Adolfo Estrada et al v. Gate Gourmet, Inc. et alNOTICE OF MOTION AND MOTION to Dismiss Case [Plaintiff's Second Amended Complaint at ECF Dkt. #28 pursuant to F.R.C.P. 12C.D. Cal.July 10, 2017 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 GREENBERG TRAURIG, LLP Mark D. Kemple (SBN 145219) Ryan C. Bykerk (SBN 274534) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 kemplem@gtlaw.com bykerkr@gtlaw.com Attorneys for Defendant Gate Gourmet, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ADOLFO ESTRADA, Plaintiff, v. GATE GOURMET; ANGELA JONES and DOES 1 through 50, inclusive, Defendants. CASE NO. 2:17-cv-01100-MWF (FFMx) Hon. Michael W. Fitzgerald DEFENDANT GATE GOURMET, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT; MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; FED. R. CIV. PROC. 12(b), 12(f) (Filed and served concurrently with Proposed Order) Date: August 14, 2017 Time: 10:00 a.m. Courtroom: 5A Action Filed: December 19, 2016 Action Removed: February 10, 2017 Trial Date: Not set Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 1 of 31 Page ID #:376 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 TO THE COURT, PLAINTIFF, AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on Monday, August 14, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 5A of the United States District Court, Central District of California, located at the First Street Courthouse, 350 West First Street, Courtroom 5A, Los Angeles, California 90012, Defendant GATE GOURMET, INC. (“Defendant” or “Gate Gourmet”) will and hereby does move the Court pursuant to Federal Rule of Civil Procedure (“FRCP”) Rule 12(b)(6) and 12(f) for an order: (1) dismissing each count of Plaintiff’s Second Amended Complaint (Counts 1- 6) without leave to amend for failure to state a claim upon which relief can be granted; and (2) dismissing or striking Plaintiff’s request for punitive damages without leave to amend.1 1 See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010) (holding that motions to strike claims for damages should be brought as motions to dismiss under 12(b)(6), not under 12(b)(f)); accord Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1146 (E.D. Cal. 2010) (construing Rule 12(f) motion to strike punitive damages as motion to dismiss under Rule 12(b)(6)); Arrad v. City of Fresno, 2011 WL 284971, at *2 n. 4 (E.D. Cal. Jan. 26, 2011) (same). The challenged allegations are the following pages/lines of the Second Amended Complaint: Page 18, lines 11-17 (“Such actions were therefore done in conscious disregard of the rights of Plaintiff to be free of gender discrimination in the workplace, among other rights secured under California law. Plaintiff is informed and believes, and thereon alleges, that his termination by Defendants, and each of them, was done with intent to cause injury to Plaintiff. As a consequence of the aforesaid oppressive, malicious and despicable conduct, Plaintiff is entitled to an award of punitive damages in a sum as yet undetermined”); page 19, lines 7-8; page 23, lines 23-24; page 27, lines 6-7; page 29, lines 6-7; page 30, lines 4-5 (Paragraphs 63, 84, 100, 109, and 116 in their entirety, each of which state “WHEREFORE, Plaintiff, ADOLFO ESTRADA is seeking Exemplary and Punitive Damages in a sum to be determined, according to proof”); and page 30, lines 11-12 (Prayer, paragraph 3, in its entirety, which states “For exemplary and punitive damages according to proof on the first, third, fourth, fifth and sixth causes of action, only”). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 2 of 31 Page ID #:377 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 In its prior detailed Order dismissing all counts of Plaintiff’s First Amended Complaint, this Court cautioned Plaintiff that he would be given just one additional opportunity to plead, and that “no further leave to amend will be granted.” [Dkt. No. 27 at p.2, see id. at p.14.] Despite this, Plaintiff’s Second Amended Complaint remains deficient. Indeed, in many instances, Plaintiff offered no amendments whatsoever to address the Court’s concerns, and in other instances has provided only cosmetic, non- substantive amendment. Defendant requests that each count and request for relief be dismissed or stricken without leave to amend. This Motion is made and based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleadings in this action, and such other written and oral argument as the Court may entertain on this Motion. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place from July 3-10, 2017. Respectfully submitted, Dated: July 10, 2017 GREENBERG TRAURIG, LLP By: /s/ Mark D. Kemple Mark D. Kemple Ryan C. Bykerk Attorneys for Defendant Gate Gourmet, Inc. Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 3 of 31 Page ID #:378 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................... 1 II. PLEADING STANDARDS ON MOTION TO DISMISS: IQBAL/TWOMBLY ................................................................................................. 3 III. EACH COUNT AGAIN FAILS TO STATE A CLAIM. ......................................... 5 A. Plaintiff’s FEHA Claims Again Fail To State a Claim. .................................. 5 1. Count 3 (Gender Discrimination) Fails to State a Claim. ..................... 5 2. Count 4 (Disability Discrimination) Fails to State a Claim. ................. 9 3. Count 5 (Retaliation) Fails to State a Claim. ...................................... 13 4. Count 6 (Failure to Prevent) Fails to State a Claim. ........................... 16 B. Plaintiff’s Non-FEHA Counts Also Fail to State a Claim. ........................... 16 1. Count 1 (Wrongful Termination, Public Policy) Fails to State a Claim. .................................................................................................. 16 2. Count 2 (Wrongful Termination, Implied Contract) Fails to State a Claim. ...................................................................................... 18 IV. PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES IS DEFICIENT. .......... 20 A. No Oppression, Fraud or Malice Is Alleged. ................................................ 20 B. Employer Ratification Also Is Not Alleged. ................................................. 21 V. LEAVE TO AMEND SHOULD BE DENIED. ...................................................... 22 Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 4 of 31 Page ID #:379 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 TABLE OF AUTHORITIES Page(s) Federal Cases Abdul-Haqq v. Kaiser Found. Hosps., 2015 U.S. Dist. LEXIS 8768 (N.D. Cal. Jan. 23, 2015) ............................................... 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................... 4, 5, 9, 20 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) .......................................................................................... 3 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................. 4, 20 Cozzi v. Cty. of Marin, 787 F. Supp. 2d 1047 (N.D. Cal. 2011) ...................................................................... 6, 8 Eclectic Props. E., Ltd. Liab. Co. v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014) .......................................................................................... 5 Furtado v. United Rentals Inc., 2015 WL 4452502 (N.D. Cal. July 20, 2015) .............................................................. 17 Greenfield v. Am. W. Airlines, Inc., No. C 03-5183 MHP, 2005 U.S. Dist. LEXIS 48033 (N.D. Cal. Mar. 30, 2005) ............................................................................................................................... 8 Kelley v. Corr. Corp. Of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010) .................................................................. 20, 22 Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694 (N.D. Cal. 2014) ............................................................................ 19 Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999) ...................................................................................... 7 Meaux v. Northwest Airlines, Inc., 718 F.Supp.2d 1081 (N.D. Cal. 2010) ............................................................................ 7 Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) .................................................................................... 4, 17 Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 5 of 31 Page ID #:380 3 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 Rhynes v. Stryker Corp., 2011 U.S. Dist. LEXIS 58286 (N.D. Cal. May 31, 2011) ...................................... 20, 22 Robinson v. HD Supply, Inc., 2012 WL 3962502 (E.D. Cal. Sept. 10, 2012) ............................................................. 11 Robinson v. Salazar, 885 F. Supp. 2d 1002 (E.D. Cal. 2012) ................................................................ 