Shin v. Nicholson

• Docket Number: 23-cv-00456-VC
• Decision Date: 29 August 2023
• Parties: GABRIEL SHIN, Plaintiff, v. JEANINE NICHOLSON, et al., Defendants.
• Court: U.S. District Court — Northern District of California

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GABRIEL SHIN, Plaintiff, v. JEANINE NICHOLSON, et al., Defendants.

No. 23-cv-00456-VC

United States District Court, N.D. California

August 29, 2023

GRANTING IN PART AND DENYING IN PART THE MOTION TO DISMISS; DENYING THE MOTIONS TO STRIKE RE: DKT. NO 21

VINCE CHHABRIA United States District Judge.

The motion to dismiss is granted regarding the third (negligence), twelfth (racial discrimination, § 1981) and thirteenth (racial discrimination, § 1983) causes of action.The motion to dismiss is denied regarding the first (battery), second (assault), and fourteenth (intentional infliction of emotional distress) causes of action.The motion to dismiss is partially granted regarding the tenth (harassment) cause of action-the complaint states a claim for disability harassment against some defendants but not for racial harassment.The motion to strike the punitive damages allegations is denied, as is the Anti-SLAPP motion to strike a series of allegations related to the conduct of fire department officials in the wake of the alleged attack.This ruling assumes the reader is familiar with the facts, the applicable legal standard, and the arguments made by the parties.^[1]Battery and Assault.Shin seeks to impose liability on the City for the attack by Muhammad on a theory that the City ratified the attack.Ratification of a tortious act allows an employer to be liable for that act“where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.”Ratcliff v. The Roman Catholic Archbishop of Los Angeles, 79 Cal.App 5th 982, 1002(2022).“The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.”Id.;see alsoS.G. v. San Francisco Unified School District, 2018 WL 1876875, at *4(N.D. Cal.Apr. 19, 2018) (“Evidence of ratification may include failure to discharge, censure, criticize, suspend, sanction, or otherwise take action.”(citingC.R. v. Tenet Healthcare Corp., 169 Cal.App.4th 1094, 1110(2009)).

Whether ratification occurred is ultimately a factual question.S.G., 2018 WL 1876875, at *4.For the purposes of a motion to dismiss, Shin has certainly alleged a plausible claim for ratification: according to the complaint, not only did Fire Department officials fail to act against Muhammad themselves but also they refused to cooperate with the police investigation into the attack, discouraged Shin from cooperating (including yelling at him), and finally acted against Shin by ending his paid leave and health insurance while he was still recovering.SeeCoats v. Construction & Gen. Laborers Local No. 185, 15 Cal.App.3d 908(1971)(finding the employer's difficulties with and harassment of the plaintiff after the plaintiff was assaulted by an employee provided further evidence of the employer's ratification of the assault).

The City appears to argue that it is nonetheless immune from liability as a matter of law.Public entities are generally immune from tort liability for injuries caused by their employees, unless a statute provides for liability under the circumstances.Cal. Gov. Code § 815.There is a statute providing for public entity liability for “injury proximately caused by an act or omission of the employee of the public entity within the scope of his employment.”Cal. Gov. Code § 815.2(a).The City contends that Muhammad was acting outside the scope of his employment when he attacked Shin.The City seems to be arguing, at least by implication, that a tortious act by an employee cannot be brought within the scope of employment by an act of ratification by the employer.

But the legal effect of ratification “is to treat the act as if originally authorized” by the employer.LeBrun v. CBS Television Studios, Inc., 68 Cal.App. 5th 199, 209(2021);see alsoRakestraw v. Rodrigues, 8 Cal.3d 67, 73(1972)(noting that the “authority which is given to the purported agent relates back to the time when he performed the act”).It is presumably for this reason that several cases have contemplated public entity liability under a ratification theory.See, e.g., City of Los Angeles v. Superior Court, 33 Cal.App.3d 778, 782-83(1973)(noting that a municipality may be liable “for willfully continuing to employ an individual of known violent propensities”);S.G., 2018 WL 1876875, at *4-5(allowing tort claims against a school district for the sexual abuse of a teacher to proceed past a motion to dismiss under a ratification theory).^[2]

