Tatyana Litvinova v. Kaiser Foundation Hospitals

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TATYANA LITVINOVA, Case No. 25-cv-06253-SI

8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO DISMISS FIRST AMENDED COMPLAINT AND 10 KAISER FOUNDATION HOSPITALS, REMANDING ACTION TO SUPERIOR COURT 11 Defendant. Re: Dkt. No. 33 12

13 Before the Court is a motion by defendant Kaiser Foundation Hospitals (“Kaiser”) to dismiss 14 plaintiff Tatyana Litvinova’s first amended complaint (“FAC”) pursuant to Federal Rules of Civil 15 Procedure 12(b)(1) and 12(b)(6). Dkt. No. 33 (“Mot.”); see Dkt. No. 29 (FAC). The Court heard 16 oral argument on Kaiser’s motion on February 13, 2026. Dkt. No. 45. For the reasons set forth 17 below, the Court DENIES Kaiser’s motion and REMANDS the action to the Superior Court of 18 California, County of San Francisco. 19

20 BACKGROUND 21 I. Allegations of the FAC 22 Plaintiff Tatyana Litvinova is a licensed registered nurse who has been employed by 23 defendant Kaiser Foundation Hospitals since March 30, 1992. Dkt. No. 29 (“FAC”) ¶¶ 8, 10(a). 24 Since the beginning of her employment at Kaiser, Litvinova has worked in the post anesthesia care 25 unit (“PACU”) at Kaiser’s Oakland Medical Center, where she “car[es] for critically ill patients 26 recovering from anesthesia and surgery.” Id. ¶ 10(a). Litvinova has advanced to “Staff Nurse IV, 27 the highest clinical level for nurses at Kaiser, requiring at least eight years of clinical experience and 1 demonstrated excellence in patient care and professional leadership.” Id. ¶ 10(c). Litvinova also 2 “served as Resource Healthcare Coordinator, a charge nurse leadership position responsible for 3 patient flow coordination, staff assignments, communication with physicians and hospital 4 operations, and ensuring safe patient care delivery after regular management hours.” Id. Between 5 1992 through 2022, Litvinova had no disciplinary history and had “consistently excellent” 6 performance evaluations. Id. ¶ 10(d). 7 8 A. Litvinova’s Complaints 9 Litvinova’s concerns began “[a]lmost immediately” after Kaiser assigned Ana House as the 10 new PACU Nurse Manager in September 2022. Id. ¶ 10(f). Litvinova “observed serious violations 11 of state and federal healthcare regulations that endangered critically ill post-operative patients.” Id. 12 On October 25, 2022, Litvinova filed a standard of care violation report against House stating that 13 “House was assigning nurses without proper PACU qualifications, training, or critical care 14 experience to provide coverage for critically ill patients recovering from anesthesia.” Id. ¶ 10(g). 15 The complaint alleged that House’s staffing practices were in violation of state and federal laws 16 requiring, for example, nurses with certain education and training, and “adequate staffing to ensure 17 patient safety.” Id. Litvinova sent the report to House and Director Sumi Yi. Id. 18 On October 31, 2022, Litvinova submitted a second complaint “regarding ongoing unsafe 19 and understaffed conditions in the PACU.” Id. ¶ 10(i). Litvinova sent this complaint to Yi and 20 Chief Nurse Executive Pavna Sloan. Id. Litvinova made the October 25 and 31 “complaints in her 21 individual capacity as a licensed healthcare professional with mandatory reporting duties under 22 California law, not in any representational capacity.” Id. ¶ 10(k). 23 “On November 10, 2022, management held a meeting with” Litvinova, Yi, and Sloan 24 regarding Litvinova’s concerns about patient safety.1 Id. ¶ 10(j). “During the meeting, management 25 26

