Free Order on Motion to Strike - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 SONDRA BOONE, vs. Plaintiff, CASE NO. 08-CV-0634 W (AJB) ORDER (1) GRANTING-INPART and DENYING-IN-PART DEFENDANTS' MOTION TO DISMISS, (Doc. Nos. 5, 9); (2) GRANTING-IN-PART and DENYING-IN-PART DEFENDANTS' MOTION TO STRIKE (Doc. Nos. 4, 8) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CARLSBAD COMMUNITY CHURCH, TOM WOOD, DICK LEE, FRANCISCO MESQUITA and DOES 1-20,

Defendants. On April 8, 2008 Defendants Carlsbad Community Church (the "Church"), Tom

19 Wood ("Wood"), Dick Lee ("Lee") and Francisco Mesquita ("Mesquita") (collectively, 20 "Defendants") removed this action from San Diego Superior Court to the Southern 21 District of California. (Doc. No. 1.) Plaintiff Sondra Boone ("Plaintiff" or "Boone") 22 alleges that Defendants violated various federal, state and common laws prohibiting job 23 discrimination and harassment and tortiously defamed and subjected Plaintiff to 24 emotional distress. (Notice of Removal, Ex. D [hereinafter FAC].) On April 11, 2008 25 Defendants moved to dismiss Plaintiff's suit under Federal Rule of Civil Procedure 1 26 12(b)(6) for failure to state a claim. (Doc. No. 5.) The same day, Defendants also 27 28
Unless otherwise specified, all future references to "Rule" will be to the Federal Rules of Civil Procedure.
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1 moved to strike under Rule 12(f) certain claims and allegations in Plaintiff's First 2 Amended Complaint ("FAC"). The Court takes both matters under submission and 3 without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the following reasons, the 4 Court GRANTS-IN-PART and DENIES-IN-PART Defendants' motion to dismiss 5 under Rule 12(b)(6) and GRANTS-IN-PART and DENIES-IN-PART Defendants' 6 motion to strike under Rule 12(f). 7 8 I. 9 BACKGROUND Plaintiff Sondra Boone is a sixty-one year old resident of San Diego County.

