Brian Davis v. Blazin Wings, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case for Failure to State A Claim

C.D. Cal.October 20, 2016

LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355388.1 061451.1231 STACEY E. JAMES, Bar No. 185651 sjames@littler.com KHATEREH SAGE FAHIMI, Bar No. 252152 sfahimi@littler.com CHRISTINA H. HAYES, Bar No. 267153 chayes@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; and BUFFALO WILD WINGS INTERNATIONAL, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRIAN DAVIS, Plaintiff, v. BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; BUFFALO WILD WINGS INTERNATIONAL, INC.; and DOES 1 through 20, inclusive, Defendants. Case No. 5:16-CV-02167-JGB-KK DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [F.R.C.P. 12(b)(6)] Date: November 28, 2016 Time: 9:00 a.m. Ctrm: 1 PLEASE TAKE NOTICE that on November 28, 2016, at 9:00 a.m., in Courtroom 1 of the United States District Court for the Central District of California, located at 3470 Twelfth Street, Riverside, California 92501, Defendants BLAZIN WINGS, INC., BUFFALO WILD WINGS, INC., and BUFFALO WILD WINGS INTERNATIONAL, INC. (“Defendants”) will, and hereby do, move this Court for an order dismissing Plaintiff BRIAN DAVIS’s (“Plaintiff”) Complaint, and all claims set forth therein, with prejudice, for failure to state a claim upon which relief may be / / / / Case 5:16-cv-02167-JGB-KK Document 13 Filed 10/20/16 Page 1 of 2 Page ID #:102 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355388.1 061451.1231 2. granted pursuant to Federal Rule of Civil Procedure 12(b)(6), Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). This motion is made following the conference of counsel pursuant to Local Rule 7-3, which was initiated pursuant to a meet and confer letter sent via email and facsimile to Plaintiff’s counsel on October 13, 2016, and followed by a telephonic conference which took place on October 17, 2016. See Declaration of Christina H. Hayes in Support of Defendants’ Motion To Dismiss ¶¶ 2-3, Exhibits A-B, filed concurrently herewith. This motion is based upon this notice of motion and motion, the memorandum of points and authorities filed concurrently with this motion, Plaintiff’s Complaint, the declaration Christina H. Hayes and all the exhibits attached thereto, all pleadings, records and papers on file in this action, and such other further evidence and argument as may be presented at or before the time of the hearing. Dated: October 20, 2016 /s/ Christina H. Hayes STACEY E. JAMES KHATEREH S. FAHIMI CHRISTINA H. HAYES LITTLER MENDELSON, P.C. Attorneys for Defendants BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; and BUFFALO WILD WINGS INTERNATIONAL, INC. Case 5:16-cv-02167-JGB-KK Document 13 Filed 10/20/16 Page 2 of 2 Page ID #:103 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 STACEY E. JAMES, Bar No. 185651 sjames@littler.com KHATEREH SAGE FAHIMI, Bar No. 252152 sfahimi@littler.com CHRISTINA H. HAYES, Bar No. 267153 chayes@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; and BUFFALO WILD WINGS INTERNATIONAL, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRIAN DAVIS, Plaintiff, v. BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; BUFFALO WILD WINGS INTERNATIONAL, INC.; and DOES 1 through 20, inclusive, Defendants. Case No. 5:16-CV-02167-JGB-KK MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [F.R.C.P. 12(b)(6)] Date: November 28, 2016 Time: 9:00 a.m. Ctrm: 1 Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 1 of 20 Page ID #:104 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 i. I. INTRODUCTION AND SUMMARY OF ARGUMENT ................................. 1 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY .......................... 2 III. ARGUMENT....................................................................................................... 3 A. The Legal Standard Applicable To Defendants’ Motion to Dismiss ....... 3 B. Plaintiff’s Complaint, And Each Cause Of Action Alleged Therein, Must Be Dismissed Pursuant To Rule 12(b)(6) For Failure To Plead Sufficient Facts To State A Claim For Relief ................................. 5 1. Plaintiff’s First Through Sixth Causes of Action For Violations Of The FEHA Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ..................... 5 2. Plaintiff’s Claims for Retaliation Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................................................................................... 8 3. Plaintiff’s Eighth Cause Of Action For Violation Of The CFRA Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ................................................. 9 4. Plaintiff’s Ninth Through Thirteenth Causes of Action Under the Labor Code Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ..................... 9 5. Plaintiff’s Individual and Representative Claims Under PAGA Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................................... 11 6. Plaintiff’s Claim For Unfair Competition Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ........................................................................... 12 7. Plaintiff’s Claim For Wrongful Termination In Violation Of Public Policy Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................... 13 IV. CONCLUSION ................................................................................................. 15 Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 2 of 20 Page ID #:105 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 ii. CASES Anderson v. Blockbuster, Inc., 2010 U.S. Dist. Lexis 53854 (E.D. Cal. May 4, 2010) ..................................... 10, 13 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“Iqbal”) ...................................................................... passim Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).......................................................................................... passim Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930 (N.D. Cal. Apr. 18, 2013) ....................................... 10 Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb. 25, 2016) ....................................... 10 Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345 (N.D. Cal. July 17, 2009) ....................................... 10 Edgerly v. City of Oakland, 211 Cal. App. 4th 1191 (2012) .................................................................................. 8 Gantt v. Sentry Insurance, 1 Cal. 4th 1083 (1992) ............................................................................................. 14 Gonzalez v. Fallanghina, LLC, 2016 U.S. Dist. LEXIS 96121 (N.D. Cal. July 22, 2016) ....................................... 10 Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418 (1993) .................................................................................. 