27 1 The FAC does not allege facts identifying who is “management.” There are also no facts 1 praised Plaintiff’s advocacy work and expressed appreciation for her raising these important safety 2 concerns.” Id. 3 Litvinova continued to report patient safety violations between 2023 and 2025. Id. ¶ 10(l). 4 On July 24, 2023, Litvinova sent a letter to Kaiser Chief Executive Officer Gregory Adams 5 regarding “ongoing patient safety violations, management incompetence, and retaliation in the 6 PACU.” Id. ¶ 10(m). In this letter, Litvinova reported that House lacked experience and was thus 7 unqualified to manage the PACU, committed scheduling and payroll errors, and was unable to assess 8 job performances of nurses. Id. Litvinova also reported that another nurse, Hanna,2 had informed 9 Litvinova that House had asked Hanna to help get rid of Litvinova and, when Hanna refused to do 10 so, “Hanna became a target herself.” Id. ¶ 10(n); id. ¶ 10(cc). In addition, Hanna had witnessed 11 House using her private phone to orchestrate the campaign against Litvinova, “suggesting Ana 12 House knew her conduct was improper and was hiding it from her employer.” Id. ¶¶ 10(n), (cc). 13 Kaiser assigned Senior Employee Relations Investigator Amy Berbower to investigate Litvinova’s 14 complaints. Id. ¶ 10(dd). Berbower issued a report on January 5, 2024, “finding all of Plaintiff’s 15 complaints unsubstantiated.” Id. ¶ 10(ff). Litvinova disagreed with Berbower’s conclusions and 16 alleges that Kaiser “deliberately conducted a sham investigation.” Id. ¶ 10(gg); 10(hh). 17 In 2024, Litvinova sent two letters to regional office representative Jacqueline Baratian. Id. 18 ¶ 10(o). Litvinova’s June 2024 letter reported “ongoing patient safety violations, management’s 19 failure to maintain competent staff, and abuse of power.” Id. In a July 31, 2024 letter, Litvinova 20 raised concerns about the assignment of “unqualified nurses to care for critically ill PACU patients” 21 in violation of state and federal laws. Id. 22 On January 17, 2025, Litvinova observed and reported “critically dangerous 23 understaffing . . . creating dangerous conditions for patients.” Id. ¶ 10(p); id. ¶ 10(kk). Litvinova 24 believed this understaffing violated state and federal laws regarding staffing requirements, nurse- 25 to-patient ratios, and patient safety. Id. ¶ 10(p). Litvinova sent multiple emails to management, 26 including House, Assistant Nurse Manager Suzette Smith, and Clinical Nursing Director Lionel 27 1 Hoyte, about her concerns. Id. On January 22, 2025, Litvinova escalated her concerns about 2 understaffing to Sloan, as her prior emails to management had been ignored. Id. ¶¶ 10(p), (mm). 3 On May 27, 2025, Litvinova “submitted an Employee Risk and Responsibility Form 4 reporting continuing patient safety violations.”3 Id. ¶ 10(q). 5 The FAC alleges that, “[t]hroughout this period, Plaintiff made these disclosures in her 6 individual capacity as a licensed Registered Nurse with mandatory professional duties under 7 California law to report unsafe patient care conditions and violations of healthcare regulations[.]” 8 Id. ¶ 9(a); see id. ¶ 10(r). The FAC further alleges that Litvinova made her complaints “to persons 9 with authority over her and to persons with authority to investigate, discover, or correct 10 violations[.]” Id. 11 12 B. Alleged Retaliation 13 In response to Litvinova’s complaints, Kaiser’s “attitude shifted dramatically, and a pattern 14 of escalating retaliation began.” Id. ¶ 10(s). In 2023, House conducted three investigatory meetings 15 into alleged complaints about Litvinova. Id. ¶ 10(t) (February 28, 2023 meeting); id. ¶ 10(v) 16 (June 23, 2023 meeting); id. ¶ 10(y) (August 10, 2023 meeting). The June 23, 2023 meeting took 17 place one day after Litvinova submitted written concerns to management. Id. ¶ 10(v). 18 Due to the stress of the February 28 investigatory meeting, Litvinova took a leave of absence 19 from March 1 to April 11. Id. ¶ 10(t). When Litvinova returned on April 11, 2023, “House 20 arbitrarily delayed Plaintiff’s reinstatement” and “demand[ed] a one-week waiting period” even 21 though Litvinova had a doctor’s clearance note and House had texted Litvinova one week prior to 22 confirm shift coverage. Id. ¶ 10(u). Despite having returned to work, Litvinova received a zero- 23 dollar paycheck for the month of April 2023. Id. 24 On August 15, 2023, House placed Litvinova on administrative leave after Litvinova 25 objected to House’s questioning during a purported outcome meeting. Id. ¶ 10(aa). Litvinova 26 received a written warning for conduct on August 23, 2023, “her first disciplinary action in 31 years 27 1 of exemplary employment.” Id. Litvinova took her second medical leave from October 13 to 2 November 21 due to stress caused by the alleged retaliation. Id. ¶ 10(bb). 