Francisco J. Galvez v. Pinnacle Workforce Logistics Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Complaint Pursuant to FRCP Rule 12

C.D. Cal.June 23, 2017

1 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998355.1 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 TYLER T. RASMUSSEN, SBN 271987 trasmussen@fisherphillips.com FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, California 92614 Telephone: (949) 851-2424 Facsimile: (949) 851-0152 Attorney for Defendant PINNACLE WORKFORCE LOGISTICS, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION FRANCISCO J. GALVEZ, an individual, Plaintiff, v. PINNACLE WORKFORCE LOGISTICS, LLC, a Delaware Limited Liability Company; ROADLINK WAREHOUSE SOLUTIONS, a business of unknown entity; ROADLINK INTERMODAL LOGISTICS, a business of unknown entity; ROADLINK INC., a business of unknown entity; and DOES 1 - 25, inclusive, Defendants. Case No. 2:17-cv-04496-AB-PLA DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(B)(6) [CONCURRENTLY FILED WITH MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF TYLER T. RASMUSSEN; AND PROPOSED ORDER] DATE: SEPTEMBER 18, 2017 TIME: 10:30 A.M. CTRM: 7B Complaint Filed: 01/26/17 Trial Date: None TO ALL PARTIES HEREIN AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Monday, September 18, 2017, at 10:30 a.m. or as soon thereafter as the matter may be heard in Courtroom 7B, located at 350 West First Street, Los Angeles, CA 90012, Pinnacle Workforce Logistics, LLC (“Defendant”) will and hereby does move this Court to dismiss the sixth, seventh, and eighth causes of action asserted in the Complaint filed by Plaintiff Francisco J. Case 2:17-cv-04496-AB-PLA Document 8 Filed 06/23/17 Page 1 of 3 Page ID #:220 2 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998355.1 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 Galvez (“Plaintiff”), for failure to state a viable claim pursuant to Fed. Rule of Civ. Proc. 12(b)(6). This motion is made on the grounds that Plaintiff’s sixth, seventh, and eighth causes of action are insufficiently pled and barred by workers’ compensation exclusivity. The motion will be based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Declaration of Tyler T. Rasmussen, including any exhibits attached thereto, the pleadings and papers filed herein, and such oral and documentary evidence as may be presented at or before the hearing of this motion. This motion is made following multiple attempts and an actual conference of counsel pursuant to Local Rule 7-3 as outlined in the declaration of Tyler T. Rasmussen. Dated: June 23, 2017 FISHER & PHILLIPS LLP By: /s/ Tyler T. Rasmussen TYLER T. RASMUSSEN Attorney for Defendant PINNACLE WORKFORCE LOGISTICS, LLC Case 2:17-cv-04496-AB-PLA Document 8 Filed 06/23/17 Page 2 of 3 Page ID #:221 3 PROOF OF SERVICE FPDOCS 32998355.1 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 CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with the law offices of Fisher & Phillips LLP and my business address is 2050 Main Street, Suite 1000, Irvine, California 92614. On the below date, I served the foregoing document entitled DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) on all the appearing and/or interested parties in this action by placing  the original  a true copy thereof enclosed in sealed envelope(s) addressed as follows: Ophir J. Bitton, Esq. BITTON & ASSOCIATES 7220 Melrose Avenue, 2nd. Floor Los Angeles, CA 90046 Attorneys for Plaintiff FRANCISCO J. GALVEZ Tel: (310) 356-1006 Fax: (818) 524-1224 ophir@bittonlaw.com regina@bittonlaw.  [by ELECTRONIC SUBMISSION] - I served the above listed document(s) described via the United States District Court’s Electronic Filing Program on the designated recipients via electronic transmission through the CM/ECF system on the Court’s website. The Court’s CM/ECF system will generate a Notice of Electronic Filing (NEF) to the filing party, the assigned judge, and any registered users in the case. The NEF will constitute service of the document(s). Registration as a CM/ECF user constitutes consent to electronic service through the court’s transmission facilities.  [by MAIL] - I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed June 23, 2017 at Irvine, California. K. Nichole Simpson By: /s/ K. Nichole Simpson Print Name Signature Case 2:17-cv-04496-AB-PLA Document 8 Filed 06/23/17 Page 3 of 3 Page ID #:222 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(B)(6) FPDOCS 32998444.1 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 TYLER T. RASMUSSEN, SBN 271987 trasmussen@fisherphillips.com FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, California 92614 Telephone: (949) 851-2424 Facsimile: (949) 851-0152 Attorney for Defendant PINNACLE WORKFORCE LOGISTICS, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION FRANCISCO J. GALVEZ, an individual, Plaintiff, v. PINNACLE WORKFORCE LOGISTICS, LLC, a Delaware Limited Liability Company; ROADLINK WAREHOUSE SOLUTIONS, a business of unknown entity; ROADLINK INTERMODAL LOGISTICS, a business of unknown entity; ROADLINK INC., a business of unknown entity; and DOES 1 - 25, inclusive, Defendants. Case No. 2:17-cv-04496-AB-PLA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(B)(6) [CONCURRENTLY FILED WITH NOTICE OF MOTION TO DISMISS; DECLARATION OF TYLER RASMUSSEN; AND PROPOSED ORDER] DATE: SEPTEMBER 18, 2017 TIME: 10:30 A.M. CTRM: 7B Complaint Filed: 01/26/17 Trial Date: None Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 1 of 16 Page ID #:223 i MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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(s) I. INTRODUCTION AND SUMMARY OF THE ARGUMENT............. 