13 Jeske v. Maxim Healthcare Servs., Inc., 2012 U.S. Dist. LEXIS 2963, at *36-37 (E.D. Cal. Jan. 10, 2012) ........................ 12 Khalili v. Comerica Bank, 2011 U.S. Dist. LEXIS 64559 (N.D. Cal. June 16, 2011)....................................... 10 Landers v. Quality Communs., Inc., 2014 U.S. App. LEXIS 21440 (9th Cir. Nov. 12, 2014) ......................................... 11 Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 3 of 20 Page ID #:106 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE Firmwide:143355496.3 061451.1231 iii. Morgan v. Regents of the University of California, 88 Cal. App. 4th 52 (2001) ........................................................................................ 8 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) ..................................................................................... 3 Moua v. IBM, 2012 U.S. Dist. LEXIS 156311 (N.D. Cal. Oct. 30, 2012) ..................................... 12 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ..................................................................................... 3 Renick v. Dun & Bradstreet Receivable Management Services, 290 F.3d 1055 (9th Cir. 2002) .................................................................................. 12 Rubin v. Wal-Mart Stores, Inc., 599 F. Supp. 2d 1176 (N.D. Cal. 2009) ................................................................... 12 Sanders v. Arneson Products, 91 F.3d 1351 (9th Cir. 1996), cert. denied, 520 U.S. 1116 (1997) ......................... 14 Schneider v. Space Systems/Loral, Inc., 2012 U.S. Dist. LEXIS 19001 (N.D. Cal. Feb. 14, 2012) ....................................... 10 Sequoia Ins. Co. v. Superior Court, 13 Cal. App. 4th 1472 (1993) .................................................................................. 14 Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980) ............................................................................................... 14 TRW, Inc. v. Superior Court, 25 Cal. App. 4th 1834 (1994) .................................................................................. 14 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994) ............................................................................................. 14 Weigele v. FedEx Ground Package Sys., 2010 U.S. Dist. LEXIS 120475 (S.D. Cal. Nov. 15, 2010) ..................................... 13 Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 4 of 20 Page ID #:107 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE Firmwide:143355496.3 061451.1231 iv. STATUTES California Government Code § 12940(h) ....................................................................... 8 OTHER AUTHORITIES Federal Rule of Civil Procedure 8(a)(2) ......................................................................... 3 Federal Rule of Civil Procedure 12(b) ............................................................................ 3 Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 5 of 20 Page ID #:108 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 1. I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Brian Davis (“Plaintiff”) has filed this action against Defendants Blazin Wings, Inc. (“Blazin Wings”), Buffalo Wild Wings, Inc. (“Buffalo Wild Wings”), and Buffalo Wild Wings International, Inc. (“BWW International”) (collectively, “Defendants”) for alleged wage and hour violations, discrimination, harassment, wrongful termination and other related claims. Plaintiff’s Complaint of seventeen purported causes of action is comprised entirely of bare legal conclusions and fails to set forth sufficient facts to state a claim for relief. Indeed, the Complaint fails to set forth even the basic terms of Plaintiff’s employment - including the identity of his employer, the location where he was employed, his job title, and the dates of his employment - much less to plead sufficient facts to allow the Court to reasonably conclude that the allegations are more than a sheer possibility. This minimal pleading cannot withstand scrutiny under the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (“Twombly”) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (“Iqbal”). These cases clarify that a complaint that offers “naked assertion[s]” devoid of “further factual enhancement,” as is the case here, is simply insufficient. Iqbal, 129 S.Ct. at 1949. Here, Plaintiff’s Complaint, and each cause of action set forth therein, is wholly conclusory and completely devoid of factual allegations showing that Plaintiff’s right to relief is anything more than speculative. Plaintiff repeatedly makes the conclusory allegation that he, and other unidentified “aggrieved employees,” have somehow been harmed by various undefined “actions” taken by Defendants. However, Plaintiff fails to plead specific facts, circumstances, acts or practices that, if true, would establish that Defendants violated the law and are liable to Plaintiff or any purported aggrieved employee. Consequently, the Complaint fails to provide Defendants with the requisite fair notice of what Plaintiff’s claims are and the grounds upon which they rest. Twombly, 550 U.S. at 555. / / / / Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 6 of 20 Page ID #:109 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 2. Based on the foregoing, and for the reasons set forth below, Defendants respectfully request the Court dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff filed a complaint in the Riverside County Superior Court on August 19, 2016. The Complaint alleges purported claims for: (1) discrimination in violation of the Fair Employment Housing Act (“FEHA”), (2) failure to prevent discrimination in violation of the FEHA, (3) failure to engage in a timely good faith interactive process in violation of the FEHA, (4) failure to provide reasonable accommodation in violation of the FEHA, (5) harassment in violation of the FEHA, (6) failure to prevent harassment in violation of the FEHA, (7) retaliation in violation of the FEHA, (8) violation of the California Family Rights Act (“CFRA”), (9) failure to pay meal and rest period compensation (Cal. Lab. Code §§ 2267, 512, 1194, 1194.2, 1197 and 1198), (10) failure to pay minimum wages and wages for all hours worked (Cal. Lab. Code §§ 1194, 1197, 1197.2, 1198, 221-223), (11) failure to pay timely earned wages (Cal. Lab. Code § 204), (12) failure to provide accurate wage statements (Cal. Lab. Code § 226), (13) failure to indemnify necessary expenditures (Cal. Lab. Code § 2802), (14) individual and Private Attorney General Act (“PAGA”) representative claims, (15) unfair compensation (Cal. Bus. & Prof. Code § 17200, et seq.), (16) retaliation in violation of Labor Code section 1102.5, and (17) wrongful termination/constructive discharge in violation of public policy. Plaintiff’s