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Tsao v. County of Los Angeles

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 3, 2009

CHIH CHENG TSAO, PLAINTIFF,
v.
COUNTY OF LOS ANGELES; OFFICE OF THE ASSESSOR; SEIU LOCAL 721 AND SOLEDAD SARMIENTO-OSBORNE; ANNE SUAREZ; SEPIDEH A. SOURIS; WILLIAM T. FUJIOKA; MICHAEL J. HENRY; FRANK DOMINGUEZ; ROSE RANGEL, DEFENDANTS.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER (1) GRANTING IN PART AND DENYING IN PART COUNTY AND INDIVIDUAL COUNTY DEFENDANTS' MOTION TO DISMISS, (2) GRANTING IN PART AND DENYING IN PART COUNTY AND INDIVIDUAL COUNTY DEFENDANTS' MOTION TO STRIKE, (3) GRANTING UNION AND INDIVIDUAL UNION DEFENDANTS' MOTION TO DISMISS, AND (4) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Motions filed on June 30, July 9, 2009, July 10, 2009, and July 15, 2009]

Plaintiff Chih Cheng Tsao ("Plaintiff"), appearing pro se, filed this suit alleging unlawful retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and negligent infliction of emotional distress ("NIED") against the defendants the County of Los Angeles Office of the Assessor (the "County"), Soledad Sarmiento-Osborne, Anna Suarez, Sepideh A. Souris, and William T. Fujioka (collectively the "Individual County Defendants"); as well as SIEU Local 721 (the "Union"), Frank Dominguez, and Rose Rangel (collectively the "Individual Union Defendants").

This matter comes before the Court on the County and Individual County Defendants' Motion to Dismiss and Motion to Strike, the Union and Individual Union Defendants' Motion to Dismiss, and Plaintiff's Motion for Summary Judgment. After reviewing the papers submitted by the parties, Court (1) grants in part and denies in part the County and Individual County Defendants' Motion to Dismiss, (2) grants in part and denies in part the County and Individual County Defendants' Motion to Strike, (3) grants the Union and Individual Union Defendants' Motion to Dismiss, and (4) denies Plaintiff's Motion for Summary Judgment.

I. BACKGROUND

A. Factual History

At all times relevant to this complaint, the Plaintiff has been employed by the County as an Intermediate Clerk. (Union Defendants' Mot. Dismiss ("Union Mot.") 2:13-15.)

In July of 2006, Plaintiff filed a complaint against the County with the U.S. Equal Employment Opportunity Commission ("EEOC"), EEOC Charge No. 480-206-02793, the contents of which are unknown to the Court. (First Amended Complaint ("FAC") ¶ 3.) Plaintiff claims that from September 18, 2006, onward, her supervisor, Sarmiento-Osborne, who is Filipino, discriminated against her because she is Taiwanese. (Id.) Additionally, Plaintiff claims that she was subjected to retaliation for having previously filed EEOC complaints against the County. (Id.)

On December 18, 2006, Plaintiff filed EEOC Charge No. 180-2007-00785, claiming that she had "been subjected to different terms and conditions of employment" by her supervisor and that "[n]o reason had been given as to why [she was] being treated differently." (FAC Ex. A, Charge of Discrimination No. 180-2007-00785.) Plaintiff "believes that [she is] being discriminated against because of [her] national origin" and is "being retaliated against for having filed a previous EEOC charge (480-206-02793)." (Id.)

During the course of the next year, Plaintiff claims that she was subject to different terms and conditions of employment in retaliation for having filed EEOC complaints against the County. Among other things, Plaintiff claims the County subjected her to unlawful retaliation by: (1) denying her an opportunity to do "ARB work" and to use an "ARB computer," (FAC ¶ 3); (2) denying her a promotion, (FAC Ex. A, Charge of Discrimination No. 480-2008-00197); (3) denying her the right to have her interview results reevaluated, (FAC Ex. A, Charge of Discrimination No. 480-2007-01392); (4) requiring her to undergo a psychological evaluation, (FAC Ex. A, Charge of Discrimination No. 480-2008-00197); and (5) denying her appeal "not to appear for a psychological reevaluation", (FAC ¶ 3; Ex. A, Charge of Discrimination No. 480-2008-01858).