10 (FAC ¶¶ 1, 9.) Defendant Carlsbad Community Church is a church located in San 11 Diego. (Id. ¶ 2.) Defendants Tom Wood, Dick Lee, and Francisco Mesquita are or 12 were employed at the Church in various capacities. (Id. ¶¶ 3, 4.) 13 In September 1987, the Church hired Boone as a Data Base Specialist. (Id. ¶¶ 9, 14 10.) Some time later, the Church promoted Boone to Administrative Assistant to the 15 Senior Pastor, though Boone has never held any position germane to the religious 16 functioning of the Church. (Id. ¶¶ 10, 11.) 17 Boone alleges that at various times throughout her employment, supervisor Doug 18 Bosler ("Bosler") subjected her and others to abusive and threatening behavior. (Id. 19 ¶ 12.) Boone also alleges that all Defendants discriminated against her on the basis of 20 her age and gender. (Id. ¶¶ 13, 14.) 21 On September 1, 2006 Boone and four other female employees were allegedly left 22 alone in the Church office. (Id. ¶ 15.) Boone contends that the group felt unsafe 23 because indigent visitors frequently came to the Church office seeking assistance. (Id. 24 ¶ 16.) On September 4, 2006 Boone allegedly submitted a written complaint regarding 25 her safety concerns to Senior Pastor Charles Youngkin ("Youngkin") and to the Board 26 of Elders (the "Board"). (Id. ¶ 17.) 27 On September 8, 2006 Bosler allegedly threatened, harassed, and physically 28 intimidated Boone for complaining to Youngkin and the Board. (Id. ¶ 19.) The same
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1 day, Boone submitted another complaint regarding Bosler's threatening behavior. (FAC 2 ¶ 21.) Boone alleges that the Church took no immediate action to address any of her 3 complaints submitted to date. (Id. ¶ 22.) 4 In January 2007, the Church hired Defendant Mesquita as Pastor of 5 Administration. (Id. ¶ 23.) Due to the nature of Plaintiff's job, Boone allegedly came 6 across information suggesting that Mesquita and Defendant Lee, the Church treasurer, 7 were misusing Church funds. (Id. ¶¶ 24, 25.) 8 On March 19, 2007 the Church Administration Ministry Team discussed 9 investigating possible financial improprieties within the Church. (Id. ¶ 26.) Although 10 Boone supported the investigation and wished to discuss her suspicions regarding 11 Mesquita and Lee, Youngkin allegedly became angry at Boone's enthusiasm. (Id. ¶¶ 28, 12 29.) Boone was allegedly intimidated by Youngkin and fearful for her safety. (Id. ¶ 29.) 13 On April 22, 2007 the Church began an official investigation into financial 14 improprieties as they related to Church funds. (Id. ¶ 30.) The investigative team made 15 it clear that they intended to interview all administrative staff members, including 16 Boone. (Id. ¶ 31.) On April 23, 2007, prior to Boone being interviewed, Defendants 17 Mesquita and Wood terminated Boone's employment with the Church. (Id. ¶ 33.) 18 On April 25, 2007 and on other dates thereafter Mesquita allegedly falsely told 19 Church employees that Boone broke into the Church and destroyed her former work 20 computer. (Id. ¶ 34, 35.) On August 26, 2007 Defendant Lee allegedly sent an email 21 to Paula Padilla, a member of the community, stating that Boone was fired because she 22 "[h]ad done things that were evil and absolutely despicable." (Id. ¶ 36.) On September 23 1, 2007 Defendant Wood allegedly called Carol Nave, a member of the community, and 24 stated that Boone was fired because she did "grievous acts." (Id. ¶ 37.) On September 25 3, 2007 Defendant Wood allegedly stated to Clyde Cobb, a member of the community, 26 that Boone was fired because she had done "[e]vil things." (Id. ¶ 38.) Boone alleges 27 that these types of statements continue to this day. (Id. ¶ 39.) 28 In this suit, Boone alleges that Defendants violated various federal, state and
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1 common laws prohibiting job discrimination and harassment and tortiously defamed and 2 subjected Plaintiff to emotional distress.2 (See generally FAC.) On April 8, 2008 3 Defendants Church, Wood, Lee and Mesquita removed this action from San Diego 4 Superior Court to the Southern District of California. (Doc. No. 1.) On April 11, 2008 5 Defendants moved to dismiss Boone's suit under Rule 12(b)(6) for failure to state a 6 claim. (Doc. No. 5.) The same day, Defendants also moved to strike under Rule 12(f) 7 certain claims and allegations in Boone's FAC. On May 13, 2008 Boone opposed both 8 motions. (Doc. Nos. 10, 11.) On May 19, 2008 Defendants filed their Reply briefs. 9 (Doc. Nos. 13, 14.) This Order shall resolve both pending motions. 10 11 II. 12 13 LEGAL STANDARDS A. Rule 12(b)(6): Motion to Dismiss For Failure to State A Claim The Court must dismiss a cause of action for failure to state a claim upon which

14 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 15 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. 16 Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, 17 "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth 18 of all factual allegations and must "construe them in the light most favorable to the 19 nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also 20 Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996). 21 As the Supreme Court recently explained, "While a complaint attacked by a Rule 22 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's 23 obligation to provide the `grounds' of his `entitlement to relief' requires more than labels 24 and conclusions, and a formulaic recitation of the elements of a cause of action will not 25 do." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). Instead, the 26 allegations in the complaint "must be enough to raise a right to relief above the 27 28
It appears that, as required, Boone properly exhausted her state and federal administrative remedies before filing suit. (FAC Ex. A; Ex. B.)
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1 speculative level." Bell Atlantic, 127 S. Ct. at 1964­65. A complaint may be dismissed 2 as a matter of law either for lack of a cognizable legal theory or for insufficient facts 3 under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 4 (9th Cir. 1984). 5 6 7 8 B. Rule 12(f): Motion to Strike Redundant, Immaterial, Impertinent or Scandalous Matters Rule 12(f) provides that a federal court may strike from the pleadings any