Complaint provides only conclusory statements of law and fails to set forth sufficient facts to state a claim for relief. Defendants were served with the Complaint on September 13, 2016. Defendants timely removed this action on October 13, 2016 based on diversity jurisdiction. (See Dkt. 1, Notice of Removal.) Pursuant to Local Rule 7-3, Defendants sent a meet and confer letter to Plaintiff’s counsel via email and facsimile on October 13, 2016 setting forth the grounds for the instant motion. (Declaration of Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 7 of 20 Page ID #:110 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 3. Christina H. Hayes (“Hayes Decl.”), ¶ 2, Ex. A.) The parties subsequently met and conferred telephonically on October 17, 2016 and via email on October 19, 2016. (Id. ¶ 3, Ex. B.) The parties were unable to reach a resolution of the issues set forth herein, necessitating the filing of the instant motion. (Id.) III. ARGUMENT A. The Legal Standard Applicable To Defendants’ Motion to Dismiss A motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims stated in the complaint. See Fed. R. Civ. P. 12(b). In ruling on a motion to dismiss under Rule 12(b), the court must decide whether the facts alleged in the complaint, if true, would entitle the plaintiff to some form of legal remedy. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). While the pleader must establish “a short and plain statement of the claim showing that the pleader is entitled to relief” (see Fed. R. Civ. P. 8(a)(2)), threadbare recitals are not sufficient. Dismissal is proper where there is “no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Id. In Twombly, supra, the United States Supreme Court clarified that the “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S at 555 (emphasis added); see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A complaint must contain enough “facts to state a claim to relief that is plausible on its face,” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. at 555, 570. Thus, even under the notice pleading standard, the Supreme Court emphasized that plaintiffs must still allege enough facts to “nudge[] their claims across the line from conceivable to plausible.” Id. at 570. In Iqbal, supra, the Supreme Court applied its ruling in Twombly and held that a complaint failed to state a claim for which relief could be granted because the allegations were nothing more than bare assertions and a formulaic recitation of the Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 8 of 20 Page ID #:111 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 4. elements. It reiterated that Rule 8 requires more than “an unadorned, the-defendant- unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949. As the Supreme Court emphasized, a complaint that simply offers “labels and conclusions,” a “formulaic recitation of the elements of a cause of action,” or one that only tenders “naked assertions” devoid of factual enhancement, is insufficient to survive a motion to dismiss. Id. The Supreme Court further clarified that the principles of Twombly are applicable to all civil actions, not just the antitrust context in which Twombly was decided. Iqbal, 129 S. Ct. at 1953 (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’”) (citation omitted). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows for the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 570). “Determining whether a complaint states a plausible claim for relief” is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1949. However, where the factual allegations in the complaint “do not permit the court to infer more than the mere possibility of misconduct,” the complaint must be dismissed because it has merely alleged, but not shown, an entitlement to relief. Id. Moreover, while a court must accept as true all of the factual allegations contained in a complaint, the same is not true of legal conclusions - “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. / / / / / / / / Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 9 of 20 Page ID #:112 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 5. B. Plaintiff’s Complaint, And Each Cause Of Action Alleged Therein, Must Be Dismissed Pursuant To Rule 12(b)(6) For Failure To Plead Sufficient Facts To State A Claim For Relief 1. Plaintiff’s First Through Sixth Causes of Action For Violations Of The FEHA Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief In his First through Sixth Causes of Action, Plaintiff alleges various claims for discrimination and harassment under the FEHA. Specifically, Plaintiff asserts claims for: (1) discrimination, (2) failure to prevent discrimination, (3) failure to engage in a timely good faith interactive process, (4) failure to provide reasonable accommodations, (5) harassment, and (6) failure to prevent harassment. (Dkt. 1-2, Complaint, ¶¶ 21-51.) These claims are devoid of any factual allegations and attempt to improperly rely on “labels and conclusions.” Twombly, 550 U.S. at 555. For example, in the section of the Complaint titled “Factual Background,” Plaintiff asserts as follows: Defendants discriminated/harassed/retaliated against its employee, Plaintiff, on the basis of his age; actual/perceived medical condition/disability; engagement in protected activity; request for and exercise of medical leave; request for and engagement in the interactive process and reasonable accommodation; in retaliation for Plaintiff’s opposition to and complaints about harassment/discrimination/retaliation in violation of the Fair Employment and Housing Act (“FEHA”) and California Family Rights Act (“CFRA”); in retaliation for Plaintiff’s opposition to and complaint about the Labor Code violations referenced in this complaint. (Dkt. 1-2, Complaint, ¶ 9.) Plaintiff additionally alleges: Defendants discriminated/harassed/retaliated against Plaintiff by failing to engage in the interactive process and provide reasonable accommodation for Claimant’s disability/medical condition, subjecting Plaintiff to a hostile work environment including verbal conduct Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 10 of 20 Page ID #:113 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 6. disparaging Plaintiff’s actual/perceived medical condition/disability, increased scrutiny, false/pretextual write-ups, harassment, refusing to let him work, suspension, and termination/constructive discharge. Id., ¶ 10. The foregoing paragraphs are the sole factual allegations made in support of Plaintiff’s claims for violation of the FEHA. Indeed, while the First through Sixth Causes of Action incorporate the foregoing paragraphs by reference, they fail to include any additional factual content regarding the basis for Plaintiff’s claims or Plaintiff’s entitlement to relief. (See Dkt. 1-2, Complaint, ¶¶ 