Adolfo Estrada et al v. Gate Gourmet, Inc. et alNOTICE OF MOTION AND MOTION to Dismiss CaseC.D. Cal.March 14, 2017 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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’ FIRST 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: April 17, 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 13 Filed 03/14/17 Page 1 of 30 Page ID #:143 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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, April 17, 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’ First Amended Complaint (Counts 1-7) 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 13, lines 5-11 (“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 13, line 28 - page 14, line 1; page 18, lines 8-9; page 21, lines 10-11; page 23, lines 6-7; page 24, lines 3-4 (Paragraphs 52, 73, 89, 98, and 105 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 25, lines 1-2 (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 13 Filed 03/14/17 Page 2 of 30 Page ID #:144 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 March 7, 2017. Respectfully submitted, Dated: March 14, 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 13 Filed 03/14/17 Page 3 of 30 Page ID #:145 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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. Plaintiffs’ FEHA Counts (Counts 3-8) 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. ...................................... 12 4. Count 6 (Failure to Prevent) Fails to State a Claim. ........................... 14 B. Plaintiffs’ Non-FEHA Counts Also Fail to State a Claim. ........................... 14 1. Count 1 (Wrongful Termination, Public Policy) Fails to State a Claim. .................................................................................................. 14 2. Count 2 (Wrongful Termination, Implied Contract) Fails to State a Claim. ...................................................................................... 16 3. Count 7 (Loss of Consortium) Fails to State a Claim. ........................ 18 IV. PLAINTIFFS’ REQUEST FOR PUNITIVE DAMAGES IS DEFICIENT. .......... 19 A. No Oppression, Fraud or Malice Is Alleged. ................................................ 19 B. Employer Ratification Also Is Not Alleged. ................................................. 20 V. CONCLUSION ........................................................................................................ 22 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 4 of 30 Page ID #:146 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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) ..................................................................................................................... passim 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, 7, 20 Cozzi v. Cty. of Marin, 787 F. Supp. 2d 1047 (N.D. Cal. 2011) ............................................................................................ 6, 8 Davis v. Cal. Dep't of Corr., 1996 U.S. Dist. LEXIS 21305 (E.D. Cal. Feb. 23, 1996) ..................................................................... 7 Greenfield v. Am. W. Airlines, Inc., No. C 03-5183 MHP, 2005 U.S. Dist. LEXIS 48033 (N.D. Cal. Mar. 30, 2005) ................................ 8 Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151 (9th Cir. 2010) .............................................................................................................. 7 Kelley v. Corr. Corp. Of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010)......................................................................................... 19, 21 Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694 (N.D. Cal. 2014) .................................................................................................. 17 Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) .......................................................................................................... 4, 16 Rhynes v. Stryker Corp., 2011 U.S. Dist. LEXIS 58286 (N.D. Cal. May 31, 2011) ............................................................ 19, 21 Robinson v. HD Supply, Inc., 2012 WL 3962502 (E.D. Cal. Sept. 10, 2012) .................................................................................... 10 Robinson v. Salazar, 885 F. Supp. 2d 1002 (E.D. Cal. 2012)........................................................................................... 6, 13 Smith v. Northrop Grumman, 60 F. Supp. 3d 1051 (N.D. Cal. 2014) ................................................................................................ 18 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 5 of 30 Page ID #:147 3 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 re Stac Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996) ................................................................................................................ 4 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) .............................................................................................................. 5 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) ........................................................................................................................ 12 W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) .................................................................................................... 4, 10, 17 Yeager v. Corr. Corp. of Am., 944 F. Supp. 2d 913 (E.D. Cal. 2013)................................................................................................... 9 State Cases Am. Airlines Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017 (2002) ............................................................................................................. 20 Anderson v. Northrop Corp., 203 Cal.App.3d 772 (1988) ................................................................................................................ 18 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 Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148 (1987) ......................................................................................................................... 19 Cruz v. Homebase, 83 Cal.App.4th 160 (2000) ................................................................................................................. 21 Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590 (1989) .............................................................................................................. 