MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff Shireen Wrigley filed this action on March 24, 2010 against defendants Norma Aquaviva, Dorothy Swingle, Stan Armaskus, Michael D. McDonald, John Nepomeceno, Anthony R. Thompson, and the California Department of Corrections and Rehabilitation ("CDCR"). (Docket No. 1.) Defendant CDCR moves to dismiss plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. (Docket No. 7.)
I. Factual and Procedural Background
Plaintiff worked at High Desert State Prison ("HDSP") as a licensed independent nurse practitioner from November 2007 to May 11, 2009. (Compl. ¶¶ 14, 24.) Due to her position, plaintiff became part of the CDCR Division of Correctional Health Care Services ("DCHCS"). (Id. ¶ 14.) Plaintiff provided acute medical care to prison inmates at HDSP. (Id. ¶ 15.) In June 2008, plaintiff was assigned to the C-yard clinic, where she worked with Correctional Officer Vicki Berg. (Id. ¶ 16.) Berg would escort patients to and from their cells and provide security while the patients were seen by medical staff. (Id.) Plaintiff and Berg became roommates in October 2008 and in early November 2008 they became domestic partners. (Id.)
On November 24, 2008, Berg was allegedly reassigned to a temporary position as a Correctional Counselor and Correctional Officer McConnell was temporarily assigned to the medical escort position previously occupied by Berg. (Id. ¶ 17.) Berg bid on several permanent positions on February 24, 2009, including the permanent medical escort officer position at the C-yard clinic. (Id. ¶ 18.) Berg's bid for the C-yard clinic position was allegedly successful and she was to report on March 3, 2009. (Id.) Because of the temporary swap with McConnell, Berg could not report until March 23, 2009. (Id.) On March 18, 2009, Berg was allegedly informed that she could not take the C-yard position and on April 3, 2009 she was informed that the decision was made because it would violate the prison's "no fraternization" rule that prevents those in a relationship from working in "close proximity" to each other. (Id. ¶ 19.) Associate Warden Armaskus allegedly reviewed Berg's file and discovered she was a registered Domestic Partner with plaintiff, and believed that the medical escort position at the C-yard would put Berg in close proximity with plaintiff. (Id.) Plaintiff alleges that she and Berg would not work in "close proximity" to each other at the C-yard position. (Id.)
Berg filed a union grievance on April 10, 2009, alleging, inter alia, that the HDSP "no fraternization" policy was not enforced against heterosexuals. (Id. ¶ 20.) Plaintiff alleges that on April 27, 2009 Aquaviva asked Thompson to write a false and defamatory memorandum regarding plaintiff. (Id. ¶ 21.) Plaintiff alleges Thompson wrote the memo based solely on information provided by McConnell who is a friend of Thompson's. (Id.) Plaintiff alleges that Thompson published the memo to Aquaviva who in turn published it to plaintiff's supervisor, Dr. Swingle, Dr. Nepomeceno, and others. (Id.) Swingle allegedly told plaintiff about the memo on May 6, 2009, and plaintiff requested and was given a copy of the memo so that she could rebut the statements made therein. (Id.)
Plaintiff alleges that on May 7, 2009, Swingle told her that Aquaviva was upset plaintiff had a copy of the memo and that Aquaviva wanted to meet with plaintiff. (Id. ¶ 22.) On May 8, 2009, plaintiff alleges she was summoned to Swingle's office where Aquaviva asked her why she distributed the memo to others. (Id. ¶ 23.) Plaintiff denies distributing the memo. (Id.) After leaving the meeting, plaintiff allegedly retrieved two voicemail messages: one indicating plaintiff was terminated from her position at HDSP and another sent half an hour after the first stating she was not terminated. (Id.) On May 11, 2009, plaintiff was allegedly informed by Nepomeceno that she had been permanently reassigned to B-yard clinic. (Id. ¶ 24.) Plaintiff alleges that later that day she was informed by Swingle that she was being terminated due to her "abrasive" demeanor. (Id.) The next day Berg was allegedly informed she could have the medical escort position at C-yard. (Id.)
Plaintiff alleges four causes of action against seven defendants. CDCR moves to dismiss plaintiff's fourth cause of action for defamation, which is the only cause of action alleged against it. (Docket No. 7.)
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).
A. California Government Code section 818.8
California Government Code section 818.8 provides that
"A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional." Cal. Gov't Code § 818.8 (West 2010). The Government Code does not define "misrepresentation," but the California Supreme Court has limited the application of section 818.8 primarily to "the invasion of interests of a financial or commercial character, in the course of business dealings" and noted that misrepresentation "has been identified with the common law action of deceit." Johnson v. California, 69 Cal. 2d 782, 799-800 (1968) (quoting United States v. Neustadt, 366 U.S. 696, 711 n.26 (1961) (finding the government immune under a federal statute similar to section 818.8 for an alleged misrepresentation) (internal quotation marks omitted)).
The Legislative Committee Comments to section 818.8 state that "[t]his section provides public entities with an absolute immunity from liability for negligent or intentional misrepresentation." Cal. Law Revision Com., Comment, Deering's Ann. Gov. Code § 818.8 (1982 ed.); see also Masters v. San Bernadino County Employees Ret. Ass'n, 32 Cal. App. 4th 30, 43 (1995) (holding that publicly entities are "wholly immune" for fraud and negligent misrepresentation by their employees). The Senate Committee on Judiciary Comment to section 818.8 gives an example of the sort of immunity imagined under section 818.8: "This section will provide... a public entity with protection against possible tort liability where it is claimed that an employee negligently misrepresented that the public entity would waive the terms of a construction contract requiring approval before changes were made." Johnson, 69 Cal. 2d at 800 (quoting Sen. Jour. p. 1889 (April 24, 1963) (internal quotations omitted)).
Where the California courts have held government entities immune under section 818.8, the misrepresentations at issue were made "by individual employees acting contrary to the government entities' official policies." Bernard Osher Trust DTD, 3/8/88 v. City of Alameda, Cal., Nos. 09-1437, 08-4575, 2009 WL 2474716, at *5 (N.D. Cal. Aug. 11, 2009) (citing cases); see, e.g., Tokeshi v. State of Cal., 217 Cal. App. 3d 999 (1990) (immunity where employees instructed farmers to spray their crops with pesticides only to later prohibit farmers from selling crops because of pesticide residue); Harshbarger v. City of Colton, 197 Cal. App. 3d 1335 (1988) (city immune for employees' intentional misrepresentation to homeowners that residence under construction complied with code standards). Burden v. County ...