Adolfo Estrada et al v. Gate Gourmet, Inc. et alNOTICE OF MOTION AND MOTION to Dismiss Case pursuant to F.R.C.P. 12C.D. Cal.February 17, 2017 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 and LOURDES ESTRADA, Plaintiffs, 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 PLAINTIFFS’ 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: March 20, 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 9 Filed 02/17/17 Page 1 of 31 Page ID #:79 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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, PLAINTIFFS, AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on Monday, March 20, 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 “GGI”) 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 Plaintiffs’ Complaint (Counts 1-9) for failure to state a claim upon which relief can be granted; and (2) dismissing or striking Plaintiffs’ request for punitive damages.1 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. 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 Complaint: Page 14, lines 4-10 (“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 to be shown according to proof.”); page 14, lines 26-27, page 21, lines 9-10, page 26, lines 12-13, page 30, lines 13-14, page 31, lines 7-8 and 27-28, page 37, lines 20-21 (Paragraphs 64, 95, 118, 138, 144, 150, and 176 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.”); page 38, lines 17-18 (Prayer for Relief Paragraph 3, in its entirety, which states “For exemplary and punitive damages according to proof for all Causes of Action.”). Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 2 of 31 Page ID #:80 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on February 10, 2017. Respectfully submitted, Dated: February 17, 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 9 Filed 02/17/17 Page 3 of 31 Page ID #:81 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 FAILS TO STATE A CLAIM. ....................................................... 4 A. Plaintiffs’ FEHA Counts (Counts 3-8) Fails to State a Claim. ....................... 4 1. Count 3 (Gender Discrimination) Fails to State a Claim. ..................... 4 2. Count 4 (Workplace Harassment) Fails to State a Claim. .................... 7 3. Count 5 (Disability Discrimination) Fails to State a Claim. ............... 10 4. Count 6 (Retaliation) Fails to State a Claim. ...................................... 13 5. Count 7 (Failure to Prevent) Fails to State a Claim. ........................... 14 6. Count 8 (Failure to Provide) Fails to State a Claim. ........................... 15 B. Plaintiffs’ Non-FEHA Counts Fail to State a Claim as Well. ....................... 15 1. Count 1 (Wrongful Termination, Public Policy) Fails to State a Claim. .................................................................................................. 15 2. Count 2 (Wrongful Termination, Implied Contract) ) Fails to State a Claim. ...................................................................................... 17 3. Count 9 (Loss of Consortium) Fails to State a Claim. ........................ 18 IV. PLAINTIFFS’ 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. CONCLUSION ........................................................................................................ 23 Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 4 of 31 Page ID #:82 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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) ..................................................................... 14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................. 4, 19, 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) ................................................................................................................ 3, 4, 5, 20 Cozzi v. Cty. of Marin, 787 F.Supp.2d 1047 (N.D. Cal. 2011) .................................................................................................. 5 Destfino v. Kennedy, 2009 WL 63566 (E.D. Cal. Jan. 7, 2009) ............................................................................................. 1 Kelley v. Corr. Corp. Of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010)............................................................................................... 20 Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) .............................................................................................................. 16 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) .................................................................................... 12 Smith v. Northrop Grumman, 60 F.Supp.3d 1051 (N.D. Cal. 2014) .................................................................................................. 18 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) .............................................................................................................. 4 Tritchler v. Cty. of Lake, 358 F.3d 1150 (9th Cir. 2003) ............................................................................................................ 14 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) ......................................................................................................................... 13 Western Min. Council v. Watt, 643 F.2d 618 (9th Cir. 1981) ........................................................................................................ 17, 18 Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 5 of 31 Page ID #:83 3 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Yeager v. Corr. Corp. of Am., 944 F.Supp.2d 913 (E.D. Cal. 2013) ................................................................................................... 10 State Cases American Airl. Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4th 1017 (2002) ............................................................................................................... 21 Anderson v. Northrop Corp., 203 Cal.App.3d 772 (1988) ................................................................................................................ 18 Brousseau v. Jarrett, 73 Cal.App.3d 864 (1977) .................................................................................................................. 20 Brundage v. Hahn, 57 Cal.App.4th 228 (1997) ................................................................................................................. 11 Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987) .......................................................................................................................... 20 Cruz v. Homebase, 83 Cal.App.4th 160 (2000) ................................................................................................................. 22 Dickson v. Burke Williams, Inc., 234 Cal.App.4th 1307 (2015) ............................................................................................................. 15 Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590 (1989) ................................................................................................................ 13 Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467 (1992) ................................................................................................................... 13 Foley v. Interactive Data Corp., 47 Cal.3d 654 (1988) .............................................................................................................. 