1 II. STATEMENT OF FACTS ........................................................................ 2 A. Plaintiff filed his Complaint Without Sufficient Facts to Support His Sixth, Seventh, and Eighth Causes of Action ............................. 2 B. Defendant’s Efforts to Meet and Confer with Plaintiff were Patently Ignored ................................................................................. 3 III. LEGAL AUTHORITY .............................................................................. 5 IV. LEGAL ANALYSIS................................................................................... 6 A. Plaintiff’s Causes of Action for Negligence and Negligent Infliction of Emotional Distress Fail as Plaintiff Does Not Plead the Prima Facie Elements of A Negligent Action by Defendant ........................................................................................... 6 B. Plaintiff has not Pled Sufficiently Severe Actions by Defendant to Establish His Negligent Infliction of Emotional Distress Cause of Action.................................................................................. 8 C. Plaintiff Has Not Alleged Any Facts to Satisfy the Prima Facie Elements of Negligent Supervision ......................................... 8 D. Even if Plaintiff Had Adequately Pled his Negligent, Negligent Infliction of Emotional Distress, and Negligent Supervision Causes of Action They are Barred by Workers’ Compensation Exclusivity Conclusion.............................. 9 IV. LEGAL ANALYSIS................................................................................. 11 Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 2 of 16 Page ID #:224 ii MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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) Cases Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ............................................................................. 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6) ............................................................... 5, 6 Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072......................................................................... 8 Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813......................................................................... 10 Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, (2001) 24 Cal 4th 800, 814-815 ................................................................. 10 Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012).................................................... 3, 6, 7 Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal 3d 148, 160.......................................................................... 10 Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010)................................................................ 6 Dusted v. Chevron Prods. Co., 738 F. Supp. 2d 1027, 1039-1040 (2010) .................................................... 8 Edwards v. United States Fid. & Guar. Co. (ND CA 1994) 848 F.Supp. 1460, 1466 ...................................................... 7 Fermino v. Fedco Inc. (1994) 7 Cal.4th 701, 713-14..................................................................... 10 Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001)................................................................ 5 Guerrero v. Gates, 357 F.3d 911, 916 (9th Cir. 2004)................................................................ 5 Hine v. Dittrich (1991) 228 Cal.App.3d 59, 63.................................................................... 11 Jeung v. Yelp, Inc., Case No. 15-CV-02228-RS, 2015 WL 4776424, at *2 (N.D. Cal. Aug. 13, 2015) ............................................................................ 6 Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)............................................................ 6 Livistanos v. Superior Court Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 3 of 16 Page ID #:225 iii MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 (1992) 2 Cal.4th 744, 754........................................................................... 10 Matthews v. Workmen’s Comp. Appeals Board (1972) 6 Cal.3d 719, 735............................................................................ 10 Molien v. Kaiser Found. Hosps. (1980) 27 C3d 916, 927-928 ........................................................................ 8 Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1111 (C.D. Cal. 2003) ............................................... 5 Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133........................................................................ 9 Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984....................................................................... 7, 10 Semore v. Pool (1990) 217 Cal App 3d 1087, 1105.............................................................. 7 Yurick v. Super. Ct., 209 Cal. App. 3d 1116, 1123 (1989)............................................................ 8 Statues California Code of Civil Procedure § 430.41 ........................................................ 