3 Four days after Litvinova’s January 17, 2025 report to management regarding the unsafe 4 staffing situation, House removed Litvinova from her charge nurse leadership role. Id. ¶ 10(ll). 5 Although Litvinova had been a charge nurse for more than 20 years and was the most senior nurse 6 in the PACU, House began assigning less senior and less experienced nurses to the charge nurse 7 position. Id. Management held an investigatory meeting with Litvinova regarding the January 17 8 staffing incident during which House attempted to “reframe” Litvinova’s reports as “misconduct” 9 and Litvinova received a “verbal warning.” Id. ¶ 10(ll). Litvinova filed a “formal internal 10 grievance” on February 11, 2025, following her removal from the charge nurse role, but Kaiser 11 dismissed her claim ten days later. Id. ¶ 10(pp). Kaiser’s investigation showed that Litvinova had 12 not properly escalated her complaints regarding “patient safety or operational concerns.” Id. 13 Litvinova disputes these findings. Id. ¶ 10(qq). Litvinova responded to HR Consultant Tiffany 14 Vandevoir on February 21, 2025, highlighting her spotless disciplinary record and the alleged 15 retaliatory actions. Id. ¶ 10(rr). 16 Litvinova continued to be denied a charge nurse role in February and March 2025, resulting 17 in financial losses. Id. ¶ 10(ss). In April 2025, Litvinova received another investigatory meeting 18 letter, causing her to experience chest pain and heart palpitations and seek medical attention at the 19 Emergency Department at Kaiser Oakland Medical Center. Id. ¶ 10(vv). Later that month, on April 20 23, 2025, Kaiser denied Litvinova’s Step 3 grievance. Id. ¶ 10(tt). As a result of this denial, 21 Litvinova had exhausted all internal remedies. Id. 22 During March, April, and May 2025, management bypassed Litvinova after she failed to 23 promptly respond to a call schedule sign-up request despite being on vacation (id. ¶¶ 10(xx), (aaa)), 24 excluded her from staff-wide meetings (id. ¶ 10(yy)), and denied her overtime hours (id. ¶¶ 10(zz), 25 (aaa)). 26 In July 2025, Litvinova noticed that Kaiser had stopped deducting her 401k retirement 27 contributions without authorization. Id. ¶ 10(bbb). Kaiser’s HR and Vanguard could not explain 1 Throughout 2024 and 2025, Kaiser excluded Litvinova from participation in the People 2 Pulse Organization survey, “a confidential employee feedback mechanism.” Id. ¶ 10(hh). 3 Litvinova suffered severe emotional distress requiring medical treatment since December 4 2022. Id. ¶ 10(fff). She also suffered significant financial loss due to “loss of charge nurse 5 opportunities, denial of overtime and extra shifts, manipulation of call schedule assignments, and 6 forced retirement contribution compression.” Id. ¶ 10(ggg). 7 II. Procedural History 8 On June 20, 2025, Litvinova sued Kaiser, Kaiser Permanente, and five individuals in San 9 Francisco Superior Court, asserting eight causes of action: (1) Retaliation in Violation of Cal. Labor 10 Code § 1102.5; (2) Harassment and Hostile Work Environment in Violation of the Fair Employment 11 and Housing Act (“FEHA”), Cal. Gov’t Code § 12940; (3) Failure to Investigate and Prevent 12 Harassment under FEHA, Cal. Gov’t Code § 12940(j), Cal. Code Regs. tit. 2, § 11023; (4) Violation 13 of Whistleblower Protections; (5) Breach of Contract; (6) Failure to Provide a Safe Working 14 Environment; (7) Intentional Infliction of Emotional Distress (“IIED”); and (8) Negligent 15 Supervision and Retention. Dkt. No. 1–1, Ex. A (Compl.). Kaiser removed the case to this Court 16 asserting federal question jurisdiction based on preemption under Section 301 of the Labor 17 Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). Dkt. No. 1. 18 On October 21, 2025, the Court granted Kaiser’s motion to dismiss. Dkt. No. 28. 