Flesch v. County of Lake

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 DANIEL G. FLESCH, Case No. 21-cv-02018-SI

8 Plaintiff,

ORDER GRANTING DEFENDANTS'

9 v. MOTIONS TO DISMISS; DENYING

DEFENDANT BROWN'S MOTION TO

10 COUNTY OF LAKE, et al., STRIKE AS MOOT

11 Defendants. Re: Dkt. Nos. 15, 16, 22

12

13 Before the Court are motions to dismiss filed by defendants Robert Brown and County of

14 Lake, and a motion to strike filed by defendant Robert Brown. Dkt. Nos. 15, 16, 22. On July 23,

15 2021, the Court held a hearing on the motions. For the reasons set forth below, the Court GRANTS

16 the motions to dismiss filed by Defendant Brown and the County of Lake, GRANTS plaintiff leave

17 to amend, and DENIES AS MOOT Defendant Brown’s Motion to Strike.

18

19 BACKGROUND

20 Plaintiff is a Senior Deputy District Attorney at the Lake County District Attorney’s Office.

21 Dkt. No. 1 at ¶ 1. On March 23, 2021, plaintiff Daniel G. Flesch filed a complaint alleging fifteen

22 federal and state civil rights violations against defendants Robert Brown, the County of Lake, and

23 DOES 1-501: (1) Illegal Intrusion on First Amendment Right to Free Speech in Violation of 42

24 U.S.C. §1983; (2) Retaliation – Exercising Free Speech Monell Action-Based on Official Policy,

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1 Plaintiff’s Complaint named DOES 1-50 as defendants. In the Complaint, plaintiff stated

that, “Plaintiff Flesch is not aware of the true names and capacities of the Defendants sued herein

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as Does 1-50 and therefore, sues such Defendants by these fictitious names. Plaintiff Flesch will

1 Practice, or Custom in Violation of 42 U.S.C. §1983; (3) Retaliation – Exercising Free Speech

2 Monell Action-Based on Act of Final Policymaker in Violation of 42 U.S.C. §1983; (4) Retaliation

3 - Exercising Free Speech Monell Action-Based on Ratification in Violation of 42 U.S.C. §1983; (5)

4 Retaliation – Exercising Free Speech Monell Action-Based on Policy of Failure to Train or

5 Supervise in Violation of 42 U.S.C. §1983; (6) Discrimination – Equal Protection Civil Rights Claim

6 under 42 U.S.C. §1983; (7) Discrimination – Title VII of the Civil Rights Act of 1964; (8)

7 Retaliation – Title VII of the Civil Rights Act of 1964; (9) Retaliation – California Labor Code

8 §1102.5; (10) Religious Discrimination – California Fair Employment and Housing Act; (11)

9 Retaliation – California Fair Employment and Housing Act; (12) Harassment- California Fair

10 Employment and Housing Act; (13) Failure to Prevent Discrimination, Harassment, and Retaliation

11 – California Fair Employment and Housing Act; (14) Intentional Infliction of Emotional Distress;

12 and (15) Negligent Infliction of Emotional Distress. Dkt. No. 1. According to the complaint,

13 plaintiff brings this action against Defendant Brown in his capacity as a member of the Board of

14 Supervisors. Id. at ¶ 32.

15 Plaintiff’s claims arise from investigations and disparaging comments allegedly made by

16 Defendant Brown, a member of the County of Lake Board of Supervisors, and plaintiff’s supervisors

17 and coworkers between August 2014 and August 2020. Dkt. No. 1. On May 05, 2021, defendant

18 Brown a motion to dismiss and motion to strike. Dkt. No. 15. On May 19, 2021, plaintiff filed an

19 opposition to defendant Brown’s motions. Dkt. No. 20. On May 26, 2021, Defendant Brown filed

20 replies. Dkt. No. 23.

21 On May 25, 2021, the County filed a motion to dismiss. Dkt. No. 22. On June 8, 2021,

22 plaintiff filed an opposition. Dkt. No. 30. On June 15, 2021, the County filed a reply. On July 23,

23 2021, the Court heard oral argument on all motions.

