Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Perez v. Exceptional Children's Foundation

United States District Court, C.D. California

May 21, 2014



OTIS D. WRIGHT, II, District Judge.


Plaintiff Francisco Perez worked as a live-in apartment manager and handy man for Defendant Exceptional Children's Foundation ("ECF"). Perez alleges that his supervisor, Defendant Dorothy Burbank, discriminated against him for being Hispanic, making derogatory remarks about his ethnicity and making fun of his Hispanic traditions and culture. He also contends that Burbank made comments about him being homosexual, such as telling him that his sexuality was sinful. Perez eventually went on disability leave due to psychological issues stemming from the harassment.

When ECF terminated his employment, Perez filed this action in state court, alleging one claim for violation of the Civil Rights Act of 1866 and five state-law claims. ECF removed the action to this Court. Perez then moved to partially remand his state-law claims. Since the Court finds that it would needlessly traverse federalism bounds for the Court to weigh in on new and unsettled issues of California law, the Court GRANTS IN PART Perez's Motion and REMANDS his wrongful-termination and invasion-of-privacy claims.[1] (ECF No.8.)


Perez, a homosexual Hispanic man, was a former employee of ECF, a California corporation located in Culver City, California. (Compl. ¶¶ 2-3.) Perez began working for ECF around September 14, 2009, as a live-in apartment manager at ECF's Los Angeles facility and handy man for five ECF facilities. ( Id. ¶ 9.) ECF initially placed Perez on a six-month probationary period just like other employees. ( Id. ¶ 11.) But Burbank, Perez's manager, unilaterally extended the probationary period after the end of the six months. ( Id. ¶ 13.) Perez eventually became a permanent employee when Burbank's supervisor intervened. ( Id. ¶ 16.)

Perez alleges that following his change to permanent-employee status, Burbank became racially belligerent. ( Id. ¶ 17.) She made comments about "[a]ll you people [Hispanics] just come here [United States] to drain the economy." ( Id. ¶ 19 (second and third alterations in original).) Burbank also made fun of Perez's Hispanic accent and made comments in an exaggerated accent and "homosexual intonation." ( Id. ) She also told him that homosexual relationships were sinful. ( Id. ¶ 21.)

Burbank repeatedly entered Perez's apartment without permission and searched his personal belongings. ( Id. ¶ 22.) She criticized his Catholic prayer candles, calling them "VooDoo candles." ( Id. ) Burbank also would not let Perez prepare Hispanic foods at the facility. ( Id. ¶ 27.)

Perez complained about Burbank's actions to Miriam Hammanian, Burbank's immediate supervisor, but no one intervened. ( Id. ¶ 23.) After Perez attended a mandatory harassment training course, he reiterated his concerns to Burbank. She then became angry and called Perez a "fucking liar" and told him to get out of the room. ( Id. ¶ 28.)

Around May 15, 2012, ECF placed Perez on disability leave due to the psychological issues he suffered as a result of his employment. ( Id. ¶ 29.) But he was never able to return to ECF, and ECF terminated his employment.

On January 14, 2014, Perez filed suit against ECF and Burbank in Los Angeles County Superior Court alleging claims for violation of the federal Civil Rights Act of 1866 ("CRA"), 42 U.S.C. § 1981 et seq.; intentional infliction of emotional distress; negligent infliction of emotional distress; wrongful termination in violation of public policy; invasion of privacy under article 1, section 1 of the California Constitution; and common-law invasion of privacy. (Not. of Removal Ex. A.) Defendants subsequently removed the case to this Court, invoking federal-question jurisdiction.

On April 24, 2014, Perez moved to remand his state-law claims. (ECF No. 8.) Defendants timely opposed. That Motion is now before the Court for decision.


Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction only over matters authorized by the Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a suit filed in state court only if the federal court would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). But courts strictly construe the removal statute against removal jurisdiction, and federal jurisdiction "must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing federal jurisdiction. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (citing Gaus, 980 F.2d at 566). A party may bring a remand motion whenever it appears a matter is not properly before a federal court. 28 U.S.C. § 1447(c).


Perez requests that the Court decline to exercise supplemental jurisdiction over his state-law claims, arguing that they are novel, should be left to California state courts to resolve, and substantially predominate over the one federal claim. Defendants construe Perez's argument as asking the Court to abstain from exercising any jurisdiction-original or supplemental. The Court considers each argument in turn.

A. Abstention

The abstention doctrine permits a federal court to decline to exercise jurisdiction over a case otherwise properly before it. Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800, 813 (1976). This doctrine is an exception to the normal rule that federal courts must exercise jurisdiction when they have it. Id. But abstention only applies in "exceptional circumstances" where requiring the parties to litigate the case in state instead of federal court would "serve an important countervailing interest." Id. at 814 (quoting Cnty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)).

While Perez's Motion is certainly not a model of clarity, the Court does not construe it as one invoking the abstention doctrine. Rather, Perez heavily argues the supplemental-jurisdiction issue, contending that the Court should decline to exercise the jurisdiction it admittedly has. Even if Perez did argue abstention, the Court would not decline to exercise federal-question jurisdiction over his civil-rights claim, as this case does not present any "exceptional circumstances" for that result.

B. Supplemental jurisdiction

It is undisputed that this Court has federal-question jurisdiction over Perez's claim under the CRA. The Court therefore has supplemental jurisdiction over Perez's state-law claims that arise out of the same nucleus of operative fact as the federal one. 28 U.S.C. § 1367(a); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).

But a court may decline supplemental jurisdiction over a state law claim if:

(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c). In deciding whether to exercise supplemental jurisdiction, a district court should weigh several factors, including "judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); see also City of Chi. v. Int'l Coll. of Surgeons, 522 U.S. 156, 172-73 (1997).