19 Specifically, the Court dismissed with leave to amend Litvinova’s retaliation, violation of 20 whistleblower protections, harassment and hostile work environment, and breach of the collective 21 bargaining agreement (“CBA”) claims on grounds that the complaint failed to allege facts showing 22 these claims were not preempted by the LMRA. Id. at 4–9. The Court dismissed without leave to 23 amend the unsafe workplace conditions claim, finding that there is no private right of action under 24 California Labor Code section 6400. Id. at 9–10. Lastly, the Court found that the claims for 25 retaliation and harassment, intentional infliction of emotional distress, and negligent supervision 26 and retention were preempted by the National Labor Relations Act (“NRLA”) and thus dismissed 27 them with leave to amend. Id. at 11–13. 1 Litvinova filed her FAC on November 7, 2025. The FAC names as defendants Kaiser and 2 Does 1–50. FAC ¶¶ 2–3. The FAC asserts five claims: (1) Whistleblower Retaliation in Violation 3 of Labor Code § 1102.5; (2) Retaliation and Discrimination in Violation of Health & Safety Code 4 § 1278.5; (3) Wrongful Termination in Violation of Public Policy; (4) Negligence 5 Hiring/Supervision/Retention; and (5) IIED. FAC ¶¶ 16–77. 6 Kaiser moves to dismiss all claims on grounds that they are preempted by the NLRA; dismiss 7 the whistleblower, retaliation and discrimination, negligent hiring, and emotional distress claims as 8 preempted by the LMRA; and dismiss the wrongful termination claim for failure to state a claim. 9 10 LEGAL STANDARDS 11 I. Rule 12(b)(6) 12 A complaint must contain “a short and plain statement of the claim showing that the pleader 13 is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and a complaint that fails to do so is subject to dismissal 14 pursuant to Rule 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, Litvinova must allege 15 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 16 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that 17 add up to “more than a sheer possibility that a Defendant has acted unlawfully.” Ashcroft v. Iqbal, 18 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of specifics,” a 19 plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 20 550 U.S. at 544, 555. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of 21 the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 22 at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 23 enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “While legal conclusions can provide the 24 framework of a complaint, they must be supported by factual allegations.” Id. 25 In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the 26 complaint and draw all reasonable inferences in favor of the plaintiff. See Usher v. City of Los 27 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as true 1 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). As a general rule, 2 courts may not consider materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. 3 Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 4 II. Rule 12(b)(1) 5 Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court’s 6 jurisdiction over the subject matter of the complaint. As the party invoking the jurisdiction of the 7 federal court, the plaintiff bears the burden of establishing that the court has the requisite subject 8 matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 9 U.S. 375, 377 (1994). A complaint will be dismissed if, looking at the complaint as a whole, it 10 appears to lack federal jurisdiction either “facially” or “factually.” Safe Air for Everyone v. Meyer, 11 373 F.3d 1035, 1039 (9th Cir. 2004) (“A Rule 12(b)(1) jurisdictional attack may be facial or 12 factual.”). When the complaint is challenged for lack of subject matter jurisdiction on its face, all 13 material allegations in the complaint will be taken as true and construed in the light most favorable 14 to the plaintiff. NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). In deciding a Rule 12(b)(1) 15 motion which mounts a factual attack on jurisdiction, “no presumptive truthfulness attaches to 16 plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court 17 from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the 18 burden of proof that jurisdiction does in fact exist.” Mortensen v. First Fed. Sav. & Loan Ass’n, 19 549 F.2d 884, 891 (3d Cir. 1977). “In resolving a Rule 12(b)(1) factual attack on jurisdiction, the 20 district court may review evidence beyond the complaint without converting the motion to dismiss 21 into a motion for summary judgment.” In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1236 22 (9th Cir. 2008) (cleaned up). 