Opinion

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5 United States District Court

6 Central District of California

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9 VERONICA GARCIA, an Individual,

Case No. 2:18-cv-0417-ODW (JPR)

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Plaintiff,

11 v. ORDER DENYING PLAINTIFF’S

12 MOTION TO REMAND [18] AND

CONSOLIDATED DISPOSAL GRANTING DEFENDANT CORY

13 SERVICES, L.L.C., a Delaware LLC; LEWIS’S MOTION TO DISMISS [14]

14 CORY LEWIS, an Individual; and

Does 1–25, Inclusive

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16 Defendants.

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20 I. INTRODUCTION

21 Plaintiff Veronica Garcia (“Garcia”) brought this action in Los Angeles County

22 Superior Court against Defendants Consolidated Disposal Services, LLC

23 (“Consolidated”) and Cory Lewis (“Lewis”) (collectively, “Defendants”), alleging

24 various employment and termination related state law claims. (Compl., ECF No. 1-1.)

25 Defendants removed the case to this Court, arguing that there is no legitimate basis for

26 the joinder of Lewis, the only California Defendant. (Notice of Removal (“Not.

27 Removal”) ¶¶ 17–27, ECF No. 1.) Additionally, Lewis moved to dismiss Garcia’s

28 claims against him for intentional infliction of emotional distress (“IIED”) and

1 negligent infliction of emotional distress (“NIED”). (Mot. Dismiss, ECF No. 14.)

2 Garcia opposes Lewis’s Motion and moves to remand the case, arguing that complete

3 diversity under 28 U.S.C. § 1332 does not exist because Lewis was not fraudulently

4 joined. (Garcia Opp’n Mot. Dismiss, ECF No. 20; Mot. Remand, ECF No. 18.)

5 For the reasons discussed below, the Court finds that Garcia’s claims against

6 Lewis fail as a matter of law. Therefore, the Court DENIES Garcia’s Motion to

7 Remand (ECF No. 18) and GRANTS Defendants’ Motion to Dismiss Garcia’s claims

8 against Lewis (ECF No. 14).1

9 II. BACKGROUND

10 A. Factual Background

11 Garcia’s claims arise from the termination of her employment with

12 Consolidated. (See generally Compl.) On November 22, 2017, Garcia filed this

13 action in state court, asserting eleven causes of action. (Compl. at 1.) Two of these

14 claims, IIED, and NIED, are against Lewis, Garcia’s former manager at Consolidated.

15 (Id. ¶¶ 24–30.) Garcia is a citizen of California; Consolidated is a Delaware

16 corporation, with its principal place of business in Phoenix, Arizona; and Lewis is a

17 citizen of California. (Id. ¶¶ 1, 3, 13–16.)

18 In August 2007, Garcia began working for Consolidated as a Customer

19 Resource Representative. (Id. ¶ 8.) Garcia alleges she was a diligent employee during

20 her time at Consolidated. (Id.) She claims that her yearly performance evaluations

21 were positive, and that she won numerous awards for her job performance. (Id.) In

22 2015, Consolidated notified Garcia that it was merging with another call center and

23 she might be laid off. (Id. ¶ 9.) Allegedly, Consolidated “promised that she would be

24 provided with 16-week’s severance if she was laid off, amounting to approximately

25 $11,180.80, plus an additional lump sum for health benefits.” (Id.) In the months

26 following, Consolidated implemented stricter productivity standards, forcing Garcia to

27 regularly work off-the-clock. (Id. ¶ 10.)

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1 After considering the papers filed in connection with the Motion, the Court deemed the matter

appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15.

