United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS RE: DKT. NO. 12
H. KOH United States District Judge.
Helen Evenfe (“Plaintiff”) brings this action
against the Esalen Institute; Scott Stillinger, the Esalen
Institute’s Head of Human Resources and Education; the
Esalen Institute’s Board of Trustees; and the
individual members of Esalen Institute’s Board of
Trustees (collectively, “Defendants”). Before the
Court is Defendants’ motion to dismiss certain
Defendants and causes of action in the First Amended
Complaint. ECF No. 12 (“Mot.”); ECF No. 7
(“FAC”). The Court finds this matter suitable for
decision without oral argument pursuant to Civil Local Rule
7-1(b) and thus VACATES the motion hearing set for July 28,
2016, at 1:30 p.m. Having considered the submissions of the
parties, the relevant law, and the record in this case, the
Court GRANTS in part and DENIES in part Defendants’
motion to dismiss.
causes of action in this case arise from Plaintiff’s
alleged employment at the Esalen Institute
(“Esalen”) from 2008 to 2015. Plaintiff avers
that, at some point in 2008, Esalen Security Gate Supervisor
Carolin Phillips approached Plaintiff, a licensed nurse, to
ask if Plaintiff would assist Esalen on a temporary,
three-month basis to “help with the medical needs of
the Esalen Community.” FAC ¶ 31. Plaintiff states
that she was asked to carry a two-way radio with her at all
times in order to ensure her availability to assist with
medical emergencies. Id. In addition to providing
medical services, Plaintiff also worked for ten hours a week
at Esalen’s Gazebo Preschool in exchange for room and
February 2009, Phillips offered Plaintiff a position in
Esalen’s Work Scholar Program. This position was
unpaid, but provided Plaintiff room and board. Id.
¶ 32. After completing the program, Plaintiff agreed to
work as a security guard at Esalen for 32 hours a week.
Plaintiff was paid $8 per hour for her work and provided room
and board. Id. Plaintiff worked as a security guard
for about a year and a half, from March 2009 through
alleges that, while working as a security guard, she was
required to follow Esalen’s “Gate Manual.”
According to Plaintiff, “[c]onspicuously absent from .
. . the ‘Gate Manual’ are any scheduled
‘Meal and Rest’ Breaks, as required by
law.” Id. ¶ 37. In addition, Plaintiff
alleges that Esalen required her to work multiple consecutive
shifts without legally mandated breaks. Id. ¶
36. Moreover, while working as a security guard, Plaintiff
alleges that she was required to carry a two-way radio at all
times in order to continue to assist with medical
emergencies. Id. Plaintiff was not paid for
providing such assistance. Plaintiff further alleges that
Esalen required Plaintiff “to produce her California RN
[Registered Nurse] license, to obtain an up to date Advanced
Cardiac Life Support (‘ACLSA’) Certification,
Basic Life Support Certification (‘BLS’), and to
obtain Medical Malpractice Insurance-all at her own
expense.” Id. ¶ 39.
September 2010, after Plaintiff completed her work as a
security guard, Esalen’s managing agents asked
Plaintiff to stay on and continue to provide medical
assistance. Id. ¶ 38. In exchange for
Plaintiff’s medical assistance, Esalen “offered
[Plaintiff] property privileges, including workshops,
treatments at [Esalen at] staff rates, food, and a place to
park and live.” Id. At some point in 2010,
Bill James, a member of Esalen’s Board of Trustees,
learned about Plaintiff’s circumstances and offered to
pay for Plaintiff’s medical malpractice insurance.
Id. ¶ 39.
of James’s assistance, however, Plaintiff alleges that
she was not financially compensated for providing medical
services, despite multiple requests by Plaintiff for payment.
In particular, Plaintiff focuses on a 2012 letter prepared by
Plaintiff’s colleague, medical doctor Gino Romano,
which was sent to Esalen. In this letter, Romano states that
“[c]urrently [Plaintiff] and I ‘volunteer’
our medical services 24 hours a day mostly seven days a week
for an unofficial emergency on call service to Esalen. This
service has resulted in several life-saving
interventions.” Id. ¶ 42. After reviewing
the various services that Plaintiff and Romano had provided
since 2009, Romano concluded that “it would be prudent
to formalize the program and ensure adequate compensation for
[Plaintiff and Romano’s] services.” Id.
(emphasis removed). Esalen denied Romano’s request.
December 2011, Plaintiff suffered a leg injury while walking
“in front of [Esalen’s] main entrance.”
Id. ¶ 44. Plaintiff filed a workers’
compensation claim, which she avers is “open and
ongoing.” Id. ¶ 45. In February 2015,
Plaintiff suffered another physical injury, which led to a
second workers’ compensation claim. Id. ¶
46. That claim was rejected. However, in the course of
reporting her claim, Plaintiff alleges that she spoke with
personnel from Esalen’s Human Resources
(“HR”) department and complained that she was
working as an emergency nurse without pay. Plaintiff contends
that she asked Esalen’s HR personnel to bring her
complaints to the attention of Scott Stillinger
(“Stillinger”), Esalen’s Head of HR and
2015, Plaintiff “was forced to go to England for a
family medical crisis.” Id. ¶ 48. In
September 2015, as Plaintiff prepared to return to the United
States, Stillinger contacted Plaintiff and informed Plaintiff
that she had been fired. Id. ¶¶ 49-50.
the course of her time at Esalen, Plaintiff alleges that
Defendants knew that Plaintiff performed unpaid medical
nursing services and that Defendants misrepresented the hours
that Plaintiff worked in order to avoid paying her
unemployment insurance, health insurance, and other benefits.