4 California Labor Code § 3602(a) ......................................................................... 10 California Labor Code §§ 3600-3602, 5300 ........................................................ 10 Fed. R. Civ. P. 8(a)(2) ............................................................................................ 5 Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 4 of 16 Page ID #:226 1 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 & AUTHORITIES I. INTRODUCTION AND SUMMARY OF THE ARGUMENT Plaintiff FRANCISCO J. GALVEZ (“Plaintiff”), in relevant part, asserts three negligence based claims against Defendant PINNACLE WORKFORCE LOGISTICS, LLC: negligence, negligent infliction of emotional distress, and negligent supervision. However, not only does Plaintiff fail to plead any negligent acts by Defendant sufficient for the aforementioned causes of action, but he is precluded from proceeding on his allegations as his claims are barred by workers’ compensation exclusivity. Notably, Defendant has attempted to meet and confer with Plaintiff regarding these fatal deficiencies of his sixth, seventh, and eighth causes of action for over three months, including Defendant’s most recent correspondence in compliance with Local Rule 7-3. However, its arguments and efforts have been dismissed by Plaintiff. As discussed herein, Defendant’s motion to dismiss pursuant to Rule 12(b)(6) should be granted for the following reasons: • Plaintiff has failed to plead that the Company engaged in any negligent action sufficient to proceed on his negligence or negligent infliction of emotional distress causes of action; • Plaintiff has not alleged any actions by Defendant sufficiently egregious to support a negligent infliction of emotional distress cause of action; • Plaintiff has not pled any facts to establish the prima facie elements of a negligent supervision cause of action; and • Plaintiff’s negligence, negligent infliction of emotional distress, and negligent supervision causes of action are barred by workers’ compensation exclusivity.1 1 Defendant also informed Plaintiff that his breach of contract cause of action was without legal or factual basis as Plaintiff signed multiple at-will employment agreements during his employment. Defendant’s anticipates filing a motion for summary adjudication on this issue. Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 5 of 16 Page ID #:227 2 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 As such, Defendant requests the Court grant the current motion to dismiss without leave to amend. II. STATEMENT OF FACTS A. Plaintiff filed his Complaint Without Sufficient Facts to Support His Sixth, Seventh, and Eighth Causes of Action On January 26, 2017, Plaintiff filed his Complaint (“Complaint”) against Defendant in Los Angeles Superior Court, alleging causes of action for 1) Wrongful termination in violation of Government Code section 12940; 2) Wrongful termination in violation of public policy; 3) Retaliation; 4) Failure to prevent discrimination and retaliation; 5) Breach of the implied-in-fact employment contract; 6) Negligence; 7) Negligent supervision, hiring, and retention; 8) Negligent infliction of emotional distress; and 9) Unfair Competition. [Document 1-1; Exhibit “1” (“Complaint”)] In short, Plaintiff alleges that in or about March 2016, Plaintiff aggravated a prior injury, and went to a medical provider who put him on disability leave. Plaintiff alleges that he provided a doctor’s note to Defendant on March 10, 2016, and on April 28, 2016, he received a letter from Defendant, with his final paycheck, informing him that he is being terminated effective April 21, 2016. Plaintiff alleges that Defendant’s actions were in retaliation for and because he had a disability under the California Family Rights Act. [Complaint at ¶¶6-8] However, this is the totality of the relevant factual claims pled in the Complaint. As discussed herein, said facts are insufficient to establish all of Plaintiff’s claims, in part because Plaintiff has not pled any negligent actions by Defendant, nor the sufficiently egregious conduct for a negligent infliction of emotional distress. Instead, in support of his negligence, negligent infliction of emotional distress, and negligent supervision, Plaintiff only alleges legal conclusions which are inappropriate to support his causes of action. Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citing Twombly, 550. Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 6 of 16 Page ID #:228 3 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 Specifically, in support of his negligence claim, Plaintiff alleges that “DEFENDANTS owe its employees, including PLAINTIFF, a duty to not discriminate or retaliate against them based on disability. This is not part of the bargained for exchange of employment … [and] DEFENDANTS breached its duty to PLAINTIFF by, among other things: retaliating against PLAINTIFF due to a disability and for requesting disability leave. DEFENDANTS failed to properly supervise its superintendent and other employees.” [Complaint at ¶¶ 55-57] Similarly, Plaintiff’s negligent supervision cause of action is supported by the conclusory allegation that “DEFENDANTS also had a duty to its employees to supervise them in order to ensure a safe, cordial, and non-discriminatory work environment. DEFENDANTS breached this duty when