9 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. 10 FED. R. CIV. P. 12(f). The function of a motion to strike is to avoid the unnecessary 11 expenditures that arise throughout litigation by dispensing of any spurious issues prior 12 to trial. Chong v. State Farm Mut. Auto. Ins. Co., 428 F.Supp.2d 1136, 1139 (S.D. Cal. 13 2006); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Rule 14 12(f) motions "are generally regarded with disfavor because of the limited importance 15 of pleading in federal practice, and because they are often used as a delaying tactic." 16 Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D. Cal. 2003). 17 Thus, courts generally grant a motion to strike only where "it is clear that the matter to 18 be stricken could have no possible bearing on the subject matter of the litigation." 19 LeDuc v. Kentucky Cent. Life Ins. Co.,814 F.Supp. 820, 830 (N.D. Cal. 1992). 20 21 III. 22 23 24 25 26 DISCUSSION A. Defendants' Motion to Dismiss Under Rule 12(b)(6) i. Plaintiff's Third (Public Policy) Cause of Action For Wrongful Termination of Employment in Violation of Labor Code sections 1102.5 and 6400 As Against Defendant Church Defendants argue that Boone does not state a valid cause of action under Labor

27 Code section 1102.5 because Boone does not allege that she disclosed information to 28 a government or law enforcement agency; rather, she only complained to Church staff.
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1 (Defs.' Mot. to Dismiss 4­5.) Moreover, Defendants allege, California Labor Code 2 section 6400 does not provide the basis for a cause of action--section 6310 is the proper 3 statute. (Id.) Because of these imprecisions, Defendants argue that Boone's third cause 4 of action does not state a valid claim. 5 Boone, in opposition, spends much time distinguishing common law and statutory 6 wrongful termination claims, and eventually characterizes her third cause of action as 7 a claim based on public policy grounds. (Pl.'s Opp'n to Mot. to Dismiss 2­5.) Boone then 8 argues that Collier v. Superior Court, 279 Cal. Rptr. 453 (Cal. Ct. App. 1991) created 9 a public policy claim that complemented the goals of California Labor Code section 10 1102.5, even where plaintiffs did not report suspicions of misconduct to outside 11 authorities. (Id.) 12 One requirement for wrongful discharge claims rooted in public policy is that the 13 public policy must be supported by either constitutional or statutory provisions. 14 Stevenson v. Superior Court, 66 Cal. Rptr. 888, 889­90 (Cal. Ct. App. 1997). 15 California Labor Code section 6400 states that every employer shall furnish a 16 place of employment that is safe and healthful for the employees therein. Courts have 17 found that California Labor Code sections 6400 et. seq. also establish a general public 18 policy requiring employers to provide a safe and secure workplace. See Franklin v. The 19 Monadncock Co., 59 Cal. Rptr. 3d 692, 697 (Cal. Ct. App. 2007) (finding public policy, 20 when read alongside California Civil Procedure Code section 527.8, requiring employers 21 to maintain safe and secure workplace). 22 California Labor Code section 1102.5 restrains employers from making, adopting, 23 or enforcing any rule, regulation or policy which prevents an employee from disclosing 24 information to a government or law enforcement agency. Cal. Lab. Code § 1102.5. 25 Sub-section 1102.5(b) states that an employer may not retaliate against an employee 26 who discloses such information to a government or law enforcement agency. Id. 27 California Labor Code section 1102.5 also reflects a broader public policy interest 28 in encouraging workplace "whistleblowers," who may without fear of retaliation report
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1 concerns regarding an employer's illegal conduct. Collier v. Superior Court, 279 Cal. 2 Rptr. 453, 456 (Cal. Ct. App. 1991). In Collier, the plaintiff-regional manager 3 suspected that certain defendant-company vice-presidents were breaching their fiduciary 4 duty to the company. Id. at 454. After being fired for reporting his suspicions to higher 5 management, the regional manager brought a wrongful termination in violation of 6 public policy claim . Id. Defendant company demurred, arguing that per California 7 Labor Code section 1102.5 an employee could not state a claim when the employee only 8 alleged that he reported illegal conduct to his employer, and not a government agent. 9 Id. The California Court of Appeal disagreed, finding a broader public policy anchored 10 in California Labor Code section 1102.5. Id. at 456. Even though the statute only 11 prohibited retaliating against employees for complaining to public agencies (rather than 12 to employers), it did evince a broader public interest in encouraging all employee reports 13 of illegal activity in the workplace. Id. (emphasis added). Collier added: 14 15 16 17 18 19 20 21 22 23 If public policy were strictly circumscribed by [section 1102.5] to provide protection from retaliation only where employees report their reasonable suspicions directly to a public agency, a very practical interest in self preservation could deter employees from taking any action regarding reasonably founded suspicions of criminal conduct by coworkers. Under that circumstance, an employee who reports his or her suspicions to the employer would risk termination or other workplace retaliation. If this employee makes a report directly to a law enforcement agency, the employee would be protected... under [section 1102.5], but would face an obvious disruption of his or her relationship with the employer, who would be in the unfortunate position of responding to a public agency without first having had an opportunity to deal internally with the suspected problem. These discouraging options would leave the employee with only one truly safe course: do nothing at all.