23 24 DISCUSSION 25 I. Burnside Preemption 26 Kaiser contends that Litvinova’s first, second, fourth, and fifth claims are preempted by 27 Section 301 of the LMRA, 29 U.S.C. § 185. Kaiser has the burden to demonstrate preemption. See 1 1526 n.6 (9th Cir. 1995). Section 301 of the LMRA “authorized the federal courts to develop a 2 federal common law of CBA interpretation” and “this federal common law preempts the use of state 3 contract law in CBA interpretation and enforcement.” Cramer v. Consol. Freightways Inc., 255 4 F.3d 683, 689 (9th Cir. 2001) (en banc). “Preemption under § 301 is not limited to ‘cases 5 specifically alleging contract violation,’ but also applies ‘when resolution of a state-law claim is 6 substantially dependent upon analysis of the terms of an agreement made between the parties in a 7 labor contract.’” Matson v. United Parcel Serv., Inc., 840 F.3d 1126, 1132 (9th Cir. 2016) (quoting 8 Cramer, 255 F.3d at 689, and Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)). 9 The Ninth Circuit has articulated a two-part test to determine whether claims brought under 10 state law are preempted by Section 301. See Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 11 (9th Cir. 2007). First, does the cause of action “involve[] a right conferred upon an employee by 12 virtue of state law, not by a CBA.” Id. “If the right exists solely as a result of the CBA, then the 13 claim is preempted, and our analysis ends there.” Id. Second, if the right does exist independently, 14 then the court must consider whether it is “substantially dependent on analysis” of the CBA. Id. 15 However, the “mere need to consult the terms of the CBA in the course of resolving a state law 16 claim does not necessarily result in preemption.” Humble v. Boeing Co., 305 F.3d 1004, 1011 (9th 17 Cir. 2002); see also Livadas v. Bradshaw, 512 U.S. 107, 124 (1994). “At this second step of the 18 analysis, claims are only preempted to the extent there is an active dispute over the meaning of 19 contract terms[,] [and] a state law claim may avoid preemption if it does not raise questions about 20 the scope, meaning, or application of the CBA.” Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1153 21 (9th Cir. 2019) (cleaned up). 22 State law claims preempted by the LMRA may be brought under Section 301, but they are 23 subject to Section 301’s six-month statute of limitations under Section 10(b) of the NLRA, 29 U.S.C. 24 § 160(b). See Del Costello v. Teamsters, 462 U.S. 151, 155 (1983) (the proper statute of limitations 25 for an employer’s breach of a CBA is the six-month limitations period in § 10(b)). In addition, a 26 plaintiff can only pursue a Section 301 claim if grievance procedures set forth in the CBA have been 27 exhausted. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 989 (9th Cir. 2007) (granting 1 2 3 /// 4 A. Whistleblower and Retaliation Claims 5 Litvinova’s first and second claims allege that Kaiser retaliated against her for engaging in 6 protected activity in violation of California Labor Code section 1102.5 and California Health and 7 Safety Code section 1278.5. FAC ¶¶ 16–46; see id. ¶ 9(a) (“Beginning in October 2022 and 8 continuing through May 2025, Plaintiff engaged in protected activity under California Labor Code 9 section 1102.5 and California Health and Safety Code section 1278.5 by reporting to Defendant’s 10 management, executives, and compliance personnel her good faith reasonable belief that Defendant 11 was violating state and federal laws, rules, and regulations governing hospital operations, patient 12 safety, and healthcare staffing.”). Labor Code section 1102.5 prohibits employers from retaliating 13 against an employee for disclosing a violation of a state or federal statute, regulation, or rule. Cal. 14 Lab. Code § 1102.5(b). Health and Safety Code section 1278.5 provides that “[a] health facility 15 shall not . . . retaliate . . . against a[n] . . . employee, member of the medical staff, or other health 16 care worker of the health facility because that person has . . . [p]resented a grievance, complaint, or 17 report to the facility . . .” or “[h]as initiated, participated, or cooperated in an investigation or 18 administrative proceeding related to the quality of care, services, or conditions at the facility . . . .” 