6, 8, 15 Somers v. Apple, Inc., 729 F.3d 953 (9th Cir. 2013) .......................................................................................... 3 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ........................................................................................ 5 Tritchler v. Cty. of Lake, 358 F.3d 1150 (9th Cir. 2003) ...................................................................................... 16 Vasquez v. Cty. of L.A., 349 F.3d 634 (9th Cir. 2003) .......................................................................................... 7 W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) .................................................................................... 4, 11 Yeager v. Corr. Corp. of Am., 944 F. Supp. 2d 913 (E.D. Cal. 2013) ............................................................................ 9 State Cases Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466 (2013) ....................................................................................... 13 Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327 (2008) ....................................................................................... 10 Brousseau v. Jarrett, 73 Cal. App. 3d 864 (1977) .......................................................................................... 20 Brundage v. Hahn, 57 Cal. App. 4th 228 (1997) ......................................................................... 9, 10, 11, 12 Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467 (1992) ........................................................................................... 13 Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 6 of 31 Page ID #:381 4 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988) ....................................................................................... 17, 18, 19 Guz v. Bechtel Nat’l. Inc., 24 Cal. 4th 317 (2000) ............................................................................................ 5, 6, 9 Higgins-Williams v. Sutter Medical Foundation, 237 Cal.App.4th 78 (2015) ........................................................................................... 10 Jennings v. Marralle, 8 Cal. 4th 121 (1994) .................................................................................................... 17 Jones v. Dep't of Corr. & Rehab., 152 Cal. App. 4th 1367 (2007) ................................................................................... 5, 6 Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264 (2006) .................................................................................................... 8 Smith v. Royal Mfg. Co., 185 Cal.App.2d 315 (1960) .......................................................................................... 18 Smith v. Superior Court, 10 Cal. App. 4th 1033 (1992) ....................................................................................... 20 Tameny v. Atl. Richfield Co., 27 Cal.3d 167 (1980) .................................................................................................... 17 Thompson v. Tracor Flight Sys., Inc., 86 Cal. App. 4th 1156 (2001) ......................................................................................... 8 Trujillo v. North Cty. Transit Dist., 63 Cal. App. 4th 280 (1998) ......................................................................................... 16 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994) .................................................................................................. 17 White v. Ultramar Inc., 21 Cal.4th 563 (1999) ................................................................................................... 21 Wills v. Super. Ct., 195 Cal.App.4th 143 (2011) ............................................................................... 9, 11, 12 Wise v. S. Pac., 223 Cal. App. 2d 50 (1963) .......................................................................................... 18 Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 7 of 31 Page ID #:382 5 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 Yanowitz v. L’Oreal USA Inc., 36 Cal. 4th 1028 (2005) ...................................................................................... 6, 13, 14 State Statutes California Civil Code § 3294 ....................................................................................... 20, 22 California Civil Code § 3294(b) .................................................................................... 3, 21 California Government Code § 12926(m)(1)(A) ................................................................. 9 California Government Code § 12926(m)(1)(B) ................................................................. 9 California Government Code § 12940 ......................................................................... 16, 17 California Government Code § 12940(h) .......................................................................... 13 California Government Code § 12940(k) .......................................................................... 16 California Labor Code § 2922 ....................................................................................... 3, 18 Rules Federal Rules of Civil Procedure, Rule 8 ............................................................................ 4 Federal Rules of Civil Procedure, Rule 8(a)(2) ................................................................... 4 Federal Rules of Civil Procedure, Rule 12(b)(6) ................................................................. 3 Regulations 2 C.C.R. § 11065(l) ............................................................................................................ 10 Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 8 of 31 Page ID #:383 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s Second Amended Complaint (“SAC”) is his third pleading attempt. Though Defendant briefed the deficiencies of the original Complaint and the First Amended Complaint (“FAC”), and the Court’s ruling dismissing the FAC provided Plaintiff with a roadmap to cure its deficiencies (and a warning that further leave to amend would not be granted), the SAC fails to do so. Indeed, certain counts and requests for relief dismissed from the FAC are re-pled verbatim in the SAC. Others offer only cosmetic changes that fail to address the fatal defects identified in the Court’s prior Order. As before, the SAC offers shotgun allegations (as to all counts) that Plaintiff heard insults that he concludes were all due to his gender, and his “disability,” and because he filed workers’ compensation claims. But his contradictory conclusions are not supported by factual allegations, and leave open the obvious alternative explanation that Mr. Estrada and his supervisor simply did not get along, and that he was terminated for his subpar performance. These counts fail to state a claim and should be dismissed, this time without leave to amend. Plaintiff’s FEHA Claims Still Fail. Count 3, termination as gender discrimination. Mr. Estrada revises his gender discrimination claim to add allegations of coarse joking, gossiping and name-calling. Even assuming the new allegations were sufficient to allege discriminatory animus, Plaintiff again fails to allege a nexus between his termination and his gender. Indeed, Mr. Estrada never alleges that the person who terminated him acted with discriminatory intent, or even who made the decision to terminate Mr. Estrada’s employment. The claim also fails because it alleges the equally plausible alternatives that (i) Mr. Estrada was terminated for subpar performance and/or (ii) because he could not get along with his supervisor. Count 4, termination as disability discrimination. This Court previously dismissed this count from the FAC because Plaintiff failed to allege: (a) a disability; Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 9 of 31 Page ID #:384 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 (b) that he was qualified for the job; and (c) a nexus between the disability and the termination. The SAC adds only conclusions, and thus, fails for the same reasons. It also offers a conclusion identifying an additional “disability,” but, as with the prior-alleged “disability,” never alleges that the new “disability” substantially limited a major life activity. As such, no legally cognizable disability is alleged at all. It also concludes Mr. Estrada was qualified for the job because he showed up to work and completed assignments. Apart from being a mere conclusion, that conclusion is belied by Mr. Estrada’s other allegations that his workload was “impossible” for him to complete. Finally, no nexus is alleged between the termination and Mr. Estrada’s supposed “disability.” Indeed, the SAC suggests the equally plausible alternative that Mr. Estrada was terminated for poor performance and/or because he and his supervisor simply did not get along. Count 5, termination as retaliation for filing a