15, 16, 17 Guz v. Bechtel Nat’l. Inc., 24 Cal.4th 317 (2000) ................................................................................................................. 4, 5, 10 Jennings v. Marralle, 8 Cal.4th 121 (1994) ........................................................................................................................... 16 Jones v. Dep't of Corr. & Rehab., 152 Cal.App.4th 1367 (2007) ............................................................................................................... 4 Le Bourgeois v. Fireplace Mfg., 68 Cal.App.4th 1049 (1998) ............................................................................................................... 16 LeFiell Mfg. Co. v. Super. Ct. (O’Neil Watrous et al.), 55 Cal.4th 275 (2012) ......................................................................................................................... 20 Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 6 of 31 Page ID #:84 4 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264 (2006) ........................................................................................................................... 6 M. G. Chamberlain & Co. v. Simpson, 173 Cal.App.2d 263 (1959) ................................................................................................................ 17 Mendoza v. Town of Ross, 128 Cal.App.4th 625 (2005) ............................................................................................................... 18 Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876 (2008) ......................................................................................................................... 19 Reno v. Baird, 18 Cal.4th 640 (1998) ........................................................................................................................... 8 Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382 (1974) ...................................................................................................................... 3, 19 Scotch v. Art Inst. of Cal., 173 Cal.App.4th 986 (2009) ............................................................................................................... 15 Serri v. Santa Clara Univ., 226 Cal.App.4th 830 (2014) ............................................................................................................. 7, 8 Smith v. Royal Mfg. Co., 185 Cal.App.2d 315 (1960) ................................................................................................................ 17 Smith v. Superior Court, 10 Cal.App.4th 1033 (1992) ............................................................................................................... 20 Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980) .................................................................................................................... 15, 18 Thompson v. City Of Monrovia, 186 Cal.App.4th 860 (2010) ........................................................................................................... 7, 10 Thompson v. Tracor Flight Sys., Inc., 86 Cal.App.4th 1156 (2001) ................................................................................................................. 6 Trujillo v. North Cty. Transit Dist., 63 Cal.App.4th 280 (1998) ........................................................................................................... 14, 15 Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238 (1994) ......................................................................................................................... 16 White v. Ultramar Inc., 21 Cal.4th 573 (1999) ......................................................................................................................... 22 Wills v. Super. Ct., 195 Cal.App.4th 143 (2011) ................................................................................................... 10, 12, 13 Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 7 of 31 Page ID #:85 5 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Wise v. S. Pac., 223 Cal.App.2d 50 (1963) .................................................................................................................. 17 Yanowitz v. L'Oreal USA Inc., 36 Cal.4th 1028 (2005) ................................................................................................................... 5, 13 State Statutes California Civil Code § 3294 .................................................................................................... 3, 20, 21, 23 California Civil Code § 3294(b) ......................................................................................................... 21, 22 California Government Code § 12926(m)(1)(A) ...................................................................................... 11 California Government Code § 12926(m)(1)(B) ...................................................................................... 11 California Government Code § 12940 ................................................................................................ 14, 16 California Government Code § 12940(h) ................................................................................................. 13 California Government Code § 12940(j)(4)(C) .......................................................................................... 8 California Government Code § 12940(k) ........................................................................................... 14, 15 California Labor Code § 2922 .............................................................................................................. 2, 17 California Labor Code § 3200 .................................................................................................................. 19 California Labor Code § 3600 .................................................................................................................. 20 Rules Federal Rules of Civil Procedure, Rule 8 ............................................................................................... 1, 4 Federal Rules of Civil Procedure, Rule 8(a)(2) .......................................................................................... 3 Federal Rules of Civil Procedure, Rule 12(b)(6) .................................................................................... 3, 4 Regulations 2 C.C.R. § 11019(b) .................................................................................................................................... 9 2 C.C.R. § 11034(f)..................................................................................................................................... 9 2 C.C.R. § 11065(l) ................................................................................................................................... 