24 Id. at 456. Because the public had an interest in lawful, not criminal, business 25 operation, the Collier court allowed a wrongful discharge claim in violation of public 26 policy where an employee reported to his employer--and not a public agency--his 27 suspicions of illegal activity. Collier, 279 Cal. Rptr. at 457­58. 28 In this case, despite Defendants' technical parsing, Boone's third claim alleges a

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1 Collier-type cause of action for wrongful termination in violation of public policy. Like 2 Collier and Hentzel, it is of no moment that Boone did not actually disclose information 3 to a public official per California Labor Code section 1102.5 or state the precise sections 4 surrounding California Labor Code section 6400 et. seq. Rather, Boone has stated a 5 public policy claim under Collier by alleging that she was terminated in retaliation for 6 reporting her suspicions of illegal activity by management to her employer.3 7 Defendants' reliance on Jennings v. Marralle, 876 P.2d 1075 (Cal. 1994) and 8 Reno v. Baird, 957 P.2d 1333 (1998) is creative, if misplaced. In first Jennings and then 9 Reno, the California Supreme Court held that if a statutory remedy did not apply to an 10 employee, then the employee could not "end-around" the statute by pleading a common 11 law tort action for wrongful discharge in violation of public policy. See Jennings, 876 12 P.2d at 1081 (examining legislative history and finding no intent to declare public policy 13 against all age discrimination in small employers, where the California Fair Employment 14 and Housing Act ("FEHA") excepted small employers from ban on age discrimination); 15 Reno, 957 P.2d at 1347­48 (holding that, where FEHA exempted supervisors from 16 individual liability, "[i]t would be absurd" to forbid a plaintiff to sue a supervisor under 17 FEHA, and then allow essentially the same cause of action for wrongful discharge in 18 violation of public policy). Jennings and Reno, however, were primarily concerned with 19 the bizarre dichotomy of allowing a public policy claim on a practice or person that had 20 already been specifically exempted by statute. Reno, 957 P.2d at 1347­48; see also 21 Jennings, 876 P.2d at 1083 ("It would be unreasonable to expect employers who are 22 expressly exempted from the FEHA ban on age discrimination to nonetheless realize 23 that they must comply with the law from which they are exempted under pain of 24 possible tort liability."). 25 26 27
Additionally, although the bulk of the parties' moving papers discuss Plaintiff's rights under California Labor Code section 1102.5, Plaintiff's allegations of termination in retaliation 28 for complaining about safety support a claim under Hentzel v. Singer Co., 188 Cal. Rptr. 159 (Cal. Ct. App. 1982). (FAC ¶ 65.)
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1 against the indiscriminate wash of public policy litigation, Collier established an 2 independent public policy cause of action where an employer retaliates against an 3 employee for reporting suspicions of illegal activity to the employer. Nowhere do 4 Jennings or Reno mention or overrule Collier, and the legislative analysis is different: 5 Defendants do not point to any policy or history indicating that when the California 6 legislature drafted and enacted California Labor Code section 1102.5, it desired to 7 preserve an employer's right to retaliate against an employee who complained to 8 management, but not an employee who complained to government authorities. To the 9 contrary, Collier's analysis retains its common sense vitality in light of Jennings and 10 Reno. See Collier, 279 Cal. Rptr. at 456. Accordingly, the Court DENIES Defendants' 11 motion to dismiss Boone's third cause of action for wrongful termination in violation of 12 public policy.4 13 14 15 16 17 ii. Plaintiff's Fourth (Statutory) Cause of Action for Retaliation in Violation of Labor Code sections 1102.5 and 6310 et. seq. As Against All Defendants As a threshold issue, Boone's Opposition to Defendants' Motion to Dismiss