12 Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467 (1992) ................................................................................................................. 12 Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988) ................................................................................................................... 15, 16 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 6 of 30 Page ID #:148 4 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 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) .......................................................................................................................... 15 Jones v. Dep't of Corr. & Rehab., 152 Cal. App. 4th 1367 (2007) ............................................................................................................. 5 Le Bourgeois v. Fireplace Mfg., 68 Cal. App. 4th 1049 (1998) ............................................................................................................. 15 LeFiell Mfg. Co. v. Super. Ct. (O’Neil Watrous et al.), 55 Cal. 4th 275 (2012) ........................................................................................................................ 19 Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264 (2006) .......................................................................................................................... 8 M. G. Chamberlain & Co. v. Simpson, 173 Cal.App.2d 263 (1959) ................................................................................................................ 16 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 Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382 (1974) ..................................................................................................................... 3, 18 Smith v. Royal Mfg. Co., 185 Cal.App.2d 315 (1960) .......................................................................................................... 16, 18 Smith v. Superior Court, 10 Cal. App. 4th 1033 (1992) ............................................................................................................. 20 Tameny v. Atl. Richfield Co., 27 Cal.3d 167 (1980) .................................................................................................................... 15, 18 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) ............................................................................................................... 14 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994) ........................................................................................................................ 15 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 7 of 30 Page ID #:149 5 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 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) ................................................................................................................ 16 Yanowitz v. L'Oreal USA Inc., 36 Cal. 4th 1028 (2005) ............................................................................................................ 6, 12, 13 State Statutes California Civil Code § 3294 ........................................................................................................ 19, 20, 22 California Civil Code § 3294(b) ..................................................................................................... 3, 20, 21 California Government Code § 12926(m)(1)(A) ........................................................................................ 9 California Government Code § 12926(m)(1)(B) ........................................................................................ 9 California Government Code § 12940 ................................................................................................ 14, 15 California Government Code § 12940(h) ................................................................................................. 12 California Government Code § 12940(k) ................................................................................................. 14 California Labor Code § 2922 .............................................................................................................. 2, 16 California Labor Code § 3200 .................................................................................................................. 19 Rules Federal Rules of Civil Procedure, Rule 8 ............................................................................................... 3, 4 Federal Rules of Civil Procedure, Rule 8(a)(2) .......................................................................................... 3 Federal Rules of Civil Procedure, Rule 12(b)(6) ........................................................................................ 3 Regulations 2 C.C.R. § 11065(l) ..................................................................................................................................... 9 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 8 of 30 Page ID #:150 1 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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’ First Amended Complaint (“FAC”) is their second attempt to plead. Though Defendant briefed the deficiencies of Plaintiffs’ original complaint, their FAC fails to cure those deficiencies. As before, though Plaintiff Adolfo Estrada alleges that he was terminated, he fails to factually allege a basis to conclude a discriminatory motive for his termination. Indeed, even his conclusory allegations form a string of contradictions, concluding that he was terminated based on his gender, then concluding it was based on his disability, and then concluding that it was based on his filing workers’ compensation claims. Not surprisingly, none of these contradictory allegations is accompanied by factual allegations to support the conclusions. Simply, though Defendant’s prior motion provided a clear guide to the deficiencies of Plaintiffs’ allegations, the FAC remains a tangle of conclusions, bereft of supporting factual allegations. This suggests that Plaintiffs cannot truthfully state facts to support their claims. For that reason, the FAC should be dismissed in its entirety and, Defendant requests, with prejudice. Plaintiffs’ FEHA Counts (Counts 3-6) Fail To State a Claim. Count 3, termination as gender discrimination. Mr. Estrada’s gender discrimination count fails to state a claim because Mr. Estrada fails to allege he suffered an adverse employment action because he is a man. Indeed, the FAC alleges the equally plausible alternative that Mr. Estrada was terminated because he and Ms. Angela Jones (his supervisor) simply did not get along. And, apart from merely concluding that Mr. Estrada was treated differently than female employees, the FAC also fails to plead that the female employees to whom Mr. Estrada compares his experience had the same or similar positions as held by Mr. Estrada, such that conclusions of different treatment would suggest gender bias. Moreover, Mr. Estrada never factually alleges that he was qualified for his position - another unpled element of his claim. Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 9 of 30 Page ID #:151 2 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 Count 4, termination as disability discrimination. Mr. Estrada’s disability discrimination count fails to state a claim in multiple ways. Mr. Estrada fails to allege he has a disability, that he could perform the essential duties of the job, or that he suffered an adverse employment action due to discriminatory animus. Again, as with his gender discrimination count, the FAC alleges that Ms. Jones simply did not like Mr. Estrada. Such is not actionable. Count 5, termination as retaliation for filing a workers’ compensation claim. Mr. Estrada’s count for retaliation for engaging in protected activity fails because he fails to allege a causal connection between an adverse employment action (his termination) and any protected activity. As with the prior two counts, 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. Plaintiffs’ Non-FEHA Counts Fail To State a Claim. Count 1, termination in violation of public policy. Mr. Estrada’s 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 FAC fails to factually allege a violation of FEHA, as previously noted. The count therefore fails to state a claim. Count 2, termination in violation of an implied employment agreement. 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. Moreover, the unpled and assumed “contract” discussed in the pleading is alleged to be merely a contract to “obey the law.” Such a contract would be illusory and unenforceable. Finally, the claim fails because, even assuming that a valid contract were pled, the alleged breach is (one of) the assumed Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 10 of 30 Page ID #:152 3 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 violations of FEHA which, as discussed, are not factually pled. Count 7, loss of consortium. 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 necessary for Ms. Estrada’s claim,2 because each count concluding negligent or intentional conduct by GGI fails. 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, and as before, 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(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. 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). “[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 (emph. added). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Rule 8 2 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 13 Filed 03/14/17 Page 11 of 30 Page ID #:153 4 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 ... does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (“Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” ); 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.”). In other words, the inquiry turns on the plausibility, rather than the conceivability, of an actionable claim under the facts alleged. 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. Courts have continued to refine and bolster the principals of Twombly. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court set forth a two-part test for evaluating the sufficiency of allegations. 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). Importantly, 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 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 12 of 30 Page ID #:154 5 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 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 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. 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. Plaintiffs’ FEHA Counts (Counts 3-8) Fail to State a Claim. 1. Count 3 (Gender Discrimination) Fails to State a Claim. As with the original Complaint, the FAC fails to state a claim for gender discrimination. To state a claim for gender discrimination, 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 between the coworkers’ conduct and Jones’s gender or race; therefore, she cannot make out a claim for discrimination.”). Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 13 of 30 Page ID #:155 6 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 never alleges a nexus between (i) an adverse employment action and (ii) his gender. 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. The only adverse employment action alleged is Mr. Estrada’s termination.3 But Mr. Estrada nowhere factually alleges a nexus between his gender and his termination, or any other action. Indeed, Mr. Estrada cannot decide what motivated his termination - a problem that infects each of his FEHA counts. He concludes it was “his gender,” (FAC ¶ 43), but two paragraphs later he concludes instead that he was terminated for filing “workers’ compensation claims,” (id. at ¶ 45), and still elsewhere he implies (but never quite alleges) he was terminated because of his “disability” (see id. at ¶¶ 83-85). But Mr. Estrada never factually alleges a basis for any of these (contradictory) conclusions. Indeed, his effort to pin his termination on each of 3 Although elsewhere in the FAC 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. (FAC ¶ 66 (“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. 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); see also Part III.A.3., infra. Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 14 of 30 Page ID #:156 7 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 these motivations only underscores his failure to factually plead a basis to conclude that any of these motivations existed at all. Setting aside the contradictory motivations he ascribes for his termination, and considering the gender-related averments alone, the claim still fails. Plaintiff merely concludes, without factual support, that “Gate Gourmet’s decision to terminate Mr. Estrada’s employment was simply as a result of his gender,” and “if Plaintiff were female, he would not have been subjected to the discrimination…nor would his employment have been terminated.” (FAC ¶ 65, 68.) Of course, such conclusions insufficient. Twombly, 550 U.S. at 555 (“a formulaic recitation of the elements of a cause of action will not do”). And though Mr. Estrada concludes that he was treated differently than females in his department - for example, concluding that he was assigned unspecified difficult tasks (FAC ¶ 66), was given unspecified different training (id.), received unspecified different guidance (id., see also id. at ¶¶ 16, 19), and was given different shifts (id. at ¶ 66)4 - Mr. Estrada pointedly fails to plead that the female employees to whom Mr. Estrada compares his experience had the same or similar positions as held by Mr. Estrada, such that conclusions of different treatment might suggest gender bias. [And, in fact, the positions occupied by these persons were very different. Mr. Estrada was an HR Generalist - the broader and more senior position - whereas others in the department were clerks, or held more narrow responsibilities.] Simply, he fails to allege (because he cannot) that these persons were similarly-situated. Davis v. Cal. Dep't of Corr., 1996 U.S. Dist. LEXIS 21305, at *100 (E.D. Cal. Feb. 23, 1996) (“The court will not analyze plaintiffs' claims as possible gender-based disparate treatment unless plaintiffs have pointed to some evidence that similarly-situated men were treated more favorably. Absent such evidence, plaintiffs could not establish a prima facie case of disparate treatment.”); Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1160 (9th Cir. 2010) 4 From these allegations, Mr. Estrada merely concludes that Ms. Jones was “acting biased towards him.” (Id. at ¶ 15.) Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 15 of 30 Page ID #:157 8 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 (“[I]ndividuals are similarly situated when they have similar jobs and display similar conduct.”). Further, though Mr. Estrada’s conclusions are insufficient in all events, they are particularly deficient where, as here, Mr. Estrada pleads an alternative explanation for the alleged discriminatory conduct. Mr. Estrada states that Ms. Jones “dislike[d]” him. (Id. ¶ 21.) Obviously, whether one is liked or disliked, or even if one is disfavored, is not a protected category, and forms no basis for a claim. 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). Put simply, “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) (emphasis added). Simply, that Ms. Jones may have “disliked” Mr. Estrada is not a basis for suit, but forms an obvious and plausible alternative to Mr. Estrada’s alternate contradictory conclusions of “bias” (itself alternatively alleged as either gender discrimination, disability discrimination, or retaliation for exercising workers’ compensation rights). One does not state a claim and fairly launch a lawsuit by (1) acknowledging a legitimate basis for termination, but then (2) speculating as to alternative motivations. 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”). As such, Count 3 fails to state a claim. Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 16 of 30 Page ID #:158 9 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 4 (Disability Discrimination) Fails to State a Claim. 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. Mr. Estrada’s “disability discrimination” count fails to address the deficiencies in the original Complaint, and accordingly, fails for the same three reasons identified in Defendant’s prior motion. First, Mr. Estrada 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, performing manual tasks, walking seeing, hearing, speaking, learning, and working. 2 Cal. C. Regs. § 11065(l). The FAC concludes that Mr. Estrada’s disability is “extreme stress and anxiety,” which caused Mr. Estrada “substantial loss of sleep and enjoyment of life.” (FAC ¶ 84.)5 5 Mr. Estrada also concludes that this disability 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. (FAC ¶¶ 76-79.) But the FAC makes clear that the claimed disability is “anxiety and stress,” not the alleged stroke or any consequent symptoms Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 17 of 30 Page ID #:159 10 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 But this is not a disability for two reasons. First, it is not a disability because it is not “a physical or mental impairment.” Brundage, 57 Cal. App. 4th at 235. Anxiety and stress are not a disability as a matter of law. 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.”). “The FEHA does not guarantee employees a stress-free working environment” and is not “a shield against harsh treatment at the workplace.” Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344 (2008). Second, even if anxiety and stress were disabilities (they are not), Mr. Estrada fails to allege these “substantially limit[] one or more of the major life activities.” Brundage, 57 Cal. App. 4th at 235. 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 the 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, instead of factually pleading that he could perform the essential duties of the job with or without reasonable accommodations, Mr. Estrada offers only the naked conclusion - which merely parrots the words of the statute - that “he was able to perform the essential duties required of him, without accommodations from Gate Gourmet.” (FAC ¶ 84.) But, as with the Complaint, Mr. Estrada fails to allege what the duties of the job were, much less factually allege his ability to competently perform them. His unsupported conclusion is entitled to no weight. 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 therefrom (none are alleged). And, Mr. Estrada never alleges the “mild stroke” caused any limitation, much less a substantial limitation, to any of his major life activities. Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 18 of 30 Page ID #:160 11 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 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). 