24

25 LEGAL STANDARD

26 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if

27 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires

2 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted

3 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened

4 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the

5 speculative level.” Twombly, 550 U.S. at 555.

6 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the

7 court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in

8 the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However,

9 the court is not required to accept as true “allegations that are merely conclusory, unwarranted

10 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055

11 (9th Cir.2008).

12 If the Court dismisses the complaint, it must then decide whether to grant leave to amend.

13 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no

14 request to amend the pleading was made, unless it determines that the pleading could not possibly

15 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000)

16 (citations and internal quotation marks omitted).

17

18 DISCUSSION

19 I. Defendant Brown’s Motion to Dismiss2

20 Defendant Brown moves to dismiss plaintiff’s first, sixth, fourteenth, and fifteenth causes of

21 action alleging violations of 42 U.S.C. § 1983 based on First Amendment Right to Free Speech; 42

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2 Defendant Brown requests the Court take judicial notice of: (1) plaintiff’s tort claim for

damages, received by the County of Lake on February 5, 2019; (2) County of Lake’s Notice of

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Rejection of plaintiff’s tort claim for damages, issued on May 31, 2019; (3) plaintiff’s complaint for

damages, filed in Lake County Superior Court on October 30, 2019; and (4) plaintiff’s Request for

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Dismissal, filed in Lake County Superior Court on March 29, 2021. Dkt. No. 15-1.

The Court hereby GRANTS defendant’s request for judicial notice. See Coto Settlement v.

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Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (“On a motion to dismiss, [the Court] may consider

. . . matters of public record.”); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (finding court

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documents already in the public record and filed in other courts are subject to judicial notice); Tan

1 U.S.C. § 1983 based on Fourteenth Amendment Equal Protection; intentional infliction of emotional

2 distress (“IIED”); and negligent infliction of emotional distress (“NIED”).

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4 A. Plaintiff’s Federal Claims

5 The complaint alleges defendant Brown violated 42 U.S.C. § 1983 based on the First

6 Amendment Right to Free Speech and Fourteenth Amendment Equal Protection. Dkt. No. 1 at 17-

7 19; 29-31. Defendant Brown argues plaintiff’s federal claims are (1) limited by the statute of

8 limitations and (2) fail to state a claim upon which relief could be granted.

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10 1. Statute of Limitations

11 Defendant argues plaintiff’s federal claims are barred by the two-year statute of limitations

12 period.3 Dkt. No. 15 at 2:9-10. Plaintiff argues plaintiff’s claims are timely under the continuing

13 violations doctrine. Dkt. No. 20 at 6-7.

14 The continuing violations doctrine allows a plaintiff to seek relief for events outside of the

15 statute of limitations period. Bird v. Dep’t of Human Services, 935 F.3d 738, 746 (9th Cir. 2019)

16 (internal citations omitted). The Ninth Circuit has explained the continuing violations doctrine may

17 apply to either “a series of related acts, one or more of which falls within the limitations period,” or

18 “the maintenance of a discriminatory system both before and during [the limitations] period.” Id.

19 (internal quotation omitted). However, after the Supreme Court’s decision in National R.R.

20 Passenger Corp. v. Morgan, 536 U.S. 101 (2002),

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little remains of the continuing violations doctrine. Except for a

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limited exception for hostile work environment claims—not at issue

23 here—the serial acts branch is virtually non-existent. Moreover, while

we have left room for the systematic branch to apply to class-wide

24 pattern-or-practice claims . . . we have consistently refused to apply

the systematic branch to rescue individualized claims that are

25 otherwise time-barred.