Perez argues that the Court should decline to exercise supplemental jurisdiction over his state-law claims because they present novel issues of state law entirely independent from his one federal claim involving racial discrimination. He points out that the state-law claims involve negligence and other issues distinct from discrimination. He contends that the Court should leave the invasion-of-privacy claim under the California Constitution to California courts to adjudicate. Perez further asserts that over 83 percent of the claims involve state law, and thus the state claims substantially predominate over the sole federal one.

But Defendants argue that all of Perez's claims arise out of the same "wrong" he allegedly suffered. Contrary to Perez's argument, Defendants contend that all of his allegations relate to all of the claims-federal or otherwise. According to Defendants, Remanding the state-law claims would thus frustrate supplemental jurisdiction's purposes by creating piecemeal litigation of related claims with potentially inconsistent results.

Defendants' argument that all of the claims arise out of the same set of facts does little to advance the discretionary-declination analysis. The argument is a nonstarter because that is the situation in every case in which a federal court has supplemental jurisdiction; indeed, this Court would not have supplemental jurisdiction over Perez's state-law claims unless they arose out of the same common nucleus of operative fact as his federal discrimination claim. See 28 U.S.C. § 1367(a). Thus, to say that claims are transactionally related-and therefore that the Court has supplemental jurisdiction-does not bear at all upon whether the Court should decline to exercise the jurisdiction it otherwise has.

While the Court does not find that any particular § 1367(c) factor compels it to decline to exercise supplemental jurisdiction, the Court does find that the totality of the circumstances counsel against exercising jurisdiction over Perez's wrongful-termination and invasion-of-privacy claims. See City of Chi., 522 U.S. at 173 (recognizing that declining to exercise supplemental jurisdiction depends on a "host of factors").

Perez's claim for wrongful termination in violation of public policy arises from the California Supreme Court's decision in Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980), in which the court held that an employee may bring a tort claim against an employer that terminates her because she refused to comply with unlawful directions from her employer. Id. at 178. Subsequent California decisions have clarified the scope of this tort claim. See Green v. Ralee Eng'g Co., 19 Cal.4th 66, 75-77 (1998).

In Green, the California Supreme Court held that wrongful termination only applies when an employer violates "an important public policy based on a statutory or constitutional provision." Id. at 79. This holding highlights that the Court would have to delve into California public policy to determine whether Perez's termination from ECF violated that policy or the California Constitution. In this nation's federalist system, a federal court should avoid unnecessarily venturing into a state's sovereign territory-especially when the Court would be required to discern vague notions of "public policy." That is a matter much better left to California state courts.

Perez's constitutional invasion-of-privacy claim presents a similar issue. He asserts that the claim arises under article I, section 1 of the California Constitution, which recognizes that all people enjoy the right to privacy. The right to privacy was only added to the California Constitution on November 7, 1972, when California voters approved the Privacy Initiative. Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal.4th 1, 15 (1994). The amendment does not define "privacy, " and case law interpreting it is relatively green. See id. at 16-19. In Hill, the California Supreme Court expounded an amorphous, three-part test to assess whether one's constitutional right to privacy has been violated. Id. at 35-37. The test is by no means clear-cut and requires a court to balance the gravity of an intrusion with the legally protected privacy interest. Id.

Given the scant California case law interpreting a person's constitutional right to privacy, this Court would likely have to engage in further interpretation of the California Constitution and its Privacy Initiative to determine whether Burbank's actions traversed into constitutionally protected territory. There is a very real possibility that the Court would set persuasive precedent for later state and federal decisions that might not accord with what California state courts would have concluded. Considering these concerns, California state courts are much better suited to deal with this emerging issue and to refine the necessary framework for resolving it.

The common-law invasion-of-privacy claim presents a slightly weaker comity issue, since the claim rests on fairly well-settled common law. But as the California Supreme Court noted, the common-law and California constitutional right-to-privacy sources "are not unrelated." Shulman v. Grp. W Prods., Inc., 18 Cal.4th 200, 227 (1998). In fact, the court drew extensively "upon the one hundred years of legal experience surrounding the term privacy'" in interpreting the constitutional right to privacy at issue in Hill. 7 Cal.4th at 23-27. Therefore, the court that ultimately rules upon Perez's constitutional right-to-privacy claim should likewise adjudicate his common-law claim as well. Here, that would be the state court.

But Perez's claims for intentional and negligent infliction of emotional distress present a different situation. From his allegations, one can discern that these claims are largely derivative of the facts underlying Burbank's alleged "discrimination, retaliation and harassment" set forth in his federal discrimination claim. ( See Compl. ¶ 42.) Since the Court must exercise jurisdiction over the discrimination claim, it should prevent a needless duplication of judicial effort and accordingly keep the emotional-distress claims as well.

As Defendants argue, the Court understands that remanding some of Perez's state-law claims creates somewhat piecemeal litigation, since there will now be two actions pending in different courts involving essentially the same facts. But since the Court parsed the claims out, each court does not necessarily have to be concerned with ruling inconsistently with the other. For example, this Court could easily find that Burbank violated the CRA through her actions, while the state court could determine that Burbank did not violate Perez's privacy right. The different claims are essentially distinct "wrongs, " stemming from diverse protectionist concerns. The Court's concerns about breaking up this action are therefore assuaged.


For the reasons discussed above, the Court GRANTS IN PART Perez's partial Motion to Remand (ECF No. 8.) and REMANDS his wrongful-termination and invasion-of-privacy claims back to Los Angeles County Superior Court, case number BC533030. But the Court retains jurisdiction over Plaintiff's CRA and emotional-distress claims.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.