workers’ compensation claim. Though this Court previously dismissed Count 5 from the FAC, the SAC repeats the charging allegations from the FAC verbatim. As such, the Count fails for the same reasons that it previously failed: Plaintiff fails to allege a causal connection between an adverse employment action (his termination) and any protected activity. And once again, Mr. Estrada simply concludes a discriminatory motive without pleading a factual basis for his conclusion. Count 6, “failure to prevent.” As before, Mr. Estrada’s derivative “failure to prevent discrimination and/or retaliation” count fails because his discrimination and retaliation counts fail. Plaintiff’s Non-FEHA Counts Still Fail To State a Claim. Count 1, wrongful termination/public policy. Count 1 of the FAC is re-alleged in the SAC without material change. As before, the count fails because Mr. Estrada fails to plead facts showing that Gate Gourmet’s decision to terminate him violated public policy. Though Mr. Estrada grounds the claim in alleged violations of FEHA, the SAC Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 10 of 31 Page ID #:385 3 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 fails to factually allege a violation of FEHA, as discussed. The count therefore fails to state a claim. Count 2, wrongful termination/implied contract. Though the Court previously dismissed Count 2 from the FAC for failure to state a claim, the count is re-alleged in the SAC in materially identical form. The count again fails for the same reasons. As this Court has already held,1 Plaintiff fails to allege facts to establish the terms and existence of an implied-in-fact contract sufficient to overcome the presumption of at-will employment contained in California Labor Code 2922. The claim also fails because the alleged “contract,” even assuming it existed, appears to be nothing more than an illusory and unenforceable contract to “obey the law,” and because the alleged “breach” of the imagined contract is Defendant’s alleged violations of FEHA which, as discussed above, are not factually pled. Plaintiff’s Request for Punitive Damages Fails. The punitive damages request is identical to the request the Court previously struck from the FAC. It should be stricken again. As before, the request rests entirely on the inadequate conclusion that the termination was “done with intent to cause injury to Plaintiff” and was “oppressive, malicious and despicable.” But no malice, oppression, or fraud by anyone is factually alleged, nor is there any allegation that Gate Gourmet ratified that conduct, as would be required by Cal. Civil Code § 3294(b). II. PLEADING STANDARDS ON MOTION TO DISMISS: IQBAL/TWOMBLY A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. “Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 1 Dkt. No. 27 at pp. 12-13. Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 11 of 31 Page ID #:386 4 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Id. at 555 (emphasis added). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Rule 8...does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”); see also W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”). The Supreme Court has adopted a two-part test for evaluating the sufficiency of allegations. Ashcroft v. Iqbal, 556 U.S. 662 (2009). First, a court must identify and disregard allegations “that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. As the Ninth Circuit then further explained, “bare assertions . . . amounting to nothing more than a ‘formulaic recitation of the elements’” of a claim “are not entitled to an assumption of truth.” Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 664). Rule 8 of the Federal Rules of Civil Procedure “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. Next, “[a]fter dispatching the complaint’s conclusory allegations,” a court must apply Iqbal’s plausibility standard. Moss, 572 F.3d at 969 (citing Iqbal, 556 U.S. at 663). That is, a court must determine whether, in light of alternative explanations for the facts properly alleged, the non-conclusory allegations “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 664. The Supreme Court emphasized that plausibility means “more than a sheer possibility that a defendant has acted unlawfully,” and that the determination of plausibility is inherently comparative. Id. 678. Allegations of conduct that are “merely consistent with” the asserted violation are insufficient to Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 12 of 31 Page ID #:387 5 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 render them plausible. Id. A court analyzing a complaint on a motion to dismiss must consider any “obvious alternative explanation” for the alleged misconduct, drawing on its “judicial experience and common sense.” Id. at 682. Where the Compliant pleads facts susceptible to two alternative explanations, only one of which would result in liability, “plaintiffs cannot offer allegations that are merely consistent with their favored explanation but are also consistent with the alternative explanation. Something more is needed, such as facts tending to exclude the possibility that the alternative explanation is true, in order to render plaintiffs’ allegations plausible.” Eclectic Props. E., Ltd. Liab. Co. v. Marcus & Millichap Co., 751 F.3d 990, 996-97 (9th Cir. 2014) (citing In re Century Aluminum Co. Secs. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013)). The Ninth Circuit has clarified that the allegations in a complaint must contain factual allegations which, when taken as true, “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis added). III. EACH COUNT AGAIN FAILS TO STATE A CLAIM. A. Plaintiff’s FEHA Claims Again Fail To State a Claim. 1. Count 3 (Gender Discrimination) Fails to State a Claim. As with the FAC, the SAC fails to state a claim for gender discrimination. To state a claim, a plaintiff must allege that he/she suffered “an adverse employment action, such as termination, demotion, or denial of an available job” and that “circumstance suggests discriminatory motive” for the adverse action. Guz v. Bechtel Nat’l. Inc., 24 Cal. 4th 317, 355 (2000). Specifically, a plaintiff must factually allege a “set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds.” Jones v. Dep't of Corr. & Rehab., 152 Cal. App. 4th 1367, 1379 (2007). He/she must plead a “nexus” shown between the discriminatory conduct leading to the adverse employment action and the plaintiff’s gender. Id. at 1380 (“[T]here is no nexus shown Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 13 of 31 Page ID #:388 6 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 between the coworkers’ conduct and Jones’s gender or race; therefore, she cannot make out a claim for discrimination.”). Here, as before, the only adverse employment action alleged is Mr. Estrada’s termination.2 But the claim fails because Mr. Estrada again fails to allege a nexus between (i) his termination and (ii) his gender. Initially, the SAC strains to factually allege discriminatory conduct. The SAC alleges for the first time that Mr. Estrada overheard coarse joking, was excluded from meetings, and witnessed unprofessional gossiping and name-calling (including Ms. Jones calling a man an “idiot” on a single occasion). (See SAC ¶¶ 18-22.) The SAC reiterates the same conclusions of disparate treatment contained in the FAC (that Plaintiff was assigned unspecified difficult tasks (SAC ¶ 77), was not given certain unspecified training (id.), received unspecified different guidance (id., see also id. at ¶¶ 17, 27), and 2 To be actionable, an “adverse employment action must materially affect the terms, conditions, or privileges of employment,” Yanowitz v. L’Oreal USA Inc., 36 Cal. 4th 1028, 1052 (2005), such as “termination, demotion, or denial of an available job,” Guz, 24 Cal. 4th at 355. Although elsewhere in the SAC Mr. Estrada places great weight on his performance improvement plan, it is not alleged to be a discriminatory act in the charging allegations of Count 3. Instead, it is described (in conclusions) as an act of retaliation. (SAC ¶ 77 (“When Mr. Estrada complained of Ms. Jones [sic] discrimination, he was placed on a Performance Improvement Plan”).) But even if Mr. Estrada had described it as a discriminatory act, it is not an adverse employment action: “[w]ritten warnings and performance improvement plans are not adverse actions where they do not materially affect the terms and conditions of employment.” Cozzi v. Cty. of Marin, 787 F. Supp. 2d 1047, 1061 (N.D. Cal. 2011) (performance improvement plan does not constitute adverse employment action for FEHA age discrimination claim) (citing Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000)). Indeed, there are no allegations the performance improvement plan affected Mr. Estrada’s employment at all. Even assuming it did (not pled), his conclusion that the performance improvement plan was issued “when” he complained fails to even conclude that it was “because” he complained, and thus, causation is not pled. (E.g. SAC ¶ 77.) Moreover, Mr. Estrada’s prior Complaint made clear that the performance improvement plan was issued not because of a complaint about discrimination, but a complaint about Ms. Jones’ “unprofessional behavior in the workplace.” (Complaint ¶¶ 17-18.) These prior admissions remain binding on Mr. Estrada. Robinson v. Salazar, 885 F. Supp. 2d 1002, 1024 n.12 (E.D. Cal. 2012). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 14 of 31 Page ID #:389 7 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 was given different shifts (id. at ¶ 77) than his coworkers. The SAC attempts to bolster this with the conclusion, copied and pasted throughout the SAC, that the female employees of the department were “similarly situated to him, had the same title or positions, rate of pay and duties.” (See e.g., SAC ¶ 25). Though Defendant does not believe these allegations are sufficient to demonstrate discriminatory animus,3 the claim more obviously fails because it never connects the animus with the termination decision. Specifically, though the Complaint takes pains to paint Ms. Jones in a negative light, it never alleges she made the decision to terminate him, only that she “notified” him that the decision had been made. (SAC ¶ 48.) In fact, the Complaint specifically alleges Ms. Jones was only one of the “supervising employees” of Gate Gourmet (id. at ¶¶ 50 (discussing other unidentified “supervising employees”), 55 (same), 70 (same), 77 (same), 103 (same)), and never alleges who made the termination decision. Notably, the SAC concedes that it was not Ms. Jones but another supervisor, William McGowan, who placed Mr. Estrada on the performance improvement plan in the first place. (Id. ¶ 32.) Simply, no nexus between Ms. Jones and her alleged conduct (even were it factually alleged to be discriminatory) and the decision to terminate is alleged. Finally, and even putting aside the deficiencies discussed above, the SAC unwinds the plausibility of Mr. Estrada’s claim by pleading equally plausible alternate explanations to some “discrimination” having “caused” his termination. Mr. Estrada’s 3 For example, Mr. Estrada’s “disparate treatment” allegations still compare apples to oranges. To be similarly situated, individuals must “have similar jobs and display similar conduct.” Vasquez v. Cty. of L.A., 349 F.3d 634, 641 (9th Cir. 2003) (emphasis added); see also Meaux v. Northwest Airlines, Inc., 718 F.Supp.2d 1081, 1090-91 (N.D. Cal. 2010) (“Plaintiff also argues that he was treated differently than a similarly situated Caucasian flight attendant…. However, Plaintiff’s and Doe’s conduct are not comparable. . . .) (emphasis added); Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (Courts “require that the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.”). Here, Mr. Estrada does not allege that his female coworkers conducted themselves in the same manner as him. Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 15 of 31 Page ID #:390 8 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 prior pleadings state that Ms. Jones “dislike[d] him” (e.g., FAC ¶ 21), to the point that the two raised their voices at one another (Complaint ¶ 21).4 Further, the SAC pleads that Mr. Estrada was struggling to complete his work timely (SAC ¶ 17), and that Mr. McGowan (not Ms. Jones) put him on a performance improvement plan (id. ¶ 32). Mr. Estrada’s conclusion that some discriminatory animus (not even alleged as to the person who terminated him) lies behind his termination ignores Mr. Estrada’s own allegations, suggesting a far more plausible basis for his termination. Simply, Mr. Estrada’s status as the only male in the department does not convert his termination into an act of gender discrimination,5 much less where he admits to personality conflicts and performance issues. That Ms. Jones may have “disliked” Mr. Estrada, or that he was disciplined or suffered consequences for failing to complete his work timely, are not bases for suit.6 Rather, they form obvious and plausible alternatives to Mr. Estrada’s contradictory 4 These admissions from Mr. Estrada’s prior pleadings remain binding on him. Robinson v. Salazar, 885 F. Supp. 2d 1002, 1024 n.12 (E.D. Cal. 2012). 5 A telling example is paragraph 18 of the SAC. There, Plaintiff - who alleges he was falling behind at work - alleges he was excluded from “attending the Human Resource Department ‘get togethers’ and instead [was] directed…to complete work assignments during that time period.” From this he concludes he “was excluded…as a result of his gender…” (SAC ¶ 18.) But an equally (or more) plausible explanation is that Ms. Jones reasonably believed it was a better use of Mr. Estrada’s time to complete his work instead of participate in the “get-togethers.” This is not the stuff of gender discrimination. 6 See e.g., Cozzi v. Cty. of Marin, 787 F. Supp. 2d 1047, 1066-67 (N.D. Cal. 2011) (Title VII and FEHA do not protect employees from “personality conflicts…that generate antipathy,” “snubbing” or “lack of good manners”); Greenfield v. Am. W. Airlines, Inc., No. C 03-5183 MHP, 2005 U.S. Dist. LEXIS 48033, *24 (N.D. Cal. Mar. 30, 2005) (FEHA and Title VII do not protect against “favoritism or personality conflict”; dismissing retaliation claim). Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 295 (2006) (“the FEHA is not a civility code”). In fact, courts have found that “employers have the right to unfairly and harshly criticize their employees, to embarrass them in front of other employees, and to threaten to terminate or demote the employee.” Thompson v. Tracor Flight Sys., Inc., 86 Cal. App. 4th 1156, 1171 (2001) (emphasis added). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 16 of 31 Page ID #:391 9 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 conclusions of “bias” (themselves alternatively alleged as either gender discrimination, disability discrimination, or retaliation for exercising workers’ compensation rights). See Iqbal, 556 U.S. at 682 (a court analyzing a complaint on a motion to dismiss must consider any “obvious alternative explanation” for the alleged misconduct, drawing on its “judicial experience and common sense”). Count 3 fails to state a claim. 2. Count 4 (Disability Discrimination) Fails to State a Claim. The allegations of disability discrimination found in the SAC largely are unchanged from those in the FAC, and should be dismissed for the reasons already briefed and ruled upon. To state a claim for disability discrimination a plaintiff must factually allege “he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.” Wills v. Super. Ct., 195 Cal.App.4th 143, 159-60 (2011); Yeager v. Corr. Corp. of Am., 944 F. Supp. 2d 913, 925 (E.D. Cal. 2013). The plaintiff “must at least show actions taken by the employer from which one can infer, if such actions remained unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion[.]” Guz, supra, 24 Cal. 4th at 355. The allegations in the SAC fail to meet these standards. First, as with the FAC, the SAC fails to factually plead a “disability” as defined by FEHA. A “disability” includes “a physical or mental impairment that substantially limits one or more of the major life activities.” Brundage v. Hahn, 57 Cal. App. 4th 228, 235 (1997) (citing 42 U.S.C.A. § 12102) (emphasis added). Under FEHA, a “physical disability” includes “any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss” that both affects one or more bodily systems and limits an individual’s ability to participate in major life activities. See Cal. Gov’t Code §§ 12926(m)(1)(A)-(B). “Major life activities” include physical, mental, and social activities, such as caring for oneself, Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 17 of 31 Page ID #:392 10 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 performing manual tasks, walking, seeing, hearing, speaking, learning, and working. 2 Cal. C. Regs. § 11065(l). The SAC concludes that Mr. Estrada’s disability is “extreme stress and anxiety, loss of sleep and depression” which caused Mr. Estrada “substantial loss of sleep and enjoyment of life.” (SAC ¶ 95.)7 But this does not plead a disability for several reasons. Initially, stress, anxiety, and loss of sleep are not a disability because they are not “a physical or mental impairment.” Brundage, 57 Cal. App. 4th at 235. And anxiety and stress are not a disability as a matter of law, as the Court has already found, [see Dkt. No. 18 at p.9.]8 The only new disability-related allegation in the SAC is Plaintiff’s vague conclusion that he suffered from “depression.” Yet, whatever Mr. Estrada means by “depression,” no facts are alleged to establish that it was a disability, such as how it manifested, whether it was diagnosed, etc. Moreover, Plaintiff elsewhere alleges his “depression” was caused by the termination.9 Clearly, Plaintiff could not have been discriminated against for a disability that arose after the termination. 