18 characterizes her fourth claim as a statutory cause of action. (Pl.'s Opp'n to Mot. to 19 Dismiss 3.) Defendants reiterate their argument that California Labor Code section 20 1102.5 is inapplicable because Boone does not allege she complained to a government 21 or law enforcement agency; rather, she only complained to Church staff. (Defs.' Mot. 22 to Dismiss 4­5.) Defendants also argue that the California Supreme Court's recent 23 decision in Jones v. Lodge at Torrey Pines, 177 P.3d 232 (Cal. 2008) precludes liability 24 against individual supervisors, and thus individual defendants Wood, Lee, and Mesquita 25 must be dismissed from this claim. (Defs.' Mot. to Dismiss 6­7.) 26 27
The Court also notes that Defendants, for the first time, try to distinguish Collier in their Reply brief for their motion to strike. (See Defs.' Reply to Opp'n to Mot. to Strike 2­3.) As 28 these arguments were not made in Defendants' motion to dismiss, the Court declines to consider them.
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1

Boone, in opposition, apparently concedes that under the facts of this case

2 California Labor Code section 1102.5 cannot provide a statutory right to relief. (Pl.'s 3 Opp'n to Mot. to Dismiss 5 ("Defendants suggest that Plaintiff's... cause of action should 4 be dismissed because she failed to report... wrongdoings to a government agency. 5 [citation]. Indeed, this would be true if Plaintiff were raising a statutory claim under 6 Labor Code section 1102.5.").) Boone then analyzes the Jones decision, concluding that 7 the California Supreme Court closely limited its analysis to the California Fair 8 Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940(h), and not Labor 9 Code section 6310, the statute on which her claim depends. (Id. 6­7.) 10 As mentioned, California Labor Code section 1102.5 restrains employers from 11 making, adopting, or enforcing any rule, regulation or policy which prevents an 12 employee from disclosing information to a government or law enforcement agency. Cal. 13 Lab. Code § 1102.5. Section 1102.5(b) states that an employer may not retaliate against 14 an employee who discloses such information to a government or law enforcement 15 agency. Id. Because Boone does not allege that she ever complained to a government 16 agent, section 1102.5 cannot form the basis of a statutory retaliation claim in this case.5 17 As for Defendants' Jones argument, the Court finds that Jones does not operate 18 to negate California Labor Code section 6310's plain language stating that "no person" 19 shall retaliate against an employee who complained to his or her employer. See Cal. 20 Lab. Code § 6310(a) (emphasis added). The retaliation statute in Jones, California 21 Government Code section 12940(h), was enacted under FEHA. Jones, 177 P.3d at 234. 22 The statute as written prohibited "any employer, labor organization, employment 23 agency, or person" from retaliating against any person because the person filed a 24 complaint under FEHA. Cal. Gov. Code § 12940(h) (emphasis added). Despite the use 25 of "person," the California Supreme Court held that a non-employer individual could 26 not be held personally liable for retaliation under California Government Code 27 28 policy and her fourth claim as statutory, Boone cannot use Collier's public policy arguments
in order to survive a motion to dismiss her fourth cause of action.
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Because Boone's Opposition characterizes her third claim as one premised on public