11 Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 8 of 31 Page ID #:86 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Plaintiffs’ repetitive Complaint fails to state a claim against Gate Gourmet, Inc. (“GGI”) and should be dismissed. It begins with a 20-paragraph litany of perceived wrongs against Plaintiff Adolfo Estrada, which Plaintiffs then cut and paste - without revision - into their Counts for wrongful termination, gender discrimination, disability discrimination, harassment, and retaliation. As such, it is an impermissible “shotgun” pleading which fails for this reason in the first instance.2 Further, through their repetitions, Plaintiffs seek to plead these distinct counts as if the elements of each of the claims is identical, and as if alleging one claim alleges each other claim. But the elements of these claims are not identical. Alleging discrimination, for example, does not allege harassment. And here, the alleged conduct does not properly plead the elements of any claim listed on the caption of the pleading. Accordingly, and for multiple independent reasons summarized below, each count should be dismissed for these reasons as well. Plaintiffs’ FEHA Counts (Counts 3-8) Fail To State a Claim. Count 3. Mr. Estrada’s gender discrimination count fails because Mr. Estrada fails to allege that he was qualified for his position, and because he fails to factually allege that he suffered an adverse employment action because he is a man. Count 4. Mr. Estrada’s workplace harassment count fails for the reason that he fails to allege a single instance of harassment (i.e., intimidation, ridicule or insult). Rather, at best he seeks to allege discrimination - a separate and distinct cause of action. Further, even if Mr. Estrada had alleged an instance of intimidation, ridicule or insult (he 2 See Destfino v. Kennedy, 2009 WL 63566, at *4 (E.D. Cal. Jan. 7, 2009), aff'd sub nom. Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011) (“[a]llegations…which incorporate each preceding paragraph, regardless of relevancy, are not permitted. This practice has been harshly criticized as a form of ‘shotgun pleading’ that violates Rule 8's requirement of a ‘short and plain statement’ and interferes with the court's ability to administer justice”). Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 9 of 31 Page ID #:87 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 has not), he fails to allege that such conduct was the product of improper motive and, further, fails to allege the (supposed) harassment unreasonably interfered with his work performance, as would be required to state a claim for harassment. Count 5. Mr. Estrada’s disability discrimination count fails as he fails: to allege he has a disability; to allege he could perform the essential duties of the job; and to allege he suffered an adverse employment action due to discriminatory animus. Count 6. Mr. Estrada’s count for retaliation for engaging in protected activity fails because he fails to allege a causal connection between his engagement in a protected activity (filing a workers compensation claim) and the adverse employment action (his termination). Indeed, the Complaint elsewhere suggests that Mr. Estrada was retaliated against not for filing a workers’ compensation claim, but for complaining about Ms. Jones’ alleged “unprofessional behavior.” Such is not a protected activity. Count 7. Mr. Estrada’s derivative “failure to prevent discrimination, harassment and/or retaliation” count fails to state claim because his discrimination, harassment and retaliation counts fail. Count 8. Mr. Estrada’s derivative “failure to provide a workplace environment free from discrimination, harassment and retaliation” count fails for the same reason. Plaintiffs’ Non-FEHA Counts Fail To State a Claim. Count 1. Mr. Estrada’s wrongful termination in violation of public policy count fails to state a claim because Mr. Estrada fails to plead facts showing that GGI’s decision to terminate him violated public policy. Though Mr. Estrada grounds the claim in alleged violations of FEHA, the Complaint fails to factually allege a violation of FEHA, as previously noted, and the count therefore fails. Count 2. Mr. Estrada’s wrongful termination in violation of implied employment agreement count fails to state a claim in the first instance because he 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. Though this pleading failure ends the claim, even if Mr. Estrada had adequately pled the existence of an Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 10 of 31 Page ID #:88 3 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 implied contract (he did not), Mr. Estrada’s claim would still fail because he simply concludes GGI’s alleged “breach,” which Mr. Estrada grounds on alleged violations of FEHA that, as discussed, are not factually pled. Count 9. Plaintiff Lourdes Estrada’s loss of consortium count fails as a matter of law because a loss of consortium does not lie for FEHA violations or for wrongful termination at common law. Moreover, even if the claim was theoretically cognizable (it is not), Ms. Estrada fails to allege a “negligent or intentional injury” to Mr. Estrada, which is a predicate showing for her claim,3 because (1) each count concluding negligent or intention conduct by GGI fails; and (2) Count 9 fails to identify which injury or injuries form the basis of the claim. Finally, to the extent the count is based on injuries that arose during Mr. Estrada’s employment, Ms. Estrada’s derivative count it is barred by workers’ compensation exclusivity. Plaintiffs’ Request for Punitive Damages Fails. Finally, Plaintiffs’ request for punitive damages fails because (a) Plaintiffs fail to factually allege malice, oppression or fraud by anyone; and (b) Plaintiffs fail to allege that the GGI ratified any acts on which punitive damages could be based, as would be required by Cal. Civil Code § 3294, et seq. 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. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 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). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “more 3 Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 408 (1974) (loss of consortium available for “negligent or intentional injury” to the claimant’s spouse by third party). Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 11 of 31 Page ID #:89 4 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.; 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.”). In other words, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully” or “facts that are ‘merely consistent with’ a defendant’s liability.” Id. The Ninth Circuit recently 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). III. EACH COUNT FAILS TO STATE A CLAIM. A. Plaintiffs’ FEHA Counts (Counts 3-8) Fails to State a Claim. 1. Count 3 (Gender Discrimination) Fails to State a Claim. To state a claim for gender discrimination, a plaintiff must allege that she/he 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). In short, 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 between the coworkers’ conduct and Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 12 of 31 Page ID #:90 5 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Jones’s gender or race; therefore, she cannot make out a claim for discrimination.”). Here, Mr. Estrada never alleges a nexus between (i) an adverse employment action and (ii) his gender. The only adverse employment action4 alleged is Mr. Estrada’s termination. Though his pleading places great weight on his performance improvement plan, “[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)). Because Mr. Estrada fails to allege how the performance improvement plan affected his employment, he does not allege an adverse employment action. Regardless, even assuming both the termination and the performance improvement plan constitute adverse employment actions, Mr. Estrada nowhere factually alleges a nexus between his gender and either action. Regarding the termination, he merely concludes, without factual support, that “if Plaintiff were female, he would not have been subjected to the discrimination…nor would his employment have been terminated.” (Complaint ¶ 91.) Regarding the performance improvement plan, Mr. Estrada simply concludes that he “believes this was done to harass him and in retaliation for filing a complaint against Ms. Jones.” (Id. ¶ 80.) Not only are such conclusions insufficient, Twombly, 550 U.S. at 555 (“a formulaic recitation of the elements of a cause of action will not do”), but Mr. Estrada’s conclusion that the performance improvement plan was a result of his “complaint against Ms. Jones” - which according the Complaint had nothing to do with Mr. Estrada’s gender - unwinds the claim. Moreover, though these “conclusions” would be insufficient under any circumstances, they are particularly insufficient here, where the remainder of the count 4 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. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 13 of 31 Page ID #:91 6 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 makes clear that the “conclusions” are supported by nothing more than Mr. Estrada’s “feelings” and “beliefs.” (Id. at ¶ 76 (Mr. Estrada “felt that Ms. Jones did not want to help him”); ¶ 79 (“felt he was being discriminated against”); ¶ 80 (“believes this was done to harass him”); ¶ 81 (“believes this was done to harass him”); ¶ 82 (“believes that it was made a bigger issue because of his gender”); ¶ 86 (“believes this was done to harass him”); ¶ 89 (“believes that he was denied this program because of his gender”).) Indeed, the balance of the Complaint does not suggest a single discriminatory moment. Initially, Mr. Estrada expressly ties only 6 alleged events to his gender: that (1) he was hired because he was male, (id., at ¶ 75); (2) he “was responsible for 500 employees” while “others were only responsible for 300,” (id. at ¶ 77); (3) after filing a complaint about Ms. Jones, he “noticed a change in behavior from Ms. Jones” and “felt he was being discriminated against…for his gender,” (id. at 79); (4) that an alleged “incident between himself and Ms. Jones where they both raised their voices at each other….was made a bigger issue because of his gender,” (id. at ¶ 82); (5) he had to work more graveyard shifts each month than his coworkers “because of his gender,” (id. at ¶ 83), and (6) he was denied participation in a tuition reimbursement program “because of his gender,” (id. at ¶ 89). None of these events are adverse employment actions, and thus, none are actionable. But moreover, none suggests discriminatory animus. Mr. Estrada’s status as the only male in the department does not convert every variance between his job and the job of his coworkers into a discriminatory act. And no facts are alleged on which to conclude that his claimed disagreements with Ms. Jones were not attributable to a possible personality conflict between himself and Ms. Jones. This is not discrimination, as “the FEHA is not a civility code.” Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 295 (2006). 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). Mr. Estrada’s alleged feelings and beliefs do not state Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 14 of 31 Page ID #:92 7 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 a claims for discrimination. 2. Count 4 (Workplace Harassment) Fails to State a Claim. To state a claim for gender harassment, a plaintiff must show that “(1) he was a member of a protected class; (2) he was subjected to unwelcome [gender-related] harassment; (3) the harassment was based on [gender]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [employer] is liable for the harassment.” Thompson v. City Of Monrovia, 186 Cal. App. 4th 860, 876 (2010). To establish the fourth element, “[t]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he/she] was actually offended.” Serri v. Santa Clara Univ., 226 Cal. App. 4th 830, 870 (2014). Count 4 fails for numerous reasons. First, Mr. Estrada’s Harassment Count fails because it does not allege harassment. Instead, it simply repeats the allegations of Mr. Estrada’s discrimination claim and concludes these are also harassment. Fourteen of the paragraphs in “Workplace Harassment” have been cut and pasted from the “Gender Discrimination” count without revision, except in some cases, to change the word “discrimination” to “harassment.”5 But discrimination and harassment are not the same claim - California law clearly delineates between the two - and the pled facts do not and cannot state a claim for harassment. Discrimination and harassment differ in that “harassment consists of a type of conduct not necessary for performance of a supervisory job,” whereas “[d]iscrimination claims, by contrast, arise out of the performance of necessary personnel management 5 Compare ¶¶ 98, 99, 100, 101, 102, 104, 105, 106, 107, 108, 110, 111, 113 and 114 with id. at ¶¶ 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 89 and 90, respectively. Compare Ex. A, Complaint ¶ 106 (“harass him because of his gender); with ¶ 83 (“discriminated against because of his gender”); and ¶ 114 (“As a result of the harassment”) with ¶ 90 (“As a result of the gender discrimination”). Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 15 of 31 Page ID #:93 8 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 duties.” Reno v. Baird, 18 Cal. 4th 640, 645-46 (1998) (emphasis added). Put another way, harassing conduct must, by definition, be “outside the scope of necessary job performance.” Serri, 226 Cal. App. 4th at 869 (emphasis added).6 Indeed, it is precisely because harassing conduct is conduct outside the scope of the job (e.g. sexually suggestive language) that individual supervisors can be liable for it. In contrast, supervisors are protected from personal liability for action that is discriminatory (adverse employment decisions) because that activity is a part of “necessary personnel management duties,” even if exercised with discriminatory animus. In that instance, because the conduct is within the employment relationship (though the discretion is exercised in a discriminatory manner), only the business bears the risk and liability. Given this important distinction from discrimination, the California Supreme Court has underscored that: the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. Reno, 18 Cal. 4th at 646-67 (emph. added) (quoting Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 64 (1996)). Specifically, harassment is conduct outside the scope of employment that constitutes “intimidation, ridicule and insult” on the basis of a protected classification (here, gender, or sex.)7 Serri, 226 Cal. App. 4th at 869 (emphasis added). Harassment 6 As such, harassment is “intimidation, ridicule and insult.” Id. 7 FEHA defines gender harassment as sexual harassment. See Cal. Gov't Code § 12940(j)(4)(C) (“’harassment’ because of sex includes sexual harassment, gender Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 16 of 31 Page ID #:94 9 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 can manifest as “[v]erbal harassment, e.g., epithets, derogatory comments or slurs,” “[p]hysical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement,” “[v]isual forms of harassment, e.g., derogatory posters, cartoons, or drawings,” or “[s]exual favors, e.g., unwanted sexual advances, which condition an employment benefit upon an exchange of sexual favors.” 