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. Indeed, the FAC admits that Mr. Estrada’s “disability” had no impact on his ability to work, (FAC ¶ 84), and thus, it is not clear (and certainly is not factually alleged) that GGI even knew he was disabled. But even assuming Mr. Estrada had a disability and GGI knew it (neither is pled factually), he still fails to allege GGI acted on that knowledge and took an adverse employment action that was motivated by his disability. Here, as in Count 3, the only adverse employment action identified in the charging allegations is Mr. Estrada’s termination. But Mr. Estrada never even concludes, much less factually alleges, that the termination was motivated by his disability. (See FAC ¶¶ 83-89.) And, as noted elsewhere, the FAC asserts the contradictory conclusions that the termination was motivated instead by Mr. Estrada’s gender (id. ¶ 43), or in retaliation for filing workers’ compensation claims (id. at ¶ 45), though, as noted, even these conclusions are factually unsupported (see Part III.A.1., supra). 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. (FAC ¶ 21.) In sum, 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 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 19 of 30 Page ID #:161 12 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 because of the disability or perceived disability.” Wills, supra, 159-60. For each of these reasons, Count 5 should be dismissed. 3. Count 5 (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, 36 Cal. 4th at 1042. “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 with the original Complaint, the FAC asserts in shotgun-pleading fashion that everything alleged in the FAC (paragraphs 1-93) was a “course of retaliatory conduct.” (FAC ¶ 94.) As the foregoing case law recognizes, such a conclusion is insufficient. Mr. Estrada must plead adverse employment actions that were caused by his engagement in protected activity. The FAC fails to do so. The only adverse employment action identified in Count 5 is Mr. Estrada’s termination, which - despite his contradictory conclusions elsewhere in the FAC - for the purposes of Count 5, Mr. Estrada concludes was in retaliation for Mr. Estrada’s workers’ compensation claims. (FAC ¶ 93.) 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 activity. “[R]etaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013); see also Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 615 (1989). But not one fact is pled to suggest GGI’s supposed desire to retaliate for Mr. Estrada’s workers’ compensation claims was the “but-for” cause of his termination. And, as noted above, his conclusion that it was is undercut by his conclusion elsewhere in the FAC that he was actually terminated because of his gender, (FAC ¶ 43), or his Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 20 of 30 Page ID #:162 13 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 “disability,” (see id. at ¶¶ 83-85).6 Mr. Estrada’s inability to decide what actually motivated his termination only highlights the lack of factual support for his conclusions. Mr. Estrada must offer “more than a sheer possibility that a defendant has acted unlawfully;” facts, not conclusions, must be pled. Iqbal, 556 U.S. at 678. The FAC suggests that Mr. Estrada believes his placement on a graveyard shift and his performance improvement plan were also retaliatory acts. (FAC ¶ 92.) Not so. Initially, the FAC never alleges that either act “materially affect[ed] the terms, conditions, or privileges of [his] employment,” Yanowitz, 36 Cal. 4th at 1052, and thus, neither constitutes an adverse employment action. (See footnote 3, supra.) But even assuming they were (they are not), the claim still fails because Mr. Estrada fails to even conclude, much less factually allege, a causal connection between these actions and any protected activity. Instead, Mr. Estrada concludes that these acts occurred “When Mr. Estrada complained of Ms. Jones [sic] discrimination,” and not “because” Plaintiff did so. (FAC ¶ 92.) Indeed, even this latter allegation would be impermissibly conclusive, but the Complaint does not even go this far. Moreover, Mr. Estrada cannot claim that the performance improvement plan was motivated by complaints of discrimination because 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.” (Original Complaint ¶¶ 17-18.) Mr. Estrada’s prior admissions remain binding on him. 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. 6 Again, as noted, even these conclusions of alternative biases are factually unsupported (see Part III.A.1. & III.A.2., supra). Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 21 of 30 Page ID #:163 14 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 1989)). 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. 4. Count 6 (Failure to Prevent) Fails to State a Claim. Plaintiff’s Count 6, for “Failure to Prevent Discrimination 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…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. Plaintiffs’ Non-FEHA Counts Also Fail to State a Claim. 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 Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 22 of 30 Page ID #:164 15 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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.”). 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). Mr. Estrada’s Count 1 simply repeats the same conclusions already noted - complaints of unspecified unequal distribution of work, unspecified inadequate training, unspecified lack of guidance, undesirable shift assignments, all coupled with no allegation that the compared persons were similarly-situated (e.g., in the same positions). The FAC then 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 ¶¶ 43, 47.) 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. 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. Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 23 of 30 Page ID #:165 16 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 Fireplace Mfg., 68 Cal. App. 4th 1049, 1060 n.14 (1998) (accord). Thus, Count 1 rests on Mr. Estrada’s bare conclusion that he was “terminated…in violation of public policy.” (FAC ¶ 43.) 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”). In short, Count 1 fails to state a claim. 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. (FAC ¶¶ 54-55.) Though the Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 24 of 30 Page ID #:166 17 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 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. ¶ 54.) Such conclusions are insufficient to factually allege the existence of an implied contract. 