. See TAC. Defendant does not challenge 19 the plausibility of Plaintiff’s claim, nor does Defendant argue any procedural or 20 jurisdictional defect. Rather, Defendant seeks to have the Court strike Plaintiff’s 21 allegations related to sex discrimination and constructive termination that remain in the 22 pleading. See generally Doc. No. 20-1. In opposition, Plaintiff generally argues that the 23 prior alleged acts of discrimination are relevant because if they are believed, “it becomes 24 more likely the trier of fact will see those acts as part of Defendant’s motive to retaliate 25 against Plaintiff for filing his [EEOC] complaint.” Doc. No. 23 at 4. 26 Title VII makes it unlawful for, among other things, “an employer to discriminate 27 against any of his employees . . . because he has opposed any . . . unlawful employment 28 practice [under] this title.” 42 U.S.C.S. § 2000e-3. To make out a prima facie case of 1 retaliation under Title VII, a plaintiff must establish that: (1) he undertook a protected 2 activity under Title VII; (2) his employer subjected him to an adverse employment 3 action; and (3) a causal link between those two events. See Vasquez v. Cty. of L.A., 349 4 F.3d 634, 646 (9th Cir. 2003). 5 Here, Plaintiff’s asserted protected activity is his May 11, 2018 Merit Issue 6 Grievance. See TAC ¶ 26. According to Plaintiff, he complained that Defendant 7 discriminated against him because he is a male by failing to promote him on numerous 8 instances and that Defendant’s screening criteria was unfair and disparately applied to 9 him as a male. See id. ¶ 25. Thereafter, in November 2019, Plaintiff applied for an 10 SSA/AGPA position, but he was ultimately not selected. See id. ¶ 29. This is Plaintiff’s 11 identified and only timely adverse action. Plaintiff contends that he suffered this adverse 12 action in retaliation for his grievance, see id. ¶ 31, and his position is factually supported, 13 see id. ¶¶ 30, 30*, 31*.4 14 Plaintiff need not prove that the underlying conduct was unlawful, rather, he need 15 only demonstrate that he had a reasonable, good faith belief that the conduct he protested 16 was prohibited by Title VII. See Trent v. Valley Elec. Ass’n, 41 F.3d 524, 526 (9th Cir. 17 1994). To that end, a review of the challenged allegations reveals that some are related to 18 whether Plaintiff held a good faith belief that it was unlawful for Defendant to repeatedly 19 deny him promotions due to his sex. See id. at 527. Some of the challenged allegations 20 could also conceivably bear on the causal link between Plaintiff’s grievance and the 21 adverse action. Additionally, some of Plaintiff’s allegations may be used for background 22 purposes to support his now-viable retaliation claim. See AMTRAK v. Morgan, 536 U.S. 23 101, 113 (2002) (“Nor does the statute bar an employee from using the prior [untimely] 24 acts as background evidence in support of a timely claim.”). 25 26 27 4 As Defendant notes, Plaintiff’s Third Amended Complaint inadvertently includes two sets of different allegations numbered as 30, 31, 32, and 33. Compare TAC at 6, with id. at 7. The paragraphs denoted 28 1 However, some of the challenged allegations are plainly immaterial and 2 impertinent to the case at this juncture because Plaintiff has not asserted claims for sex 3 discrimination and constructive discharge. Keeping in mind that motions to strike 4 “should not be granted unless it is clear that the matter to be stricken could have no 5 possible bearing on the subject matter of the litigation,” Colaprico v. Sun Microsystems, 6 Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991), and the Court “must hesitate before 7 striking material from a litigant’s pleadings,” Gallegos v. Roman Catholic Archbishop of 8 S.F., No. 16-cv-01588-LB, 2016 U.S. Dist. LEXIS 74207, at *11–12 (N.D. Cal. June 7, 9 2016), the Court GRANTS IN PART Defendant’s motion and STRIKES the following: 10 1. . . . . which had the purpose or effect of discriminating against Plaintiff based 11 on his sex . . . . 12 10. . . . at which time his employment was unceremoniously severed. 13

14 11. Mr. Luciano’s employment separation resulted from employment discrimination [] based on his sex. Specifically, Mr. Luciano is informed and believes, and 15 based thereon alleges that the adverse employment actions he suffered resulted because of 16 his sex . . . .

17 31. . . . and/or because Plaintiff was a male employee. 18

19 32*. Having been subjected to Defendant’s sex discrimination . . . Plaintiff had no 20 other option remaining but to sever his employment.

21 33*. . . . Plaintiff’s employment was separated . . . . 22 34. During his tenure Plaintiff witnessed and was the victim of persistent 23 discrimination on the basis of gender . . . . 24 35. . . . . Plaintiff asserts this action was clearly meant to deny him and similarly 25 situated males answers as to why they were not promoted while lessor qualified females 26 were accepted or positions were left vacant rather hire or promote a qualified male.

27 42. . . . as well as the fact that he was male. 28 IV. CONCLUSION 2 Based upon the foregoing, the Court GRANTS Defendant’s motion to dismiss and 3 || GRANTS IN PART Defendant’s motion to strike. The Court STRIKES the allegations 4 ||identified above. These rulings are without leave to amend. However, the Court 5 || DIRECTS Plaintiff to a clean version of his pleading, consistent with the foregoing,° on 6 || or before June 23, 2023. Defendant must then file its answer within the time prescribed 7 Federal Rule of Civil Procedure 15. 8 IT IS SO ORDERED. 9 Dated: June 14, 2023 10 [Maths LJu- / phlr 1] HON. MICHAEL M. ANELLO 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ag Namely, Plaintiff must remove his request for punitive damages as well as the stricken language, and must properly renumber his paragraphs.