In addition to filing several EEOC complaints against the County, Plaintiff also filed complaints against the Union relating to the County's order that she undergo a psychological evaluation. Plaintiff alleges that from October 5, 2007, to October 16, 2007, the Union, Defendant Dominguez, and Defendant Rangel refused to file a grievance challenging the County's actions in placing Plaintiff on administrative leave "because Plaintiff had filed previous [] EEOC charge[s]." (FAC ¶ 4.) Plaintiff alleges that Defendant Dominguez, the Union Steward, "refused to inform Plaintiff to take the psychological re-evaluation on October 16, 2007." (FAC ¶ 4.) Plaintiff filed two complaints with the EEOC against the Union, one on July 8, 2008, and the other on July 21, 2008, concerning Defendant Dominguez's alleged failure to inform her to take the psychological re-evaluation and the Union's refusal to file a grievance concerning Plaintiff's administrative leave. (FAC Ex. B, Charges of Discrimination Nos. 480-2008-03056 & 408-2008-02727.)

B. Procedural History

Plaintiff filed suit against the County, the Individual County Defendants, the Union, and the Individual Union Defendants on March 5, 2009. (Dkt. No. 3.) Plaintiff filed the FAC on June 8, 2009, raising two causes of action: (1) retaliation under Title VII and (2) NIED. (Dkt. No. 16.)

On June 30, 2009, the Union and the Individual Union Defendants filed a Motion to Dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. No. 25.) The Court vacated the motion because it was erroneously scheduled before Magistrate Judge Woerhle, (dkt. no. 41), and the motion was re-filed on July 10, 2009, (dkt. no. 43.) The Union and Individual Union Defendants argue that Plaintiff has (1) failed to state a claim for retaliation and NIED, and (2) filed the equivalent of a breach of fair representation claim in which she has failed to state a claim. (Union Mot. 1:10-13, 17:20-23.)

On June 30, 2009, the County and the Individual County Defendants filed a Motion to Dismiss for (1) insufficiency of process and service of process, Fed. R. Civ. P. 12(b)(4)-(5); (2) lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1); and (3) failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6) for both retaliation and NIED. (Dkt. No. 33.) The County Defendants argue that Plaintiff failed to (1) properly serve the individual County Defendants with the FAC;*fn1 (2) exhaust her administrative remedies; and (3) state a claim for retaliation and NIED. The County filed a Motion to Strike Plaintiff's requests for: (1) damages for NIED; (2) attorney's fees; (3) prejudgment interest; (4) compensation for a car accident; and (5) new employment.

In addition, on July 9, 2009, Plaintiff filed a Motion for Summary Judgment. (Dkt. No. 49.)

II. DISCUSSION

A. County Defendants' Motion to Dismiss*fn2

1. Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction, and thus a plaintiff's claim must invoke either diversity jurisdiction or federal question jurisdiction. 28 U.S.C. §§ 1331, 1332. A court will dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) when the complaint or relevant extrinsic evidence demonstrates that the court lacks subject matter jurisdiction over the claim. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Federal question jurisdiction is governed by the "well-pleaded complaint rule," which provides that subject matter jurisdiction is proper only when a question arising under the Constitution, laws, or treaties of the United States appears on the face of a proper complaint. See 28 U.S.C. § 1331; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). It is well-established, however, that a court is to "liberally construe" the complaint of a plaintiff appearing pro se. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

"A person seeking relief under Title VII must first file a charge with the EEOC within 180 days of the alleged unlawful employment practice...." Surrell v. Cal. Water Svc. Co., 518 F.3d 1097, 1104 (9th Cir. 2008). If the EEOC decides not to bring suit based upon the charge, it must "notify the person aggrieved" that she can file suit by issuing a right to sue letter. Id. (quoting 42 U.S.C. § 2000e-5(f)(1)). After the plaintiff has received a right-to-sue letter, she must file suit within 90 days. Id. (citing 42 U.S.C. § 2000e-5(f)(1)).