7 Mr. Estrada also concludes that this disability caused “panic attacks” and caused him to suffer a “mild stroke” over the course of the July 4 holiday weekend, from which he recovered and returned to work five days later. (SAC ¶ 87-89.) But the SAC makes clear that the claimed disability is “stress and anxiety, loss of sleep and depression,” not the alleged panic attacks or stroke or any consequent symptoms therefrom (none are alleged). And, Mr. Estrada never alleges the “panic attacks” or “mild stroke” caused any limitation, much less a substantial limitation, to any of his major life activities. 8 Higgins-Williams v. Sutter Medical Foundation, 237 Cal.App.4th 78, 84 (2015) (“An employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a disability under FEHA.”); Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344 (2008) (“The FEHA does not guarantee employees a stress-free working environment” and is not “a shield against harsh treatment at the workplace.”). 9 (SAC ¶ 57 (“by reason of the foregoing [i.e., Gate Gourmet’s decision to terminate Mr. Estrada], Plaintiff has suffered harm including…depression, loss of enjoyment of life, stress, anxiety, loss of sleep [etc.]”).) Remarkably, even though Plaintiff alleges his “depression” was caused by his termination, he admits he filed a workers compensation claim before that termination, and therefore before he had suffered the “depression.” (Id. ¶ 44.) Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 18 of 31 Page ID #:393 11 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 Moreover, even if anxiety, stress and loss of sleep were disabilities (they are not), and even if Mr. Estrada’s conclusion of “depression” was sufficient (it is not), the claim also fails because the SAC never alleges that any of these “substantially limit[] one or more of the major life activities.” Brundage, 57 Cal. App. 4th at 235. Mr. Estrada pleads only that these conditions caused Mr. Estrada “substantial loss of sleep and enjoyment of life.” (SAC ¶ 95.) The loss of “enjoyment of life” is not a substantial limitation to a major life activity, and “substantial loss of sleep” is a pure conclusion that is entitled to zero weight, notwithstanding Mr. Estrada’s attempt to parrot case law. W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations”). As such, Mr. Estrada fails to plead the predicate for a FEHA disability discrimination claim. Second, the SAC fails to factually plead that Mr. Estrada could perform the essential duties of the job with or without reasonable accommodations. As before, Mr. Estrada parrots the words of the statute, concluding that “he was able to perform the essential duties required of him, without accommodations from Gate Gourmet.” (SAC ¶ 95.) The SAC adds that Mr. Estrada “still showed up to work every day, performed his duties and completed the work assigned to him.” (Id. ¶ 95). But, as with the Complaint and FAC, Mr. Estrada fails to allege what the duties of the job were, much less factually allege his ability to competently perform them. Without some indication as to what Mr. Estrada’s job duties were, it is impossible to determine whether he was competent to perform them. See generally Wills, 195 Cal. App. 4th at 170 (noting the court’s inability to determine whether an employee is “qualified”; noting without “establishing th[e] essential duties [of the job], we cannot assume [plaintiff’s] misconduct toward her coworkers prevented her from performing her job.”) Plaintiff fails to allege facts, as required. See, e.g., Robinson v. HD Supply, Inc., 2012 WL 3962502, at *5 (E.D. Cal. Sept. 10, 2012) (granting motion to dismiss disability discrimination claim where plaintiff failed to “allege facts from which a reasonable inference could be drawn that he ‘could perform the essential duties of the job with or without reasonable Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 19 of 31 Page ID #:394 12 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 accommodations’ for his disability” (quoting Wills, 195 Cal. App. 4th at 159-60)) (emphasis added). Moreover, Plaintiff’s conclusion that he was showing up and completing his (unspecified) assignments lacks plausibility because it is belied by his admission elsewhere in the SAC that his duties were “impossible to complete.” (See SAC ¶¶ 17, 27.) Third, the final element of the prima facie case - a nexus between an adverse employment action and Mr. Estrada’s disability (Wills, 195 Cal. App. 4th at 159-60) - is not alleged for three reasons. Initially, because Mr. Estrada failed to adequately allege the existence of a disability, he cannot, and does not, plead that the (nonexistent) disability motivated any adverse employment action. But even assuming Mr. Estrada had pled a disability (he did not), he fails to allege an adverse employment action that was motivated by that disability. Indeed, the SAC admits that Mr. Estrada’s “disability” had no impact on his ability to work (SAC ¶ 95), and, as noted, his “depression” arose after the termination (Id. ¶ 57). Thus, it is not clear (and certainly is not factually alleged) that Gate Gourmet even knew that he was “disabled.”10 Further still, even assuming Mr. Estrada had a disability and that Gate Gourmet knew it, Mr. Estrada fails to allege that Gate Gourmet took an adverse employment action due to that “disability.” Indeed, Mr. Estrada never even concludes, much less factually alleges, that the termination (by some unidentified actor) was motivated by his disability. 10 Plaintiff’s new allegation that he had panic attacks and told his supervisors about them does nothing to suggest Gate Gourmet knew of a disability. For one, the panic attacks are not alleged to be a disability because they are not alleged to have limited any major life activity. But Plaintiff also specifically pleads that they did not impact his work life. (SAC ¶ 95.) Even if vague allegations of “panic attacks” were sufficient, mere knowledge that an employee has medical issues is insufficient to show knowledge of a disability. Brundage, 57 Cal. App. 4th at 237 (concluding the employer lacked knowledge of the employee's manic depressive disorder disability even though the employer knew the employee “had taken a substantial amount of leave for medical appointments” because none of the employee’s leave requests disclosed a disability). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 20 of 31 Page ID #:395 13 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 (See SAC ¶¶ 94-100.) And, as noted, elsewhere the SAC asserts the contradictory conclusions that the termination was motivated instead by Mr. Estrada’s gender (id. ¶ 54), or in retaliation for filing workers’ compensation claims (id. at ¶ 56). Further still, as explained above, Mr. Estrada alleges an alternative, non-discriminatory basis for his termination - that he and his supervisor did not get along, and that his performance was poor. (FAC ¶ 21; SAC ¶ 27 (alleging Mr. Estrada found his work “impossible to complete”).) For each of these reasons, Count 4 should be dismissed. 3. Count 5 (Retaliation) Fails to State a Claim. Though this Court dismissed the retaliation claim from the FAC, the charging allegations of Mr. Estrada’s Count 5 are unchanged. As briefed regarding the FAC, such conclusions are insufficient. To state a claim for retaliation under FEHA, “the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action.” Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 476 (1992); Yanowitz, 36 Cal. 4th at 1042. Specifically, the plaintiff must show that his engagement in a protected activity was a “‘substantial motivating factor’ in the adverse employment decision.” Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 478 (2013). “Protected activity” means that the employee “has opposed any practices forbidden under [FEHA] or…has filed a complaint, testified, or assisted in any proceeding under [FEHA].” Cal. Gov. Code § 12940(h). As before, the SAC fails factually plead these elements. Rather the SAC concludes, without factual support - and without adding a single additional fact to the allegations of the FAC - that the termination was retaliation for Plaintiff’s workers’ compensation claims. (SAC ¶ 104.) Yet, even assuming (without conceding) that filing workers’ compensation claims constitutes a “protected activity,” the claim fails because it does not factually allege a causal link between the adverse action and the protected Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 21 of 31 Page ID #:396 14 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 activity. The SAC never identifies the individual who decided to terminate Mr. Estrada, and it never alleges that person even knew of Plaintiff’s workers’ compensation claims, much less that he or she was substantially motivated to terminate Mr. Estrada because of them.11 With no connection factually alleged between any protected activity and the only adverse employment action, the claim fails. Further undercutting his vacuous “retaliation” conclusion is his allegation that his termination was “simply as a result of his gender” (SAC ¶ 102) or his “disability” (see id. at ¶¶ 94-96).12 Mr. Estrada is simply throwing legal theories against a wall, hoping to see if any stick. But not only are none supported by facts, each conclusion contradicts the other. Next, Mr. Estrada shifts away from his termination, and argues that other conduct was “retaliatory.” He suggests that he was denied training (SAC ¶ 16), that Ms. Jones occasionally placed him on the graveyard shift (id. ¶ 40), and that Mr. McGowan put Mr. Estrada on a performance improvement plan (id. at ¶ 32), and that these were each acts of retaliation. Initially Mr. Estrada never alleges that any of these “materially affect[ed] the terms, conditions, or privileges of [his] employment,” Yanowitz, 36 Cal. 4th at 1052, and thus, none constitutes an adverse employment action. (See footnote 2, supra.) Further, Mr. Estrada utterly fails to plead that any of these alleged actions were caused by him filing a worker’s compensation claim, or that his supervisor was even aware of the claim. 