19 Cal. Health & Safety Code § 1278.5(b)(1). 20 Kaiser argues these claims fail the second prong of the Burnside test because adjudication 21 of Litvinova’s whistleblower and retaliation claims require analysis of the CBA’s provisions.4 Mot. 22 at 7–8; see Dkt. No. 1-2, Ex. A (CBA). Litvinova contends that her claims are independent of the 23 CBA and do not require interpretation of its terms. Dkt. No. 41 (“Opp’n”) at 6–8. 24 For the reasons set forth below, the LMRA does not preempt these claims. 25 4 Kaiser does not dispute that Litvinova’s retaliation and discrimination claims satisfy the 26 first prong of the Burnside inquiry. See Mot. at 7–8. Indeed, the Court previously found that “[t]he right to be free from retaliation under California Labor Code § 1102.5 exists independent of the 27 CBA . . . . Thus, Litvinova’s retaliation claims are not preempted under the first step of the Burnside 1 2 /// 3 1. Labor Code Section 1102.5 Claim 4 Establishing a section 1102.5 violation “requires [that] (1) the plaintiff establish a prima 5 facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its 6 acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.” Ross v. Cnty. 7 of Riverside, 36 Cal. App. 5th 580, 591 (2019) (citation omitted). “A prima facie case of retaliation” 8 requires the plaintiff to “show [that] (1) the plaintiff engaged in protected activity, (2) the defendant 9 subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the 10 two.” Id. 11 “The Ninth Circuit has found that the three elements of a section 1102.5(b) retaliation claim 12 ‘require an inquiry into the respective actions of the employer and employee’ and that such an 13 inquiry ‘will not depend on interpretation of terms in the CBA.’” Campos v. Green Diamond Res. 14 Co., 785 F. Supp. 3d 589, 599 (N.D. Cal. 2025) (quoting Brown v. Brotman Med. Ctr., Inc., 571 F. 15 App’x 572, 575 (9th Cir. 2014)). Indeed, determining whether Litvinova engaged in protected 16 conduct and whether Kaiser retaliated against Litvinova for such conduct does not depend on the 17 interpretation of the rights and obligations governed by the CBA. 18 Kaiser argues that “[t]he Court must determine whether the alleged adverse actions were 19 retaliatory or justified under the CBA, which necessarily involves interpreting the agreement’s 20 provisions.” Mot. at 8; see id. (“Plaintiff’s amended allegations still implicate those very provisions 21 [of the CBA]—shift assignments, scheduling, and pay practices—making preemption 22 unavoidable.”). This is insufficient to satisfy the second step of the Burnside analysis. First, Kaiser 23 does not identify any specific language from the CBA that would need to be interpreted to resolve 24 Litvinova’s claim. See Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th 25 Cir. 2000) (“In order to help preserve state authority in areas involving minimum labor standards, 26 the Supreme Court has distinguished between claims that require interpretation or construction of a 27 labor agreement and those that require a court simply to ‘look at’ the agreement.”). 1 Second, “‘[s]etting minimum wages, regulating work hours and pay periods, requiring paid 2 and unpaid leave, protecting worker safety, prohibiting discrimination in employment, and 3 establishing other worker rights remains well within the traditional police power of the states,’ and 4 claims alleging violations of such protections will not necessarily be preempted, even when the 5 plaintiff is covered by a CBA.” Curtis, 913 F.3d at 1152 (brackets in the original; quoting Alaska 6 Airlines Inc. v. Schurke, 898 F.3d 904, 919–20 (9th Cir. 2018)). 