it failed to adequately supervise its employees by allowing discrimination and/or retaliation in the workplace.” [Complaint at ¶ 61] In support of his negligent infliction of emotional distress claim, Plaintiff only summarily states: “The DEFENDANTS were negligent in its actions against PLAINTIFF.” [Complaint at ¶ 65]. Notably absent from Plaintiff’s Complaint are any factual allegations to support his sixth, seventh, and eighth causes of action. As such, and as discussed herein, Defendant’s motion to dismiss should be granted. B. Defendant’s Efforts to Meet and Confer with Plaintiff were Patently Ignored2 In light of the deficient nature of Plaintiff’s Complaint, Defendant attempted to meet and confer multiple times with Plaintiff to avoid the present motion. While in Los Angeles Superior Court and pursuant to California Code of Civil Procedure § 430.41, Defendant attempted to contact Plaintiff’s counsel in an effort to meet 2 Defendant acknowledges that the vast majority of the meet and confer efforts have been submitted to the Court in document 1-1; however for ease of the Court in the current motion it has reattached said to the declaration of Tyler. Rasmussen which includes Defendants subsequent efforts to meet and confer in accordance with Local Rule 7-3 Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 7 of 16 Page ID #:229 4 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 and confer, calling and emailing counsel on multiple occasions without ever receiving a substantive response. Specifically, on March 9, 2017, Defendant called Plaintiff’s counsel to discuss the Complaint. Defendant was informed by an assistant that counsel for Plaintiff was absent from the office due to personal reasons. [Rasmussen dec. at ¶ 3] On March 21, 2017, Plaintiff’s counsel sent an email stating that he was “available most of the rest of the week” to discuss the potential demurrer. [Rasmussen dec. at ¶ 4; Exhibit “A”] After unsuccessfully attempting to set a conference call, on March 22, 2017, in or around 3:00 pm, Defendant attempted to contact Plaintiff’s counsel telephonically. [Rasmussen dec. at ¶ 5; Exhibit “B”] However, there was no answer. In response in a correspondence, Defendant asked if counsel was available any time on March 23, 2017 to discuss the deficiencies in Plaintiff’s Complaint. No response was received. [Rasmussen dec. at ¶ 6; Exhibit “C”] As Plaintiff’s counsel had refused to respond to requests for a telephonic conference, on March 23, 2017, Defendant’s counsel prepared a letter formally outlining the deficiencies in Plaintiff’s complaint and the grounds for Defendant’s potential demurrer. Therein, Defendant requested a response as to whether Plaintiff would amend his Complaint by March 27, 2017. The letter was sent via email, facsimile, and mail on March 23, 2017. [Rasmussen dec. at ¶ 7; Exhibit “D”] On March 27, 2017, Defendant again reached out to opposing counsel, inquiring as to whether his client would amend his complaint and/or had a response to Defendant’s meet and confer letter. Once again, Plaintiff’s counsel failed to respond. [Rasmussen dec. at ¶ 8; Exhibit “E”] On April 20, 2017, Defendant once again requested confirmation as to whether Plaintiff would amend his complaint. Once again, Defendant’s efforts were ignored and as a result, Defendant was forced to timely file its demurrer in Los Angeles Superior Court. [Rasmussen dec. at ¶¶ 9; 10-11; Exhibit “F”; Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 8 of 16 Page ID #:230 5 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 Document 1-1 - Exhibit “4”] Unfortunately, there was not sufficient time to receive a ruling on Defendant’s demurrer prior to Defendant’s deadline to file its removal following receipt of Plaintiff’s discovery responses. As a result and following its removal, Defendant was forced to file the current motion to dismiss predicated on the same grounds as its demurrer. To assure compliance with Local Rule 7-3, Defendant sent an email to Plaintiff’s counsel indicating it intended to file the present 12(b)(6) motion to dismiss. Plaintiff responded that he was available for a call at 3:00 pm on June 22, 2017. Though the parties engaged in a conference, Plaintiff did not agree to amend his Complaint. Plaintiff indicated he would be willing to examine whether he would remove his negligent supervision cause of action based on case law cited by Defendant. Defendant requested a response as to whether Plaintiff would dismiss his claim by its responsive pleading deadline, but Plaintiff did not respond. [Rasmussen dec. at ¶ 12; Exhibit “G”] III. LEGAL AUTHORITY A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of the claims asserted in the complaint.” Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1111 (C.D. Cal. 2003). To that end, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Where the plaintiff fails to allege “enough facts to state a claim to relief that is plausible on its face,” however, the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). Such a dismissal will be granted when the plaintiff can allege no set of facts supporting relief. Guerrero v. Gates, 357 F.3d 911, 916 (9th Cir. 2004). This includes circumstances where an affirmative defense or other bar to relief is apparent from the face of the complaint. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001). In considering a motion to dismiss for failure to state a claim, the court Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 9 of 16 Page ID #:231 6 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 accepts all material facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the court need not accept a plaintiff’s conclusory allegations, allegations contradicted by exhibits attached to the complaint, unwarranted deductions of fact, or unreasonable inferences. See, e.g., Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not accepted as true.); Jeung v. Yelp, Inc., No. 15-CV-02228-RS, 2015 WL 4776424, at *2 (N.D. Cal. Aug. 13, 2015) (Jeung), at *1-3. Moreover, the factual allegations in the complaint must be “enough to raise a right to relief above the speculative level …” Twombly, 550 U.S. at 555. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. “Mere conclusory statements in a complaint and ‘formulaic recitations of the elements of a cause of action’ are not sufficient.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citing Twombly, 550 U.S. at 555). “Thus, a court discounts conclusory statements, which are not entitled to the presumption of truth, before determining whether a claim is plausible.” Id. IV. LEGAL ANALYSIS A. Plaintiff’s Causes of Action for Negligence and Negligent Infliction of Emotional Distress Fail as Plaintiff Does Not Plead the Prima Facie Elements of A Negligent Action by Defendant Plaintiff’s claims for general negligence and negligent infliction of emotional distress causes of action under California law are insufficiently pled for the same reason. Specifically, Plaintiff has not alleged that any defendant engaged in any “negligent behavior.” A cause of action for negligent infliction of emotional distress is not an independent tort but rather the tort of negligence, and all of the traditional elements of duty, breach of duty, causation, and damages apply. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984. Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 10 of 16 Page ID #:232 7 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 As discussed above, Plaintiff does not allege any negligent action on behalf of Defendant. To the contrary, all allegations are intentional in nature, specifically the termination of his employment. Courts have followed logic and rejected claims of negligence, and the derivative negligent infliction of emotional distress, resulting from employment termination. In doing so, Courts have explicitly held that the employer's supervisory conduct is inherently intentional, not negligent: “It is clear … that there was no duty not to discharge defendants and that any actions by the employer were intentional, not negligent. An employer's supervisory conduct is inherently ‘intentional.’” [Semore v. Pool (1990) 217 Cal App 3d 1087, 1105, (emphasis added; internal quotes omitted); see also Edwards v. United States Fid. & Guar. Co. (ND CA 1994) 848 F.Supp. 1460, 1466 (applying Calif. law) - “where the conduct is intentional, it cannot be used as the basis for a negligent infliction of emotional distress claim”] Importantly, Plaintiff’s conclusory statement that there was “negligent supervision of [a] superintendent3 and other employees” does not remedy this fact. First, Plaintiff does not assert any facts to support such a proposition [as further detailed below]. Furthermore, such conclusory legal statements are inappropriate to support a cause of action. Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) As such, Plaintiff has not alleged any facts sufficient to support his negligent and/or negligent infliction of emotional distress causes of action - specifically, that an individual actually engaged in negligent conduct. B. Plaintiff has not Pled Sufficiently Severe Actions by Defendant to Establish His Negligent Infliction of Emotional Distress Cause of Action Plaintiff has not alleged any actions sufficient to establish a claim of 3 It is assumed that this allegation is left-over from another Complaint as Defendant is not a school and does not employ “superintendents.” Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 11 of 16 Page ID #:233 8 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 negligent infliction of emotional distress. In order to plead a negligent infliction of emotional distress cause of action. Plaintiff must establish that Defendant engaged in negligent conduct, he suffered serious emotional distress, and the Defendant’s conduct was a substantial factor in causing the emotional distress. CACI 1620; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072. “Serious” emotional distress exists “if an ordinary reasonable person would be unable to cope with it.” [Molien v. Kaiser Found. Hosps. (1980) 27 C3d 916, 927-928]. Here, there are simply no facts to support such extreme and outrageous conduct. The only factual allegation pled relevant to Plaintiff’s causes of action is that he was terminated. Absent from the Complaint are any allegations of derogatory comments, physical altercations, or any other such “severe” actions pertinent for a negligent infliction of emotional distress cause of action. Instead, all that is pled is that Plaintiff was terminated. However, this is not enough. Yurick v. Super. Ct., 209 Cal. App. 3d 1116, 1123 (1989). Dusted v. Chevron Prods. Co., 738 F. Supp. 2d 1027, 1039-1040 (2010)(for purposes of comparison in this case summary judgment