26 Id. at 748 (internal citation omitted).

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1 Plaintiff argues defendant Brown’s actions showed a pattern to force plaintiff out of a job,

2 destroy plaintiff’s legal reputation, and prevent plaintiff from raising any further reports in the

3 District Attorney’s Office. Dkt. No. 20 at 7. However, plaintiff’s reliance on separate alleged

4 violations by defendant Brown is insufficient to plead a class-wide pattern-or-practice claim. See

5 Pouncil v. Tilton, 704 F.3d 568, 579 (9th Cir. 2012) (“[I]ndividualized decisions are best

6 characterized as discrete acts, rather than as a pattern or practice of discrimination.”) (internal

7 citation and quotation omitted). The complaint asserts each of Defendant Brown’s alleged

8 violations as independent bases for liability. See id. at 578-79 (“[A] court must determine whether

9 a claim is based on an independently wrongful, discrete act, and if it is, then the claim accrues, and

10 the statute of limitations begins to run, from the date of that discrete act, even if there was a prior,

11 related past act.”).

12 Accordingly, the Court finds that the continuing violations doctrine does not apply to

13 plaintiff’s federal claims. The Court will evaluate the sufficiency of plaintiff’s complaint relating

14 to defendant Brown based on allegations occurring after March 23, 2019.4

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16 2. Sufficiency of Claims

17 Defendant Brown argues plaintiff’s federal claims, pursuant to Federal Rule of Civil

18 Procedure 12(b)(6), fail to plead a claim upon which relief can be granted.

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20 a. Allegations for violations of 42 U.S.C. § 1983 First Amendment

Freedom of Speech

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In order to state a claim against a government employer for violation of the First

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Amendment, an employee must show (1) that he or she engaged in protected speech; (2) that the

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4 Factual allegations after March 23, 2019 include: (1) “In July 2019, Plaintiff was again

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informed that Defendant Brown was making disparaging comments regarding Plaintiff to Deputy

District Attorney Lisa Obrien”;(2) “In November 2019, Defendant Brown called Plaintiff a “piece

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of shit” publicly outside of the courtroom of Department 3.”; and (3) On or about January 14, 2020,

Defendant Brown, in public, called Plaintiff “Bernie Flesch,” apparently referring to Plaintiff’s

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Jewish faith. This occurred in public to other members of the public within Plaintiff’s hearing.” Dkt.

1 employer took ‘adverse employment action’; and (3) that his or her speech was a ‘substantial or

2 motivating’ factor for the adverse employment action.” Coszalter v. City of Salem, 320 F.3d 968,

3 973 (9th Cir.2003) (emphasis added).

4 Defendant Brown argues the complaint fails to plead facts supporting defendant Brown took

5 adverse employment action against plaintiff. Dkt. No. 15 at 11. Plaintiff argues defendant Brown

6 used his position and relationships as a member of the board of supervisors to retaliate against

7 plaintiff.5 Dkt. No. 20 at 16-17.

8 The Court finds the complaint fails to sufficiently plead defendant Brown performed an

9 adverse employment action against plaintiff. The complaint neither pleads how defendant Brown,

10 a member of the County of Lake Board of Supervisors, is plaintiff’s employer nor how defendant

11 Brown’s actions constitute adverse action by an employer. See Coszalter v. City of Salem, 320 F.3d

12 at 974-75 (“The goal [in First Amendment retaliation cases] is to prevent, or redress, actions by a

13 government employer that ‘chill the exercise of protected’ First Amendment rights.”) (internal

14 citation omitted) (emphasis added). Indeed, plaintiff stated “Defendant Brown . . . is not plaintiff’s

15 employer”. Dkt. No. 20 at 1. Accordingly, the Court GRANTS Defendant Brown’s motion to

16 dismiss with leave to amend.

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b. Allegations for violations of 42 U.S.C. § 1983 Fourteenth

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Amendment Equal Protection

19 Defendant argues the complaint fails to allege similarly situated employees to plaintiff were

20 treated more favorably because they were not practicing the Jewish faith. Dkt. No. 15 at 14. Plaintiff

21 argues the complaint pleads that plaintiff is a member of a protected class, based on plaintiff’s

22 Jewish faith, and defendant Brown referred to plaintiff as “Bernie Flesch,” referring to plaintiff’s

23 Jewish faith. Dkt. No. 20 at 17.

24 “To state a § 1983 claim for violation of the Equal Protection Clause, a plaintiff must show

25 that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon

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5 In plaintiff’s opposition, plaintiff argues defendant Brown used his position as a “bail

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bondsman” to act against plaintiff. Dkt. No. 20 at 17. However, the complaint makes no reference

1 membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.

