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Harrell v. City of Gilroy

United States District Court, N.D. California, San Jose Division

May 25, 2018

PATRICIA HARRELL, Plaintiff,
v.
CITY OF GILROY, et al., Defendants.

          ORDER GRANTING IN PART, DENYING IN PART, AND DEFERRING RULING ON IN PART MOTION TO STRIKE THE FIRST AMENDED COMPLAINT RE: DKT. NO. 17

          LUCY H. KOH UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants City of Gilroy and Gilroy Police Department's motion to strike the first amended complaint. ECF No. 17. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court grants in part, denies in part, and defers ruling on in part the motion to strike.

         I. BACKGROUND

         Plaintiff Patricia Harrell (“Harrell”) worked as a Public Safety Communicator for the Gilroy Police Department (“GPD”) for about 26 years. First Amended Complaint (“FAC”), ECF No. 16 ¶ 19. Harrell was terminated on March 21, 2016, based on Harrell's alleged misconduct toward Harrell's trainees. Id. ¶ 68. Harrell disputes that she mistreated her trainees.

         Harrell alleges that the GPD had a pervasive culture of sexual misconduct and that she was fired in retaliation for her refusal to condone or engage in the culture of sexual misconduct. Id. ¶¶ 23-26. Harrell alleges a range of sexual misconduct, including police officers having sex with members of the Gilroy Explorers, a group for 14 to 21 year olds; sexually explicit conversations between employees at work; supervisors watching pornography in front of their employees; and nudity at work-sponsored social events, among other things. Id. ¶ 24. Harrell alleges that in 2008 she received a written reprimand after warning Julie Ines, a GPD employee, to be careful around two other GPD employees that Harrell alleges are frequently involved in sexual misconduct. Id. ¶¶ 43-50. Harrell contends that she received threatening notes in her mailbox at work and on her car. The note on her car allegedly said, “Better watch your back, bitch.” Id. ¶ 72. Harrell alleges that she was investigated without justification again in 2015 and was terminated on March 21, 2016. Id. ¶¶ 51-68.

         Harrell also alleges that she was discriminated based on her age and gender. Id. ¶ 38-42. The Court need not recount Harrell's factual allegations in greater detail at this time because they are not necessary for resolving the instant motion to strike.

         On August 7, 2017, Harrell filed a complaint in state court against the City of Gilroy, GPD (which is a department of the City of Gilroy), the American Federation of State, County and Municipal Employees (“AFSCME”), and Does 1-50. ECF No. 1-1 at 6. The state court complaint contained 13 causes of action: (1) age discrimination (Cal. Gov. Code § 12940); (2) gender discrimination (Cal. Gov. Code § 12940); (3) sexual harassment (Cal. Gov. Code § 12940); (4) failure to prevent discrimination and harassment (Cal. Gov. Code § 12940(k)); (5) whistleblower retaliation (Cal. Labor Code § 1102.5); (6) retaliation (Cal. Gov. Code § 12940); (7) wrongful termination in violation of public policy; (8) breach of duty of fair representation; (9) negligent and intentional misrepresentation; (10) negligent and intentional infliction of emotional distress; (11) breach of written and implied-in-fact contract; (12) breach of the implied covenant of good faith and fair dealing; and (13) federal civil rights violation (42 U.S.C. § 1983). The first through seventh and thirteenth causes of action were against the City of Gilroy and GPD. The eighth and ninth causes of action were against AFSCME. The tenth through twelfth causes of action were against all defendants. On September 8, 2017, the City of Gilroy and GPD (collectively, “the Gilroy Defendants”) removed the case to federal court. ECF No. 1.

         On September 15, 2017, the Gilroy Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike portions of the complaint pursuant to Federal Rule of Civil Procedure 12(f). ECF No. 6 (“MTD”). The Gilroy Defendants argued that Harrell's seventh, eleventh, and twelfth causes of action failed as a matter of law because Harrell was a public employee. MTD at 3-4. The Gilroy Defendants also argued that Harrell's fifth, seventh, tenth, eleventh, and twelfth causes of action must be dismissed because Harrell failed to allege timely compliance with the California Tort Claims Act. Id. at 4-5. Finally, the Gilroy Defendants argued that Harrell's prayer for punitive damages should be stricken pursuant to Rule 12(f) because punitive damages cannot be recovered against a public entity as a matter of law. Id. at 5-6.

         Harrell's response to the motion to dismiss and strike was due September 29, 2017. Harrell did not file a response. On October 6, 2017, the City of Gilroy and GPD filed a reply noting Harrell's failure to oppose the motion to dismiss and strike. ECF No. 13.

         On November 28, 2017, Harrell's counsel wrote a letter to the Court explaining that Harrell elected not to oppose the motion to dismiss and strike because Harrell intended to file an amended complaint “to address the issues raised by Defendants.” ECF No. 46. Harrell requested that “the Court refrain from ruling on the Motion to Dismiss” because Harrell believed “that the amended pleading w[ould] resolve most, if not all of the objections raised by Defendants.” Id. The Gilroy Defendants' counsel responded with a letter that same day, in which the Gilroy Defendants' counsel explained that Harrell's counsel had offered on October 12, 2017 to send a proposed amended complaint for the Gilroy Defendants' review. ECF No. 47. However, as of November 28, 2017, the Gilroy Defendants had not received any proposed amended complaint for review. The Gilroy Defendants stated that Harrell would not be allowed to amend her complaint without stipulation or the Court's permission pursuant to Rule 15. Id.

         On November 30, 2017, the Court granted the Gilroy Defendants' motion to dismiss with leave to amend. ECF No. 15. Specifically, the Court stated that “Plaintiff shall file an amended complaint within 30 days. If Plaintiff fails to file an amended complaint within 30 days or to cure the deficiencies identified in Defendants' September 15, 2017 motion, the Court will dismiss Plaintiffs case with prejudice.” Id.

         On December 29, 2017, Harrell filed the FAC. ECF No. 16. The FAC added several individual defendants, all of whom Harrell sued individually and in their official capacities. Specifically, the FAC added Denise Turner, Chief of the GPD; Royce Heath, Joseph Deras, and Kurt Svardal, GPD officers; Steve Ynzunza, a GPD communications supervisor; Leeann McPhillips, the human resources director for the City of Gilroy; and John Tucker, the business agent of AFSCME. The FAC also dropped the whistleblower retaliation, wrongful termination, breach of duty of fair representation, breach of contract, and breach of covenant of good faith and fair dealing causes of action. Compare FAC at 1 with ECF No. 1-1 at 6. However, the FAC added the following 7 causes of action:

• Failure to investigate or take corrective action (Cal. Gov. Code § 12940), asserted against the Gilroy Defendants;
• Retaliatory termination (Cal. Gov. Code § 12940(h)), asserted against the Gilroy Defendants;
• Negligent supervision, asserted against AFSCME;
• Negligence, asserted against Turner, Heath, Deras, Svardal, Ynzunza, ...

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