1 In February 2017, Garcia’s manager, Lewis, called Garcia into his office to

2 discuss customer service phone calls that she had missed. (Id. ¶ 11.) Garcia informed

3 Lewis that the missed phone calls were a result of the company’s aggressive

4 productivity standards. (Id.) Lewis indicated that other employees, himself included,

5 also missed phone calls and advised Garcia that “he did not know what Human

6 Resources would do in this situation.” (Id.) Later that week, Garcia heard from other

7 employees that she was going to be fired, and she reached out to Lewis for

8 confirmation. (Id. ¶ 12.) In response, Lewis called Garcia into his office and

9 requested that she draft a resignation letter. (Id. ¶ 13.) He allegedly told Garcia “it

10 was best for her to resign so that it would look better to future employers and that

11 [Consolidated] would not have to explain the purported reasons for [Garcia’s]

12 termination to future prospective employers seeking a reference.” (Id. ¶ 13.). Garcia

13 claims that she asked for time to think about the decision, but that Lewis made her feel

14 like she could not leave his office—insisting that she resign immediately. (Id.)

15 Ultimately, Garcia drafted the resignation letter in Lewis’s office. (Id.) “The

16 letter states …that she was ‘pushed to resign,’ [] she disagreed with the way that

17 [Consolidated] was treating her[,] and that she felt ‘humiliated.’” (Id.) Garcia claims

18 that Defendants’ reason for firing her were pretextual and that the real reason for

19 pressuring her to “voluntarily resign” was to deny her the severance pay she was

20 promised. (Id. ¶ 14.) According to Garcia, Defendants’ high productivity standards

21 and “unfair treatment” caused her to suffer extreme humiliation, depression, anxiety,

22 and mental distress. (See id. ¶¶ 17, 26, 30.)

23 B. Procedural History

24 On November 22, 2017, Garcia filed this action in state court (See id.)

25 Defendants removed the action on January 18, 2018, claiming diversity jurisdiction

26 under 28 U.S.C. § 1332. (Not. Removal ¶ 1.) On February 16, 2018, Garcia moved to

27 remand. (See Mot. Remand.) Defendants timely opposed and filed a motion to

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1 dismiss both claims against Lewis. (Defendants’ Opp’n Mot. Remand, ECF No. 21;

2 Mot. Dismiss.) These Motions are now before the Court for decision.

3 III. LEGAL STANDARDS

4 A. Removal

5 Federal courts are courts of limited jurisdiction, having subject-matter

6 jurisdiction only over matters authorized by the Constitution and Congress. See U.S.

7 Const. art. III, § 2, cl. 1; Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

8 377 (1994). A suit filed in state court may be removed to federal court if the federal

9 court would have had original jurisdiction over the suit. 28 U.S.C. § 1441(a). Federal

10 courts have original jurisdiction where an action presents a federal question under 28

11 U.S.C. § 1331, or diversity of citizenship under 28 U.S.C. § 1332. To exercise

12 diversity jurisdiction, a federal court must find complete diversity of citizenship

13 among the adverse parties and the amount in controversy must exceed $75,000,

14 usually exclusive of interest and costs. 28 U.S.C. § 1332(a).

15 Courts strictly construe the removal statute against removal jurisdiction. Gaus

16 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662,

17 663 (9th Cir. 1988)). “Federal jurisdiction must be rejected if there is any doubt as to

18 the right of removal in the first instance.” Gaus, 980 F.2d at 566. The party seeking

19 removal bears the burden of establishing federal jurisdiction. Durham v. Lockheed

20 Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (citing Gaus, 980 F.2d at 566).

21 B. Fraudulent Joinder

22 Removal based on a court’s diversity jurisdiction is proper, despite the presence

23 of a non-diverse defendant, where that defendant is fraudulently joined—also known

24 as a sham defendant. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

25 Defendants claiming fraudulent joinder must “have the opportunity prove that

26 individuals joined in the action cannot be liable on any theory.” See Ritchey v.

27 Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). “If the plaintiff fails to state a

28 cause of action against the [non-diverse] defendant, and the failure is obvious

1 according to the settled rules of the state,” the joinder is considered fraudulent, and the

2 party’s citizenship is disregarded for purposes of diversity jurisdiction. Hamilton

3 Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) (quoting

4 McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)).

5 However, “[i]f there is a non-fanciful possibility that plaintiff can state a claim

6 under [state] law against the non-diverse defendant[,] the court must remand.”

