Kris Kenny v. Wal-Mart Stores, Inc. et alNOTICE OF MOTION AND MOTION to Dismiss CaseC.D. Cal.May 24, 2017 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP MARK D. KEMPLE (SBN 145219) ASHLEY FARRELL PICKETT (SBN 271825) 1840 Century Park East, Suite 1900 Los Angeles, California 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 Email: kemplem@gtlaw.com Email: farrellpicketta@gtlaw.com Attorneys for Defendants WAL-MART STORES, INC. and WAL-MART ASSOCIATES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KRIS KENNY, Plaintiff, vs. WAL-MART STORES, INC., a Delaware Corporation; WAL-MART ASSOCIATED, INC., a Delaware Corporation; US HEALTHWORKS MEDICAL GROUP, a California Corporation; and DOES 1 through 100, Inclusive, Defendants. CASE NO. 5:17-cv-00967-R-KK DEFENDANTS WAL-MART ASSOCIATES, INC. AND WAL- MART STORES, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT AND REQUEST FOR PUNITIVE DAMAGES AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; FED. R. CIV. P. 12(b)(6), 12(f) (Filed and served concurrently with [Proposed] Order) Date: July 17, 2017 Time: 10:00 a.m. Dept.: 880 Judge: Hon. Manuel L. Real Action Filed: January 13, 2017 Removed: May 17, 2017 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 1 of 37 Page ID #:344 1 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, PLAINTIFF, AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on July 17, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard before the Honorable Manuel L. Real in Courtroom 880 of the United States District Court, Central District of California, located at 255 East Temple Street, Los Angeles, CA 90012, Defendants Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. (hereafter “Defendants”) will and hereby do move the Court pursuant to Federal Rule of Civil Procedure (“FRCP”) Rule 12 for: (1) an order pursuant to FRCP Rule 12(b)(6) dismissing all causes of action in Plaintiff’s First Amended Complaint pled against the Wal-Mart Defendants (Counts 1-11) for failure to state a claim and for uncertainty1; and (2) an order pursuant to FRCP Rule 12(b)(6) dismissing Counts 1, 7, 8, 9, 10, and 11 with prejudice on the additional basis that Plaintiff failed to exhaust administrative remedies as to these claims, and - because more than one year since the alleged unlawful acts has passed - cannot seek to exhaust now; and 1 Given the different view among California federal courts as to the appropriate vehicle for disposing of allegations for injunctive and declaratory relief, as to Count 5, Defendants hereby request that the Court dismiss or in the alternative strike Plaintiff’s requests for same as found in his FAC. See e.g., Grayson v. Cty. of Marin, 2015 WL 720830, *2 (N.D. Cal. Feb. 18, 2015) (injunctive relief is “better suited for a Rule 12(b)(6) motion or a Rule 56 motion, not a Rule 12(f) motion); Burns v. Tristar Products, Inc., 2014 WL 3728115, *4 (S.D. Cal. July 25, 2014) (dismissing request for injunctive relief under 12(b)(1)); Lenhoff Enterprises, Inc. v. United Talent Agency, Inc., 2015 WL 7008185, *7 (C.D. Cal. Sept. 18, 2015) (dismissing claim for declaratory relief). Specifically, in conjunction with their request to dismiss of Count 5, Defendants seek an order that the following allegations be dismissed or stricken as “redundant, immaterial, impertinent, or scandalous matter”: Page 1, line 23 (… and Injunctive Relief”); Page 11, line 26 (“Whether the members of the Classes are entitled to injunctive relief”); ¶¶ 92, 119-127, 130, and 132 in their entirety; Page 51, lines 5-6 (“For such other and further relief as the Court deems just and proper, including declaratory and/or injunctive relief if appropriate.”); Prayer (F), Prayer (G)(4), Prayer (H)(8), and Prayer (L)(8) in their entirety.; Page 1, line 23 (Declaratory … Relief”); ¶¶ 92, and 119-127 in their entirety; Prayer (F), Prayer (G)(6), Prayer (H)(8), and Prayer (L)(8) in their entirety. Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 2 of 37 Page ID #:345 2 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 (3) an order pursuant to FRCP Rule 12(b)(6)2 dismissing Plaintiff’s claim for punitive damages on the grounds that, as to both Wal-Mart Defendants, Plaintiff fails to plead malicious, oppressive, or fraudulent conduct, and further fails to plead employer ratification; and (4) an order pursuant to FRCP Rule 12(f) striking references to alleged claims that occurred in 2015 on the basis that such (i) are outside of the statute of limitations, and (ii) have no bearing on the claims at issue, and thus constitute “redundant, immaterial, impertinent, or scandalous matter.”3 This Motion is made and based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleadings in this action, and such other written and oral argument as the Court may entertain on this Motion. This Motion is timely filed pursuant to F.R.C.P. 81(c)(2) and follows a meet and confer with Plaintiff’s counsel that commenced on May 17, 2017, pursuant to Local Rule 7-3. DATED: May 24, 2017 GREENBERG TRAURIG, LLP By /s/ Mark D. Kemple Mark D. Kemple Attorneys for Defendants Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. 2 See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010) (holding that motions to strike claims for damages should be brought as motions to dismiss under 12(b)(6), not under 12(b)(f)); accord Kelley v. Corr. Corp. of America, 750 F. Supp. 2d 1132, 1146 (E.D. CA 2010) (dismissing punitive damages claim where the complaint contained no facts from which fraudulent, malicious or oppressive conduct could not be inferred); Arrad v. City of Fresno, 2011 WL 284971, *2 n. 4 (E.D. Ca. Jan. 26, 2011) (construing motion to strike punitive damages as a motion to dismiss). 3 Specifically, Defendants move to strike the following allegations that relate to alleged claims outside of the statute of limitations: ¶¶ 46-56; Page 20, lines 24-25 (“second”); Page 21, line 6 (“second”); Page 21, line15 (“second”); Page 22, line 2 (“second”). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 3 of 37 Page ID #:346 i WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 I. INTRODUCTION ..................................................................................................... 