# Flesch v. County of Lake > District Court, N.D. California · December 16, 2021 URL: https://www.frixlaw.com/law-library/cases/10069873 ## Case - **Court:** District Court, N.D. California - **Decided:** December 16, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10069873 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL G. FLESCH, Case No. 21-cv-02018-SI 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT'S MOTION TO DISMISS 10 COUNTY OF LAKE, et al., Re: Dkt. No. 54 11 Defendants. 12 13 Before the Court is defendant County of Lake’s motion to dismiss plaintiff’s first amended 14 complaint, specifically, the following claims: Religious Discrimination under Title VII (First 15 Claim), Whistleblower Retaliation under California Labor Code § 1102.5 (Third Claim), Retaliation 16 for First Amendment Speech Exercise – 18 U.S.C. § 1983 (Fourth and Fifth Claims), Religious 17 Discrimination under FEHA (Sixth Claim), and Religious Harassment under FEHA (Eighth Claim). 18 Dkt. No. 54. Based on the pleadings and the arguments raised in the parties’ respective briefing 19 papers, the Court finds the motion appropriate for resolution without oral argument and hereby 20 VACATES the hearing set for December 17, 2021 per Local Rule 7-1(b). 21 For the claims of Religious Discrimination under Title VII (First Claim), Retaliation for First 22 Amendment Speech Exercise (Fourth and Fifth Claims), Religious Discrimination under FEHA 23 (Sixth Claim), and Religious Harassment under FEHA (Eighth Claim), the Court finds the FAC has 24 alleged adequate facts to plausibly raise the right of relief above a speculative level, Bell Atl. Corp. 25 v. Twombly, 550 U.S. 544, 570 (2007), and hereby DENIES defendant’s motion as it pertains to 26 those claims. 27 However, the Court will GRANT defendant’s motion as it pertains to the claim of 1 Act (the “Act”), before filing a state law claim for “money or damages” against a public entity,1 a 2 claimant must present a “written claim” to the board of supervisors of the public entity. Cal. Govt. 3 Code § 945.4. The Act applies here and provides: 4 (a) A claim…shall be presented to a local public entity by any of the following means: 5 (1) Delivering it to the clerk, secretary, or auditor thereof. 6 (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal 7 office. 8 (3) If expressly authorized … submitting it electronically to the public entity … . 9 Cal. Govt. Code § 915(a)(1). Defendant is correct that the FAC is devoid of facts that would permit 10 the Court to infer compliance with the Act’s claim-filing rule. Subsequent documents filed by 11 plaintiff in a declaration suggest plaintiff filed his claims with the proper clerk. Dkt. No. 59-1, Exs. 12 13 A, B (Claim form directed to “Clerk of the Board” and received on February 5, 2019). However, 14 even if the Court were permitted to consider materials outside the pleadings in a motion to dismiss,2 15 without further information the Court cannot determine whether plaintiff complied with Cal. Govt. 16 Code § 945.6(a). That code section requires that lawsuits subject to the claim-presentation 17 requirement be brought within six months of when the public entity issues a written notice either 18 acting upon or denying the complaint, or if no written notice is sent, within two years of the accrual 19 of the cause of action. Willis v. City of Carlsbad, 48 Cal.App.5th 1104, 1119 (2020) (“The deadline 20 21 for bringing a lawsuit against the public entity after a claim has been acted upon or deemed denied 22 ‘is a true statute of limitations.’”). The complaint does not allege what response, if any, the public 23 24 25 1 FEHA claims are exempt. Snipes v. City of Bakersfield, 145 Cal.App.3d 861, 865 (1983). 26 2 Typically, courts may not consider documents outside of the pleadings when deciding factual sufficiency under Rule 12(b)(6). United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). However, when 27 a plaintiff incorporates documents “by reference” into a complaint and “refers extensively to the document or the document forms the basis of the plaintiff’s claim,” the court may look to the extrinsic documents. Id. 1 entity provided, or when. Accordingly, on the present pleadings the Court cannot determine whether 2 || this claim is timely brought. Therefore, the Court dismisses the claims with leave to amend to detail 3 || plaintiff's compliance with the Act. Any amended complaint must _be filed on or before 4 || December 21, 2021. 5 6 5 IT IS SO ORDERED. Dated: December 16, 2021 Sate WU tee ? SUSAN ILLSTON 10 United States District Judge 11 a 12 13 14 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10069873. Public record. Not legal advice.