United States District Court, E.D. California
ORDER RE DEFENDANT'S MOTION TO STRIKE AND DISMISS
PLAINTIFF'S COMPLAINT; MOTION FOR ORDER REQUIRING
PLAINTIFF TO POST SECURITY BEFORE PROCEEDING (ECF NOS.
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE
Bryan Silva, Ph.D., formerly known as Frank Drummond, Ph.D.,
raises various state and potentially federal claims.
Defendant Yosemite Community College District filed a motion
to dismiss, motion to strike, and motion for order requiring
Plaintiff to post security. Plaintiff requested the
opportunity for discovery. The Court has reviewed the facts
and evidence in the record in light of applicable authorities
and only discusses here the facts and arguments that are
material and dispositive. The Court has determined the motion
to dismiss, motion to strike, request for discovery, and
motion for order requiring Plaintiff to post security before
proceeding are suitable for decision based on the papers
under Local Rule 230(g). For the reasons stated below,
Defendant's motion to dismiss is GRANTED without leave to
Complaint arises from his arrest over ten years ago.
Plaintiff is a tenured professor in the Administration of
Criminal Justice Department at Modesto Junior College.
See ECF No. 1 ¶ 1. On August 28, 2009,
Plaintiff was arrested at a staff meeting at Modesto Junior
College. See Id. ¶ 13. On November 25, 2009,
the Stanislaus County District Attorney's Office charged
Plaintiff with certain crimes. See ECF No. 8-3, Ex. A
at 6-7. Defendant placed Plaintiff on unpaid leave under
Education Code section 87736. See Id. ¶ 13.
Plaintiffs criminal trial concluded around April 2015.
See Id. ¶ 14. The District Attorney did not
re-try the case and subsequently dismissed the criminal
charges against Plaintiff. See Id. This action is
Plaintiffs third lawsuit against Defendant.
The First Action
formerly known as Frank Drummond, Ph.D., filed a lawsuit
against Defendant in the Stanislaus County Superior Court on
February 13, 2015. See ECF No. 8-3, Ex. B at 8-25
(hereinafter "First Action"). The First Action
appears to cover the period between August 28, 2009 and July
31, 2015 (ongoing). See Id. at 36, 38. Plaintiff
brought claims for: (1) violation of the California
Government Code; (2) violation of the California Education
Code; (3) Section 1983; (4) wrongful discharge in violation
of public policy; (5) "breach of employment contract
(wrongful discharge)"; (6) retaliation; (7) breach of
the implied covenant of good faith and fair dealing; (8)
violation of Business and Professions Code § 17200,
et seq.; (9) intentional infliction of emotional
distress for the "unlawful harassment, retaliation,
conduct towards and termination of Plaintiff'; (10)
negligent infliction of emotional distress; and (11)
"public entity liability: negligence." See
Id. at 8-25. On December 30, 2015, the Stanislaus County
Superior Court sustained Defendant's demurrer to
Plaintiffs First Amended Complaint for failure to state a
cause of action and sustained Defendant's motion to
strike, with the exception of allowing Plaintiff to amend the
complaint only for damages under the Education Code.
See ECF No. 7-4 at 67.
unknown date, Plaintiff filed a Second Amended Complaint in
the First Action with the same claims as the original
complaint. See ECF No. 8-3, Ex. C at 51. Among other
relief, Plaintiff sought "lost benefits, including but
not limited to retirement contributions." Id.
at 50. Plaintiff specifically alleged he "suffered
damages including, deprived of about 5 years of back pay and
benefits between December 14, 2009 through July 31, 2015,
including his base salary, additional over-load pay,
retirement contributions and lost increased value therein,
medical coverage and expenses, [and] incurred interest for
loans he was forced to take . . . ." Id. at 38.
summary judgment hearing in the First Action took place on
June 12, 2018. See ECF No. 8-3, Ex. D at 53. On July
20, 2018, the Stanislaus Superior Court granted summary
judgment in favor of Defendant and "against Plaintiff as
to the entire action and as to all the claims contained in
Plaintiffs Complaint." ECF No. 8-3, Ex. D at 53-54. The
Stanislaus Superior Court confirmed its tentative ruling and
attached a copy of the ruling to its order. Id. at
53, 59 ("Defendant has sufficiently demonstrated that
the full amount of compensation owed to Plaintiff has been
paid and Plaintiff is unable to establish any further
liability on the part of Defendant.").