was affirmed because Defendant’s employee made untruthful statements that Plaintiff frequented gentlemen’s clubs and brothels during an investigation into Plaintiff but this was not outrageous conduct). As such managerial actions are insufficiently severe for a negligent infliction of emotional distress cause of action, Plaintiff’s claim is subject to demurrer. C. Plaintiff Has Not Alleged Any Facts to Satisfy the Prima Facie Elements of Negligent Supervision To establish a negligent supervision cause of action a plaintiff must allege that: 1) The employer hired the accused employee; 2) That the accused employee was or became unfit to perform the work for which she was hired; 3) That employer knew or should have known that accused employee was or became unfit and that this unfitness created a particular risk to others; 4) That the accused employee’s unfitness harmed the plaintiff; and 5) That the employer’s negligence in hiring, Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 12 of 16 Page ID #:234 9 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 supervising and/or retaining the accused employee was a substantial factor in causing Plaintiff’s harm. [See Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133] Here, Plaintiff has not alleged any of these prima facie elements. Instead, all that is pled are a few impermissible, vague, and conclusory statement that Defendants had a duty to supervise employees in order to ensure “cordial” work environment and that Defendant breached these duties. However, Plaintiff has not alleged any facts to support these conclusory claims. First and foremost, Plaintiff’s Complaint does not even identify the alleged employee who was negligently hired nor what activities this individual purportedly engaged in. However, setting aside these basic fatal flaws, Plaintiff has not alleged that Defendant had any purported knowledge of the “unfitness” of any employee, nor that Defendant was negligent in any fashion in its supervision or retention of these unidentified employees/managers. As such, Plaintiff has not alleged facts sufficient to establish any liability on the part of Defendant. “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139. Due to glaring holes in Plaintiff’s claims, Plaintiff’s negligent supervision cause of action should be dismissed. D. Even if Plaintiff Had Adequately Pled his Negligent, Negligent Infliction of Emotional Distress, and Negligent Supervision Causes of Action They are Barred by Workers’ Compensation Exclusivity Even if the Court were to find that Plaintiff had alleged sufficient facts to establish his negligence, negligent infliction of emotional distress, and negligent supervision, the Court should grant Defendant’s demurrer because Plaintiff’s causes of action are barred by workers’ compensation exclusivity. Subject to limited statutory exceptions [not applicable here], the workers’ compensation Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 13 of 16 Page ID #:235 10 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 system is the only remedy available to employees suffering injuries “arising out of and in the course of employment.” California Labor Code §§ 3600-3602, 5300. It is “the sole and exclusive remedy of the employee…against the employer.” California Labor Code § 3602(a). The workers’ compensation bar encompasses “all injuries ‘collateral to or derivative of’ an injury compensable by the exclusive remedies of the Workers’ Compensation Act.’” Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813. Claims for negligence are accordingly among those barred by the exclusivity provisions of the Workers’ Compensation Act. Livistanos v. Superior Court (1992) 2 Cal.4th 744, 754; Fermino v. Fedco Inc. (1994) 7 Cal.4th 701, 713-14; Matthews v. Workmen’s Comp. Appeals Board (1972) 6 Cal.3d 719, 735 [holding that the legislature intended to eliminate employer liability based upon negligence]. As discussed, because a negligent infliction of emotional distress cause of action is treated the same as a negligence action, it is equally barred by workers’ compensation exclusivity. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984. In fact, as is the case here, claims for emotional distress caused by the employer's conduct in employment actions involving termination, promotions, demotions, criticism of work practices, negotiations as to grievances, etc., are deemed “part of the normal risk of employment” and hence subject to the exclusive remedy provisions of the workers' compensation law. See Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, (2001) 24 Cal 4th 800, 814-815 -emotional distress allegedly caused by employer's abusive conduct during termination process held “collateral to or derivative of a compensable workplace injury”; see also Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal 3d 148, 160 Moreover, and more specifically, courts have indisputably found that the specific cause of action for negligent supervision is covered by Workers’ Compensation Exclusivity. The California Court of Appeals found that the exclusivity provision of the workers’ compensation remedy precludes a civil suit Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 14 of 16 Page ID #:236 11 MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFT’S MOTION TO DISMISS PLTF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998444.1 