2 2005).

3 The Court finds that plaintiff did not allege sufficient facts showing defendant Brown or the

4 County intended to discriminate against plaintiff based on plaintiff’s Jewish faith. See Vill. of

5 Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“discriminatory intent or

6 purpose is required to show a violation of the Equal Protection Clause”).

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8 B. Plaintiff’s State Claims

9 Defendant Brown alleges plaintiff’s claims of IIED and NIED fail to state a claim upon

10 which relief could be granted. Dkt. No. 15 at 5-17.

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12 1. IIED

13 Defendant argues the complaint fails to sufficiently plead conduct that is extreme or

14 outrageous. Dkt. No. 15 at 14:26-27; 16:11-21. Plaintiff argues that defendant’s conduct “was

15 ongoing, extreme and outrageous that ranges from open displays of harassment, retaliation, and

16 discrimination, that have lasted years and continue.” Dkt. No. 20 at 10:21-23.

17 To prevail on an IIED claim, a plaintiff must prove: “(1) extreme and outrageous conduct

18 by the defendant with the intention of causing, or reckless disregard of the probability of causing,

19 emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual

20 and proximate causation of the emotional distress by the defendant's outrageous conduct.” Avina v.

21 United States, 681 F.3d 1127, 1131 (9th Cir. 2012).

22 The Court finds the complaint fails to sufficiently plead how defendants’ actions were

23 extreme and outrageous conduct. See Tekle v. United States, 511 F.3d 839, 855 (9th Cir. 2007)

24 (“Outrageous conduct. . . [is] so extreme as to exceed all bounds of that usually tolerated in a

25 civilized community.”) “Liability for [IIED] does not extend to mere insults, indignities, threats,

26 annoyances, petty oppressions, or other trivialities.” Hughes v. Pair, 209 P.3d 963, 976 (2009).

27 For this additional reason, the Court GRANTS defendant Brown’s motion to dismiss, with leave to

1 2. NIED

2 Defendant argues the complaint fails to sufficiently plead defendant Brown owed a specific

3 duty of care to plaintiff. Dkt. No. 23 at 3:23-24.

4 “NIED is simply a form of negligence, and NIED claims must satisfy the traditional elements

5 of duty, breach of duty, causation, and damages.” Averbach v. Vnescheconombank, 280 F.Supp.2d

6 945, 960 (N.D. Cal. Aug. 19, 2003). A duty may arise where it is assumed by the defendant, imposed

7 as a matter of law, or arises out of a relationship between the two. See Burgess v. Sup. Ct., 831 P.2d

8 1197 (1992).

9 The Court finds that the complaint fails to establish how defendant assumed a duty of care

10 to plaintiff. The complaint does not sufficiently plead how defendant Brown assumed a duty of care

11 over plaintiff and plaintiff fails to cite authority for the proposition that defendant owes a specific

12 duty of care as “an elected member of the Board of Supervisors and a colleague within the

13 courthouse.” See Regents of U. of California v. Sup. Ct., 413 P.3d 656, 664-66 (2018) (explaining

14 special relationships include common carriers and innkeepers with their guests; a business or

15 landowner with invited guests; a landlord with tenants; a guard with those in custody; an employer

16 with its employees and; a school with its students). For this additional reason, the Court GRANTS

17 defendant Brown’s motion to dismiss, with leave to amend.

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19 II. County of Lake’s Motion to Dismiss

20 Defendant County of Lake (“the County”) moves to dismiss the complaint’s first, second,

21 third, fourth, fifth, seventh, tenth, twelfth, fourteenth, and fifteenth causes of action.6 For the reasons

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6 The causes of action include are (1) “Illegal Intrusion on First Amendment Right to Free

Speech in Violation of 42 U.S.C. § 1983”; (2) “Retaliation – Exercising Free Speech Monell Action-

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Based on Official Policy, Practice, or Custom in Violation of 42 U.S.C. §1983”; (3) “Retaliation –

Exercising Free Speech Monell Action-Based on Act of Final Policymaker in Violation of 42 U.S.C.