7 Hamilton Materials, 494 F.3d at 1206; see also Good v. Prudential Ins. Co. of Am., 5

8 F. Supp. 2d 804, 807 (N.D. Cal. 1998) (“The defendant must demonstrate that there is

9 no possibility that the plaintiff will be able to establish a cause of action in State court

10 against the alleged sham defendant.”). Given this standard, “[t]here is a presumption

11 against finding fraudulent joinder, and defendants who assert that a plaintiff has

12 fraudulently joined a party carry a heavy burden of persuasion.” Plute v. Roadway

13 Package Sys., Inc., 141 F. Supp. 2d 1005, 1008 (N.D. Cal. 2001). “Fraudulent joinder

14 must be proven by clear and convincing evidence.” Hamilton Materials, 494 F.3d at

15 1206 (citing Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998)).

16 C. Dismissal for Failure to State a Claim

17 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint.

18 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering a motion to

19 dismiss for failure to state a claim, “the court must accept as true all factual allegations

20 in the complaint, as well as all reasonable inferences that may be drawn from such

21 allegations.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n. 2 (9th Cit. 2000). All such

22 allegations are to be construed in the light most favorable to the nonmoving party.

23 Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). “In general, the court

24 should only look to the contents of the complaint during its review of a Rule 12(b)(6)

25 motion to dismiss. However, the court may consider documents attached to the

26 complaint or referred to in the complaint whose authenticity no party questions.”

27 World Chess Museum, Inc. v. World Chess Fed’n, Inc., No. 2:13-cv-00345-RCJ-

28 GWF, 2013 WL 5663091, at *1 (D. Nev. Oct. 15, 2013).

1 IV. DISCUSSION

2 Defendants contend that Garcia fraudulently joined Lewis to destroy diversity

3 jurisdiction and that her claims against Lewis fail as a matter of law. (Not. Removal

4 ¶¶ 17–27.) For these reasons, Defendants request that this Court deny Garcia’ Motion

5 to Remand and grant their Motion for Dismiss Garcia’s IIED and NIED claims against

6 Lewis. (See Defendants’ Opp’n Mot. Remand; Mot. Dismiss.) The Court will

7 address each Motion in turn.

8 A. Garcia’s Motion to Remand

9 When assessing fraudulent joinder, a court may pierce the pleadings to

10 determine whether a plaintiff has a plausible claim against the non-diverse defendant.

11 Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir 2001). Here, even

12 upon reviewing the facts in the light most favorable to Garcia, the Court finds that

13 Garcia does not have legitimate claims against Lewis. See Good, 5 F. Supp. 2d at

14 807.

15 1. IIED Claim

16 Under a theory of IIED, a plaintiff must prove: “(1) extreme and outrageous

17 conduct by the defendant with the intention of causing, or reckless disregard of the

18 probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme

19 emotional distress; and (3) the plaintiff’s injuries were actually and proximately

20 caused by the defendant’s outrageous conduct.” Cochran v. Cochran, 65 Cal. App.

21 4th 488, 494 (1988). Further, the conduct of the defendant must be “so extreme as to

22 exceed all bounds of that usually tolerated in a civilized society.” Id.

23 i. California Workers’ Compensation Act

24 The Court first addresses whether Garcia’s IIED claim against Lewis is barred

25 by the California Workers’ Compensation Act (“WCA”). “The WCA provides the

26 exclusive means of remedy for employee’s injuries ‘arising out of and in the course of

27 … employment.’” Vanderhule v. Amerisource Bergen Drug Corp., No. SACV 16-

28 2104 JVS (JCGx), 2017 WL 168911, at *3 (C.D. Cal. Jan. 17, 2017) (quoting Cal.

1 Labor Code § 3600(a)). Under the WCA, “employees are entitled to compensation for

2 injuries caused by their employment only in proceedings before the Worker’s

3 Compensation Appeals Board.” Corona v. Quad Graphics Printing Corp., 218 F.

4 Supp. 3d 1068, 1072 (C.D. Cal. 2016). In “exceptional circumstances,” an employee

5 may bring a separate civil action when an employer’s conduct falls outside the normal

6 risk of employment, also known as the “compensation bargain.” Charles J. Vacanti,

7 M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 811–12 (2001). “There is no

8 bright line test in determining what behavior is part of the employment relationship or

9 reasonably encompassed within the compensation bargain. Nevertheless, district

10 courts must resolve ambiguities in the controlling state law in favor of the non-

11 removing party when evaluating fraudulent joinder.” Onelum, 948 F. Supp. 2d at

12 1055 (quoting Calero v. Unisys Corp., 271 F.Supp.2d 1172, 1181 (N.D. Cal. 2003)).

