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Patrick Lambey v. California Department of Insurance

January 5, 2012

PATRICK LAMBEY, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF INSURANCE, ET AL., DEFENDANTS.



ORDER

This case was on calendar on December 14, 2011 for argument on defendants' motion to dismiss. Bart Hightower, Deputy Attorney General, appeared for defendants; Daniel Karalash appeared for plaintiff.

I. Background

On July 8, 2011, plaintiff filed a complaint in Sacramento County Superior Court raising the following causes of action against the California Department of Insurance (CDI) and Eric Weirich, Rick Plein, and Martin Gonzalez, all of whom work for CDI: (1) discrimination based on race, in violation of Cal. Gov't Code § 12940, et seq (FEHA); (2) failure to prevent racial discrimination in violation of Cal. Gov't Code § 12940(k); and (3) racial discrimination in violation of 42 U.S.C. § 1983. The complaint alleges generally that defendants discriminated against plaintiff Lambey, who is from Belize, by failing to promote him, refusing to approve his hardship transfer to Sacramento, assigning him a less desirable state car, and refusing to give him extra pay when he was an acting captain, among other things. ECF No. 1-1 at 1-20.

On September 9, 2011, defendant CDI removed the case to this court, alleging that it was served on August 5, 2011, but that the individual defendants had not yet been served. ECF No. 1.

On September 28, 2011, plaintiff filed executed summonses for the individual defendants. ECF Nos. 4-6.

On November 3, 2011, defendants filed a motion to dismiss or for a more definite statement.

II. Standards For A Motion To Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," (FED. R. CIV. P. 8(a)(2)), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003); Parks School of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

III. Analysis*fn1

1. Individual Liability For FEHA Violation

The individual defendants argue that a claim of discrimination under California Government Code § 12940(a) may be brought against the employer, but not against the individual supervisor or co-worker. They are correct. In Reno v. Baird, 18 Cal.4th 640, 643 (1998), the California Supreme Court held that "the FEHA . . . allows persons to sue and hold liable their employers, but not individuals" for alleged discriminatory actions. This court must apply California authority over these state law claims. See Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198, 1220 (C.D. Cal. 2004). ...


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