7 Third, any assertion that Kaiser’s conduct was permitted under the terms of the CBA is a 8 defense that does not give rise to LMRA preemption. See Renteria-Hinojosa, 150 F.4th at 1089 9 (“[W]hen a plaintiff’s state law claim does not arise from a collective bargaining agreement or 10 require interpretation of that agreement, a defendant cannot, by invoking the agreement as a defense, 11 ‘transform the action into one arising under federal law.’”) (emphasis in the original; quoting 12 Caterpillar, 482 U.S. at 399); Detabali v. St. Luke’s Hosp., 482 F.3d 1199, 1203 (9th Cir. 2007) (“If 13 the claim is plainly based on state law, § 301 preemption is not mandated simply because the 14 defendant refers to the collective bargaining agreement in mounting a defense . . . . A reference to 15 or consideration of the terms of a collective bargaining agreement is not the equivalent of 16 interpreting the meaning of the terms.”) (internal brackets, quotation marks and citations omitted). 17 The LMRA thus does not preempt Litvinova’s Labor Code section 1102.5 claim. 18 19 2. Health & Safety Code Section 1278.5 Claim 20 Litvinova’s claim for retaliation pursuant to Health and Safety Code section 1278.5 is 21 predicated on the same allegations as her whistleblower retaliation claim. Accordingly, the Court 22 finds that the LMRA does not preempt her section 1278.5 claim for the same reasons. See also 23 Flores v. Dignity Health, No. CV 18-2464-JFW(AGRX), 2018 WL 2189469, at *5 (C.D. Cal. 24 May 11, 2018) (LMRA did not preempt claim for retaliation in violation of Health and Safety Code 25 Section 1278.5 because “[p]laintiff's retaliation and wrongful termination claims are firmly rooted 26 in her allegations that Dignity Health wrongfully terminated her for complaining that it violated a 27 state staffing law. Thus, the trier of fact will be narrowly focused on Dignity Health’s motivation 1 for terminating Plaintiff’s employment—i.e., whether Dignity Health terminated Plaintiff because 2 she complained about unlawful nurse to patient ratios.”). 3 Accordingly, the LMRA does not preempt Litvinova’s Health and Safety Code 4 section 1278.5 claim. 5 B. Negligent Hiring, Supervision, and Retention Claim 6 Litvinova alleges that Kaiser failed to use reasonable care in hiring, supervising, and 7 retaining employees, which caused her harm. FAC ¶¶ 61, 66. The FAC incorporates all alleged 8 factual allegations without identifying the specific conduct that was “dangerous and inappropriate.” 9 FAC ¶ 64. Presumably, the negligence claim is based on the alleged retaliatory actions of 10 Litvinova’s supervisors and Kaiser’s management. 11 In California, “[a]n employer can be liable to a third person for negligently hiring, 12 supervising, or retaining an unfit employee.” Alexander v. Cmty. Hosp. of Long Beach, 46 Cal. 13 App. 5th 238, 264 (2020) (internal quotation marks omitted). Because this type of claim is a species 14 of negligence, a plaintiff must show: “(1) a legal duty to use reasonable care, (2) breach of that duty, 15 and (3) proximate cause between the breach and (4) the plaintiff’s injury.” Mendoza v. City of Los 16 Angeles, 66 Cal. App. 4th 1333, 1339 (1998). This liability “is based upon the facts that the 17 employer knew or should have known that hiring the employee created a particular risk or hazard 18 and that particular harm materializes.” Doe v. Cap. Cities, 50 Cal. App. 4th 1038, 1054 (1996). 19 Kaiser argues that determining whether it negligently hired or supervised its employees and 20 managers “would require interpreting the CBA to assess whether [its] actions violated contractual 21 obligations or were consistent with them.” Mot. at 9. Kaiser does not identify the specific 22 provisions of the CBA that would need to be interpreted. See id. In response, Litvinova argues that 23 the relevant inquiry—i.e., “what [Kaiser] knew (or should have known) about a supervisor’s 24 unfitness, what steps [Kaiser] took (or failed to take), and whether that failure foreseeably caused 25 harm”—“does not require parsing contractual employment terms.” Opp’n at 17. 