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1 section 12940(h). Jones, 177 P.3d at 234. 2 The Jones court considered several issues in reaching its conclusion, including: 3 (1) the plain meaning of California Government Code section 12940 was not clear, 4 especially considering the FEHA statutory analysis in Reno, 957 P.2d at 1333 (holding 5 that, under a comparable FEHA statute, a supervisor could not be personally liable for 6 discrimination), Jones, 957 P.3d at 235­36; (2) Reno's policy justifications for not 7 holding individuals personally liable for discrimination applied equally to retaliation 8 claims, Jones, 957 P.3d at 236­39; and (3) the absence of legislative history behind the 9 FEHA amendment modifying California Government Code section 12940 that 10 purportedly extended retaliation liability to any "person," Jones 177 P.3d at 240­41. 11 Two strong dissents in Jones scolded the majority for improperly comparing the case to 12 Reno, straying from California Government Code section 12940(h)'s plain meaning, and 13 usurping the California legislature's policy-making role. See Jones, 177 P.3d at 243­44 14 (Werdegar, J., dissenting); Id. at 244­57 (Moreno, J., dissenting). 15 Although one can imagine circumstances where Jones' policy arguments might 16 apply equally to California Labor Code section 6310, at this time the Court is not 17 prepared to interpret Jones as precluding all individual liability for all retaliation-type 18 claims, wherever they might be found in the California Codes.6 Much of Jones' holding 19 was derived from FEHA-specific case law, statutory analysis, and legislative history; 20 nowhere is California Labor Code section 6310 even mentioned (much less the Labor 21 Code, generally). Defendants have not provided any evidence that suggests the Jones 22 court intended its ruling to apply so indiscriminately, and given the decision's newness 23 and reasonable dissenting opinions the Court does not think the California Supreme 24 25
Given the recency of Jones, 177 P.3d at 232, the Court reserves the right to reexamine this issue at the summary judgment stage of trial, should in the interim the California courts 26 interpret other California codes in light of Jones. The Court admits that the policy and analysis set forth by Jones, Reno, 957 P.2d at 1333, and Janken v. GM Hughes Electronics, 53 Cal. 27 Rptr. 2d 741 (Cal. Ct. App. 1996) (analyzing FEHA distinctions and interpreting federal statutory counterparts) is persuasive. At this stage of litigation, however, Defendants have not 28 adequately argued that Jones should be applied equally to California Labor Code section 6310, given FEHA's peculiar statutory language and legislative history.
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1 Court would ignore the plain language of California Labor Code section 6310(a). See 2 Westlands Water Dist. v. Amoco Chem. Co., 953 F.2d 1109, 1111 (9th Cir. 1992) 3 (holding that where the state's highest court has not decided an issue, the federal court's 4 task is to predict how the state high court would resolve it). 5 Finally, although Defendants argue that California Labor Code section 6310(b) 6 provides remedies against the "employer" only, the Court observes that a recent 7 California appellate court decision authorized damages against an individual defendant. 8 See Lujan v. Minagar, 21 Cal. Rptr. 3d 861 (Cal. Ct. App. 2004) (remanding to trial 9 court for determination of damages against individual defendant); see also Westlands 10 Water Dist., 953 F.2d at 1111 (holding that the decisions of a state's intermediate 11 appellate courts provide guidance that a federal court must consider). 12 For the above reasons, the Court determines that Jones does not foreclose 13 individual liability under California Labor Code section 6310. For the reasons above, 14 however, Boone's Fourth Cause of Action must be dismissed to the extent that it relies 15 on California Labor Code section 1102.5. Accordingly, the Court GRANTS 16 Defendants' motion to dismiss Plaintiff's Fourth Cause of Action and DISMISSES 17 WITHOUT PREJUDICE Plaintiff's fourth claim. 18 19 20 21 iii. Plaintiff's Fifth Cause of Action For Retaliation in Violation of Labor Code sections 6400 et. seq. As Against All Defendants Defendants argue that Boone's fifth claim for retaliation in violation of California

22 Labor Code sections 6400 et. seq. duplicates her third cause of action and, regardless, 23 cites the wrong statute for relief. (Defs.' Mot. to Dismiss 7­8.) Defendants also argue 24 that, even if the claim stands, individual defendants Lee, Wood, and Mesquita cannot 25 be held liable because California Labor Code section 6400 only imposes duties on 26 employers, and not individual supervisors. (Defs.' Mot. to Dismiss 7­8.) 27 Boone apparently concedes Defendants' arguments. In opposition, Boone limits 28 her discussion of California Labor Code section 6400 to public policy implications and
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1 how the statute undergirds her third claim for wrongful termination in violation of 2 public policy. (Pl.'s Opp'n to Defs.' Mot. to Dismiss 4.) Boone does not discuss California 3 Labor Code section 6400 in regards to her fifth claim. 4 California Labor Code section 6400 simply requires that "[e]very employer shall 5 furnish employment and a place of employment that is safe and healthful for employees 6 therein." The statute then clarifies who may be cited for hazard violations on multi7 employer worksites. Cal. Lab. Code § 6400(b). California Labor Code section 6310, on 8 the other hand, prohibits any person from discharging or discriminating against an 9 employee for filing a complaint with his employer. 10 At this point, it is unclear what theory Boone pursues for her fifth cause of action. 11 Her third and fifth claims are premised on similar allegations: the Church fired Boone 12 for filing internal complaints regarding (a) her safety at work, and (b) Bosler's 13 mistreatment of her. (Compare FAC ¶ 65 with FAC ¶¶ 78, 79.) But where Boone's 14 third claim contains public policy allegations, (FAC ¶ 63), her fifth claim appears to be 15 statutory. If so, Boone has not shown that California Labor Code section 6400 provides 16 a statutory right to relief; if anything, section 6310 appears to be the proper statute. But 17 if Boone indeed seeks statutory relief under section 6310, it is unclear how her fifth 18 claim adds anything not already covered by her fourth claim. For all these reasons, and 19 because Boone has not chosen to clarify her claim in her Opposition brief, the Court 20 GRANTS Defendants' motion to dismiss and DISMISSES WITHOUT PREJUDICE 21 Boone's fifth claim for retaliation in violation of Labor Code sections 6400 et. seq. as 22 against all defendants. 23 /// 24 /// 25 /// 26 /// 27 28 iv. Plaintiff Does Not Oppose Defendants' Arguments in Support of the Motion To Dismiss Plaintiff's Sixth, Seventh, and Eighth
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1 2