Id. ¶¶ 90-92.
filed the original complaint in this action on November 30,
2015. ECF No. 1 (“Compl.”). Plaintiff filed the
FAC on March 30, 2016. The FAC alleges eighteen causes of
action. Some of these causes of action have been brought only
against Esalen, while others have been brought against
Esalen; Scott Stillinger; Esalen’s Board of Trustees;
and the individual members of Esalen’s Board of
Trustees. On May 17, 2016, Defendants filed the
instant motion to dismiss. Plaintiff filed a response on May
31, 2016, and Defendants filed a reply on June 7, 2016. ECF
No. 17 (“Opp’n”); ECF No. 18
Motion to Dismiss
to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss an action for failure to allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not
akin to a ‘probability requirement, ’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). For purposes of
ruling on a Rule 12(b)(6) motion, the Court “accept[s]
factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
the Court is not required to “‘assume the truth
of legal conclusions merely because they are cast in the form
of factual allegations.’” Fayer v.
Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting
W. Mining Council v. Watt, 643 F.2d 618, 624 (9th
Cir. 1981)). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.
Furthermore, “‘a plaintiff may plead [him]self
out of court’” if he “plead[s] facts which
establish that he cannot prevail on his . . . claim.”
Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1
(9th Cir. 1997) (quoting Warzon v. Drew, 60 F.3d
1234, 1239 (7th Cir. 1995)).
Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend “shall be freely granted when justice so
requires, ” bearing in mind “the underlying
purpose of Rule 15 to facilitate decision on the merits,
rather than on the pleadings or technicalities.”
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (ellipses omitted). Generally, leave to amend shall
be denied only if allowing amendment would unduly prejudice
the opposing party, cause undue delay, or be futile, or if
the moving party has acted in bad faith. Leadsinger, Inc.
v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir.
move to dismiss the fourth, fifth, sixth, eighth, ninth, and
eleventh causes of action in the FAC. Defendants also move to
dismiss various causes of action against Stillinger and the
individual members of Esalen’s Board of Trustees. The
Court addresses these two sets of arguments in turn.
Motion to Dismiss Fourth, Fifth, Sixth, Eighth, Ninth and
Eleventh Causes of Action
Fourth Cause of Action: Retaliation in Violation of Public
Policy (against Esalen)
relationships in California are ordinarily ‘at will,
’ meaning that an employer can discharge an employee
for any reason.” Freund v. Nycomed Amersham,
347 F.3d 752, 758 (9th Cir. 2003). However, in Tameny v.
Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980),
“the California Supreme Court carved out an exception
to [this general] at-will rule by recognizing a tort cause of
action for wrongful terminations that violate public
policy.” 347 F.3d at 758. In order to plead a
Tameny claim, the public policy must be “(1)
delineated in either constitutional or statutory provisions;
(2) ‘public’ in the sense that it ‘inures
to the benefit of the public’ rather than serving
merely the interests of the individual; (3) well established
at the time of discharge; and (4) substantial and
instant case, Plaintiff attempts to plead a Tameny
claim based on Esalen’s violation of two California
statutory provisions: Cal. Labor Code § 1102.5 and Cal.
Labor Code § 132a. The Court reviews these provisions in
Labor Code § 1102.5
commonly as California’s whistleblower statute, Cal.
Labor Code § 1102.5 states that “[a]n employer, or
any person acting on behalf of the employer, shall not
retaliate against an employee for disclosing information, or
because the employer believes that the employee disclosed or
may disclose information . . . to a person with authority
over the employee or another employee who has the authority
to investigate, discover, or correct the violation or
noncompliance.” Cal. Labor Code § 1102.5(b).
“Violations of California Labor Code § 1102.5 can
support a” Tameny claim, Ferretti v.
Pfizer Inc., 855 F.Supp.2d 1017, 1025 (N.D. Cal. 2012),
because Cal. Labor Code § 1102.5 “reflects the
broad public policy interest in encouraging workplace
whistle-blowers to report unlawful acts without fearing
retaliation, ” McVeigh v. Recology San
Francisco, 152 Cal.Rptr.3d 595, 616 (Ct. App. 2013).
order to establish a prima facie case for a labor code
violation under § 1102.5, a plaintiff must show (1) she
engaged in a protected activity, (2) her employer subjected
her to an adverse employment action, and (3) there is a
causal link between the two.” Bowen v. M. Caratan,
Inc., 142 F.Supp.3d 1007, 1030-31 (E.D. Cal. 2015)
(internal quotation marks omitted).
Plaintiff alleges that she spoke with Esalen HR personnel
after filing her February 2015 workers’ compensation
claim. During this meeting, she stated that she was not being
paid for her medical assistance work, in violation of Cal.
Labor Code § 1194, which provides a cause of action to
“any employee receiving less than the legal minimum
wage or . . . legal overtime.” Cal. Labor Code §
1194. Plaintiff further asked that these complaints be
reported to Esalen’s Head of HR and Education, Scott