13 “Generally, claims for emotional distress caused by the employer’s conduct,

14 causing distress such as ‘discharge, demotion, discipline or criticism’ are preempted

15 by the WCA.” Onelum v. Best Buy Stores L.P., 948 F. Supp. 2d 1048, 1054 (C.D.

16 Cal. 2013) (quoting Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1099 (1992)). “Such

17 distress, whether intentional or negligent conduct on the part of the employer, is

18 considered ‘part of the normal risk of employment’ and hence subject to the exclusive

19 remedies of the workers’ compensation laws.” Onelum, 948 F. Supp. 2d at 1054

20 (quoting Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800,

21 814–15 (2001)). Indeed, the WPA generally preempts an employee’s IIED claim

22 unless it “exceed[s] the normal risks of the employment.” Corona, 218 F. Supp. 3d at

23 1073 (quoting Fretland v. County of Humboldt, 69 Cal. App. 4th 1478, 1492 (1999).

24 The phrase “normal part of the employment relationship,” however, does not

25 encompass all conduct that occurs on the job. Onelum, 948 F. Supp. 2d at 1054

26 (quoting Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 160 (1987)). “To be

27 within the scope of employment, the incident must be inherent in the workplace, or

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1 typical of or broadly incidental to the employer’s enterprise.” Torres v. Parkhouse

2 Tire Serv., Inc., 26 Cal. 4th 995, 1008 (2001).

3 “Liability for [IIED] ‘does not extend to mere insults, indignities, threats,

4 annoyances, petty oppressions, or other trivialities.’” Light v. Cal. Dept. of Parks and

5 Recreation, 14 Cal. App. 5th 75, 101 (Ct. App. 2017) (quoting Hughes v. Pair, 46 Cal.

6 4th 1035, 1051 (2009)). A retaliatory motive alone is insufficient to sustain a claim

7 for IIED. Light, 14 Cal. App. 5th at 101. Even “misconduct” that “may be

8 characterized as intentional, unfair, or outrageous” may constitute a “normal part of

9 the working relationship” and not lie outside the proper scope of the WCA. Livitsanos

10 v. Superior Court, 2 Cal. 4th 744, 752 (1992).

“In sum, where the employee suffers annoyance or upset on account of

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the employer’s conduct but is not disabled, does not require medical

12 care, and the employer’s conduct neither contravenes fundamental

13 public policy nor exceeds the inherent risks of the employment, the

injury will simply not have resulted in any occupational impairment

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compensable under the workers’ compensation law or remediable by

15 way of a civil action.”

16 Id. However, courts have found that IIED claims are not preempted by the WCA

17 when they involve separate discrimination claims based on an employee’s physical

18 disability, race, or sexual orientation. See Vanderhule., JVS (JCGx), 2017 WL

19 168911, at *4 (citing cases).

20 Here, Garcia’s claims for emotional distress are not based on discrimination,

21 harassment, or retaliation. (See Compl. ¶¶ 6–17, 24–30.) Without allegations of such

22 conduct, Lewis’s actions fall squarely within the exclusivity provision of the WCA

23 because, as discussed in depth below, they consist of personnel management decisions

24 performed in the normal course of employment.

25 Garcia points to several cases to argue that Lewis’s actions are outside the

26 normal course of employment; however, each case proffered is inapplicable because it

27 either deals with corporate liability, or contains allegations of discrimination,

28 harassment, or retaliation. (See Mot. Remand 11–14). In reviewing these cases,

1 Garcia’s allegations fall short of the same discriminatory, harassing, or retaliatory

2 behavior that courts require to bring an individual supervisor’s conduct outside the

3 normal course of employment. For example, Garcia cites to Livitsanos to argue that

4 her emotional distress claim should not be preempted by the WCA because Lewis’s

5 conduct “contravenes fundamental public policy.” 2 Cal. 4th at 754; (see Mot.