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 for negligent supervision of third party employees. Hine v. Dittrich (1991) 228 Cal.App.3d 59, 63. In Hine v. Dittrich, Hine and Dittrich were co-employees who had a history of attacking one another in the workplace. Specifically, Dittrich told other employees that Hine was chasing Dittrich's wife, Dittrich allegedly threatened Hine by approaching him with clenched fists, and Dittrich bought a shotgun with the intent of sawing off the barrel so it could be concealed and potentially used against Hine. As part of the lawsuit, Hine brought a claim against their employer for negligent supervision. The court, however, denied such claim finding, in part, that such claims would be subject to the workers’ compensation exclusivity. Id. As such, Plaintiff’s sixth, seventh, and eighth causes of action are should be dismissed with prejudice as any such claims are barred by the Workers’ Compensation exclusivity provisions of the Workers’ Compensation Act. V. CONCLUSION Based on the foregoing, Defendant requests that the Court grant Defendant’s 12(b)(6) motion without leave to amend Dated: June 23, 2017 FISHER & PHILLIPS LLP By: /s/ Tyler T. Rasmussen TYLER T. RASMUSSEN Attorney for Defendant PINNACLE WORKFORCE LOGISTICS, LLC Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 15 of 16 Page ID #:237 12 PROOF OF SERVICE FPDOCS 32998444.1 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 CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with the law offices of Fisher & Phillips LLP and my business address is 2050 Main Street, Suite 1000, Irvine, California 92614. On the below date, I served the foregoing document entitled MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) on all the appearing and/or interested parties in this action by placing  the original  a true copy thereof enclosed in sealed envelope(s) addressed as follows: Ophir J. Bitton, Esq. BITTON & ASSOCIATES 7220 Melrose Avenue, 2nd. Floor Los Angeles, CA 90046 Attorneys for Plaintiff FRANCISCO J. GALVEZ Tel: (310) 356-1006 Fax: (818) 524-1224 ophir@bittonlaw.com regina@bittonlaw.  [by ELECTRONIC SUBMISSION] - I served the above listed document(s) described via the United States District Court’s Electronic Filing Program on the designated recipients via electronic transmission through the CM/ECF system on the Court’s website. The Court’s CM/ECF system will generate a Notice of Electronic Filing (NEF) to the filing party, the assigned judge, and any registered users in the case. The NEF will constitute service of the document(s). Registration as a CM/ECF user constitutes consent to electronic service through the court’s transmission facilities.  [by MAIL] - I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed June 23, 2017 at Irvine, California. K. Nichole Simpson By: /s/ K. Nichole Simpson Print Name Signature Case 2:17-cv-04496-AB-PLA Document 8-1 Filed 06/23/17 Page 16 of 16 Page ID #:238 Case 2:17-cv-04496-AB-PLA Document 8-2 Filed 06/23/17 Page 1 of 5 Page ID #:239 Case 2:17-cv-04496-AB-PLA Document 8-2 Filed 06/23/17 Page 2 of 5 Page ID #:240 Case 2:17-cv-04496-AB-PLA Document 8-2 Filed 06/23/17 Page 3 of 5 Page ID #:241 Case 2:17-cv-04496-AB-PLA Document 8-2 Filed 06/23/17 Page 4 of 5 Page ID #:242 Case 2:17-cv-04496-AB-PLA Document 8-2 Filed 06/23/17 Page 5 of 5 Page ID #:243 EXHIBIT “A” Case 2:17-cv-04496-AB-PLA Document 8-3 Filed 06/23/17 Page 1 of 2 Page ID #:244 Exhibit A, Page 5 Case 2:17-cv-04496-AB-PLA Document 8-3 Filed 06/23/17 Page 2 of 2 Page ID #:245 EXHIBIT “B” Case 2:17-cv-04496-AB-PLA Document 8-4 Filed 06/23/17 Page 1 of 2 Page ID #:246 Exhibit B, Page 6 Case 2:17-cv-04496-AB-PLA Document 8-4 Filed 06/23/17 Page 2 of 2 Page ID #:247 EXHIBIT “C” Case 2:17-cv-04496-AB-PLA Document 8-5 Filed 06/23/17 Page 1 of 3 Page ID #:248 Exhibit C, Page 7 Case 2:17-cv-04496-AB-PLA Document 8-5 Filed 06/23/17 Page 2 of 3 Page ID #:249 Exhibit C, Page 8 Case 2:17-cv-04496-AB-PLA Document 8-5 Filed 06/23/17 Page 3 of 3 Page ID #:250 EXHIBIT “D” Case 2:17-cv-04496-AB-PLA Document 8-6 Filed 06/23/17 Page 1 of 6 Page ID #:251 Exhibit D, Page 9 Case 2:17-cv-04496-AB-PLA Document 8-6 Filed 06/23/17 Page 2 of 6 Page ID #:252 Exhibit D, Page 10 Case 2:17-cv-04496-AB-PLA Document 8-6 Filed 06/23/17 Page 3 of 6 Page ID #:253 Exhibit D, Page 11 Case 2:17-cv-04496-AB-PLA Document 8-6 Filed 06/23/17 Page 4 of 6 Page ID #:254 Exhibit D, Page 12 Case 2:17-cv-04496-AB-PLA Document 8-6 Filed 06/23/17 Page 5 of 6 Page ID #:255 Exhibit D, Page 13 Case 2:17-cv-04496-AB-PLA Document 8-6 Filed 06/23/17 Page 6 of 6 Page ID #:256 EXHIBIT “E” Case 2:17-cv-04496-AB-PLA Document 8-7 Filed 06/23/17 Page 1 of 4 Page ID #:257 Exhibit E, Page 14 Case 2:17-cv-04496-AB-PLA Document 8-7 Filed 06/23/17 Page 2 of 4 Page ID #:258 Exhibit E, Page 15 Case 2:17-cv-04496-AB-PLA Document 8-7 Filed 06/23/17 Page 3 of 4 Page ID #:259 Exhibit E, Page 16 Case 2:17-cv-04496-AB-PLA Document 8-7 Filed 06/23/17 Page 4 of 4 Page ID #:260 EXHIBIT “F” Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 1 of 7 Page ID #:261 Exhibit F, Page 17 Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 2 of 7 Page ID #:262 Exhibit F, Page 18 Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 3 of 7 Page ID #:263 Exhibit F, Page 19 Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 4 of 7 Page ID #:264 Exhibit F, Page 20 Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 