The Second Action
the First Action was ongoing, Plaintiff filed a second
lawsuit against Defendant and another Modesto Junior College
professor, Steven Choi, on August 19, 2016. ECF No. 8-3, Ex.
E at 64 (hereinafter "Second Action"). The Second
Action covers the period between August 28, 2009 and March
2017, ongoing. Id. at 64, 108. Plaintiffs Second
Action alleges, among other things, that he suffered
harassment upon his return to work at Modesto Junior College.
See generally Id. For example, Plaintiff alleged
Defendants "discriminated against him because he was
either accused of a crime and/or now refuses to resign from
his position." ECF No. 8-3, Ex. E ¶ 13. Plaintiff
alleged that Defendant would not restore his position as
department chair and averred that the Defendant erroneously
stated it no longer had positions of department chair.
See Id. Plaintiff also complained that he did not
receive his entitled course load and instead received classes
intended to burden him. See id.
Second Action, Plaintiff raised causes of action for: (1)
assault; (2) harassment; (3) libel/slander; (4) breach of
implied covenant of good faith and fair dealing; (5)
intentional infliction of emotional distress; (6) negligent
infliction of emotional distress; (7) negligence; (8)
negligent retention of employee; (9) public entity liability
for acts of employees; (10) hostile work environment; and
(11) failure to prevent hostile work environment and
harassment. See Id. at 64.
unknown date, Plaintiff filed a Third Amended Complaint in
the Second Action. See ECF No. 8-3, Ex. F at 95.
Plaintiff added a claim for "disparate
impact/breach." Id. Plaintiff asserted that the
"District had an employment practice of misrepresenting
to plaintiff the true status of his position, chair of the
department therein, and assignment and preparation of courses
by employees." Id. ¶ 101. Plaintiff
alleged that on "August 18, 2015, plaintiff demanded in
writing from the District a full reinstatement with all
benefits and compensation owed to him from the
District." Id. ¶ 52. Plaintiff further
alleged that "as of March 30, 2017, new and additional
information has been discovered in a massive document
production by the District in the First Action."
Id. ¶ 56. Plaintiff alleged that
"Defendants made written statements to third parties.
1000 Documents containing said written statements are under
review, and plaintiff will amend this action when and as
specifically discovered and identified." Id.
¶ 85. Plaintiff further alleged "Defendants
published false statements of fact without privilege or
permission of any sort, consisting of statements that depict
plaintiff as an immoral and unethical individual, grounded in
the allegations made against plaintiff as they related to his
criminal matter, though he successfully defended said
matter." Id. ¶ 87. Plaintiff asserted that
the "statements [were] defamatory and harmed plaintiffs
personal and business reputations," and that Defendants
"acted with malice and intent to harm plaintiff in his
employ." Id. ¶¶ 92, 95.
contended he "was subjected to unwanted harassing
conduct because he was a male and of age, in the context of
criminal charges being dismissed against plaintiff." ECF
No. 8-3 ¶ 173. Plaintiff claimed that "Defendants,
since plaintiff was first reinstated and resumed his faculty
position, repeatedly verbally abused and harassed
plaintiff." Id. ¶ 174. Moreover, Plaintiff
alleged "Defendants were inconsiderate and in violation
of California employment laws in their treatment of
Plaintiff." Id. ¶ 175. Plaintiff also
alleged defendants "systematically and repeatedly abused
and harassed plaintiff, shunned and humiliated him [since
August 28, 2009]." ECF No. 8-3 ¶ 197.