However, "failure to obtain a federal right-to-sue letter does not preclude federal jurisdiction." Id. To the contrary, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Temengil v. Trust Territory of Pacific Islands, 881 F.2d 647, 654 (9th Cir. 1989) ("Pursuit of administrative remedies is a condition precedent to a Title VII claim. The requirement, however, is not jurisdictional.") (citations omitted).

The County and Individual County Defendants' argument concerning lack of subject matter jurisdiction is without merit. The face of Plaintiff's complaint clearly states that "[t]his is a civil action seeking damages under Title VII of the Civil Rights Act of 1964," (FAC ¶ 1), and contains multiple allegations concerning the County's retaliation against Plaintiff for engaging in protected activities under Title VII. (See, e.g., FAC ¶ 3.) The County Defendants argue that Plaintiff has failed to exhaust administrative remedies before the County's Civil Service Commission, a jurisdictional defect that deprives the Court of subject matter jurisdiction. (County Mot. Dismiss ("County Mot.") 10:6-9.) However, the exhaustion requirement under Title VII is satisfied by "filing a timely charge with the EEOC," B.K.B., 276 F.3d at 1099, and, in any event, the failure to exhaust is not a jurisdictional defect, Temengil, 881 F.2d at 654.

2. Failure to State a Claim

A complaint survives a motion to dismiss where it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court properly dismisses a complaint on a Rule 12(b)(6) motion based upon the "lack of a cognizable legal theory or the absence of sufficient facts alleged under the cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When considering a 12(b)(6) motion to dismiss for failure to state a claim, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a pleading need not include "detailed factual allegations," it must be "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. Conclusory allegations or allegations that are no more than legal conclusions "are not entitled to the assumption of truth." Id. at 1950. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient. Id. at 1949 ( citations and internal quotation marks omitted).

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief" based on the relevant substantive standard. Id. at 1950. The plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555-56. However, the complaint need only state "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely." Id. at 555 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). "Determining whether a complaint states a plausible claim for relief" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not 'shown'- 'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2))(internal brackets omitted).

a. Retaliation Under Title VII

i. Individual County Defendants

Individual defendants cannot be held liable under Title VII. Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Therefore, Plaintiff's Title VII claims against the Individual County Defendants are dismissed with prejudice.

ii. The County

Under Title VII, discrimination charges must be filed with the EEOC within 180 days of the alleged discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1). Once the EEOC issues a right-to-sue letter, the Title VII claimant has 90 days to bring suit; otherwise, the action is time barred. 42 U.S.C. § 2000e-5(f)(1). See Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir. 1992). The employer has the burden of showing that the employee filed the Title VII suit beyond the 90-day statute of limitations that follows the receipt of the right-to-sue letter. See Payan v. Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007).

The County appears to argue that the instant suit is not timely because it is "impossible to determine if the charge was timely filed." (County Mot. 14:3.) The County has the burden of demonstrating that the complaint is time-barred. See Payan, 495 F.3d at 1122. The County has not met that burden in this instance. Therefore, the cause of action for retaliation cannot be dismissed as time-barred.

The County next argues that Plaintiff has failed to plead a prima facie case for retaliation under Title VII. In order to state a prima facie case for retaliation under Title VII, a plaintiff must show that "(1) [s]he engaged in activity protected under Title VII, (2) [her] employer subjected [her] to an adverse employment action, and (3) the employer's action is causally linked to the protected activity." Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987).