6 Remand 17.) However, this exception has since been clarified by the California

7 Supreme Court. See Thomas v. Starz Entm’t LLC, No. 2:15-cv-09239-CAS (MRWx),

8 2016 WL 844799, at *8 (C.D. Cal. Feb. 29, 2016) (citing Miklosy v. Regents of Univ.

9 of California, 44 Cal. 4th 876, 902–03 (2008). The California Supreme Court

10 explained that this exception “was merely intended to permit the filing of an action for

11 wrongful discharge in violation of public policy, notwithstanding the provisions of the

12 Worker’s Compensation Act.” Id. Therefore, the “fundamental public policy”

13 exception has been limited to wrongful discharge actions and does not apply in this

14 case. See Smith v. Lowe’s Hiw, Inc., No. 2:13-CV-1713 WBS AC, 2014 WL

15 1419655, at *6 (E.D. Cal. Apr. 14, 2014) (“[T]he exception for conduct that

16 ‘contravenes fundamental public policy’ simply means that a wrongful termination

17 claim is not preempted by the worker’s compensation exclusive remedy rule (but the

18 intentional infliction of emotional distress claim is).” Therefore, Lewis may not be

19 held personally liable because Garcia’s IIED cause of action is barred by the

20 exclusivity provision of the WCA.

21 ii. Extreme and Outrageous Conduct

22 Even if Garcia’s allegations were not preempted by the WCA, she must still

23 plead a prima facie IIED claim to demonstrate that the cause of action against Lewis is

24 non-fanciful. See Hamilton Materials, 494 F.3d at 1206. Defendants argue that

25 Garcia’s allegations fall short of the extreme and outrageous standards required to

26 support an IIED claim because Garcia’s claims are based on Lewis’s non-actionable

27 personnel decisions. (Defendants’ Opp’n Mot. Remand 3–5.) The Court agrees.

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1 “Managing personnel is not outrageous conduct beyond the bounds of human

2 decency.” See Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996). “A

3 simple pleading of personnel management activity is insufficient to support a claim of

4 [IIED], even if improper motive is alleged.” Id. If personnel management decisions

5 are improperly motivated, the proper remedy is a suit against the employer for

6 discrimination. Id. As stated above, “[t]he emotional distress caused by an

7 employer’s unfavorable supervisory decisions … is a normal part of the employment

8 relationship, even when the distress results from an employer’s conduct that is

9 intentional, unfair, or outrageous.” Phillips v. Gemini Moving Specialists, 63 Cal.

10 App. 4th 563, 577 (1998).

11 Here, Defendants argue that Lewis was carrying out the directions of

12 Consolidated to terminate Garcia, acting only as a “messenger” with the intent to

13 benefit Consolidated. (Defendants’ Opp’n Mot. Remand 4.) In her Complaint, Garcia

14 agrees that Lewis was acting within the scope of his duty for Consolidated. (See

15 Compl. ¶ 5) In fact, Lewis told Garcia that he was unsure of what actions would be

16 taken by Consolidated or its human resource department regarding Garcia’s future

17 employment. (Id. ¶ 11.) Garcia fails to address this argument in her reply. (See

18 Garcia Reply Mot. Remand, ECF No. 23.)

19 Further, Garcia’s pleadings aver that the majority of the wrongful conduct was

20 by Consolidated, not Lewis. (See Compl. ¶¶ 6–17, 24–30.) Consolidated is the party

21 responsible for setting Garcia’s employment standards, and the human resource

22 department allegedly made the decision to terminate Garcia. (Id. ¶¶ 10–11.) Garcia

23 acknowledges that she did, in fact, miss calls and, therefore, the purported reasons for

24 her termination were not fabricated. (See id. ¶ 11.) Moreover, the majority, if not all,

25 of Lewis’s alleged misconduct relate to his efforts to discipline, and ultimately fire,

26 Garcia. (See id.) Therefore, Garcia’s claim for emotional distress is based solely on

27 conduct that forms a normal part of the employment relationship. See Langevin v.