1 II. MOTION TO DISMISS PLEADING STANDARDS - IQBAL/TWOMBLY. .......... 1 A. Plaintiff’s Unlawful Medical Inquiry Claim (Count 1) Fails. ......................... 2 B. Plaintiff’s Right to Privacy Claim (Count 2) Fails. ........................................ 3 C. Plaintiff’s Section 1102.5 Retaliation Claim (Count 3) Fails. ........................ 6 D. Plaintiff’s Claim for Declaratory and Injunctive Relief (Count 5) Fails. ....... 8 E. Plaintiff’s Unfair Competition Claim (Count 6) Fails. ................................... 9 F. Plaintiff’s Disability Discrimination Claim (Count 7) Fails. ........................ 10 G. Plaintiff’s Claims for Failure to Reasonably Accommodate (Count 8) And Failure to Engage in an Interactive Process (Count 9) Fail. ......................... 13 H. Plaintiff’s Failure to Prevent Claim (Count 10) Fails. .................................. 15 I. Plaintiff’s Retaliation in Violation of FEHA Claim (Count 11) Fails. ......... 16 J. Plaintiff’s Wrongful Termination Claim (Count 4) Fails. ............................ 17 K. Counts 1, 7, 8, 9, 10, And 11 Fail For The Additional Reason That Plaintiff Failed To Exhaust His Administrative Remedies As Required. ................... 18 L. Plaintiff’s Request for Punitive Damages Fails. ........................................... 20 III. MOTION TO STRIKE STANDARD. .................................................................... 24 A. Plaintiff’s References to Allegations That Occurred In 2015, And Are Outside Of the Limitations Period and Should Be Stricken. ........................ 24 IV. CONCLUSION ........................................................................................................ 25 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 4 of 37 Page ID #:347 ii WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Asghari v.Volkswagen Grp. of Am., Inc., 42 F. Supp. 3d 1306 (C.D. Cal. Nov. 4, 2013) ............................................................. 10 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) .......................................................................................... 1 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................. 2, 3, 24 Brewer v. Kmart Corp., 2010 U.S. Dist. LEXIS 57501 (C.D. Cal. June 7, 2010) ................................................ 7 Delodder v. Aerotek, Inc., 2009 U.S. Dist. LEXIS 109256 (C.D. Cal. Nov. 9, 2009) ............................................. 9 Dowel v. Contra Costa County, 928 F. Supp. 2d 1137 (2013) ............................................ 7 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir.1993) ....................................................................................... 25 Foster v. Bank of Am., Nat. Ass’n, 2014 WL 4092311 (E.D.CA 8/14/14) .................................................................... 19, 20 Hynix Semiconductor, Inc. v. Rambus Inc., 2007 WL 4062845 (N.D.CA 11/15/07) ........................................................................ 24 Kelley v. Corrs. Corp. of Am., 750 F. Supp. 2d 1132 (E.D. Cal 2010) ................................................................... 21, 23 Lenhoff Enterprises, Inc. v. United Talent Agency, Inc., 2015 WL 7008185 (C.D. Cal. 9/18/15) .......................................................................... 9 Lewis v. Trans Union, LLC, 2013 WL 1680639 (E.D. Cal. Apr. 17, 2013) ................................................................ 9 Mayo v. Recycle to Conserve, Inc., 2011 U.S. Dist. LEXIS 62854 (E.D. Cal. June 10, 2011) .............................................. 7 Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) .......................................................................................... 2 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 5 of 37 Page ID #:348 iii WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 New Name, Inc. v. Walt Disney Co., 2007 WL 5061697 (C.D.CA 12/30/17) ........................................................................ 24 Philips Med. Capital, LLC v. Med. Insights Diagnostics Ctr., Inc., 471 F. Supp. 2d 1035 (N.D. Cal. 2007) .......................................................................... 9 Rhodes v. Elec. Data Sys. Corp., 2007 U.S. Dist. LEXIS 48253 (E.D.CA 7//2/07) ......................................................... 16 Rhynes v. Stryker Corp., 2011 WL 2149095 (N.D. Cal. May 31, 2011) .............................................................. 21 Scheu v. Charier Communications, LLC, 2011 U.S. Dist. LEXIS 81994 (C.D. Cal. July 27, 2011) ............................................... 7 In re Stac Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996) .......................................................................................... 2 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ........................................................................................ 2 Tounget v. City of Hemet, 2009 WL 536835 (C.D. Cal. Feb. 24, 2009) ................................................................ 25 U.S. v. State of. Wash., 759 F.2d 1353 (9th Cir. 1985) ........................................................................................ 9 W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) ...................................................................................... 2, 3 Walsh v. Nevada Dept. of Human Res., 471 F. 3d 1033 (9th Cir. 2006) ....................................................................................... 9 Washington v. Cal. City Corr. Ctr., 2011 U.S. Dist. LEXIS 9095 (E.D. Cal. 2011)............................................................. 23 Watts v. Enhanced Recovery Corp., 2010 WL 4117452 (N.D. Cal. Oct. 19, 2010) .............................................................. 10 State Cases Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) .................................................................................................... 4 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 6 of 37 Page ID #:349 iv WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017 (2002) ....................................................................................... 