26 “‘State law negligence claims are preempted if the duty relied on is created by a CBA and 27 without existence independent of the agreement.’” Perez v. Foster Poultry Farms, No. 22-CV-691- 1 Casinos, Inc., 473 F.3d 994, 999 (9th Cir. 2007); additional citation, internal quotation marks, and 2 brackets omitted). That is not the case here, as Litvinova’s negligence claim invokes a duty that 3 arises from California common law and not a provision of the CBA. See FAC ¶ 65 (alleging Kaiser 4 did not use “reasonable care in investigating, supervising, or monitoring [its] employee”); see also 5 FAC ¶¶ 60–68. Because an analysis of this claim does not require contract interpretation, LMRA 6 preemption does not apply. Ward, 473 F.3d at 999. 7 8 C. IIED Claim 9 Litvinova alleges that Kaiser engaged in “extreme and outrageous conduct” that is “a direct 10 and proximate” cause of her “physical and emotional suffering.” FAC ¶¶ 71–73. The FAC does 11 not identify what specific conduct is “extreme and outrageous” and instead incorporates all prior 12 asserted factual allegations. See id. ¶¶ 69–77. Accordingly, it appears that the “extreme and 13 outrageous” actions are Kaiser’s unlawful retaliatory and harassing conduct. 14 To prevail on an IIED claim, a plaintiff must prove: “(1) extreme and outrageous conduct 15 by the defendant with the intention of causing, or reckless disregard of the probability of causing 16 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual 17 and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Avina v. 18 United States, 681 F.3d 1127, 1131 (9th Cir. 2012) (applying California law). 19 Kaiser argues the LMRA preempts this claim because it is based on the “same alleged pattern 20 of retaliation” that is “governed by the CBA.” Mot. at 8. Litvinova’s Opposition does not expressly 21 address the LMRA preemption issue with respect to the IIED claim; however, because the conduct 22 giving rise to the IIED claim is the same as the whistleblower and retaliation claims, those arguments 23 equally apply here. 24 “[A]n IIED claim is not preempted ‘if the CBA does not cover the allegedly extreme and 25 outrageous conduct.’” Campos, 785 F. Supp. 3d at 601 (citing Humble v. Boeing Co., 305 F.3d 26 1004, 1013 (9th Cir. 2002)). Such is the case here. At the hearing, Kaiser recognized that 27 Litvinova’s IIED claim arises out of the same conduct as her whistleblower and retaliation claims. 1 claim. See supra § I(A); see Brown, 571 F. App’x at 574 (LMRA did not preempt plaintiff's TED 2 || claim because it was based on “behavior not covered by the CBA”). 3 Il. Garmon Preemption 4 Kaiser also moves to dismiss Litvinova’s claims on grounds they are preempted under the 5 || National Labor Relations Act, 29 U.S.C. § 151 et seg. Mot. at 9-12; see San Diego Building Trades 6 Council v. Garmon, 359 U.S. 236 (1959). The Court need not reach this argument, as the LMRA 7 || does not preempt the claims and subject matter jurisdiction is therefore lacking. 8 9 Il. Wrongful Termination Claim 10 Kaiser moves to dismiss the wrongful termination claim on grounds that Kaiser continues to 11 employ and has not terminated Litvinova. Mot. at 12-13. Litvinova does not oppose dismissal. 12 || Opp’n at 16. However, because the LMRA does not preempt Litvinova’s claims, the Court lacks 13 subject matter jurisdiction over the action. Caterpillar, 482 U.S. at 392-93. The Court therefore 14 || declines to rule on Kaiser’s motion with respect to the wrongful termination claim.

16 CONCLUSION 17 For the foregoing reasons and for good cause shown, the Court DENIES Kaiser’s motion to Zz 18 dismiss. Because the Court lacks subject matter jurisdiction, the Court REMANDS the action to 19 || the Superior Court of California, County of San Francisco.° 20 21 IT IS SO ORDERED. 22 || Dated: February 17, 2026 Site WU tee 23 SUSAN ILLSTON 24 United States District Judge 25 26 27 The parties’ papers do not address whether the case should be dismissed without prejudice 28 or remanded if the Court finds the LMRA does not preempt Litvinova’s claims. At the hearing, Litvinova requested that the case be remanded to the state court.