28 Fed. Exp. Corp., No. CV 14-08105 MMM (FFMx), 2015 WL 1006367, at *13 (C.D.

1 Cal. Mar. 6, 2015) (finding that conduct alleged by plaintiff formed “an inherent part

2 of a typical employment relationship” where “the false write-ups, discipline,

3 demotion, and humiliation he allegedly suffered all occurred at the jobsite and

4 affected generally recognized aspects of the normal employment relationship”).

5 Lastly, although Garcia argues that Lewis maliciously threatened her, the

6 Complaint is not clear that such a threat ever took place. Garcia claims that Lewis

7 told her “it was best for her to resign so that it would look better to future employers

8 and that [Consolidated] would not have to explain the purported reasons for [her]

9 termination to future prospective employers seeking a reference.” (Compl. ¶ 13.)

10 This allegation is far from the necessary conduct required to sustain a claim for IIED

11 and falls squarely in the realm of personnel management decisions. See Sherman v.

12 Hertz Equip. Rental Corp., No. SACV 10-1540 DOC, 2001 WL 317985, at*2 (C.D.

13 Jan. 28, 2011) (dismissing IIED claims against individual defendants with prejudice,

14 finding “the single act of terminating an employee does not meet the standard for

15 extreme and outrageous conduct as required to trigger liability for IIED). Even

16 terminations for improper motive do not suffice to state a claim under this theory. See

17 Taylor v. FedEx Freight, Inc., No. 1:16-CV-0438-BAM, 2017 WL 4022757, at *10

18 (E.D. Cal. Sept. 12, 2017) (finding that emotional distress that stems from an

19 employer’s unfavorable supervisory decisions “is a normal part of the employment

20 relationship” and insufficient to sustain an IIED claim, even though plaintiff was

21 scrutinized more closely than other employees, disciplined unfairly, transferred out of

22 state, and eventually terminated). Therefore, the allegations in the Complaint, even

23 taken as true, do not rise to a sufficient level of indecency to state a claim for IIED.

24 See Restatement (Second) of Torts § 46 (1965).

25 Although Garcia has failed to allege sufficient facts to support her IIED claim,

26 the Court must consider whether, under California law, she should be given leave to

27 amend. See Olguin v. Int’l Paper Co., No. CV 16-01865-AB (Ex), 2016 WL

28 1643722, at *4 (C.D. Cal. Apr. 26, 2016). Courts generally allow a plaintiff to amend

1 the complaint to assert additional facts if it is possible that its deficiencies could be

2 cured by amendment. Id. However, leave to amend a complaint need not be granted

3 when the defect is not curable. See Greene v. WCI Holdings Corp., 956 F. Supp. 509,

4 515 (S.D.N.Y. 1997), aff’d, 136 F.3d 313 (2d Cir. 1998) (dismissing plaintiff’s claim

5 where granting a leave to amend would not serve any purpose). Here, because

6 Garcia’s IIED claim is preempted by the exclusivity provision of the WCA, an

7 amendment would serve no purpose and is unwarranted. Therefore, Garcia’s IIED

8 claim against Lewis fails as a matter of law, and Lewis cannot be held individually

9 liable for his supervisory conduct.

10 2. NIED

11 Alternatively, Garcia brings a cause of action against Lewis for NIED. (Compl.

12 ¶¶ 28–30.) In California, NIED is not truly “an independent tort but the tort of

13 negligence to which the traditional elements of duty, breach of duty, causation, and

14 damages apply.” Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1377 (2010). In order to

15 state a claim for NIED, Plaintiffs must point to “negligent conduct that fundamentally

16 caused the harm.” Hattox, 2013 WL 314953, at *8 (quoting Tu v. UCSD Med. Ctr.,

17 201 F. Supp. 2d 1126, 1131 (S.D. Cal. 2002)). While plaintiffs may plead alternative

18 theories, “where the conduct is intentional, it cannot be used as the basis for a [NIED]

19 claim.” Edwards v. U.S. Fid. & Guar. Co., 848 F. Supp. 1460, 1466 (N.D. Cal.1994),

20 aff’d, 74 F.3d 1245 (9th Cir. 1996).