The County asserts that Plaintiff has failed to show that she has been subjected to any adverse employment action. "An action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity." Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). The County reasons that an adverse employment action is an action that is likely to deter EEOC complaints, and that its actions could not be considered adverse under this definition because Plaintiff filed several EEOC complaints and lawsuits after some of the alleged retaliatory actions were taken. (County Mot. 12:21-26, 13:8-15.) This argument is not persuasive because an adverse employment action need only be likely to deter EEOC complaints; it need not actually do so. Ray, 217 F.3d at 1243. Plaintiff's allegations that the County disciplined her and denied her a promotion, among other things, satisfy the requirement that she plead an adverse employment action. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) ("Among those employment decisions that can constitute an adverse employment action are termination, dissemination of a negative employment reference, issuance of an undeserved negative performance review and refusal to consider for promotion.").

In addition, the County argues that "Plaintiff's allegations are utterly devoid in showing any nexus" between the EEOC complaints and any action taken by the County. (County Mot. 13:17-20.) The County appears to rely upon the temporal proximity between the time of the adverse action and the EEOC charges to establish the lack of causal connection. See Miller v. Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989), cert. denied, 494 U.S. 1056 (1990) (holding that timing of plaintiffs' layoffs could be considered in determining whether employer's economic rationale was a pretext for retaliation). "Although a lack of temporal proximity may make it more difficult to show causation, circumstantial evidence of a pattern of antagonism following the protected conduct can also give rise to the inference." Porter v. Cal. Dep't of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (internal quotation marks omitted).

Plaintiff alleges that she was disciplined on January 17, 2007, for having filed EEOC Charge No. 480-2007-00785 on December 18, 2006. (FAC ¶ 3.) Additionally, Plaintiff claims that she was placed on administrative leave in September 2007 in retaliation for filing previous EEOC charges. (Id.) Plaintiff filed several EEOC charges prior to September 2007, with dates ranging from December 18, 2006, to March 11, 2007. (See FAC ¶ 3, FAC Ex. A, EEOC Charge of Discrimination Nos. 480-2007-00785 & 480-2007-01392). At the motion to dismiss stage, the Court does not consider a period of six months between an EEOC charge and the alleged retaliatory action to be so great as to preclude a causal connection. Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008) (noting that an eighteen-month gap has been held to be "too long to support a finding of causation based on timing alone," and that the court has "found a prima facie case of causation... when adverse employment actions were taken more than two months after the employee filed an administrative complaint") (citations omitted) (emphasis added).

The Court therefore denies the Motion to Dismiss with respect to Plaintiff's retaliation claim under Title VII against the County.

b. NIED "'[T]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy consideration for and against imposition of liability.'" Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (quoting Marlene F. v. Affiliated Psych. Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989) )(internal brackets omitted). "[W]ith rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests." Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (1993).

The Tort Claims Act declares that "a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." Cal. Gov't Code § 815.2(b). Furthermore, "a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Cal. Gov't Code. § 820.2. "Generally speaking, a discretionary act is one which requires the exercise of judgment or choice. Discretion has also been defined as meaning equitable decision of what is just and proper under the circumstances." Burgdorf v. Funder, 246 Cal. App. 2d 443, 449 (1966).

The acts giving rise to Plaintiff's cause of action for NIED against the County and the Individual County Defendants consist of the County disciplining her, placing her on administrative leave, failing to promote her, and requiring her to take a psychological exam, all allegedly to retaliate against Plaintiff for having filed previous EEOC charges. Each of these acts is a discretionary act entitling the County and the Individual County Defendants to immunity from liability for NIED. Cal. Gov't Code §§ 815.2(b), 820.2. Therefore, the Court dismisses with prejudice Plaintiff's NIED claims against the County and the Individual County Defendants.

B. County Defendant's Motion to Strike

"The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading." Fed. R. Civ. P. 12(f).

The County submitted a Motion to Strike Plaintiff's requests for (1) damages for NIED; (2) attorney's fees; (3) prejudgment interest; (4) compensation for the cost of a car accident; and (5) new employment.

