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Allen v. Barulich, Dugoni, and Suttmann Law Group, Inc.

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

September 16, 2019

JANELLE ALLEN, et al., Plaintiffs,
v.
BARULICH, DUGONI, AND SUTTMANN LAW GROUP, INC., et al., Defendants.

          ORDER GRANTING THIRD-PARTY DEFENDANT'S MOTION TO DISMISS RE: ECF NO. 28

          LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Four employees of a law firm, Barulich, Dugoni, and Suttmann Law Group, Inc. (“BDS”), filed suit under the Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) against BDS.[1] The plaintiffs allege that the air in their offices became contaminated with dust and debris from improper construction work on the floor above them, causing asthma attacks, ear infections, and upper-respiratory infections, and that BDS belittled their health conditions and refused to provide reasonable accommodations such as allowing them to work from home or wear respiratory masks. BDS, in turn, filed a third-party complaint for negligence, nuisance, and implied indemnity against D.A. Pope, Inc., the company that was doing the construction work.[2] BDS alleges that D.A. Pope was engaging in non-permitted work and took no action to stop its construction dust and debris from contaminating BDS's offices.

         D.A. Pope now moves to dismiss BDS's complaint. D.A. Pope contends that BDS's complaint is subject to Federal Rule of Civil Procedure 14(a)(1), which states that a defendant (like BDS) may serve a complaint on a third party (like D.A. Pope) if the third party “is or may be liable to [the defendant] for all or part of the claim against it.” D.A. Pope argues that it is not liable to BDS for all or part of the plaintiffs' claims against BDS because those claims, at their core, are employment-related claims and D.A. Pope cannot be held liable to BDS for BDS's allegedly improper employment practices. D.A. Pope maintains that BDS's complaint therefore is not permitted under Rule 14(a)(1).

         The court can decide D.A. Pope's motion to dismiss without oral argument. N.D. Cal. Civ. L.R. 7-1(b). BDS's claims against D.A. Pope are not derivative of the plaintiffs' claims against BDS and therefore cannot be asserted in a third-party complaint. The court therefore grants D.A. Pope's motion to dismiss.

         STATEMENT

         1. The Plaintiffs' Allegations Against BDS

         Plaintiffs Janelle Allen, Sara Burton, Christie Orozco, and Royall Walters are current or former employees of the law firm Barulich, Dugoni, and Suttmann Law Group, Inc.[3]

         Beginning in November 2017, the plaintiffs began to smell smoke around the office and found dust and debris covering their work areas.[4] The plaintiffs allege that the air was hazardous to breathe and that they began coughing, were unable to breathe, became lightheaded, and suffered severe sore throats.[5] After prolonged exposure, they began to suffer from additional health issues, including asthma attacks, ear infections, and upper-respiratory infections.[6]

         The plaintiffs determined that the contaminants were coming from a floor above their office space where construction workers had breached the casing over a vent.[7] The construction workers temporarily halted construction but resumed shortly thereafter.[8]

         Over the next few months, the plaintiffs repeatedly complained to BDS's executive director and two BDS managing partners and provided notes from their physicians linking their health conditions to the air at work and stating that they should be allowed to work from home.[9] BDS allegedly refused to accommodate the plaintiffs.[10] The plaintiffs allege that they were met instead with sarcastic responses belittling their health conditions.[11] The plaintiffs allege that their conditions became unbearable to the point that three of them (Mses. Allen, Orozco, and Walters) had to resign and the fourth (Ms. Burton) had to go on unpaid medical leave for over a year.[12]

         The plaintiffs bring claims against BDS under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act for failure to accommodate and failure to engage in an interactive process regarding accommodations as required by the ADA and FEHA.[13] (One plaintiff, Ms. Allen, also brings claims for nonpayment of wages, alleging that BDS did not pay her all owed wages at the time of her resignation.[14])

         2. BDS's Allegations Against D.A. Pope

         D.A. Pope is a construction company or contractor.[15] From November 2017 to June 2018, D.A. Pope performed construction work on the floor above BDS's offices.[16]

         BDS alleges that dust and debris from D.A. Pope's construction migrated to BDS's offices.[17]According to BDS, D.A. Pope was engaging in non-permitted construction work, which contributed to the dust and debris.[18] This led BDS employees to complain of a strong smoke odor and dust and debris in the air, as well as respiratory symptoms including sore throats, headaches, nausea, nasal congestion, skin rashes, and irritated eyes.[19] The strong smoke odor lingered for months, and dust and debris covered all surfaces such as doors and desks and was easily visible to the naked eye.[20] On November 29, 2019, the fire department closed down BDS's offices due to the strong odor and poor air quality.[21] On several other days, BDS was forced to shut down its office and send its employees home due to the construction dust and debris, which created unsafe working conditions for BDS employees.[22] BDS contends that D.A. Pope took no action to prevent its construction dust and debris from migrating to BDS's offices.[23]

         BDS brings claims against D.A. Pope for negligence, nuisance, and implied indemnity.[24]

         ANALYSIS

         1. ...


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