"Defendants were inconsiderate and in violation of
California State and Federal laws in their treatment of
Plaintiff." Id. ¶ 199.
alleged he did not have access to a locked storage room
beginning around July 27, 2015, and again around October 1,
2015. See Id. ¶¶ 24, 36. Plaintiff further
complained of the dean's spring 2016 teaching schedule.
See Id. ¶¶ 25-27'. Plaintiff claims
that the dean did not collaborate with him in creating the
schedule. See Id. ¶ 27. Plaintiff also alleged
wrongdoing because he was not able to use the program's
shooting simulator in his classes. See Id. ¶
38. Plaintiff further alleged that other professors made
equipment requests without Plaintiffs knowledge. See
Id. ¶ 39.
December 22, 2017, the Stanislaus County Superior Court held
a hearing for Defendant's and Mr. Choi's demurrers to
Plaintiffs Third Amended Complaint in the Second Action and
motion to strike. See ECF No. 8-3, Ex. G at 129. On
January 9, 2018, the Stanislaus Superior Court sustained
without leave to amend Defendant's demurrer to Plaintiffs
Third Amended Complaint. In its ruling, the court wrote:
The Court takes judicial notice of the fact that Plaintiff
failed to file a timely claim with Defendant . . . pursuant
to and as required by the Government Claims Act ....
Plaintiff was granted leave to amend his Second Amended
Complaint to allege additional facts to excuse his compliance
with this requirement and fails to allege such facts in his
Third Amended Complaint. The Court concludes that he is
unable to allege such facts. In his Opposition . . .
Plaintiff concedes that he failed to file a timely claim,
arguing that the 'continuing violations doctrine'
applies under these circumstances to salvage his causes of
action based on discrete acts alleged to have been committed
outside the applicable statute of limitations. It does not.
Therefore, all of the causes of action alleged in the Third
Amended Complaint are barred. ... In accordance with the
above ruling sustaining Defendants' Demurrers to
Plaintiffs Third Amended Complaint, JUDGMENT
is entered in favor of the Defendants Yosemite Community
College District and Steven Choi.
ECF No. 8-3, Ex. G at 130-31 (emphasis in original).
This Case - The Third Action
January 4, 2019, Plaintiff filed a claim against Defendant
pursuant to the California Government Tort Claims Act.
See ECF No. 8-3, Ex. K at 187. On March 13, 2019,
Defendant rejected Plaintiffs January 4, 2019 claim,
instructing Plaintiff that any court action must be filed
within six months from the date of the rejection
notice. See ECF No. 8-3, Ex. L at 198. On
June 6, 2019, Plaintiff filed the instant action-his third
lawsuit-against Defendant. See generally ECF No. 1
(hereinafter "Third Action"). The Third Action
appears to cover the time period between August 28, 2009, and
May 6, 2019, ongoing. See ECF No. 1 at 16. In his
Third Action, Plaintiff raises claims for: (1) harassment;
(2) disparate impact; (3) hostile work environment; (4)
failure to prevent harassment, discrimination, and
retaliation; (5) employment discrimination; (6) disparate
treatment; (7) tortious interference with economic advantage;
(8) negligent interference with economic advantage; (9)
injunctive relief; and (10) declaratory relief. See
generally ECF No. 1.
significant portion of the Third Action comprises
near-verbatim allegations from the dismissed Second Action.
The Court will not repeat them all but includes some examples
for reference. Compare Third Action ¶¶ 22,
34 (complaining of locked storage closet in July 2015 and
October 2015), with Third Amended Complaint in
Second Action, Ex. F ¶¶ 24, 36 (same);
compare Third Action ¶¶ 30-31 (alleging
issues regarding Spring 2016 teaching schedule) with
Third Amended Complaint in Second Action, Ex. F ¶¶
25-27 (same); compare Third Action ¶ 38
(alleging inability to use the program's shooting
simulator around October 2015) with Third Amended
Complaint in Second Action, Ex. F ¶ 38 (same);
compare Third Action ¶ 59 (alleging dean
refuses to make him department chair) with Third
Amended Complaint in Second Action, Ex. F ¶ 13 (same).