The City also invokes the workplace compensation exclusivity doctrine in support of dismissal.But the key question for the applicability of the WCED is whether the injury “can ever be viewed as a normal aspect of … the employment relationship or the claims process.”Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund, 24 Cal.4th 820, 822(2001).The alleged ratification of the attack makes it as though the Fire Department initially authorized the attack-and being attacked with a wrench by a coworker with the permission of one's employer is “beyond the boundaries of the compensation bargain.”Fermino v. Fedco, Inc., 7 Cal.4th 701, 713-14(1994).Shin does not merely allege an “adverse personnel decision,”“such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances.”Cole v. Fair Oaks Fire Protection District, 43 Cal.3d 148, 160(1987).Rather, Shin alleges a concerted campaign to make him so scared and miserable that he would give up on pursuing the criminal charges against Muhammad or resign from the Fire Department.

Negligence.The complaint is specific about Muhammad's prior inappropriate and threatening conduct, but it is vague about tying the requisite knowledge, authority, and failure to act to particular Fire Department officials.It refers to the Fire Department in general, using phrases like “SFFD” or “SFFD command,” or it refers to unnamed, unidentified officers, such as “an SFFD battalion chief” or “senior SFFD officers.”For that reason, the complaint fails to state a claim against any one person.Shin comes the closest with Captain Patricia Lee, but she is not named as a defendant.

It follows that the negligence claim against the City must be dismissed.Since there is no general tort liability for public entities except as provided by statute, the City cannot be held directly liable for negligence under these circumstances.Cal. Gov. Code § 815;see alsode Villers v. County of San Diego, 156 Cal.App.4th 238, 252(2007)(“We find no relevant case law approving a claim for direct liability based on a public entity's allegedly negligent hiring and supervision practices.”);C.A. v. William S. Hart Union High School District, 53 Cal.4th 861, 873(2012)(approvingly discussing the de Villiers court's reasoning and findings on liability).And for a public entity to be held vicariously liable for the tortious conduct of its employee, the allegations must “give rise to a cause of action” against an employee acting in the scope of employment.§ 815.2(a).Since the allegations contain insufficient factual matter to support a claim against any employee, the negligence claim against the City is dismissed as well.^[3]

There is an additional concern: a negligence claim against a person requires that the person be under a legal duty to use due care.California tort law “does not recognize a general duty of care on the part of supervisors with respect to negligent hiring, retention, or training.”Estate of Hennefer v. Yuba County, California, 2023 WL 4108077(E.D. Cal.Jun. 21, 2023).Shin invokes C.A. v. William S. Hart Union High School District, in which the California Supreme Court held that allegations that school supervisors “knew or should have known of [an employee's] dangerous propensities, but nevertheless hired, retained, and failed to properly supervise [them],”“if proven, could make the [School] District liable under a vicarious liability theory encompassed by section 815.2.”53 Cal.4th at 875.But that case may not establish a duty here.The Court was clear in William S. Hart that the “potential legal liability” of school supervisors “arises from the special relationship they had with [ ] a student under their supervision.”53 Cal.4th at 877;see alsoId. at 869-80(describing the accumulated case law about school officials' special relationship with their students);Brown v. USA Taekwondo, 11 Cal. 5th 204, 218-19(emphasizing the necessity of establishing a special relationship to demonstrate an affirmative duty to protect).It is unclear whether a special relationship exists in this context.And Shin identifies no case in which a California court held that a supervisor can be individually liable for injury to one employee resulting from the negligent supervision of another employee.^[4] However, there is no need to reach this issue of state law now, as the other pleading flaws already warrant dismissal of the negligence claims.

Harassment.The racial harassment claims are dismissed because Shin does not sufficiently allege that his treatment was “more likely than not” motivated by his race.See Soria v. Univision Radio Los Angeles, Inc,.5 Cal.App. 5th 570, 591(2016);see alsoJones v Department of Corrections & Rehabilitation, 152 Cal.App. 4th, 1367, 1370(2007);Harris v. City of Santa Monica, 56 Cal.4th 203, 215(2013).The introduction to the complaint describes Fire Department officials as having “unleash[ed] a torrent of harassment to silence an Asian victim of violence crime.”Dkt. No. 1at 4.That statement alone merely describes Shin's race-it does not assert that the harassment was because of it.Shin also cites statistics...