21-51.) Notably, Plaintiff’s Complaint fails to identify his purported disability and/or medical condition, fails to allege his age for purposes of any age discrimination claim, fails to identify if and when he became disabled, fails to identify if and when he requested a reasonable accommodation and to whom, fails to identify any efforts he made to engage in the interactive process and any response by Defendants, fails to allege that he could perform the essential functions of his position (as required for a failure to accommodate claim), and fails to provide any factual information regarding who allegedly subjected him to a hostile work environment and/or discriminated against him and in what way. Plaintiff further fails to describe the nature of any alleged protected activity and fails to identify to whom he complained (if anyone), the nature of the complaints, and when the complaints were made. Finally, Plaintiff provides absolutely no detail regarding any harm he allegedly suffered, including the dates or circumstances surrounding any supposed suspension, termination or constructive/discharge. Indeed, it is unclear from the Complaint whether Plaintiff has ever been suspended, whether he has requested and/or been granted any leaves of absence, and whether his employment has, in fact, been terminated. 1 As such, 1 As set forth in Defendants’ Notice of Removal, Defendants dispute that Plaintiff’s employment has been terminated. (See Dkt. 1, Notice of Removal at p. 10 n. 3) Moreover, because Plaintiff has failed to provide factual details regarding any Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 11 of 20 Page ID #:114 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 7. Defendants must merely speculate as to the basis for Plaintiff’s claims and the nature of any harm allegedly suffered. This is exactly the type of “threadbare” pleading that the Supreme Court has held warrants dismissal. See Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Moreover, it is impossible to tell which of Plaintiff’s allegations correspond to each cause of action. For example, as set forth above, Paragraph 9 of the Complaint makes reference to both age and disability discrimination/harassment. (See Dkt. 1-2, Complaint, ¶ 9 (“Defendants discriminated/harassed/retaliated against its employee, Plaintiff, on the basis of his age; actual perceived medical condition/disability . . . .”). However, Plaintiff’s First Cause of Action for discrimination merely alleges that “Defendants’ actions constitute discrimination in violation of the Fair Employment Housing Act.” (Id., ¶ 22.) Similarly, Plaintiff’s Fifth Cause of Action for Harassment alleges only that “Defendants’ actions constitute harassment in violation of the Fair Employment Housing Act.” (Id., ¶ 43.) Defendants’ allegedly unlawful “actions” are never identified. As such, it is impossible to determine the type of claim being brought (e.g. age or disability discrimination/harassment), to discern the legal theories being raised, or to identify the factual allegations purportedly supporting Plaintiff’s various legal theories. Because Plaintiff’s First through Sixth Causes of Action do nothing more than provide “‘naked assertion[s]’ devoid of ‘further factual enhancement’” they fail to meet the pleading standard set forth in Iqbal and Twombly. See Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557. Accordingly, Plaintiff’s First through Sixth Causes of Action fail to set forth a cognizable claim upon which relief may be granted, and these claims should be dismissed. purported termination and/or constructive discharge, Defendants are forced to speculate as to the meaning of this allegation and thus cannot prepare a meaningful response. Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 12 of 20 Page ID #:115 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 8. 2. Plaintiff’s Claims for Retaliation Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief Plaintiff’s Seventh Cause of Action alleges a claim for retaliation in violation of the FEHA. Similarly, Plaintiff’s Sixteenth Cause of Action alleges a claim for retaliation in violation of California Labor Code section 1102.5. (See Dkt. 1-2, Complaint, ¶¶ 52-56, 87-91.) To state a claim for retaliation under the FEHA and/or California Labor Code section 1102.5, Plaintiff must show: (1) he engaged in protected activity; (2) he was thereafter subject to adverse employment action by his employer; and (3) there was a causal link between the two. Morgan v. Regents of the University of California, 88 Cal. App. 4th 52, 69 (2001); Edgerly v. City of Oakland, 211 Cal. App. 4th 1191, 1199 (2012). “Protected activity” is defined in the California Government Code as: (1) making a charge, testifying, assisting, or participating in any manner in proceedings or hearings under FEHA, or (2) opposing acts made unlawful by FEHA. See Cal. Govt. Code § 12940(h). “Protected activity” under Labor Code section 1102.5 is defined as “the disclosure of or opposition to ‘a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” Edgerly, 211 Cal. App. 4th at 1199 (quoting Cal. Lab. Code § 1102.5(b) and (c)). Here, Plaintiff’s retaliation claims fail because Plaintiff has not alleged any facts establishing that he engaged in protected activity or any facts that establish causation between any protected activity and an adverse action. Indeed, Plaintiff’s Complaint (1) fails to identify the protected activity engaged in by Plaintiff, including failing to identify the content of any complaints he allegedly made and to whom; (2) fails to identify any adverse action taken with respect to Plaintiff’s employment, including the dates or circumstances surrounding any supposed suspension, termination or constructive/discharge; and (3) fails to identify the requisite nexus between any (as yet to be alleged) protected activity and any (as yet to be alleged) adverse employment action. Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 13 of 20 Page ID #:116 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 9. In short, Plaintiff’s conclusory and boilerplate assertions fail to put Defendants on notice as to the details of the alleged retaliatory actions taken against him, such as the identity of any individual(s) who retaliated against him and what form(s) the alleged retaliation actually took. As this improper pleading leaves Defendants unable to surmise Plaintiff’s actual claims, Plaintiff’s Seventh and Sixteenth Causes of Action for retaliation in violation of the FEHA and Labor Code section 1102.5 must be dismissed. 