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§1983”; (4) “Retaliation – Exercising Free Speech Monell Action-Based on Ratification in Violation

of 42 U.S.C. §1983”; (5) “Retaliation – Exercising Free Speech Monell Action-Based on Policy of

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Failure to Train or Supervise in Violation of 42 U.S.C. §1983”; (7) “Discrimination – Title VII of

the Civil Rights Act of 1964”; (10) “Religious Discrimination – California Fair Employment and

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Housing Act”; (12) “Harassment- California Fair Employment and Housing Act”; (14) “Intentional

1 stated below, the Court GRANTS the County’s motion to dismiss.

2

A. First and Second Causes of Action: First Amendment Right to Free Speech in

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Violation of 42 U.S.C. § 1983

4 The County argues plaintiff’s first cause of action fails to sufficiently plead facts to

5 demonstrate municipal liability under any Monell theory. Dkt. No. 22 at 4. Plaintiff argues the

6 complaint demonstrated a persistent and widespread custom of the County intruding on his First

7 Amendment right to free speech. Dkt. No. 30 at 9.

8 The Court finds the complaint fails to sufficiently plead municipal liability under Monell

9 liability. The complaint states “defendants’ intentional and negligent actions and failures, including

10 . . . training and hiring practices along with failure to investigate and remedy unlawful activity as

11 alleged . . . constitute a policy, pattern, and/or custom of violations of the Civil Rights Laws of the

12 United States. . . deprived plaintiff of his . . . right to free speech” and the County “failed to take

13 steps to prevent Defendant Brown from taking these illegal actions against Mr. Flesch when it had

14 notice.” Dkt. No. 1 at ¶¶ 67, 69. This language fails to identify any content of the County’s alleged

15 policy or custom resulting in plaintiff’s alleged deprivation of rights under the first amendment. See

16 Monell v. Dept. of Social Services of the City of N.Y., 436 U.S. 658, 694 (1978) (“[I]t is when

17 execution of a government's policy or custom . . . inflicts the injury that the government as an entity

18 is responsible under § 1983.”); Mendy v. City of Fremont, 13-cv-04180-MMC, 2014 WL 574599 at

19 *3 (N.D. Cal. Feb. 12, 2014) (dismissing municipal liability claim based on unsupported allegation

20 of an “informal custom or policy that tolerates and promotes the continued use of excessive force

21 and cruel and unusual punishment against and violation of civil rights of citizens by City police

22 officers in the manner alleged [elsewhere in the complaint]”). Moreover, the complaint fails to

23 plead how the County’s alleged policy or custom caused deprivation of plaintiff’s first amendment

24 rights or how the policy or custom was otherwise deficient. See Howard v. Contra Costa County,

25 13-cv-3626-NC, 2014 WL 824218 at * 14 (N.D. Cal. Feb. 28, 2014) (dismissing claim that county

26 had policy or custom of failing to properly train employees where “the complaint does not identify

27 what the training practices were, or how they were deficient).

1 plaintiff’s first and second causes of action. The Court GRANTS the County’s motion to dismiss,

2 with leave to amend.

3

B. Third and Fourth Causes of Action: Retaliation – Exercising Free Speech

4

Monell Action-Based on Act of Final Policymaker in Violation of 42 U.S.C.

5 §1983

The County argues the complaint’s identification of defendant Brown as a final policymaker

6

fails to establish Monell liability. Dkt. No. 22 at 6-7. Plaintiff argues defendant Brown was involved

7

in plaintiff’s retaliation, harassment, and discrimination. Dkt. No. 30 at 11.