11 As in the FAC, the SAC muddles the facts to give the impression that Mr. Estrada was terminated on August 13, 2015 because of the August 13, 2015 workers’ compensation claim. But the SAC (like the FAC) does not say that. It only alleges that the two events occurred the same day. (SAC ¶¶ 47-48.) Tellingly, in the original Complaint, these two allegations were reversed, suggesting the opposite - that Mr. Estrada was terminated and then filed a workers’ compensation claim. (See e.g., Complaint ¶¶ 54-55.) Plaintiff’s failure to change this allegation after Defendant pointed it out [Dkt. No. 18 at 10:23-26] confirms that Plaintiff cannot truthfully allege that the claim preceded the termination. 12 Again, as noted, even these conclusions of alternative biases are factually unsupported (see Part III.A.1 and III.A.2., supra). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 22 of 31 Page ID #:397 15 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 Indeed, Ms. Jones’ allegedly “retaliatory” refusal to train Mr. Estrada, even taken as true, allegedly began the moment Mr. Anderson resigned, not in response to any protected activity. (SAC ¶ 16.) And though the SAC concludes that the performance improvement plan and the graveyard shifts assignments were retaliation for (a) Mr. Estrada’s filing a February 3, 2015 worker’s compensation claim; and (b) his March 23, 2015 complaint about Ms. Jones (SAC ¶¶ 32, 40), no facts are pled to support either conclusion. Even assuming the workers’ compensation claim is a protected activity, nothing suggests that the April 21, 2015 performance improvement plan or the June 2015 shift assignment decisions had anything to do with it. Indeed, it is not even pled that Mr. McGowan or Ms. Jones knew of the claim. And nothing suggests the performance improvement plan or shift assignments had anything to do with Mr. Estrada’s March 23, 2015 complaint against Ms. Jones.13 But even if they did, Plaintiff’s prior pleadings make clear that the complaint about Ms. Jones was not a “protected activity” anyway. The original Complaint pled the contradictory conclusion that the performance improvement plan was motivated by Mr. Estrada’s formal complaint against Ms. Jones for her “unprofessional behavior in the workplace.” (Complaint ¶¶ 17-18.) Mr. Estrada’s prior admissions remain binding on him.14 And, because griping about one’s boss is not a “protected activity,” it cannot form the basis of a claim for retaliation. For these reasons, Count 5 fails to state a claim. 13 The SAC never alleges Ms. Jones was aware of Mr. Estrada’s complaint against her. 14 Robinson v. Salazar, 885 F. Supp. 2d 1002, 1024 n.12 (E.D. Cal. 2012) (“[A]dmissions in prior pleadings, however, are not irrelevant. A prior pleading may be superseded as a pleading, but the prior pleading may be admissible in evidence against the pleader; e.g., as an admission or prior inconsistent statement by the pleader: ‘The amendment of a pleading does not make it any the less an admission of the party.’”) (quoting Andrews v. Metro North Commuter R.R. Co., 882 F.2d 705, 707 (2nd Cir. 1989)). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 23 of 31 Page ID #:398 16 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 4. Count 6 (Failure to Prevent) Fails to State a Claim. Plaintiff’s Count 6, for “Failure to Prevent Discrimination and/or Retaliation” is a carbon copy of the Count in the FAC, and it fails for the same reason it failed before. The count is based on California Government Code § 12940, which provides that “[i]t shall be an unlawful employment practice…[f]or an employer…to fail to take all reasonable steps necessary to prevent discrimination…from occurring.” Cal. Gov. Code § 12940(k). However, it is well established that “there can be no violation of 12940(k) absent a finding of actual discrimination[.]” Abdul-Haqq v. Kaiser Found. Hosps., 2015 U.S. Dist. LEXIS 8768, at *6 (N.D. Cal. Jan. 23, 2015); See, e.g., Tritchler v. Cty. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2003) (holding the district court did not abuse its discretion in requiring a finding of actual discrimination before a violation of section 12940(k) becomes actionable) (citing Trujillo v. North Cty. Transit Dist., 63 Cal. App. 4th 280, 283-84 (1998)). “[T]here’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen.” Trujillo, 63 Cal. App. 4th at 289. Mr. Estrada fails to adequately plead a discrimination cause of action (see Part III.A.1, supra), and therefore cannot prevail on any derivative “failure to prevent” discrimination claim. His “failure to prevent retaliation” claim fails because (a) neither Section 12940(k) nor any provision of FEHA contemplates such a claim (subsection (k) addresses only discrimination and harassment); and (b) even if it did, Mr. Estrada fails to state a claim for retaliation (see Part III.A.3., supra ), and therefore, the Trujillo rationale applies to this claim as well. B. Plaintiff’s Non-FEHA Counts Also Fail to State a Claim. 1. Count 1 (Wrongful Termination, Public Policy) Fails to State a Claim. Plaintiff’s public policy count is materially identical to the same count dismissed from the FAC. The claim fails for the same reasons it did before. To state a claim for wrongful termination in violation of public policy, a plaintiff Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 24 of 31 Page ID #:399 17 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 must plead facts showing that the defendant’s decision to terminate his employment violated public policy. Tameny v. Atl. Richfield Co., 27 Cal.3d 167, 174, 178 (1980); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 663 (1988) (upholding ruling sustaining demurrer to Tameny cause of action, finding pleading “could not proceed [because] plaintiff failed to allege facts showing a violation of a fundamental public policy.”). Specifically, Mr. Estrada must show that “his dismissal violated a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256 (1994). As with the FAC, Count 1 of the SAC repeats the conclusions from other counts and parrots the elements of the claim by concluding that Defendant “wrongfully terminated Mr. Estrada’s employment in violation of public policy,” “including, but not limited to, Government Code §12940.” (FAC ¶¶ 54, 58.) As discussed above, these conclusory allegations do not amount to a violation of FEHA, or any other “fundamental” policy that is “beneficial for the public” or “embodied in a statute or constitutional provision.” Turner, 7 Cal. 4th at 1256; and see Part III.A., supra. Where a plaintiff cannot allege violations of a statute, he likewise cannot sustain a claim for wrongful termination in violation of public policy where that statute serves as the public policy basis for the claim. Furtado v. United Rentals Inc., 2015 WL 4452502, at *6 (N.D. Cal. July 20, 2015) (“To have a common law remedy for wrongful termination based on the public policy embodied in a statute, a claimant must be entitled to coverage under that statute.”); see also Jennings v. Marralle, 8 Cal. 4th 121, 130 (1994) (“only termination in violation of a fundamental public policy expressed in a statute or a constitutional provision will support a wrongful discharge action”). Thus, Count 1 rests on Mr. Estrada’s bare conclusion that he was “terminated…in violation of public policy.” (SAC ¶ 54.) That conclusion is insufficient. See Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“bare assertions... amounting to nothing more than a ‘formulaic recitation of the elements’” of a claim “are not entitled to an assumption of truth”). In short, Count 1 fails to state a claim. Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 25 of 31 Page ID #:400 18 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 2. Count 2 (Wrongful Termination, Implied Contract) Fails to State a Claim. Plaintiff’s wrongful termination/implied contract count in the SAC is materially identical to the count in the FAC that this Court already held does not state a claim.15 For the reasons already briefed and ruled upon, these allegations again fail to state a claim. To state a claim for breach of an implied employment contract, Mr. Estrada must plead (1) the contract; (2) his performance or excuse for nonperformance; (3) defendant’s breach; and (4) the resulting damage to plaintiff. Wise v. S. Pac., 223 Cal. App. 2d 50, 59 (1963) (overruled on other grounds); Smith v. Royal Mfg. Co., 185 Cal.App.2d 315, 325 (1960). To establish the first element - the existence of the contract itself - a plaintiff must first overcome the statutory presumption of “at will” employment codified in California Labor Code section 2922, which provides that “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other….” Cal. Lab. Code § 2922. To do so, a plaintiff would have to state “facts which, if proved” tend to show “the existence and content of an employment agreement,” such as “[1] the personnel policies or practices of the employer, [2] the employee’s longevity of service, [3] actions or communications by the employer reflecting assurances of continued employment, and [4] the practices of the industry in which the employee is engaged.” Foley v. Interactive Data Corp., 47 Cal. 3d 654, 680, 682 (1988). Importantly, “to establish[] the requisite promise, ‘oblique language will not, standing alone, be sufficient to establish agreement’; instead, the totality of the circumstances determines the nature of 15 To be clear, the charging allegations of Count 2 are identical to those in the FAC with the following two exceptions: FAC ¶ 57 (now SAC 68), which concluded that plaintiff was “subjected to retaliation,” now states plaintiff was “subjected to discrimination and retaliation”; and FAC ¶ 59 (now SAC ¶ 70) was amended to add the conclusion that Mr. Estrada’s female coworkers had the same title position, etc. as Mr. Estrada. Neither of these changes does anything to cure the previously-identified deficiencies of Plaintiff’s implied contract count. Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 26 of 31 Page ID #:401 19 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 the contract. Agreement may be ‘shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances.’” Id. at 681 (quoting Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 329 (1981)). As this Court has already found on nearly verbatim allegations, Plaintiff has not pled facts sufficient to overcome the statutory presumption. First, regarding Defendant’s policies, Plaintiff alleges there existed “certain writings” including a “handbook” and “rules and regulations,” but he never alleges the content of any of these documents, or how these gave rise to an implied contract, much less the terms of that contract. Second, concerning Mr. Estrada’s longevity, the SAC concedes Plaintiff worked for Defendant for less than one year, a brief period that militates against a finding of an implied contract. Third, as for actions of the employer, Plaintiff alleges he “was told” that he would be terminated only for cause, but Plaintiff fails to identify this person, much less show how this unidentified person was authorized to speak on Gate Gourmet’s behalf. Finally, as to the practices of the industry, Plaintiff offers nothing. In short, Plaintiff fails to establish a contract (the first element), and the claim fails. Though that pleading failure alone is fatal, the remaining allegations further unwind the claim. Like the FAC, the SAC makes clear that the sole alleged “breach” is the conclusion that Mr. Estrada was subjected to discrimination and retaliation. (See generally SAC ¶¶ 68-73.) Even if an implied contract had been factually alleged, Mr. Estrada’s conclusions regarding the alleged breach raise two fatal problems. First, to the extent Gate Gourmet’s “breach” rests on Mr. Estrada’s claims of discrimination and retaliation (Counts 3 and 5), the breach is not factually alleged for the reasons noted above. (See Parts III.A.1. and III.A.3., supra). Second, because the only purported “breach” identified in Count 2 is Gate Gourmet’s alleged violation of the law, the count is based on an alleged contract to “obey the law.” Such a contract is unsupported by consideration and is illegal and void. Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694, 715 (N.D. Cal. 2014) (dismissing implied employment contract claim with prejudice; finding “any contract based on a promise by [employer] to comply with the Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 27 of 31 Page ID #:402 20 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 anti-discrimination statutes such as the FEHA or Title VII is void as illegal”). Thus, Mr. Estrada’s conclusions regarding breach are not only insufficient to allege a breach, they unwind his conclusion of an implied contract. IV. PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES IS DEFICIENT. The Court previously struck Plaintiff’s request for punitive damages because it found Plaintiff’s allegation that his termination was “done with intent to cause injury to Plaintiff” and was “oppressive, malicious and despicable” was “entirely inadequate.” [Dkt. No. 27 at p.14.] In response, Plaintiff changed nothing. The SAC bases its request for punitive damages on exactly the same allegation. The request for punitive damages should be dismissed or stricken again because, as before, the SAC fails to plead (A) a substantive basis for punitive damages (e.g., malice by an identified actor) or (B) corporate ratification of that identified actor’s actions. A. No Oppression, Fraud or Malice Is Alleged. To seek punitive damages, a plaintiff must factually allege “oppression, fraud, or malice.” Civil Code § 3294; see Kelley v. Corr. Corp. Of Am., 750 F. Supp. 2d 1132, 1147-48 (E.D. Cal. 2010) (finding the plaintiff’s “conclusory allegations of ‘conscious disregard of Plaintiff’s rights and with the intent to vex, injure and annoy Plaintiff such as to constitute oppression, fraud or malice” insufficient, as they were “unsupported by allegation of any facts” and thus must be dismissed under federal pleading standards).16 Here, Plaintiff alleges no facts of oppression, fraud or malice. He relies on a single conclusory allegation that “his termination by Defendants…was done with intent to cause 16 See also Rhynes v. Stryker Corp., 2011 U.S. Dist. LEXIS 58286, at *14 (N.D. Cal. May 31, 2011) (dismissing punitive damage claim because the pled allegations were “merely conclusory statements not entitled to the presumption of truth under Iqbal and Twombly”); Brousseau v. Jarrett, 73 Cal. App. 3d 864, 872 (1977) (“[Plaintiff]’s conclusory allegation of Defendant’s conduct as willful, intentional and fraudulent is a patently insufficient statement of oppression, fraud or malice within the meaning of [Civil Code] section 3294”); Smith v. Superior Court, 10 Cal. App. 4th 1033,1041 (1992) (same). Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 28 of 31 Page ID #:403 21 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 injury to Plaintiff” and was “oppressive, malicious and despicable[.]” (SAC ¶ 58.) This is not permissible pleading. B. Employer Ratification Also Is Not Alleged. Further, even if Plaintiff had properly alleged oppression, fraud, or malice by someone (he does not), Plaintiff’s punitive damages request must also be dismissed or stricken because Plaintiff fails to allege corporate ratification. Pursuant to Civil Code §3294(b), a plaintiff cannot maintain a claim for punitive damages against a corporate Defendant, unless the plaintiff shows that a corporate officer, director or managing agent engaged in malicious, fraudulent or oppressive conduct. Civil Code §3294(b) states: An employer shall not be liable for [punitive] damages…based upon acts of an employee of the employer, unless the employer…was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge, ratification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. In White v. Ultramar Inc., 21 Cal.4th 563, 572-73 (1999), the California Supreme Court explained that the reason Section 3294(b) requires plaintiffs to prove that the alleged wrongful act giving rise to such a claim was committed by an officer, director or managing agent of the corporation is to ensure punitive damages are imposed only for conduct of “employees who in fact exercise substantial authority over decisions that ultimately determine corporate policy.” Id. at 576. The Court reasoned that this statutory limitation must be strictly followed to ensure the Legislature’s intent is carried out to “avoid imposing punitive damages on employers who were merely negligent or reckless, to distinguish ordinary respondent superior liability from corporate liability for punitive