3. Plaintiff’s Eighth Cause Of Action For Violation Of The CFRA Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief Plaintiff’s Eighth Cause of Action for violation of the CFRA is bereft of any facts establishing the basis for Plaintiff’s claim or Plaintiff’s entitlement to relief. Indeed, besides merely alleging that “Defendants’ actions constitute a violation of the California Family Rights Act (“CFRA”),” (see Dkt. 1-2, Complaint, ¶ 58), Plaintiff fails to provide any factual content as to the basis for any such alleged violation. Accordingly, Plaintiff’s claim should be dismissed for failure to plead sufficient facts to state a claim for relief. 4. Plaintiff’s Ninth Through Thirteenth Causes of Action Under the Labor Code Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief Plaintiff brings his Ninth through Thirteenth Causes of Action under the California Labor Code against Defendants for unpaid wages, missed meal and rest breaks, unpaid business expenses and related claims. For each of these claims, the Complaint simply sets forth boilerplate, conclusory allegations without elucidating specific facts establishing the plausibility of Plaintiff’s claims. (Dkt. 1-2, Complaint, ¶¶ 62-79.) The Complaint cannot rest on these “labels and conclusions.” Twombly, 550 U.S. at 555. Here, Plaintiff does not plead any facts concerning the shift(s) he worked, when or how he did not allegedly receive minimum wage or overtime pay, what business expenses he allegedly incurred, when or why he did not take meal or rest periods, or Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 14 of 20 Page ID #:117 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 10. identify any specific policy that denied his rights under the Labor Code. Plaintiff does not even allege how often he was allegedly denied wages, reimbursements, a meal or rest period or the circumstances surrounding his alleged unpaid wages or missed breaks. Numerous courts have held that such conclusory allegations are insufficient to survive a motion to dismiss. See Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435, *14 (C.D. Cal. Feb. 25, 2016) (dismissing a complaint for California Labor Code violations because it failed to allege “non-conclusory factual content”); Gonzalez v. Fallanghina, LLC, 2016 U.S. Dist. LEXIS 96121, *17 (N.D. Cal. July 22, 2016) (dismissing a complaint for federal and California Labor Code violations where plaintiff simply alleged legal conclusions without facts and circumstances to support the elements of his claims); Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930, at *14 (N.D. Cal. Apr. 18, 2013) (finding that plaintiffs failed to plead sufficient facts to state a claim for violation of California’s meal and rest break requirements where plaintiffs alleged their employer “pressured, incentivized, and discouraged” them from taking meals breaks but failed to “provide any facts surrounding these alleged tactics”); Schneider v. Space Systems/Loral, Inc., 2012 U.S. Dist. LEXIS 19001, at *4-9 (N.D. Cal. Feb. 14, 2012) (bare allegations of failure to pay overtime cannot survive a motion to dismiss under Iqbal); Khalili v. Comerica Bank, 2011 U.S. Dist. LEXIS 64559, at *6-7 (N.D. Cal. June 16, 2011) (dismissing overtime claims under Iqbal where the plaintiff “allege[d] Defendants failed to pay ‘proper’ overtime, without alleging what made Defendants’ actions ‘improper’”); Anderson v. Blockbuster, Inc., 2010 U.S. Dist. Lexis 53854, at *5-9 (E.D. Cal. May 4, 2010) (dismissing a complaint for California Labor Code violations where the conclusory allegations did not meet minimum pleading requirements); Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345, at *7 (N.D. Cal. July 17, 2009) (dismissing plaintiff’s wage-and-hour complaint under Iqbal where the complaint merely “recite[d] the statutory language setting forth the elements of the claim, and then slavishly repeat[ed] the statutory language as the purported factual allegations”); Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 15 of 20 Page ID #:118 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 11. see also Landers v. Quality Communs., Inc., 2014 U.S. App. LEXIS 21440 (9th Cir. Nov. 12, 2014) (affirming district court’s dismissal of complaint presenting generalized allegations of violations of overtime provisions under the Fair Labor Standards Act). Accordingly, Plaintiff’s Ninth through Thirteenth Causes of Action should be dismissed for failure to state a claim upon which relief may be granted. 5. Plaintiff’s Individual and Representative Claims Under PAGA Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief Plaintiff’s Fourteenth Cause of Action asserts individual and representative claims for civil penalties under PAGA. In support of his PAGA claim, Plaintiff alleges the following: Defendants have committed the following violations of the California Labor Code against Plaintiff and, on information and belief, against all other similarly situated current or former employees while they were and are employed by Defendants: Sections 98.6, 204, 221, 222, 223, 226, 226.7, 510, 512, 1102.5, 1194, 1194.2, 1197, 1198, 2802. (Dkt. 1-2, Complaint, ¶ 82.) Plaintiff fails to set forth any additional factual content in support of his claim for PAGA penalties. Moreover, Plaintiff’s PAGA claim is largely derivative of the Ninth through Thirteenth Causes of Action in his Complaint. The extent to which this cause of action is sufficient, therefore, depends on the adequacy of the pleading of the causes of action on which it based. As discussed in detail supra, Plaintiff failed to sufficiently plead his Ninth through Thirteenth Claims for violations of the Labor Code under the standards set forth in Twombly and Iqbal. Thus, where the underlying causes of action each fail to allege sufficient facts to show Plaintiff’s right to relief is anything more than speculative, so too must Plaintiff’s dependent claim for PAGA penalties. Moreover, Plaintiff’s PAGA claim alleges nothing regarding the nature of the alleged violations and how he would prove that each individual in the proposed Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 16 of 20 Page ID #:119 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 12. representative group is an “aggrieved employee” under the statute. Therefore, Plaintiff’s Fourteenth Cause of Action for PAGA penalties fails to allege facts upon which relief could be granted and should be dismissed. Rubin v. Wal-Mart Stores, Inc., 599 F. Supp. 2d 1176, 1179 (N.D. Cal. 2009) (dismissing derivative claim where the predicate claims were insufficiently pled). Additionally, a PAGA claim will be deemed insufficient when a Plaintiff fails to “provide at least some definition of the class of employees implicated by the case.” Moua v. IBM, 2012 U.S. Dist. LEXIS 156311, 10-11 (N.D. Cal. Oct. 30, 2012) (citing Chie v. Reed Elsevier, Inc., 2011 U.S. Dist. LEXIS 99153, at *11-12 (N.D. Cal. Sept. 2, 2011) (finding PAGA allegations were subject to dismissal because “[f]or a representative action . . . there must be some specificity as to who the persons are that the plaintiff seeks to represent”); Jeske v. Maxim Healthcare Servs., Inc., 2012 U.S. Dist. LEXIS 2963, at *36-37 (E.D. Cal. Jan. 10, 2012) (dismissing as “imprecisely defined” a PAGA claim which identified “aggrieved employees” as “[a]ll persons who were or are employed by Defendants in the State of California and against whom one or more of the alleged violations described below was committed.”). Here, Plaintiff fails to sufficiently identify the persons he seeks to represent in his PAGA claim. Accordingly, Plaintiff’s Fourteenth Cause of Action should be dismissed for failure to state a claim upon which relief may be granted. 