1. Damages for NIED Because the Court has determined that the Plaintiff's claims for NIED should be dismissed with prejudice, the Motion to Strike Plaintiff's request for damages for NIED is granted.

2. Attorney's Fees It is not appropriate at this time to dismiss Plaintiff's request for attorney's fees on the ground that she is appearing pro se. It is common practice to award attorney's fees to a successful plaintiff in a in action under Title VII. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975). Plaintiff can, at any time, choose to retain counsel and submit a motion requesting attorney's fees. Absent a finding that Defendant has not committed a Title VII violation, the Court cannot strike Plaintiff's request for attorney's fees.

3. Prejudgment Interest

The County has failed to articulate a reason why Plaintiff should not be entitled to prejudgment interest if she were to prevail on her retaliation claim. The trial court has the discretion to award prejudgment interest on a back-pay award. See Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (9th Cir. 1984). As a result, it is inappropriate to strike Plaintiff's prayer for prejudgment interest.

4. Car Accident

Plaintiff has not asserted any connection between her car accident and the causes of action alleged in the FAC. Therefore, the Court grants the County's motion to strike Plaintiff's prayer for damages relating to the cost of her car accident.

5. New Employment Finally, the Court denies the County's Motion to Strike Plaintiff's request that she "be obtained to work [sic] for another job." (FAC 6:11.) 42 U.S.C. § 2000e-5 allows a court to order any affirmative action that it deems appropriate in the event that the court finds that the defendant intentionally engaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(g)(1). Such action "may include, but is not limited to, reinstatement or hiring of employees, with or without back pay... or any other equitable relief as the court deems appropriate. Id. The Court therefore denies the Motion to Strike Plaintiff's prayer "for another job." (FAC 6:11.)

C. Union Defendants' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

1. Retaliation Under Title VII

a. Individual Union Defendants Because individuals cannot be held liable for retaliation under Title VII, Plaintiff's cause of action against Defendants Dominguez and Rangel for retaliation is dismissed with prejudice. Miller, 991 F.2d at 587.

b. The Union

The Union argues that it could not have failed to file a grievance on Plaintiff's behalf in retaliation for her filing previous EEOC grievances because she did not file any grievances against the Union until eight months after the alleged refusal.

Plaintiff alleges that the Union refused to file a grievance concerning her administrative leave on October 5, 2007. (FAC ¶ 4.) Additionally, she alleges that Defendant Dominguez refused to inform her on October 16, 2007, that she was required to take a psychological evaluation. (Id.) However, Plaintiff did not file her first EEOC complaint against the Union until July 8, 2008. (FAC Ex. B, Charge of Discrimination No. 480-2008-03056.)

As a result, it is not possible that the Union could have retaliated against Plaintiff for an act which she had not yet committed. See, e.g., Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) ("The plaintiff must first establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was thereafter subjected by her employer to adverse employment action, and that a causal link exists between the two.") (emphasis added). To the extent that Plaintiff claims the Union discriminated against her for filing prior EEOC complaints against the County, she has not pled facts showing that the Union's conduct is causally linked to her complaints against the County.

Because Plaintiff has failed to establish the causation element of a prima facie case of retaliation under Title VII, her cause of action for retaliation against the Union is dismissed.

2. NIED

"To the extent that resolution of [] negligent infliction of emotional distress claims require[] interpretation of the [collective bargaining agreement, or] CBA, these claims are preempted by § 301 [of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185.]" Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1089 (9th Cir. 1991). "State law negligence claims are preempted if the duty relied on is 'created by a collective-bargaining agreement and without existence independent of the agreement.'" Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 999 (9th Cir. 2007) (quoting United Steelworkers v. Rawson, 495 U.S. 362, 369 (1990)). "There is no preemption, however, if these disputes involve rights that exist independent of the CBA." Saridakis v. United Airlines, 166 F.3d 1272 (9th Cir. 1999). Where a claim is preempted by the LMRA, a Plaintiff may only proceed under Section 301 if she demonstrates that the Union breached its duty of fair representation.*fn3 See Hines v. Anchor Motor Freight, 424 U.S. 554, 567 (1975).

