United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT LUCASFILM LTD.'S AND DEFENDANT LETTERMAN DIGITAL ARTS CENTER LTD.'S MOTIONS TO DISMISS THIRD AMENDED COMPLAINT (Docket No. 54-55)
EDWARD M. CHEN, District Judge.
Plaintiff Jordan Kasperzyk filed suit against defendants Shetler Security Services, Inc. ("Shetler"); Michael Shetler; Lucasfilm Ltd. ("Lucasfilm"); and Letterman Digital Arts Center Ltd. ("Letterman"). The current operative complaint is the third amended complaint ("TAC"), containing twelve claims. Pending before the Court are Defendant Lucasfilm's and Defendant Letterman's motions to dismiss claim eleven for negligence in hiring, supervision, or retention as well as claim twelve for civil conspiracy. See Docket Nos. 54, 55.
Having considered the parties' briefs as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part the motions to dismiss.
I. FACTUAL & PROCEDURAL BACKGROUND
The factual background underlying these actions are set forth in this Court's prior opinions, familiarity with which is presumed. See Docket Nos. 36, 48. In addition to those facts, Mr. Kasperzyk alleges in the TAC as follows.
Mr. Kasperzyk is a licensed security guard and in 2008, he was hired by Advanced-Tech to provide security at Lucasfilm's Letterman Digital Arts Center ("Center"). See TAC ¶ 36. As a new hire with Advanced-Tech, Mr. Kasperzyk was also required to join a local union. See TAC ¶ 39. In January 2010, while working for Advanced-Tech, Mr. Kasperzyk hurt his back "when a motorist whose car he had ticketed for over parking [at the Center] struck him with his car." TAC ¶ 48. He was able to return to work but "on a limited basis, with medically prescribed work restrictions. These work restrictions prohibited him from any heavy lifting, and required a post that would permit him to vary his position by alternately sitting or standing occasionally for several minutes at a time to relieve the stress on his back." TAC ¶ 50.
In or about May 2010, Advanced-Tech lost its contract to provide security, with Shetler Security Services ("Shetler") being hired in Advanced-Tech's place. See TAC ¶¶ 10, 51. Advanced-Tech employees were told that Advanced-Tech would be leaving but that "anyone who wished to remain at the Center and work for Shetler could do so by simply signing up." TAC ¶ 51. Mr. Kasperzyk signed up to become an employee of Shetler, in part to protect his housing situation with the Presidio Trust, which required employment with an employer on the Presidio. See TAC ¶ 51. The independent contract agreement for security services was ultimately entered into between Shetler and Letterman. See TAC ¶ 55; see also Def. Lucasfilm RJN to first Motion to Dismiss, Docket No. 23-2. The contract included a provision stating that:
Company reserves the right to request that Contractor remove and replace any of the Contractor's personnel assigned to perform the Services. In such event, Contractor shall review the circumstances behind Company's request and determine whether to replace such personnel with properly qualified personnel as soon as it is reasonably practical or to offer Company alternative actions.
Def. Lucasfilm RJN to first Motion to Dismiss the FAC, Docket No. 23-2 ¶ 20 (emphasis added). The independent contract agreement also contained an Exhibit B (Scope of Services) stating that "[t]he Company shall not take any action contrary to any applicable law, rule, regulation or order prohibiting discrimination against employees... on the basis of... disability... or contrary to any other provision of law or this Agreement.'" TAC ¶ 56; see also Def. Lucasfilm RJN to first Motion to Dismiss the FAC, Docket No. 23-2 Ex. B ¶ 8(b).
When Shetler took over security, it signed not only a contract with Letterman but also a contract with the local union, Service Employees International Union ("SEIU"). In addition to an anti-discrimination clause, the Union contract included a provision (Article 27.2) that stated:
If a customer demands that the Company remove an employee from further employment at a location, the Company shall have the right to comply with such demand. However, unless the Company has cause to discharge the employee, the company will use its best efforts to place him/her in another job in the same County not to exceed ten (10) miles from the job site from which he or she was removed, and schedule said employee with no loss of wages, seniority or benefits and with the same shift.
TAC ¶ 41.
Notwithstanding the contract was between Shetler and Letterman, Mr. Anders Noyes, the Lucasfilm Director of Security, had a close relationship with Shetler and exercised a great deal of control over security personnel. See TAC ¶ 20. Specifically, Mr. Kasperzyk alleges the following:
21.... Mr. Noyes, in his capacity as Director of Security for Lucasfilms:
Required that all applications for employment by the security contractor be forwarded to him for his review.. No-one [sic] was hired as a security officer without Mr. Noyes approval.
Required that the security contractor's Account Manager and Lead Supervisor attend a twice weekly meetings [sic] in Mr. Noyes' office. The purpose of the meeting was to instruct the security personnel of up-coming events on the campus... and to review ...