6. Plaintiff’s Claim For Unfair Competition Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief Plaintiff’s Fifteenth Cause of Action alleges that Defendants violated “California’s Unfair Competition Law enumerated in California Bus. and Prof. code s. 17200 et seq.” (Dkt. 1-2, Complaint, ¶ 85.) To state a claim for unfair competition, Plaintiff is required to allege material facts which, if proven, demonstrate Defendants violated some California wage and hour law. Renick v. Dun & Bradstreet Receivable Management Services, 290 F.3d 1055, 1058 (9th Cir. 2002) (a violation of California Business and Professions Code section 17200 et seq. generally requires the plaintiff Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 17 of 20 Page ID #:120 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 13. establish a violation of an underlying statute). Here, Plaintiff alleges that Defendants failed “to pay Plaintiff compensation for missed meal and rest periods, wages, and other Labor Code sections.” (Dkt. 1-2, Complaint, ¶ 85.) However, this allegation is merely a conclusory allegation which is insufficient to state a claim for violation of California’s Unfair Competition law. See Iqbal, 129 S. Ct. at 1940. In Anderson v. Blockbuster Inc., supra, the court similarly dismissed an unfair competition claim that derived from violations of California Labor Code provisions where the complaint merely parroted the statutory language for each purported claim. Anderson, 2010 U.S. Dist. Lexis 53854, at *8-9 (holding that plaintiff must plead sufficient factual content to allow the court to make a reasonable inference that defendant is liable for the claims alleged by plaintiffs); see also Weigele v. FedEx Ground Package Sys., 2010 U.S. Dist. LEXIS 120475, at *13 n. 4 (S.D. Cal. Nov. 15, 2010) (dismissing plaintiffs’ labor code claims for failure to plead sufficient factual allegations and noting that “[b]ecause Plaintiffs’ unfair competition claim derives from their overtime claims and meal and rest period claims, the unfair competition claim fails if the other claims fail”). As in Anderson, Plaintiff has failed to plead sufficient facts to establish entitlement to relief on any of his claims for alleged violations of the California Labor Code. Accordingly, Plaintiff’s Fifteenth Cause of Action for unfair competition should be dismissed for failure to state a claim upon which relief may be granted. 7. Plaintiff’s Claim For Wrongful Termination In Violation Of Public Policy Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief In his Seventeenth Cause of Action, Plaintiff alleges that he was wrongfully terminated/constructively discharged in violation of public policy. (Dkt. 1-2, Complaint, ¶¶ 92-96.) To state a claim for wrongful termination in violation of public policy, Plaintiff must allege (1) an employment relationship; (2) that he was discharged; (3) the discharge violated a policy that is fundamental, beneficial to the public, and embodied in a statute or constitutional provision; and (4) that the discharge caused him harm. See Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 18 of 20 Page ID #:121 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 14. 1426 n.8 (1993); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256 (1994). Additionally, in order to bring a cognizable public policy claim, Plaintiff must show: (1) that the defendant violated some statute or regulation (or that plaintiff had a reasonable belief that the defendant did so), and (2) that the violation was tethered to an important and fundamental public policy articulated in the statute or regulation. See Gantt v. Sentry Insurance, 1 Cal. 4th 1083, 1095 (1992); Sequoia Ins. Co. v. Superior Court, 13 Cal. App. 4th 1472, 1475 (1993) (a showing that employer’s conduct was “specifically prohibited” by statute is a “foundational requirement” for a wrongful termination in violation of public policy claim). Here, Plaintiff merely states that “Defendants’ actions constitute wrongful termination/constructive discharge in violation of the public policies embed in FEHA, CFRA, Americans with Disability Act (“ADA”), Age Discrimination in Employment Act (“ADEA”), Family and Medical Leave Act (“FMLA”) Labor Code ss. 1102.5, and Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980).” (Dkt. 1-2, Complaint, ¶ 93.) As such, Plaintiff has failed to establish even the basic elements of his claim for wrongful termination because he has not sufficiently alleged an employment relationship with any of the Defendants and has failed to allege any facts establishing that his employment has, in fact, been terminated. Thus, by definition, Plaintiff’s claim for wrongful termination fails to state a claim upon which relief may be granted. Moreover, Plaintiff’s wrongful termination in violation of public policy claim is founded upon assertions that the FEHA was violated through purported discrimination and retaliation. Where a discrimination claim fails as a matter of law, as it does here, a claim under California state law for wrongful discharge in violation of public policy against discrimination fails as well. See Sanders v. Arneson Products, 91 F.3d 1351, 1354 (9th Cir. 1996), cert. denied, 520 U.S. 1116 (1997); see also TRW, Inc. v. Superior Court, 25 Cal. App. 4th 1834, 1854 (1994) (holding there is no cause of action for violation of public policy if employer did not violate the statutory provision asserted as the basis of the cause of action). Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 19 of 20 Page ID #:122 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355496.3 061451.1231 15. Finally, even if Plaintiff could maintain his underlying claims (which he cannot), his wrongful termination claim still fails because he pleads nothing more than “mere conclusions,” which “are not entitled to the assumption of truth” under Iqbal. Indeed, as with Plaintiff’s other claims, Plaintiff does nothing more than provide boilerplate, conclusory allegations, and as such, fails to meet the pleading requirements of Iqbal and Twombly. Accordingly, Plaintiff’s claim for wrongful termination should be dismissed. IV. CONCLUSION For all of the reasons set forth herein, Defendants respectfully request the Court grant this Motion and dismiss Plaintiff’s Complaint, and each and every cause of action therein, for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). Dated: October 20, 2016 Respectfully submitted, /s/ Christina H. Hayes STACEY E. JAMES KHATEREH S. FAHIMI CHRISTINA H. HAYES LITTLER MENDELSON, P.C. Attorneys for Defendants BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; and BUFFALO WILD WINGS INTERNATIONAL, INC. Case 5:16-cv-02167-JGB-KK Document 13-1 Filed 10/20/16 Page 20 of 20 Page ID #:123 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355522.1 061451.1231 STACEY E. JAMES, Bar No. 185651 sjames@littler.com KHATEREH SAGE FAHIMI, Bar No. 252152 sfahimi@littler.com CHRISTINA H. HAYES, Bar No. 267153 chayes@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; and BUFFALO WILD WINGS INTERNATIONAL, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRIAN DAVIS, Plaintiff, v. BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; BUFFALO WILD WINGS INTERNATIONAL, INC.; and DOES 1 through 20, inclusive, Defendants. Case No. 5:16-CV-02167-JGB-KK DECLARATION OF CHRISTINA H. HAYES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [F.R.C.P. 12(b)(6)] Date: November 28, 2016 Time: 9:00 a.m. Ctrm: 1 I, CHRISTINA H. HAYES, hereby declare as follows: 1. I am an attorney at law duly licensed to practice before all of the courts of this state. I am an associate in the law firm of Littler Mendelson, P.C., attorney of record for Defendants BLAZIN WINGS, INC., BUFFALO WILD WINGS, INC., and BUFFALO WILD WINGS INTERNATIONAL, INC. (“Defendants”) in the above- captioned matter. I have personal knowledge of the facts set forth herein and if called as a witness I could and would competently testify thereto and authenticate all documents referenced in this declaration. Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 1 of 7 Page ID #:124 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 Firmwide:143355522.1 061451.1231 2. 2. Pursuant to Local Rule 7-3, on October 13, 2016, I sent a meet and confer letter by email and facsimile to counsel for Plaintiff Brian Davis (“Plaintiff”) setting forth the grounds for Defendants’ potential motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). A true and correct copy of my October 13, 2016 correspondence to Plaintiff’s counsel is attached hereto as Exhibit A. 3. On October 17, 2016, the parties met and conferred telephonically to further discuss Defendants’ potential motion to dismiss. During the conference of counsel, Plaintiff’s counsel informed me that Plaintiff would not agree to dismiss or amend the Complaint. I subsequently emailed Plaintiff’s counsel on October 19, 2016. A true and correct copy of my October 19, 2016 email to Plaintiff’s counsel is attached hereto as Exhibit B. Despite their meet and confer efforts, the parties were unable to reach a resolution that would avoid the necessity of filing the instant motion. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed this 20th day of October, 2016, at Jacksonville, Oregon. /s/ Christina H. Hayes CHRISTINA H. HAYES Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 2 of 7 Page ID #:125 EXHIBIT A EXHIBIT A PAGE 3 Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 3 of 7 Page ID #:126 Littler October 13, 2016 VIA E-MAIL AND FAX Lawrence W. Freiman Michael J. Freiman Freiman Law 100 Wilshire Blvd, Ste. 700 Santa Monica, CA 90401 Littler Mendelson, PC 501 W. Broadway Suite 900 San Diego, CA 92101.3577 Christina H. Hayes 619.515.1809 direct 619.232.0441 main 619.37 4.2559 fax chayes@littler.com Re: Brian Davis v. Blazin Wings, Inc./ Buffalo Wild Wings, Inc./ Buffalo Wild Wings International, Inc. (Case No. RIC1610795) Dear Counsel: Our firm represents Defendants Blazin Wings, Inc., Buffalo Wild Wings, Inc. and Buffalo Wild Wings International, Inc. C'Defendants'') in the above-entitled matter. Defendants removed this matter from state court to federal court earlier today, based on diversity jurisdiction. Pursuant to Local Rule 7-3 of the United States District Court for the Central District of California, this letter serves as Defendants' attempt to engage in a pre-filing conference of the parties. Specifically, Defendants intend to file a motion to dismiss under Federal Rule of Civil Procedure, Rule 12(b)(6), challenging the sufficiency of all of Plaintiff's causes of action, or in the alternative, requesting a more definite statement of Plaintiff's allegations pursuant to Rule 12(e). Plaintiff has alleged that Defendants discriminated, harassed and/or retaliated against him on the basis of his age, medical condition, and/or exercise of his statutory rights in violation of the California Fair Employment and Housing Act C'FEHA''), California Family Rights Act C'CFRA''), and public policy. Plaintiff additionally alleges that he was wrongfully terminated in violation of public policy and asserts numerous claims for violations of the California Labor Code, including claims for failure to pay meal and rest break compensation, failure to pay minimum wages and wages for all hours worked, failure to pay timely earned wages, failure to provide accurate wage statements, and failure to indemnify necessary expenditures. Finally, Plaintiff asserts a claim for violation of California's unfair competition law and seeks civil penalties pursuant to the Private Attorney General Act. However, Plaintiff fails to set forth any factual allegations establishing his entitlement to relief on any of the foregoing causes of action. Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." A complaint may be dismissed under Rule 12(b)(6) where either the complaint lacks a cognizable legal theory, or where the complaint fails to plead facts essential to the statement of a claim under that theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Navarro v. Block, 250 F.3d littler. com EXHIBIT A PAGE 4 Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 4 of 7 Page ID #:127 Lawrence W. Freiman October 13, 2016 Page 2 729, 732 (9th Cir. 2001). A motion to dismiss is properly granted when a plaintiff fails to provide "more than labels and conclusions"; moreover, "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly C'Twombly"), 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face/' and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555, 570. Here, Plaintiff's causes of action are subject to dismissal because Plaintiff's Complaint simply asserts that Defendants violated the law without providing any factual allegations to support these claims. See, e.g., Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Glover v. Fremont Inv. & Loan 2009 U.S. Dist. LEXIS 117890, at *7 (N.D. Cal. Dec. 18, 2009) C'Simply tracking statutory language or raising general allegations [] is insufficient to properly raise a claim for relief.") (citing Twombly, 550 U.S. at 555). Accordingly, Defendants intend to move the Court to dismiss Plaintiff's