8

The complaint alleges defendant Brown “had final policymaking authority as a member of the

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Board of Supervisors for the County of Lake District Attorney’s Office from the County concerning

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these acts herein alleged. When Defendant Brown engaged in these acts, he was acting as a final

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policymaker for Defendant County.” Dkt. No. 1 at ¶¶ 94, 95. However, the complaint fails to

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identify the ratifying actions that Defendant Brown allegedly committed and whose actions

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Defendant Brown, as a policymaker, ratified. See Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th

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Cir. 1992) (“[P]laintiff may prove that an official with final policy-making authority ratified a

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subordinate's unconstitutional decision or action and the basis for it.”). Moreover, the complaint

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fails to plead which policymaker from the County allegedly ratified defendant Brown’s conduct and

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how the policymaker knew of and ratified defendant Brown’s conduct. See Lytle v. Carl, 382 F.3d

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978, 987 (9th Cir. 2004) (“To show ratification, a plaintiff must show that the authorized

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policymakers approve a subordinate's decision and the basis for it. . . A mere failure to overrule a

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subordinate's actions, without more, is insufficient to support a [Section] 1983 claim.”); Zuegal v.

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Mountain View Police Department, 17-cv-3249-BLF, 2020 WL 5076628 at *10 (N.D. Cal. Aug.

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27, 2020) (“The policymaker must have actual knowledge of the constitutional violation and

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affirmatively approve of it – a failure to overrule a subordinate's actions is insufficient to support a

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§ 1983 claim.”).

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C. Fifth Cause of Action: Retaliation – Exercising Free Speech Monell Action-

27 Based on Policy of Failure to Train or Supervise in Violation of 42 U.S.C. §1983

1 lack of training cause plaintiff’s harm, and how training was deficient. Dkt. No. 22 at 8. Plaintiff

2 argues he alerted the County of harassment and asked the County to intervene. Dkt. No. 30 at 13.

3 The complaint alleges “Defendant Brown and employees . . . clearly lacked sufficient

4 training to prevent and cease his harassment, discrimination, and retaliation against the Plaintiff in

5 the workplace” and “[t]he training policies of Defendant County were and are not adequate to train

6 or supervise its employees to handle the usual and recurring situations with which they must deal

7 and handle.” Dkt. No. 1 at ¶¶ 124, 130. The complaint adds “Defendant County showed a deliberate

8 indifference, a conscious disregard of the constitutional rights of its employees, and specifically,

9 Mr. Flesch, in failing to train Defendant Brown to obey the laws of the State of California and the

10 Federal laws of the United States, including the United States Constitution.” Id. at ¶ 125.

11 The Court finds the complaint fails to identify the specific training that the County allegedly

12 failed to train defendant. Compare Mackie v. County of Santa Clara, 444 F.Supp.3d 1094, 1113

13 (N.D. Cal. Mar. 13, 2020) (finding failure to train claim sufficient where a complaint alleged specific

14 training failures “with regard to the interaction with crime victims and the perpetrators”) with

15 Martinez v. City of Santa Rosa, 499 F.Supp.3d 748, 751 (N.D. Cal. Nov. 5, 2020) (finding failure

16 to train claim insufficient where plaintiff alleged defendant had generic and boilerplate “custom

17 and practice of infringing on peoples' right to assemble, to protest, and to express their political

18 beliefs on the basis of the content of the protestors' speech”). Moreover, the complaint fails to plead

19 sufficient facts demonstrating the County made a conscious or deliberate choice to risk a likely

20 violation of constitutional rights. See Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008) (holding one

21 must demonstrate a “conscious” or “deliberate” choice on the part of a municipality in order to

22 prevail on a failure to train claim”)

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D. Seventh Cause of Action: Discrimination – Title VII of the Civil Rights Act of

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1964

25 The County argues plaintiff failed to plead and prove timely exhaustion of administrative

26 remedies with Department of Fair Employment and Housing (DFEH). Dkt. No. 22. Plaintiff argues

27 the complaint adequately pleads exhaustion of administrative remedies, but offers to “provide such

1 The complaint does not include the dates in which plaintiff filed with DFEH. Therefore, the

2 Court finds the complaint fails to adequately plead its seventh case of action. See Kim v. Konad

3 USA Distribution, Inc., 226 Cal.App.4th 1336, 1345, 172 Cal.Rptr.3d 686 (2014) (“[I]t is plaintiff's

4 burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient

5 complaint with [DFEH] and obtaining a right-to-sue letter.”) (internal citation and quotation

6 omitted).