Causes of Action Defendants argue that Boone's sixth claim for retaliation in violation of 42 U.S.C.

3 § 2000e-3(a) against all defendants cannot survive because the statute only prohibits 4 discrimination for making charges, testifying, or participating in Title VII enforcement 5 proceedings. (Defs.' Mot. to Dismiss 10.) Defendants contend that because Boone only 6 alleges that she complained to her supervisors about workplace safety, and never 7 participated in a race or gender discrimination hearing, the statute is inapplicable to her 8 case. (Id.) Boone does not oppose Defendants' arguments, and it appears that 42 9 U.S.C. § 2000e-3(a) has no bearing on the particulars of Plaintiff's FAC. Accordingly, 10 the Court GRANTS Defendants' motion to dismiss and DISMISSES WITHOUT 11 PREJUDICE Boone's sixth cause of action for retaliation in violation of 42 U.S.C. 12 § 2000e-3(a) as against all Defendants. 13 Defendants also argue that Boone's seventh cause of action for age discrimination 14 in violation of California Government Code section 12940 et. seq., the Age 15 Discrimination in Employment Act ("ADEA"), and 29 U.S.C. § 621, and eighth cause 16 of action for gender discrimination in violation of the California Constitution, Title VII, 17 42 U.S.C. § 2000e et. seq. and California Government Code section 12940 et. seq. as 18 against all defendants should be dismissed because neither claim, as plead, allows for 19 liability against individual defendants. (Defs.' Mot. to Dismiss 9­10.) Boone does not 20 oppose Defendants' arguments. Accordingly, the Court GRANTS Defendants' motion 21 and DISMISSES WITHOUT PREJUDICE Boone's seventh and eighth claims for age 22 and gender discrimination, respectively. 23 /// 24 /// 25 /// 26 /// 27 28 B. Defendants' Motion to Strike Under Rule 12(f) i. Plaintiff Fails To Oppose Defendants' Motion to Strike All FEHA
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1 2 3

Allegations Under the First, Second, Seventh and Eighth Causes of Action As a threshold matter, Boone fails to oppose Defendants' arguments in support

4 of striking all allegations regarding FEHA violations, specifically those allegations under 5 the First, Second, Seventh and Eighth causes of cation. (Defs.' Mot. to Strike 4­8.) 6 Because the Court agrees that the Church is not an "employer" under FEHA, the Court 7 GRANTS Defendants' motion to strike and STRIKES all references to FEHA in 8 support of the aforementioned claims.7 9 10 11 12 ii. Plaintiff's Allegations Relating to the Alleged Reporting of Financial Misdeeds Are Relevant to Her Third Cause of Action Defendants argue that Boone's allegations regarding Lee and Mesquita's

13 potentially improper financial activities should be stricken because they are unrelated 14 to her claims, which focus on workplace safety and age and gender discrimination. 15 (Defs.' Mot. to Strike 9­10.) Defendants contend that allowing these allegations to 16 remain invites overly broad discovery into the Church's finances. (Id.) Boone, in 17 response, argues that the allegations regarding financial impropriety support her third 18 and fourth claims for wrongful termination in violation of public policy and retaliation. 19 (Pl.'s Opp'n to Mot. to Strike 3­4.) 20 Motions to strike are generally not granted unless it is clear that the matter to be 21 stricken could have no possible bearing on the subject matter of the litigation. 22 Colaprico v. Sun Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991). 23 Allegations supplying background material or other matter of an evidentiary nature will 24 not be stricken unless unduly prejudicial to defendant. Fuch's Sugar & Syrups, Inc. v. 25 Amstar Corp., 402 F. Supp. 636, 637­38 (S.D.N.Y. 1975). 26 27
claims.