damages.” Id. at 572. In emphasizing the “limited role and deterrent purpose of punitive damages awards,” the court further noted that it is “improper ordinarily to award punitive damages against one who himself is personally innocent and therefore liable only vicariously.” Id. at 570, 575. “[C]onclusory allegations of authorization or ratification fail to satisfy federal Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 29 of 31 Page ID #:404 22 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 pleading standards.” Rhynes, supra., 2011 WL 2149095 at *6. To plead ratification, a plaintiff must allege “fact[s] tending to show that any officer, director, or managing agent took any action amounting to authorization or ratification of the alleged misconduct or had knowledge of the unfitness of any employee.” Id.; see Kelley, supra, 750 F.Supp.2d at 1145-46 (applying Iqbal/Twombly pleading standards; finding plaintiff’s conclusory allegation that “Defendant’s acts were carried out by its managerial employees, officers and directors, and were directed or ratified by Defendant” was insufficient.) Here, Plaintiff fails to plead any facts suggesting ratification. He merely concludes that “each Defendant was an agent of the other Defendants and approved and/or ratified the conduct of the other Defendants.” (SAC ¶¶ 5-6.) Plaintiff fails to even identify an officer, director, or managing agent of Gate Gourmet, or allege that such an individual engaged in (unspecified) malicious, fraudulent or oppressive conduct or acted to ratify any such conduct by some (again unspecified) other person, much less allege what position this person held, what they knew, when and how they knew it, or how their actions constitute malice, oppression or fraud. Because the SAC fails to satisfy the pleading requirements to seek damages pursuant to California Code of Civil Procedure section 3294, the prayer for punitive damages should be dismissed or stricken. V. LEAVE TO AMEND SHOULD BE DENIED. Defendant’s prior briefing and the Court’s order dismissing the FAC exhaustively detailed the deficiencies of the FAC, but Plaintiff failed to cure them; the SAC still fails to state a claim. The Court previously cautioned Plaintiff that the SAC would be Plaintiff’s last chance - that “[n]o further leave to amend will be given.” [Dkt. No. 27 at 8-9.] Despite this warning, Plaintiff still failed to state a claim. Therefore, Defendant / / Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 30 of 31 Page ID #:405 23 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFF’S SAC LA 133119463v3 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 respectfully requests that Counts 1-6 of the SAC be dismissed and that Plaintiff’s request for punitive damages be dismissed or stricken, all without leave to amend. Respectfully submitted, Dated: July 10, 2017 GREENBERG TRAURIG, LLP By: /s/ Mark D. Kemple Mark D. Kemple Ryan C. Bykerk Attorneys for Gate Gourmet, Inc. Case 2:17-cv-01100-MWF-FFM Document 29 Filed 07/10/17 Page 31 of 31 Page ID #:406 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE SAC LA 133119674v1 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 GREENBERG TRAURIG, LLP Mark D. Kemple (SBN 145219) Ryan C. Bykerk (SBN 274534) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 kemplem@gtlaw.com bykerkr@gtlaw.com Attorneys for Defendant Gate Gourmet, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ADOLFO ESTRADA, Plaintiff, v. GATE GOURMET; ANGELA JONES and DOES 1 through 50, inclusive, Defendants. CASE NO. 2:17-cv-01100-MWF (FFMx) Hon. Michael W. Fitzgerald [PROPOSED] ORDER GRANTING DEFENDANT GATE GOURMET, INC.’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT; MOTION TO STRIKE (Filed and served concurrently with Memorandum of Points and Authorities) Date: August 14, 2017 Time: 10:00 a.m. Courtroom: 5A Action Filed: December 19, 2016 Action Removed: February 10, 2017 Trial Date: Not set Case 2:17-cv-01100-MWF-FFM Document 29-1 Filed 07/10/17 Page 1 of 4 Page ID #:407 1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE SAC LA 133119674v1 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 ORDER Defendant Gate Gourmet, Inc.’s (“Gate Gourmet”) Motion to Dismiss and Strike Plaintiff Adolfo Estrada’s Second Amended Complaint (“SAC”) came on for hearing in the above-captioned Court on August 14, 2017. Appearances were stated on the record. The Court, having considered all of the briefing and argument on the matter, and for GOOD CAUSE shown, GRANTS Gate Gourmet’s Motion in its entirety, as follows. It is hereby ORDERED that: (1) Plaintiff’s gender discrimination claim (Count 3) is dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) on the grounds that Mr. Estrada fails to factually allege that he suffered an adverse employment action due to his gender. (2) Plaintiff’s disability discrimination claim (Count 4) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Mr. Estrada (a) fails to allege he has a disability; (b) fails to allege he could perform the essential duties of the job; and (c) fails to allege he suffered an adverse employment action due to discriminatory animus. (3) Plaintiff’s retaliation for engaging in protected activity claim (Count 5) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Mr. Estrada fails to allege a causal connection between his engagement in a protected activity and an adverse employment action. (4) Plaintiff’s derivative “failure to prevent discrimination and/or retaliation” claim (Count 6) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Plaintiff’s discrimination and retaliation counts fail, and therefore, this derivative claim cannot survive. (5) Plaintiff’s wrongful termination in violation of public policy claim (Count 1) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Plaintiff fails to plead facts showing that Gate Gourmet’s decision to terminate him violated public policy. Though Plaintiff grounds this claim in alleged violations of FEHA, the Case 2:17-cv-01100-MWF-FFM Document 29-1 Filed 07/10/17 Page 2 of 4 Page ID #:408 2 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE SAC LA 133119674v1 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 SAC fails to factually allege a violation of FEHA, as noted above, and this claim therefore fails. (6) Plaintiff’s wrongful termination in violation of implied employment agreement claim (Count 2) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Plaintiff (a) fails to factually allege the existence of an implied-in-fact contract sufficient to overcome the presumption of at-will employment contained in California Labor Code 2922, and (b) impermissibly concludes Gate Gourmet’s alleged “breach,” which Plaintiff grounds on alleged violations of FEHA that are not factually pled. (7) Plaintiffs’ punitive damages request is dismissed/stricken pursuant to FRCP 12(b)(6) and 12(f) because (a) Plaintiff fails to factually allege malice, oppression or fraud by anyone; and (b) Plaintiff also fails to allege that Gate Gourmet ratified any acts on which punitive damages could be based, as would be required by California Civil Code § 3294, et seq. Specifically, the following language is dismissed/stricken from the SAC: Page 18, lines 11-17 (“Such actions were therefore done in conscious disregard of the rights of Plaintiff to be free of gender discrimination in the workplace, among other rights secured under California law. Plaintiff is informed and believes, and thereon alleges, that his termination by Defendants, and each of them, was done with intent to cause injury to Plaintiff. As a consequence of the aforesaid oppressive, malicious and despicable conduct, Plaintiff is entitled to an award of punitive damages in a sum as yet undetermined”); Page 19, lines 7-8; page 23, lines 23-24; page 27, lines 6-7; page 29, lines 6- 7; page 30, lines 4-5 (Paragraphs 63, 84, 100, 109, and 116 in their entirety, each of which state “WHEREFORE, Plaintiff, ADOLFO ESTRADA is seeking Exemplary and Punitive Damages in a sum to be determined, according to proof”); and Case 2:17-cv-01100-MWF-FFM Document 29-1 Filed 07/10/17 Page 3 of 4 Page ID #:409 3 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE SAC LA 133119674v1 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 Page 30, lines 11-12 (Prayer, paragraph 3, in its entirety, which states “For exemplary and punitive damages according to proof on the first, third, fourth, fifth and sixth causes of action, only”). This Court’s prior Order cautioned Plaintiff that he would be permitted only one more chance to plead, and that “no further leave to amend will be granted.” [Dkt. No. 27 at p.2, see id. at p.14.] Plaintiff’s SAC fails to cure the deficiencies noted in this Court’s Order. Accordingly, the SAC is dismissed in its entirety, and without leave to amend. IT IS SO ORDERED. Dated: ___________, 2017 ________________________________ HON. MICHAEL W. FITZGERALD Case 2:17-cv-01100-MWF-FFM Document 29-1 Filed 07/10/17 Page 4 of 4 Page ID #:410
