Silva v. Yosemite Community College District

          ORDER RE DEFENDANT'S MOTION TO STRIKE AND DISMISS PLAINTIFF'S COMPLAINT; MOTION FOR ORDER REQUIRING PLAINTIFF TO POST SECURITY BEFORE PROCEEDING (ECF NOS. 7-8)

          LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff 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 amend.

         II. FACTUAL BACKGROUND

         Plaintiffs 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.^[1] 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.

         A. The First Action

         Plaintiff, 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^[2]; (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.

         On an 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.

         The 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.").

         B. The Second Action

         While 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.

         In his 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.

         On an 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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).

         C. This Case - The Third Action

         On 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.^[3] 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.

         A 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).

         Plaintiff 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.

         D. The Motions

         Defendant 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.

         III. STANDARD OF DECISION

         To 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.

         For 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).

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