In this case, it is clear that Boone's allegations regarding Lee's and Mesquita's
7

28 and eighth causes are technically moot, considering the Court has previously dismissed those
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1 misdeeds are relevant to her third cause of action for wrongful termination in violation 2 of public policy. To the extent the claim relies on Collier, 279 Cal. Rptr. at 453, Boone's 3 allegations describe the potential wrongdoing which, when reported, allegedly led to her 4 retaliatory termination. See Collier, 270 Cal. Rptr. at 456­58 (finding public interest 5 in a lawful, not criminal, business operation). Simply, if Boone can produce sufficient 6 evidence that Lee and Mesquita were doing something improper, and the Church fired 7 Boone for complaining about it, this could possibly prove Boone's third cause of action 8 for wrongful termination in violation of public policy. Accordingly, because the Court 9 finds Boone's allegations regarding the alleged reporting of financial misdeeds relevant 10 to the third cause of action, the Court DENIES Defendants' motion to strike paragraphs 11 twenty-five through thirty-two of the FAC.8 12 13 IV. 14 CONCLUSION For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-

15 PART Defendants' motion to dismiss and motion to strike. Should Plaintiff choose to 16 file an amended complaint correcting the deficiencies noted above, the Court suggests 17 that she take the time to draft allegations that clearly set forth her claims, the exact 18 legal basis supporting each claim, and who each claim is against. Defendants, too, are 19 urged to clearly establish and support all arguments in their moving papers and are to 20 avoid using Reply briefs to advance new legal theories. 21 22 23 24 25 26 2.
8

In conclusion: 1. Because Plaintiff's third claim adequately alleges a cause of action for wrongful termination in violation of public policy, the Court DENIES Defendants' motion to dismiss Plaintiff's third cause of action. Because Plaintiff's fourth claim relies, at least in part, on California Labor

27 in connection with her common law defamation and intentional infliction of emotional distress ("IIED") claims. (Defs.' Mot. to Strike 2, 10.) As Defendants have not bothered to support 28 their request with any legal authority, the Court DENIES Defendants' motion to strike Boone's
request for attorney's fees in connection with the defamation and IIED claims.
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In other places, Defendants move the Court to strike Boone's request for attorney's fees

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 28 7. 6. 5. 4. 3.

Code section 1102.5, which does not provide direct statutory relief in this case, the Court GRANTS Defendants' motion to dismiss and DISMISSES WITHOUT PREJUDICE Plaintiff's fourth cause of action. Because it is unclear on what legal theory Plaintiff bases her fifth claim, and because Plaintiff does not oppose Defendants' motion, the Court GRANTS Defendants' motion to dismiss and DISMISSES WITHOUT PREJUDICE Plaintiff's fifth cause of action. Because Plaintiff does not oppose Defendants' motion to dismiss her sixth, seventh, and eighth claims, the Court GRANTS Defendants' motion to dismiss and DISMISSES WITHOUT PREJUDICE Plaintiff's sixth, seventh, and eighth causes of action. Because Plaintiff does not oppose Defendants' motion to strike all FEHArelated allegations in her complaint, the Court GRANTS Defendants' motion to strike and STRIKES all FEHA-related allegations in support of Plaintiff's first, second, seventh and eighth causes of action. Because the allegations regarding the possible financial impropriety of Defendant Lee and Defendant Mesquita are potentially relevant to Plaintiff's third claim for wrongful termination in violation of public policy, the Court DENIES Defendants' motion to strike paragraphs twenty-five through thirty-two of the FAC.

Because Defendants have not provided any legal analysis in support of their motion to strike the references to attorneys' fees in connection with
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1 2 3 4 5

the defamation and IIED claims, the Court DENIES Defendants' motion to strike those allegations. IT IS SO ORDERED.

6 DATED: June 6, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Hon. Thomas J. Whelan United States District Judge