7

E. Tenth Cause of Action: Religious Discrimination – California Fair Employment

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and Housing Act

9 Defendant argues the complaint fails to allege plaintiff was treated differently because of his

10 Jewish faith. Dkt. No. 22 at 12. Plaintiff argues the complaint alleged “Defendants treated Plaintiff

11 differently from other similarly situated [persons] . . .intentionally, and there was no rational basis,

12 let alone any heighted basis of scrutiny, for the difference in treatment” and gave examples of non-

13 Jewish supervisors making anti-Semitic comments. Dkt. No. 30 at 15.

14 The Court finds the complaint fails to sufficiently plead discrimination under the FEHA.

15 Discrimination under the FEHA “addresses only explicit changes in the terms, conditions, or

16 privileges of employment . . . the institution or corporation itself must have taken some official

17 action with respect to the employee, such as hiring, firing, failing to promote, adverse job

18 assignment, significant change in compensation or benefits, or official disciplinary action.” Roby v.

19 McKesson Corp, 219 P.3d 749, 788 (2009). The complaint does not identify plaintiff’s employer

20 and does not allege the actions by defendant Brown were made on behalf of the County. See id.

21 (“[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer”). For

22 this additional reason, the Court GRANTS the County’s motion to dismiss, with leave to amend.

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F. Twelfth Cause of Action: Harassment-California Fair Employment and

25 Housing Act

The County argues the complaint does not sufficiently allege conduct that is severe or pervasive

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enough to constitute harassment. Dkt. No. 22 at 10. Without citing any case law, plaintiff argues

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1 Dkt. No. 30 at 14.

2 The Court finds the complaint fails to sufficiently plead harassment under the FEHA.

3 Harassment under the FEHA “does not involve any official exercise of delegated power on behalf

4 of the employer . . . [and] focuses on situations in which the social environment of the workplace

5 becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an

6 offensive message to the harassed employee.” Roby v. McKesson Corp, 219 P.3d 749, 788 (2009).

7 However, the complaint fails to sufficiently plead the alleged actions were sufficiently severe and

8 pervasive to create an abusive working environment. See McRae v. Dept. of Corrections &

9 Rehabilitation, 48 Cal.Rptr.3d 313, 324 (2006) (explaining harassment under FEHA requires

10 showing of “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe

11 or pervasive to alter the conditions of the victim's employment and create an abusive working

12 environment” [the law] is violated.”) (intern citation and quotations omitted). For this additional

13 reason, the Court GRANTS the County’s motion to dismiss, with leave to amend.

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15 G. Fourteenth and Fifteenth Causes of Action: IIED and NIED

16 Finally, the County argues the complaint fails to sufficiently plead severe emotional distress

17 for the IIED and NIED causes of action. Dkt. No. 22 at 14-15. For the same reasons discussed

18 above, the Court finds the complaint fails to sufficiently plead IIED and NIED. For this additional

19 reason, the Court GRANTS the County’s motion to dismiss, with leave to amend.

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1 CONCLUSION

2 For the foregoing reasons, the Court GRANTS the motions to dismiss filed by Defendant

3 Brown and the County of Lake, GRANTS plaintiff leave to amend, and DENIES AS MOOT

4 Defendant Brown’s Motion to Strike. See Dkt. No. 24 (Defendant Brown’s Reply to □□□□□□□□□□□

5 Opposition) at 2 (“[T]he motion is now moot on its merits.”). Plaintiff has thirty days from the date

6 of this order to submit an amended complaint.

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8 IT IS SO ORDERED.

9 Dated: August 17, 2021 Site WU tee

10

SUSAN ILLSTON

11 United States District Judge

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