2 Cal. Code. Reg. § 11019(b). See also id. at § 11034(f) (“Sexual harassment…includes verbal, physical, and visual harassment, as well as unwanted sexual advances.”) Here, none of the alleged acts in the “Workplace Harassment” count (cut and pasted from the discrimination count) constitutes harassment. Mr. Estrada alleges: he was hired because he was male (Complaint, ¶12); but then he received “false write-ups” (id. ¶97); his “workload began to increase,” and “Ms. Jones did not want to help him” (id. ¶98); he was “the only male employee in his department” (id. ¶99); he was “responsible for 500 employees, [and] others were only responsible for 300” (id.); he had a discussion with Jones about whether the job was right for him (id. ¶100); he was placed on a Performance Improvement Plan, which he contends “was done to harass him and in retaliation filing a complaint against Ms. Jones” (id. ¶¶101-102); he was incorrectly placed on leave instead of vacation and lost three days of pay (id. at ¶ 103); he was wrongly accused with false complaints regarding his work (id. ¶¶104, 110); he was denied training and had an argument with Jones where they both raised their voices at each other, (id. ¶105); he was allegedly scheduled to work 10 graveyard shifts instead of only 5 (id. ¶106); he was terminated (id. ¶111); and he was denied participation in GGI’s tuition reimbursement program (id. ¶113). Even taken as true, none of these alleged acts constitutes harassment - i.e., intimidation, ridicule or insult, and further, outside the scope of necessary job performance. Not one constitutes verbal, physical, visual harassment or a request for sexual favors. Indeed, the alleged acts in the “Workplace Harassment” count are harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.”). Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 17 of 31 Page ID #:95 10 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 commonly necessary personnel management action (write-ups, performance improvement plans, shift assignments, etc.). This is not harassment as a matter of law. Second, though Mr. Estrada concludes that certain of these actions were “because of” or “as a result of” his gender,” (id. at ¶¶96, 99, 101, 105, 106, 113), the Complaint does not contain any factual allegation that this is the case. Mr. Estrada’s status as the only male in the department is not an act of harassment, nor does it convert every single alleged slight or insult into an act of gender harassment. To state a claim, plaintiff must allege factual indicia that he was subjected to the conduct complained of because he was a male. The Complaint contains no such allegations. Third, there is no suggestion in the Complaint that the (supposed) harassment “unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment.” Thompson, 186 Cal. App. 4th at 876. As noted, the alleged harassing acts were, in fact, commonly necessary personnel management actions. Mr. Estrada does not allege (nor could he) that these “unreasonably interfered with his work performance.” Cf. id. The harassment count fails. 3. Count 5 (Disability Discrimination) Fails to State a Claim. To state a claim for disability discrimination claim 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. Once again, Count 5 simply cuts and pastes the same allegations into a new count and re-brands it as “disability discrimination.” The effort fails for three reasons. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 18 of 31 Page ID #:96 11 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 First, Mr. Estrada fails to factually plead a “disability” as defined by FEHA. Mr. Estrada notes that “On or about February 3, 2015 Mr. Estrada suffered a head injury during the course and scope of his employment” (Complaint ¶ 121), that on July 3, 2015 he “suffered injuries to his face and arm, when the left side of his face and arm became numb during the course and scope of his employment” (id., ¶ 127), and that on August 13, 2015 - the date he was terminated - Mr. Estrada filed a workers’ compensation claim for injuries from September 15, 2014 (his hire date) through April 29, 2015, (id. at ¶133). But this is not a disability. 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, performing manual tasks, walking seeing, hearing, speaking, learning, and working. 2 Cal. C. Regs. § 11065(l). Mr. Estrada’s Complaint merely states that he suffered a head injury, an arm and face injury, and some trauma that caused him to file a retroactive workers’ compensation claim the date he was terminated. (Complaint ¶¶ 121, 127, 133.) Mr. Estrada fails to identify which of these injuries constitute the “disability” at issue, much less how that injury (or injuries) constitute a disability. Mr. Estrada fails to allege even the conclusion that his alleged “disability” “substantially limit[ed] one or more of [his] major life activities.” Brundage, 57 Cal. App. 4th at 235. As such, Mr. Estrada fails to plead the predicate for a FEHA disability discrimination claim. Second, Mr. Estrada does not even conclude that he could perform the essential duties of the job with or without reasonable accommodations. He fails to allege what the duties of the job were, much less his ability to competently perform them, and he makes no reference to what reasonable accommodations might or might not have been required. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 19 of 31 Page ID #:97 12 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 His suggestion (back in Count 2) that he “continued to competently perform his work” (Complaint ¶ 68), does nothing to meet this pleading requirement. 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 accommodations’ for his disability” (quoting Wills, supra, 195 Cal. App. 4th at 159-60)) (emphasis added). And, in fact, this suggestion undercuts Mr. Estrada’s conclusion. His implication in Paragraph 133 that he suffered a repetitive injury for the first 8 months of his employment, but waited to file a workers compensation claim until the date of his termination, 11 months after it began, suggests Mr. Estrada’s “injury” did not limit a life activity, and thus, that he did not suffer from a disability at all. Third, the final element of the prima facie case - a nexus between an adverse employment action and Mr. Estrada’s disability (Wills, supra, 195 Cal.App.4th at 159- 60) - is not alleged for two reasons. Initially, because Mr. Estrada failed to adequately allege the existence of a disability, it is impossible for him to 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. Mr. Estrada never even concludes, much less factually alleges, the termination was motivated by his disability. Indeed, elsewhere, the Complaint asserts that the termination was motivated instead by his gender (see Complaint ¶ 91), though, as noted, even this is factually unsupported, (see Part III.A.1., supra). Moreover, assuming for the sake of argument that a performance improvement plan can constitute an adverse employment action (it cannot, as discussed above), the Complaint concludes that Mr. Estrada’s performance improvement plan was motivated not by his disability but due to his “filing a complaint against Ms. Jones.” (Id. ¶ 124.) Since Mr. Estrada cannot allege either a disability or a resulting adverse employment action, he cannot allege he “was subjected to an adverse employment action because of Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 20 of 31 Page ID #:98 13 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 disability or perceived disability.” Wills, supra, 159-60. For each of these reasons Count 5 should be dismissed. 