21 Here, Garcia’s NIED claim is based solely on allegations regarding the

22 termination of her employment. (See Compl.) “In the context of employment

23 decisions, courts have recognized that such decisions are inherently intentional.” U.S.

24 ex rel. Knapp v. Calibre Sys., Inc., No. CV 10-4466 ODW (JCGx), 2011 WL

25 3204454, at *1 (C.D. Cal. July 25, 2011) (citing Cole, 43 Cal.3d at 160–61).

26 However, Garcia argues that it is possible that Lewis may learn that he negligently

27 “coerced” Garcia into signing a resignation letter and “maliciously” denied Garcia

28 unemployment benefits. (Garcia Reply Mot. Remand 8.) The Court disagrees.

1 Terminating an employee or asking an employee to draft a resignation letter is

2 inherently intentional conduct and, therefore, cannot serve as the basis for Garcia’s

3 NIED claim. See Fragada v. United Airlines, Inc., No. CV 16-3914-MWF (JPRx),

4 2017 WL 4586933, at *9 (C.D. Cal. June 13, 2017) (“Intentional conduct, such as a

5 termination decision, cannot logically support a claim for negligence.”); see also

6 Semore v. Pool, 217 Cal. App. 3d 1087, 1105 (Ct. App. 1990) (“It is clear however,

7 that there was no duty not to discharge defendants and that any actions by the

8 employer were intentional, not negligent.”) Therefore, the Court finds that Garcia

9 does not state a plausible claim of NIED against Lewis.

10 Furthermore, the Court finds that Garcia’s NIED claim is also barred by the

11 exclusivity provision of the WCA because “dismissal from employment … is

12 considered an ordinary risk of the employment relationship. See Adjian v. JP Morgan

13 Chase Bank, N.A., No. CV 14-8445 DMG (AJWx), 2015 WL 13660480, at *9 (C.D.

14 Cal. Oct. 9, 2015) (finding that plaintiff’s NIED claim was preempted by the WCA

15 because his emotional distress stemmed from his termination and no workplace

16 discrimination was alleged); Robomatic, Inc., v. Vetco Offshore, 225 Cal. App. 3d

17 270, 274 (Ct. App. 1990) (“[A]n action for [NIED] resulting from employment

18 dismissal is barred by the workers’ compensation exclusivity rule.”).

19 Therefore, this Court has diversity jurisdiction under 28 U.S.C. § 1332 because

20 Garcia does not state plausible claims against Lewis and his citizenship may be

21 disregarded. See Hamilton Materials, 494 F.3d at 1206. Accordingly, the Court

22 DENIES Garcia’s Motion to Remand.

23 3. Lewis’s Motion to Dismiss

24 Finally, Lewis moves for dismissal under Rule 12(b)(6) on all claims asserted

25 against him by Garcia. (See Mot. Dismiss.) As discussed above, both of Garcia’s

26 claims against Lewis fail as a matter of law because they are subject to WCA’s

27 exclusivity provision. For this reason, Garcia fails to sufficiently plead plausible

28 claims for IIED and NIED against Lewis, and the defects in the pleadings cannot be

1 | cured by amendment. See Greene, 956 F. Supp. at 515 (S.D.N.Y. 1997). The Court,

2 || therefore, GRANTS Lewis’s Motion to Dismiss. (ECF No. 14.)

3] //

4 | ///

5 | ///

6 V. CONCLUSION

7 For the reasons discussed above, the Court DENIES Garcia’s Motion to

8 || Remand (ECF No. 18) and GRANTS Lewis’s Motion to Dismiss for Failure to State

9 | a Claim (ECF No. 14).

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11 IT IS SO ORDERED.

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13 May 14, 2018

14 YY

16 OTIS D. WRIGHT, II

4 UNITED STATES DISTRICT JUDGE

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