United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE:
DKT. NO. 111
JACQUELINE SCOTT CORLEY, United States Magistrate Judge
case concerns alleged unpaid wages and discrimination that
Plaintiffs Debbie Silva and John Vieira
(“Plaintiffs”) experienced while in the employ of
Defendants MCI Communications Services, Inc.
(“MCI”), Verizon Business Network Services Inc.
(“Verizon”), Engineering Associates LLC f/k/a
Engineering Associates Inc. (“EA”), and EA
Technical Services (“EA Technical”)
their initial complaint, First Amended Complaint
(“FAC”), and Second Amended Complaint
(“SAC”) Plaintiffs pled nine causes of action,
including two Fair Housing and Employment Act
(“FEHA”) claims brought by Plaintiff Silva -
gender discrimination in violation of California Government
Code Section 12940(a) and failure to take all reasonable
steps to prevent sexual harassment in violation of California
Government Code Section 12940(k). (Dkt. Nos. 1-1, 37, 103.)
pending before the Court is Defendants MCI and Verizon's
(the “Verizon Defendants”) motion to dismiss
Plaintiff Silva's FEHA claims in causes of action eight
and nine of the SAC. Having carefully reviewed the briefs and
having had the benefit of oral argument on June 1, 2017, the
Court finds that Plaintiff Silva failed to file a timely FEHA
complaint with the Department of Fair Employment and Housing
(“DFEH”) and GRANTS Verizon Defendants'
motion to dismiss with prejudice.
August 21, 2015, Plaintiffs filed their original complaint in
state court for breach of various sections of the California
labor code, breach of contract, failure to pay prevailing
wages, recovery under public works payment bond, and unjust
enrichment. (Dkt. No. 1-1.) Plaintiff Silva brought two
additional FEHA claims - discrimination, and failure to take
reasonable steps to prevent sexual harassment. (Id.
at 27, 28.) Defendants removed the action to this Court based
on diversity and the parties subsequently stipulated to
mediation and Robert T. Fries was selected as a mediator.
(Dkt. Nos. 28, 31.)
March 18, 2016, the Court granted Defendant EA's motion
to dismiss with leave to amend. (Dkt. No. 36.) Plaintiffs
filed the FAC on April 8, 2016 with most of the original
causes of action, including Plaintiff Silva's two FEHA
claims. (Dkt. No. 37.) On October 14, 2016, the parties
attended an all-day mediation with Mr. Fries, however the
matter was not resolved. (Dkt. No. 77.) Three weeks later, on
November 4, 2016, Plaintiff Silva filed, for the first time,
a discrimination complaint with DFEH complaining of
inappropriate conduct that occurred on approximately October
14, 2016. (Dkt. No. 113-1 at 8.) However, the original
complaint and the FAC alleged that Defendants' adverse
actions occurred on approximately June 28, 2015 and that
Plaintiff Silva was forced to resign shortly thereafter.
(Dkt. No. 1-1 at ¶¶ 14, 15; Dkt. No. 37 at
¶¶ 22, 23.)
stipulation of the parties, the Court granted Plaintiffs
leave to file a second amended complaint to name MCI and
Verizon as new defendants, and dismissed Frontier California
Inc. f/k/a Verizon California, Inc. from the action. (Dkt.
No. 102 at 2.) Plaintiffs' SAC alleges nine causes of
action, including the same FEHA claims Plaintiff Silva
brought in the original complaint and the FAC. (Dkt. No.
103.) Plaintiff Silva also alleges, again in the SAC, that
Defendants' adverse actions occurred on approximately
June 28, 2015 and that she was forced to resign shortly
thereafter. (Id. ¶¶ 22, 23.)
defendants MCI and Verizon now move to dismiss Plaintiff
Silva's eighth and ninth claims for relief on the grounds
Plaintiff Silva failed to file a timely complaint with DFEH.
(Dkt. No. 111.)
considering a motion to dismiss, a court does not normally
look beyond the complaint in order to avoid converting a
motion to dismiss into a motion for summary judgment.
Ngoc Nguyen v. Wells Fargo Bank, N.A., 749.
F.Supp.2d 1022, 1024 (N.D. Cal. 2010). However, a court may
take judicial notice of material that is submitted as part of
the complaint or is necessarily relied upon by the complaint,
as well as matters of public record. Lee v. City of
L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). Under
Federal Rule of Evidence 201(b), a “judicially noticed
fact must be one not subject to reasonable dispute in that it
is either: (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Courts routinely take
judicial notice of proceedings in other courts and records of
state agencies, including DFEH complaints. See Minor v.
FedEx Office & Print Servs., Inc., 78 F.Supp.3d
1021, 1027 (N.D. Cal. 2015) (taking judicial notice of DFEH
Defendants request judicial notice of the Plaintiff
Silva's employment discrimination complaint filed with
DFEH and the accompanying right to sue notice. These
documents are records of a state agency, and therefore the
appropriate subjects of judicial notice. See U.S. v.
14.02 Acres of Land More or Less in Fresno Cnty., 547
F.3d 943, 955 (9th Cir. 2008) (“Judicial notice is
appropriate for records and reports of administrative
bodies.”) (internal quotation marks and citation
Plaintiff Failed to File a Timely FEHA ...