Under California law, a plaintiff must plead "[t]he traditional elements of duty, breach of duty, causation, and damages" in order to state a prima facie case of negligent infliction of emotional distress. See, e.g., Fluharty v. Fluharty, 69 Cal. Rptr. 2d 244, 246 (Ct. App. 1997). "Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability." Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 770 P.2d 278, 281 (Cal. 1989) (internal citation and quotation marks omitted). In cases where the plaintiff is a "direct victim" of the defendant's negligence, "emotional distress damages result from a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two." McMahon v. Craig, 97 Cal. Rptr. 3d 555, 561 (Ct. App. 2009) (internal citations and quotation marks omitted).

The FAC does not clearly delineate the basis for Plaintiff's NIED claim against the Union. To the extent that Plaintiff's NIED claim is premised upon her Title VII retaliation claim, it is preempted because emotional distress damages are not available under the remedies section of Title VII. Williams v. U.S. General Servs. Admin., 905 F.2d 308, 311 (9th Cir. 1990).

Insofar as Plaintiff's NIED claim is premised on the Union's failure to take appropriate actions in representing her-- such as filing a grievance on her behalf or advising her to submit to a psychological re-evaluation-- her claim is preempted by § 301 of the LMRA, 29 U.S.C. § 185. Based on the allegations in the FAC, the only relevant duty of care owed by the Union to Plaintiff "arises out of a relationship" whose contours are defined by the CBA. McMahon, 97 Cal. Rptr. 3d at 561. Absent the existence of the CBA, the Union would owe no duty to Plaintiff to file a grievance on her behalf or to give her advice concerning psychological evaluations. Therefore, "the duty relied on is created by a collective-bargaining agreement and without existence independent of the agreement." Ward, 473 F.3d at 999 (internal citation and quotation marks omitted).

Because Plaintiff's cause of action for NIED against the Union and Individual Union Defendants is preempted, the Court grants the motion to dismiss.

D. Plaintiff's Motion for Summary Judgment

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Id. at 248. No genuine issue of fact exists, however, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The basis of Plaintiff's Motion for Summary Judgment appears to be that the Union filed the Motion to Dismiss with the wrong judge, thereby failing to meet the deadline for filing an answer. "A defendant must serve an answer [] within twenty days after being served with the summons and complaint." Fed. R. Civ. P. 12(a)(1)(A)(I). According to Federal Rule of Civil Procedure 6(b), "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time." Fed. R. Civ. P. 6(b)(1). "The factors to consider include the danger of prejudice the length of the delay, its potential impact on judicial proceedings, the reason for the delay, and whether the movant had acted in good faith." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd P'ship, 507 U.S. 380, 395 (1993). Although the Union erroneously filed its motion to dismiss before Magistrate Judge Woehrle, Plaintiff was not prejudiced because the hearing date was continued to account for any filing delay.

The Court therefore denies Plaintiff's motion for summary judgment based on any error the Union made in filing its motion to dismiss. Plaintiff has otherwise failed to demonstrate that there is no triable issue of fact. As a result, a reasonable trier of fact could find for the non-moving party and summary judgment is not appropriate.

III. CONCLUSION

For the aforementioned reasons, the Court (1) grants in part and denies in part the County and Individual County Defendants' Motion to Dismiss, (2) grants in part and denies in part the County and Individual County Defendants' Motion to Strike, (3) grants the Union and Individual Union Defendants' motion to dismiss, and (4) denies Plaintiff's motion for Summary Judgment. The Court orders that:

1. Plaintiff's claims against the Union and individual Union Defendants are dismissed with prejudice.

2. Plaintiff's claims against the individual County Defendants are dismissed with prejudice.

3. Plaintiff's claim for NIED against the County is dismissed with prejudice.

4. Plaintiff's prayers for damages for NIED and her car accident are stricken.

IT IS SO ORDERED.


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