5 of 7 Page ID #:265 Exhibit F, Page 21 Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 6 of 7 Page ID #:266 Exhibit F, Page 22 Case 2:17-cv-04496-AB-PLA Document 8-8 Filed 06/23/17 Page 7 of 7 Page ID #:267 EXHIBIT “G” Case 2:17-cv-04496-AB-PLA Document 8-9 Filed 06/23/17 Page 1 of 6 Page ID #:268 Exhibit G, Page 23 Case 2:17-cv-04496-AB-PLA Document 8-9 Filed 06/23/17 Page 2 of 6 Page ID #:269 Exhibit G, Page 24 Case 2:17-cv-04496-AB-PLA Document 8-9 Filed 06/23/17 Page 3 of 6 Page ID #:270 Exhibit G, Page 25 Case 2:17-cv-04496-AB-PLA Document 8-9 Filed 06/23/17 Page 4 of 6 Page ID #:271 Exhibit G, Page 26 Case 2:17-cv-04496-AB-PLA Document 8-9 Filed 06/23/17 Page 5 of 6 Page ID #:272 Exhibit G, Page 27 Case 2:17-cv-04496-AB-PLA Document 8-9 Filed 06/23/17 Page 6 of 6 Page ID #:273 1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998478.1 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 TYLER T. RASMUSSEN, SBN 271987 trasmussen@fisherphillips.com FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, California 92614 Telephone: (949) 851-2424 Facsimile: (949) 851-0152 Attorney for Defendant PINNACLE WORKFORCE LOGISTICS, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION FRANCISCO J. GALVEZ, an individual, Plaintiff, v. PINNACLE WORKFORCE LOGISTICS, LLC, a Delaware Limited Liability Company; ROADLINK WAREHOUSE SOLUTIONS, a business of unknown entity; ROADLINK INTERMODAL LOGISTICS, a business of unknown entity; ROADLINK INC., a business of unknown entity; and DOES 1 - 25, inclusive, Defendants. Case No. 2:17-cv-04496-AB-PLA [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(B)(6) [CONCURRENTLY FILED WITH NOTICE OF MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF TYLER R. RASMUSSEN] DATE: SEPTEMBER 18, 2017 TIME: 10:30 A.M. CTRM: 7B Complaint Filed: 01/26/17 Trial Date: None Case 2:17-cv-04496-AB-PLA Document 8-10 Filed 06/23/17 Page 1 of 4 Page ID #:274 2 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998478.1 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION FRANCISCO J. GALVEZ, an individual, Plaintiff, v. PINNACLE WORKFORCE LOGISTICS, LLC, a Delaware Limited Liability Company; ROADLINK WAREHOUSE SOLUTIONS, a business of unknown entity; ROADLINK INTERMODAL LOGISTICS, a business of unknown entity; ROADLINK INC., a business of unknown entity; and DOES 1 - 25, inclusive, Defendants. Case No. 2:17-cv-04496-AB-PLA [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(B)(6) [CONCURRENTLY FILED WITH NOTICE OF MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF TYLER R. RASMUSSEN] DATE: SEPTEMBER 18, 2017 TIME: 10:30 A.M. CTRM: 7B Complaint Filed: 01/26/17 Trial Date: None Case 2:17-cv-04496-AB-PLA Document 8-10 Filed 06/23/17 Page 2 of 4 Page ID #:275 3 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) FPDOCS 32998478.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion to Dismiss of Defendant PINNACLE WORKFORCE LOGISTICS, LLC (“Defendant”) came on for hearing on ############# at 8:30 a.m. in Courtroom ## of the above-entitled Court. Having considered the pleadings in this action, the moving, opposition and reply papers, the argument of counsel, and all such matters as are properly before it, the Court finds good cause for sustaining the motion to dismiss without leave to amend. IT IS HEREBY ORDERED THAT: 1. Defendant’s motion to dismiss Plaintiff’s sixth, seventh, and eighth causes of action for failure to state a viable claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is GRANTED in its entirety, without leave to amend. 2. Plaintiff’s sixth, seventh, and eighth causes of action are dismissed with prejudice IT IS FURTHER ORDERED: . . . IT IS SO ORDERED. DATED: UNITED STATES DISTRICT COURT JUDGE Case 2:17-cv-04496-AB-PLA Document 8-10 Filed 06/23/17 Page 3 of 4 Page ID #:276 4 PROOF OF SERVICE FPDOCS 32998478.1 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 CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with the law offices of Fisher & Phillips LLP and my business address is 2050 Main Street, Suite 1000, Irvine, California 92614. On the below date, I served the foregoing document entitled [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP RULE 12(b)(6) on all the appearing and/or interested parties in this action by placing  the original  a true copy thereof enclosed in sealed envelope(s) addressed as follows: Ophir J. Bitton, Esq. BITTON & ASSOCIATES 7220 Melrose Avenue, 2nd. Floor Los Angeles, CA 90046 Attorneys for Plaintiff FRANCISCO J. GALVEZ Tel: (310) 356-1006 Fax: (818) 524-1224 ophir@bittonlaw.com regina@bittonlaw.  [by ELECTRONIC SUBMISSION] - I served the above listed document(s) described via the United States District Court’s Electronic Filing Program on the designated recipients via electronic transmission through the CM/ECF system on the Court’s website. The Court’s CM/ECF system will generate a Notice of Electronic Filing (NEF) to the filing party, the assigned judge, and any registered users in the case. The NEF will constitute service of the document(s). Registration as a CM/ECF user constitutes consent to electronic service through the court’s transmission facilities.  [by MAIL] - I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed June 23, 2017 at Irvine, California. K. Nichole Simpson By: /s/ K. Nichole Simpson Print Name Signature Case 2:17-cv-04496-AB-PLA Document 8-10 Filed 06/23/17 Page 4 of 4 Page ID #:277