raises a handful of "new" allegations that
Plaintiff contends are "new and ongoing wrongs committed
and perpetuated by defendants." See ECF No. 10
at 1. Among these are: (1) in April 2018, a dean allegedly
yelled at Plaintiff with her office door open about
contacting the chancellor regarding the shooting simulator
that had not been installed (ECF No. 1 ¶ 48); (2) the
dean ignored Plaintiffs inquiry about installing a shooting
simulator (id. ¶ 49); (3) the dean acknowledged
wrongdoing for yelling at Plaintiff with her door open
(id. ¶ 50); (4) the dean admitted the need for
a department lead, which was Plaintiffs prior role, but that
Plaintiff was "not respected" and needed to earn
respect before being assigned as lead (id. ¶
52); (5) the department sold firearms at an auction without
Plaintiffs input (id. ¶ 53); (6) Plaintiffs
employee file is "defamatory," which includes
"criminal related information . . . and omits the
numerous awards and accolades earned," and "would
harm [Plaintiff] should he seek employment elsewhere"
(id. ¶ 54); (7) in August 2018, the dean
e-mailed the entire division about "two white male
instructors" who had received awards and recognized
Plaintiffs award on a lobby TV monitor but did not e-mail the
division about Plaintiffs award until a month later in
September 2018 (id. ¶ 55); (8) on Halloween
2018, another faculty member asked Plaintiff "what the
fuck is this?" in reference to Plaintiffs costume as a
"military dude" and then walked away (id.
¶ 56); (9) there was a locked study area that the dean
later unlocked for limited periods of time around fall 2017
(id. ¶ 57); (10) Defendant has not updated
Plaintiffs retirement benefits, which shows Plaintiff as
inactive for the years 2011 to 2015 and Defendant misinforms
or ignores Plaintiffs requests for payroll information and
files (id. ¶ 58); (11) Plaintiffs spring 2019
schedule had seven classes instead of eight; (12) on or
around May 1, 2019, the dean created a new section for a
heavily waitlisted class and appointed another professor to
teach that section despite Plaintiffs senior faculty status
and that Plaintiff recruited students for the class; and (13)
Plaintiff has not been paid for contracted courses and
"[i]nterest owed for the time of unpaid administrative
[leave] . . . ." Id. ¶ 63.
filed a motion to dismiss Plaintiffs previously adjudicated
claims under Federal Rule of Civil Procedure 12(b)(6) and a
motion to strike under Rule 12(f). See ECF No. 8-1
at 7 n. 16. Defendant requests the Court to "strike or
dismiss all of the barred allegations and claims thereon, and
dismiss all of Plaintiff s claims to the extent they are
based on the 'new' allegations." Id.
Defendant also filed a motion for order requiring Plaintiff
to post security before proceeding. See generally
ECF No. 7-1. Plaintiff avers that he is entitled to discovery
if the Court considers material outside of the pleadings on a
Rule 12(b)(6) motion. See ECF No. 10 at 10.
STANDARD OF DECISION
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
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."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"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." Id. (quoting Twombly, 550
U.S. at 556). "While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions." Twombly, 550
U.S. at 555 (internal citations omitted). Thus, "bare
assertions... amount[ing] to nothing more than a
'formulaic recitation of the elements'... are not
entitled to be assumed true." Iqbal, 556 U.S.
at 681. "[T]o be entitled to the presumption of truth,
allegations in a complaint... must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively."
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
In practice, "a complaint...must contain either direct
or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable
legal theory." Twombly, 550 U.S. at 562.
purposes of dismissal under Rule 12(b)(6), the court
generally considers only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice, and construes all
well-pleaded material factual allegations in the light most
favorable to the nonmoving party. See Akhtar v.
Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); Swartz v.
KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per
curiam). Res judicata may properly be raised in a Rule
12(b)(6) motion to dismiss based upon the court taking
judicial notice of the record in the prior case where no
disputed issues of fact appear. See Scott v.
Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).