Complaint in its entirety. Alternatively, Defendants plan to move the Court to order Plaintiff to provide a more definite statement of his claims pursuant to Rule 12(e) of the Federal Rules of Civil Procedure so that Defendants can prepare a proper responsive pleading. Where a complaint is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." See Fed. R. Civ. P. 12(e). "The proper test in evaluating a motion under Rule 12(e) is whether the complaint provides the defendant with a sufficient basis to frame his responsive pleadings." Federal Sav. And Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053, 1060 (N.D. Cal. 1988). As set forth above, Plaintiff's Complaint is a recitation of legal conclusions, and the few facts he does provide are too vague, uncertain and ambiguous to be deciphered. Accordingly, Defendants respectfully request that Plaintiff dismiss his Complaint in its entirety or file an amended complaint providing factual allegations in support of his claims. As you are no doubt aware, Defendants have a limited period of time in which to file their Motion to Dismiss. As such, please advise whether you intend to meet and confer on these issues as soon as possible, and in any event, by no later than close of business on Friday, October 14, 2016. Thank you for your anticipated cooperation. Sincerely, Christina H. Hayes CHH cc: Stacey James Sage Fahimi Firmwide:143341501.1 061451.1231 EXHIBIT A PAGE 5 Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 5 of 7 Page ID #:128 EXHIBIT B EXHIBIT B PAGE 6 Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 6 of 7 Page ID #:129 1 Hayes, Christina H. From: Hayes, Christina H. Sent: Wednesday, October 19, 2016 11:07 AM To: 'Michael Freiman' Cc: Lawrence Freiman (lawrence@freimanlaw.com); James, Stacey E.; Fahimi, Sage Subject: RE: Brian Davis v. Blazin Wings, Inc. Michael, I am following up on the parties’ October 17, 2016 telephonic meet and confer during which we discussed: 1) Defendants’ intent to file a motion to dismiss on the ground that Plaintiff’s Complaint fails to allege sufficient facts to state a claim for relief, and 2) Plaintiff’s intent to file a motion to remand on the ground that Defendants have not established the amount in controversy exceeds $75,000. During the meet and confer, you also proposed that Plaintiff would agree not to file a motion to remand provided Defendants agreed not to file a motion to dismiss. We have discussed this proposal with our client and have decided to proceed with the motion to dismiss for the reasons set forth in Defendants’ October 13, 2016 meet and confer correspondence and discussed in greater detail during our call. Defendants also intend to file an opposition should Plaintiff proceed with a motion to remand. Please let me know if you have any questions or if you wish to discuss any of these issues in greater detail. Thanks, Christina Christina Hayes, Attorney At Law 619.515.1809 direct 619.374.2559 fax chayes@littler.com 501 W. Broadway, Suite 900 | San Diego, CA 92101-3577 | littler.com Employment & Labor Law Solutions Worldwide EXHIBIT B PAGE 7 Case 5:16-cv-02167-JGB-KK Document 13-2 Filed 10/20/16 Page 7 of 7 Page ID #:130 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 Firmwide:143355601.1 061451.1231 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA BRIAN DAVIS, Plaintiff, v. BLAZIN WINGS, INC.; BUFFALO WILD WINGS, INC.; BUFFALO WILD WINGS INTERNATIONAL, INC.; and DOES 1 through 20, inclusive, Defendants. Case No. 5:16-CV-02167-JGB-KK [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT [F.R.C.P. 12(b)(6)] Date: November 28, 2016 Time: 9:00 a.m. Ctrm: 1 Case 5:16-cv-02167-JGB-KK Document 13-3 Filed 10/20/16 Page 1 of 3 Page ID #:131 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 Firmwide:143355601.1 061451.1231 2. ORDER On November 28, 2016 at 9:00 a.m. Defendants BLAZIN WINGS, INC., BUFFALO WILD WINGS, INC., and BUFFALO WILD WINGS INTERNATIONAL, INC.’s (“Defendants”) Motion to Dismiss came on regularly for hearing in the above-entitled Court, the Honorable Jesus G. Bernal presiding. Having considered Defendants’ Motion, oral argument thereon, and all papers submitted in support of and in opposition to Defendants’ Motion, the Court hereby GRANTS Defendants’ Motion to Dismiss the complaint of Plaintiff Brian Davis (“Plaintiff”) with prejudice, on the ground the complaint fails to allege facts sufficient to state a claim to relief that is plausible on its face. FED. R. CIV. P. 12(b)(6); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: 1. Plaintiff’s claim for discrimination in violation of the Fair Employment Housing Act (“FEHA”) is hereby dismissed WITH PREJUDICE. 2. Plaintiff’s claim for failure to prevent discrimination in violation of the FEHA is hereby dismissed WITH PREJUDICE. 3. Plaintiff’s claim for failure to engage in a timely good faith interactive process in violation of the FEHA is hereby dismissed WITH PREJUDICE. 4. Plaintiff’s claim for failure to provide reasonable accommodation in violation of the FEHA is hereby dismissed WITH PREJUDICE. 5. Plaintiff’s claim for harassment in violation of the FEHA is hereby dismissed WITH PREJUDICE. 6. Plaintiff’s claim for failure to prevent harassment in violation of the FEHA is hereby dismissed WITH PREJUDICE. 7. Plaintiff’s claim for retaliation in violation of the FEHA is hereby Case 5:16-cv-02167-JGB-KK Document 13-3 Filed 10/20/16 Page 2 of 3 Page ID #:132 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 Firmwide:143355601.1 061451.1231 3. dismissed WITH PREJUDICE. 8. Plaintiff’s claim for violation of the California Family Rights Act (“CFRA”) is hereby dismissed WITH PREJUDICE. 9. Plaintiff’s claim for failure to pay meal and rest period compensation is hereby dismissed WITH PREJUDICE. 10. Plaintiff’s claim for failure to pay minimum wages and wages for all hours worked is hereby dismissed WITH PREJUDICE. 11. Plaintiff’s claim for failure to pay timely earned wages is hereby dismissed WITH PREJUDICE. 12. Plaintiff’s claim for failure to provide accurate wage statements is hereby dismissed WITH PREJUDICE. 13. Plaintiff’s claim for failure to indemnify necessary expenditures is hereby dismissed WITH PREJUDICE. 14. Plaintiff’s individual and representative claims under the Private Attorney General Act (“PAGA”) are hereby dismissed WITH PREJUDICE. 15. Plaintiff’s claim for unfair compensation (Cal. Bus. & Prof. Code § 17200, et seq.) is hereby dismissed WITH PREJUDICE. 16. Plaintiff’s claim for retaliation in violation of Labor Code section 1102.5 is hereby dismissed WITH PREJUDICE. 17. Plaintiff’s claim for wrongful termination/constructive discharge in violation of public policy is hereby dismissed WITH PREJUDICE. IT IS SO ORDERED. Dated: HON. JESUS G. BERNAL UNITED STATES DISTRICT JUDGE Case 5:16-cv-02167-JGB-KK Document 13-3 Filed 10/20/16 Page 3 of 3 Page ID #:133