4. Count 6 (Retaliation) Fails to State a Claim. 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 v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005). “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). Count 6 attempts once again to recast the same allegations under a new theory, concluding this time that the allegations set forth in Counts 3, 4 and 5 constitute “a course of retaliatory conduct” that arose “when Plaintiff exercised his rights in filing a workers compensation claim.” (Complaint ¶ 140.) Not so. Assuming, without conceding, that Mr. Estrada’s workers’ compensation claim amounts to a “protected activity,” his claim still fails because Mr. Estrada fails to even conclude, much less factually allege, a causal connection between his workers’ compensation claim and any adverse employment action. See Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 615 (1989); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (“retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”). Instead, Mr. Estrada concludes that retaliation occurred “when Plaintiff exercised his rights,” not “because Plaintiff exercised his rights.” Indeed, even this latter allegation would be impermissibly conclusive, but the Complaint does not even go this far. Moreover, Mr. Estrada’s pleading undercuts the conclusion that he was retaliated against for filing a workers’ compensation claim. The only paragraph in Count 6 to even mention retaliation is paragraph 18, which concludes that “Mr. Estrada believes th[e] [performance improvement plan] was done to harass him and in retaliation for filing a Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 21 of 31 Page ID #:99 14 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 complaint against Ms. Jones.” (Complaint ¶ 18 (emph. added).) Even assuming that the performance improvement plan can constitute an adverse employment action (it cannot, as discussed above), Mr. Estrada claims that the plan was motivated not by the filing of a workers’ compensation claim, but because Mr. Estrada complained about his boss’s “unprofessional conduct.” (Id. ¶¶ 17, 18.) Griping about one’s boss is not a “protected activity.” Moreover, regarding the only other potential adverse employment action (Mr. Estrada’s termination), he elsewhere claims this was motivated not by a workers’ compensation claim, but by Mr. Estrada’s gender (Complaint ¶ 91) though, as noted, even this is factually unsupported (see Part III.A.1., supra). Count 6 fails to state a claim. 5. Count 7 (Failure to Prevent) Fails to State a Claim. Plaintiff’s Count 7, for “Failure to Prevent Discrimination, Harassment and/or Retaliation,” is based on California Government Code § 12940, which provides that “[i]t shall be an unlawful employment practice, unless based upon a bona fide occupational qualification ... [f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment 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 or harassment.” 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 or harassment cause of action, (see Part III.A.1, supra (discrimination), Part III.A.2., supra (harassment)), and therefore cannot prevail on any derivative “failure to prevent” discrimination or harassment claim. Mr. Estrada’s “failure to prevent retaliation,” claim fails because Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 22 of 31 Page ID #:100 15 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 (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.4., supra ), and therefore, the Trujillo rationale applies to this claim as well. Accordingly, the count fails. 6. Count 8 (Failure to Provide) Fails to State a Claim. Count 8, for “Failure to Provide Environment Free from Discrimination, Harassment and/or Retaliation” is merely a re-statement of Count 7 by a different name, and it fails for the same reason. Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1315 (2015) (treating as interchangeable claims for “failure to provide an environment free from discrimination” and “failure to take all reasonable steps necessary to prevent discrimination from occurring”). Even if the claim is somehow distinct from Count 7 (it is not), it still fails because Mr. Estrada fails to adequately allege discrimination, harassment, and/or retaliation. Scotch v. Art Inst. of Cal., 173 Cal. App. 4th 986, 1021 (2009) (finding plaintiff’s “failure to provide an environment free from discrimination” derived from Section 12940(k); concluding that “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: “Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.”) (quoting Trujillo, supra, 63 Cal.App.4th at 289). B. Plaintiffs’ Non-FEHA Counts Fail to State a Claim as Well. 1. Count 1 (Wrongful Termination, Public Policy) Fails to State a Claim. To state a claim for wrongful termination in violation of public policy, a plaintiff 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.”). Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 23 of 31 Page ID #:101 16 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Here, 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). “Even where ... a statutory touchstone has been asserted, [the court] must still inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.” Foley, 47 Cal. 3d at 669-71 (termination allegedly for disclosing rumor that coworker was being investigated for embezzlement of former employer did not state claim for wrongful termination). Here, the Complaint simply parrots the elements of the claim by concluding that “Plaintiff’s employment was terminated by Defendant…because of his gender, among other things” and concluding that this “was in violation of public policy, including, but not limited to, Government Code §12940.” (Complaint ¶¶ 34-35.) Mr. Estrada then repeats, four times, the same general factual allegations addressed above - involving his write-ups, discipline issues, conflicts with Ms. Jones, and complaints of unfair treatment. These 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. Thus, Count 1 rests on Mr. Estrada’s bare conclusion that he was “terminated…because of his gender, among other things…in violation of public policy.” (Complaint ¶¶ 34-35.) Such conclusions are 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”). 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. See 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”); Le Bourgeois v. Fireplace Mfg., 68 Cal. App. 4th 1049, 1060 n.14 (1998) (accord). In short, Mr. Estrada fails to state a claim. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 24 of 31 Page ID #:102 17 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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. 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); M. G. Chamberlain & Co. v. Simpson, 173 Cal.App.2d 263, 274 (1959). Regarding the first element, in the case of an alleged implied employment contract, a plaintiff must plead “facts which, if proved” would be “sufficient to overcome the presumption of Labor Code section 2922” that the employment is at will. Foley, supra, 47 Cal. 3d 654, 682 (1988). Specifically, “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 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.’” Foley, 47 Cal. 3d at 681 (quoting Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 329 (1981)). Mr. Estrada’s Count 2 fails to satisfy any of these elements. The first element is not pled because Mr. Estrada fails to factually allege the existence or terms of an implied-in-fact contract sufficient to overcome the presumption of at will employment. Mr. Estrada merely concludes “there existed an implied employment agreement” between Mr. Estrada and GGI, which was “embodied in certain writings,” none of which are attached to the Complaint. (Complaint ¶¶ 66-67.) Though the alleged (unattached) documents are only vaguely identified (e.g., “rules and regulations”), and Mr. Estrada provides zero indication what any of these alleged documents actually say, Mr. Estrada concludes that they promised Mr. Estrada “indefinite[]” employment,” and that he would be terminated only “for good cause” and would not be “retaliate[d] against…on the basis of his gender” or “for filing a workers compensation claim.” (Id. ¶ 66.) Such conclusions do not state a claim. W. Min. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 25 of 31 Page ID #:103 18 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 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”). Though that pleading failure alone is fatal, other elements of the claim also are inadequately pled. For example, the third element (breach) cannot be established without a factual allegation of what the duties under the contract were. And, even if Mr. Estrada’s conclusions regarding the duties were correct, the sole alleged “breach” is the conclusion that Mr. Estrada was “subjected to retaliation.” (Id. at ¶ 69.) To the extent this “breach” rests on Mr. Estrada’s retaliation count (Count 6), it fails because, as noted, above, that count fails as well. Finally, regarding the fourth element (damage), Mr. Estrada never even concludes he suffered damages as a result of the breach, just that he is “claiming all damages….available to him.” (Id. at ¶ 70.) Such pronouncements do not state a claim. Watt, 643 F.2d at 624 (courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations”). 3. Count 9 (Loss of Consortium) Fails to State a Claim. Lourdes Estrada’s “Loss of Consortium” claim fails for three reasons. First, as a matter of law, a loss of consortium claim does not lie for FEHA violations or common law wrongful termination. Smith v. Northrop Grumman, 60 F. Supp. 3d 1051, 1057 (N.D. Cal. 2014) (“A loss of consortium claim cannot flow from a FEHA claim because the FEHA provides protection for ‘employees,’ not their spouses”; “Under the FEHA, an employee's termination, even if unlawful, does not create liability to a non-employee spouse for loss of consortium”); Mendoza v. Town of Ross, 128 Cal. App. 4th 625, 637 (2005) (affirming trial court sustaining demurrer to FEHA and common law Tameny claim premised upon FEHA on grounds that the plaintiff “d[id] not meet the definition of employee for FEHA purposes.”); Anderson v. Northrop Corp., 203 Cal.App.3d 772, 780 (1988) (holding termination of husband's employment did not rise to the level of psychological harm “sufficient to substantially disturb the marital relationship on more than a temporary basis.”); Smith, 60 F. Supp. 3d at 1057 (“Plaintiffs’ loss of consortium claim also fails under California common law”). Accordingly, the count fails. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 26 of 31 Page ID #:104 19 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Second, even assuming such a claim was theoretically possible (it is not), the count is inadequately pled. Initially, loss of consortium is available only for the “negligent or intentional injury” to the claimant’s spouse by a third party. Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 408 (1974). As the foregoing makes clear, Ms. Estrada fails to allege negligent or intentional conduct by GGI (indeed, each count fails for the reasons discussed above). But moreover, even if Plaintiffs had alleged negligent or intentional conduct, Count 9 still fails because Ms. Estrada fails to allege which injury forms the basis of her claim. The Complaint alleges numerous injuries, including “a head injury,” “injuries to [Mr. Estrada’s] face and arm,” and “injuries…to [Mr. Estrada’s] psyche, cerebrovascular system, abdomen and repetitive trauma.” (Complaint ¶¶ 15 23, 29). The first two injuries - to the head, face and arm - are specifically alleged to have taken place “during the course and scope of his employment” (id. ¶¶ 15, 23), and are not alleged to have been the result of negligence or intentional conduct by anyone, much less the Defendants. By failing to specify the injury that caused Ms. Estrada’s alleged loss of consortium, Ms. Estrada has pled only that the injury might be one caused by Defendants (though, as noted, this is inadequately pled in any event). She leaves open the equally plausible alternative that the loss of consortium arose from some other injury. Such pleading is impermissible. Iqbal, supra, 129 S. Ct. at 1949-51 (plaintiff must plead “more than a sheer possibility that a defendant has acted unlawfully;” courts must consider any “obvious alternative explanation,” for alleged misconduct that might defeat the plausibility of the claim). Finally, all three injuries have been the subject of workers compensation claims (Complaint, ¶¶ 15, 23, 29), and Plaintiffs’ specifically allege that at least the first two injuries occurred “during the course and scope of [Mr. Estrada’s] employment.” (id. at ¶¶ 15, 23.) To the extent the claim is premised upon injuries arising in the scope and course of Mr. Estrada’s employment, the remedies of the Workers’ Compensation Act are the exclusive remedy for these injuries. Cal. Labor Code § 3200, et seq.; Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 902 (2008) (“The alleged wrongful conduct, Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 27 of 31 Page ID #:105 20 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 however, occurred at the worksite, in the normal course of employer-employee relationship, and therefore workers’ compensation is plaintiffs’ exclusive remedy for any injury that may have resulted.”) When an injured employee’s claims are barred by the exclusive remedy provisions of Labor Code §§ 3600 et seq., his or her spouses’ claims for loss of consortium are also barred. Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 162-63 (1987) (“loss of consortium is not merely derivative or collateral to the spouse’s cause of action…it is based on the physical injury or disability of the spouse, and is precluded by the broad language of the Labor Code sections”) (citations omitted); LeFiell Mfg. Co. v. Super. Ct. (O’Neil Watrous et al.), 55 Cal. 4th 275, 280-81 (2012) (same). For each of these reasons, Count 9 fails to state a claim. IV. PLAINTIFFS’ REQUEST FOR PUNITIVE DAMAGES IS DEFICIENT. Plaintiffs’ claim for punitive damages should be dismissed or stricken because they fail to plead a substantive basis for punitive damages (e.g., malice by an identified actor) and further fail to plead 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).8 “Malice” is “conduct which is intended by the Defendant to cause injury to the 8 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 9 Filed 02/17/17 Page 28 of 31 Page ID #:106 21 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 Plaintiff or despicable conduct which is carried on by the Defendant [w]ith a willful and conscious disregard for the rights and safety of others.” Civil Code §3294. “Oppression” is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the Defendant with the intention on the part of the Defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Id. “The question is whether a Defendants’ conduct may be characterized as ‘despicable.’” Am. Airlines Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1050 (2002). “Despicable conduct” is “conduct which is ‘so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people [citations omitted]. Such conduct has been described as having the character of outrage frequently associated with crime.” Id. Here, Plaintiffs allege no facts of oppression, fraud or malice. They rely on a single conclusory allegation that “his termination by Defendants…was done with intent to cause injury to Plaintiff” and was “oppressive, malicious and despicable.” (Complaint ¶ 59.) This is not permissible pleading. B. Employer Ratification Also Is Not Alleged. Further, even if Plaintiffs had properly alleged oppression, fraud, or malice by someone (they do not), Plaintiffs’ punitive damages claim must also be dismissed because Plaintiffs fail 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. Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 29 of 31 Page ID #:107 22 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 White v. Ultramar Inc., 21 Cal.4th 573, 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 respondeat 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; also Cruz v. Homebase, 83 Cal.App.4th 160, 168 (2000). “[C]onclusory allegations of authorization or ratification fail to satisfy federal 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, Plaintiffs fail to plead any fact suggesting ratification. They merely conclude that “each Defendant was an agent of the other Defendants and approved and/or ratified the conduct of the other Defendants.” (Complaint ¶¶ 6-7.) Plaintiffs fail to even identify an officer, director, or managing agent of GGI, 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 Case 2:17-cv-01100-MWF-FFM Document 9 Filed 02/17/17 Page 30 of 31 Page ID #:108 23 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ COMPLAINT LA 132928091v8 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 actions constitute malice, oppression or fraud. Because Plaintiffs’ Complaint fails to satisfy the pleading requirements to seek damages pursuant to California Code of Civil Procedure section 3294, their prayer for punitive damages should be dismissed. V. CONCLUSION Defendant respectfully requests that Counts 1-9 of Plaintiffs’ Complaint be dismissed and that Plaintiffs’ request for punitive damages be dismissed or stricken. Dated: February 17, 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 9 Filed 02/17/17 Page 31 of 31 Page ID #:109 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE COMPLAINT LA 132943078v1 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 and LOURDES ESTRADA, Plaintiffs, 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’ COMPLAINT; MOTION TO STRIKE (Filed and served concurrently with Memorandum of Points and Authorities) Date: March 20, 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 9-1 Filed 02/17/17 Page 1 of 4 Page ID #:110 1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE COMPLAINT LA 132943078v1 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 (“GGI”) Motion to Dismiss and Strike Plaintiff Adolfo Estrada and Plaintiff Lourdes Estrada’s Complaint came on for hearing in the above-captioned Court on March 20, 2016. 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 GGI’s Motion in its entirety, as follows. It is hereby ORDERED that: (1) Mr. Estrada’s gender discrimination claim (Count 3) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Mr. Estrada (a) fails to allege that he was qualified for his position, and (b) fails to factually allege that he suffered an adverse employment action due to his gender. (2) Mr. Estrada’s workplace harassment claim (Count 4) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Mr. Estrada (a) does not allege any instances of harassment (i.e., intimidation, ridicule or insult), (b) fails to allege that such conduct was the product of improper motive, and (c) fails to allege the (supposed) harassment unreasonably interfered with his work performance. (3) Mr. Estrada’s disability discrimination claim (Count 5) 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. (4) Mr. Estrada’s retaliation for engaging in protected activity claim (Count 6) 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. (5) Mr. Estrada’s derivative “failure to prevent discrimination, harassment and/or retaliation” claim (Count 7) is dismissed pursuant to FRCP Rule 12(b)(6) on the Case 2:17-cv-01100-MWF-FFM Document 9-1 Filed 02/17/17 Page 2 of 4 Page ID #:111 2 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE COMPLAINT LA 132943078v1 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 grounds that Mr. Estrada’s discrimination, harassment and retaliation counts fail, and therefore, this derivative claim cannot survive. (6) Mr. Estrada’s derivative “failure to provide a workplace environment free from discrimination, harassment and retaliation” claim (Count 8) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Mr. Estrada’s discrimination, harassment and retaliation counts fail, and therefore, this derivative claim cannot survive. (7) Mr. Estrada’s wrongful termination in violation of public policy claim (Count 1) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that Mr. Estrada fails to plead facts showing that GGI’s decision to terminate him violated public policy. Though Mr. Estrada grounds this claim in alleged violations of FEHA, the Complaint fails to factually allege a violation of FEHA, as noted above, and this claim therefore fails. (8) Mr. Estrada’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 Mr. Estrada (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 GGI’s alleged “breach,” which Mr. Estrada grounds on alleged violations of FEHA that are not factually pled. (9) Plaintiff Lourdes Estrada’s loss of consortium claim (Count 9) is dismissed pursuant to FRCP Rule 12(b)(6) on the grounds that (a) loss of consortium does not lie for FEHA violations or for wrongful termination at common law, (b) Ms. Estrada fails to allege a “negligent or intentional injury” to Mr. Estrada, which is a predicate showing for her claim, and (c) to the extent the claim is based on injuries that arose during Mr. Estrada’s employment, Ms. Estrada’s derivative count it is barred by workers’ compensation exclusivity. Case 2:17-cv-01100-MWF-FFM Document 9-1 Filed 02/17/17 Page 3 of 4 Page ID #:112 3 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE COMPLAINT LA 132943078v1 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 (10) Plaintiffs’ punitive damages claim is dismissed/stricken pursuant to FRCP 12(b)(6) and 12(f) because (a) Plaintiffs fail to factually allege malice, oppression or fraud by anyone; and (b) Plaintiffs also fail to allege that GGI 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 Complaint: Page 14, lines 4-10 (“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 to be shown according to proof.”); Page 14, lines 26-27, page 21, lines 9-10, page 26, lines 12-13, page 30, lines 13-14, page 31, lines 7-8 and 27-28, page 37, lines 20-21 (Paragraphs 64, 95, 118, 138, 144, 150, and 176 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.”); Page 38, lines 17-18 (Prayer for Relief Paragraph 3, in its entirety, which states “For exemplary and punitive damages according to proof for all Causes of Action.”). Accordingly, Plaintiffs’ Complaint 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 9-1 Filed 02/17/17 Page 4 of 4 Page ID #:113