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”). Though that pleading failure alone is fatal, other elements of the claim also are inadequately pled. The third element (breach) cannot be established without a factual allegation of what the duties under the contract were. Nevertheless, though not entirely clear, it appears the sole alleged “breach” is the conclusion that Mr. Estrada was subjected to discrimination and retaliation. (See generally FAC ¶¶ 57-62.) Even if an implied contract had been factually alleged, Mr. Estrada’s conclusions regarding the alleged breach raise two fatal problems for the claim: first, to the extent GGI’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.) Moreover, because the only purported “breach” identified in Count 2 is GGI’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 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 some implied contract. Finally, regarding the fourth element (damage), just as in his original Complaint, Mr. Estrada’s FAC never even concludes Mr. Estrada suffered damages as a result of the Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 25 of 30 Page ID #:167 18 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 breach. He offers only that he is “claiming all damages….available to him.” (FAC ¶ 62.) Such pronouncements do not state a claim. 3. Count 7 (Loss of Consortium) Fails to State a Claim. As before, 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. Second, even assuming such a claim was theoretically possible (it is not), the count is inadequately pled. 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). Finally, Plaintiffs allege Mr. Estrada suffered “a mild stroke, insomnia, emotional distress and anxiety.” (FAC ¶ 108.) Mr. Estrada alleges the stroke (from which he recovered in 5 days) occurred “during the course and scope of his employment” and he filed a workers’ compensation claim for the injury. (Id. ¶ 34.) He also alleges he filed a Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 26 of 30 Page ID #:168 19 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 workers’ compensation claim for “injuries to his psyche” that were “sustained during the course and scope of his employment.” (Id. ¶ 37.) To the extent Ms. Estrada’s loss of consortium count 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, 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 the Workers Compensation Act, 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 7 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).7 7 See also Rhynes v. Stryker Corp., 2011 U.S. Dist. LEXIS 58286, at *14 (N.D. Cal. Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 27 of 30 Page ID #:169 20 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 “Malice” is “conduct which is intended by the Defendant to cause injury to the 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[.]” (FAC ¶ 47.) 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, 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 13 Filed 03/14/17 Page 28 of 30 Page ID #:170 21 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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 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 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.) Case 2:17-cv-01100-MWF-FFM Document 13 Filed 03/14/17 Page 29 of 30 Page ID #:171 22 DEFENDANT’S MOTION TO DISMISS/STRIKE PLAINTIFFS’ FAC LA 132966041v1 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, 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.” (FAC ¶¶ 5-6.) 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 actions constitute malice, oppression or fraud. Because Plaintiffs’ FAC 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’s prior brief exhaustively detailed the deficiencies of the original Complaint, but Plaintiffs failed to cure them; the FAC still fails to state a claim. Such a pleading failure in the face of a detailed legal analysis of Plaintiffs’ prior-attempted claims suggests that Plaintiffs cannot truthfully allege their claims. Therefore, Defendant respectfully requests that Counts 1-7 of Plaintiffs’ FAC be dismissed and that Plaintiffs’ request for punitive damages be dismissed or stricken, all with prejudice. Dated: March 14, 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 13 Filed 03/14/17 Page 30 of 30 Page ID #:172 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE FAC LA 132965898v1 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’ FIRST AMENDED COMPLAINT; MOTION TO STRIKE (Filed and served concurrently with Memorandum of Points and Authorities) Date: April 17, 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 13-1 Filed 03/14/17 Page 1 of 4 Page ID #:173 1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE FAC LA 132965898v1 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 First Amended Complaint (“FAC”)came on for hearing in the above-captioned Court on April 17, 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 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 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) Mr. Estrada’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) Mr. Estrada’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 Mr. Estrada’s discrimination and retaliation counts fail, and therefore, this derivative claim cannot survive. (5) 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 FAC Case 2:17-cv-01100-MWF-FFM Document 13-1 Filed 03/14/17 Page 2 of 4 Page ID #:174 2 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE FAC LA 132965898v1 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 noted above, and this claim therefore fails. (6) 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. (7) Plaintiff Lourdes Estrada’s loss of consortium claim (Count 7) 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. (8) 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 FAC: Page 13, lines 5-11 (“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 Case 2:17-cv-01100-MWF-FFM Document 13-1 Filed 03/14/17 Page 3 of 4 Page ID #:175 3 [PROPOSED] ORDER GRANTING MOTION TO DISMISS/STRIKE FAC LA 132965898v1 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 despicable conduct, Plaintiff is entitled to an award of punitive damages in a sum as yet undetermined”); Page 13, line 28 - page 14, line 1; page 18, lines 8-9; page 21, lines 10-11; page 23, lines 6-7; page 24, lines 3-4 (Paragraphs 52, 73, 89, 98, and 105 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 25, lines 1-2 (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”). Accordingly, Plaintiffs’ FAC 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 13-1 Filed 03/14/17 Page 4 of 4 Page ID #:176