21 Ankeny v. Lockheed Missiles & Space Co, 88 Cal.App.3d 531 (Ct.App. 1979) ............................................................................... 12 Arteaga v. Brink’s Inc., 163 Cal. App. 4th 327 (2008) ................................................................................. 11, 18 Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237 (2008) ............................................................................... 13, 14 Bank of the West v. Superior Court, 2 Cal.4th 1254 (1992) ................................................................................................... 10 Beck v. State Farm Mutual Auto. Ins. Co., 54 Cal. App. 3d 347 (1976) .......................................................................................... 21 Blum v. Sup. Ct., 141 Cal. App. 4th 418 (2006) ................................................................................. 18, 24 Broffman v. Klassman, 183 Cal. App. 2d 117 (1960) .......................................................................................... 9 Brousseau v. Jarrett, 73 Cal. App. 3d 864 (1977) .......................................................................................... 20 Brundage v. Hahn, 57 Cal App 4th 228 (1997) ........................................................................................... 10 Carter v. Escondido Union High School Dist, 148 Cal. App. 4th 922 (2007) ......................................................................................... 7 Colmenares v. Braemar Ctry. Club, Inc., 29 Cal. 4th 1019 (2003) ................................................................................................ 19 Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307 (2015) ..................................................................................... 15 Ebaugh v. Rabkin, 22 Cal. App. 3d 891 (1972) .......................................................................................... 23 Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1 (2007) ....................................................................................... 8, 10 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 7 of 37 Page ID #:350 v WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 Faust v. Calif. Portland Cement Co., 150 Cal.App.4th 864 (2007) ......................................................................................... 12 Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590 (Ct.App. 1989)..................................................................... 16, 17 Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34 (2006) ..................................................................................... 11, 13 Grieves v. Super. Ct., 157 Cal. App. 3d 159 (1984) ........................................................................................ 22 Hernandez v. Hillside, Inc., 47 Cal. 4th 272 (2009) ............................................................................................ 4, 5, 6 Hill v. Nat'l Collegiate Athl. Assn., 7 Cal. 4th 1 (1994) ...................................................................................................... 4, 5 Hobson v. Raychem Corp., 73 Cal. App. 4th 614 (1999) ......................................................................................... 19 Hunter v. Up-Right, Inc., 6 Cal. 4th 1174 (1993) .................................................................................................. 17 Johnson v. City of Loma Linda, 24 Cal. 4th 61 (2000) .................................................................................................... 18 Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390 (2015) ..................................................................................... 18 Kim v. Konad USA Distribution, Inc., 226 Cal. App. 4th 1336 (2014) ..................................................................................... 18 King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426 (2007) ......................................................................................... 8 Kuchta v. Allied Builders Corp., 21 Cal. App. 3d 541 (1971) .......................................................................................... 22 Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718 (1994) ..................................................................... 18, 19, 20, 24 Miller v. United Airlines, Inc., 174 Cal. App. 3d 878 (Ct. App. 1985).......................................................................... 18 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 8 of 37 Page ID #:351 vi WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952 (2008) ....................................................................................... 13 Okoli v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607 (1995) ........................................................................... 19, 20, 24 Price v. Starbucks Corp., 192 Cal. App. 4th 1136 (2011) ................................................................................. 8, 10 Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479 (1996) ................................................................................................... 24 Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365 (2001) ........................................................................................... 5 Schessler v. Keck, 125 Cal.App.2d 827 (1954) ............................................................................................ 9 Scotch v. Art Inst. of Cal. Orange County, Inc., 173 Cal. App. 4th 986 (2009) ................................................................................. 13, 15 Sheehan v. San Francisco 49ers, Ltd., 45 Cal.4th 992 (2009) ..................................................................................................... 4 Smith v. Super. Ct., 10 Cal. App. 4th 1033 (1992) ....................................................................................... 20 TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443 (2002) ....................................................................................... 4, 5 Trujillo v. North County Transit Dist., 63 Cal.App.4th 280 (1998) ........................................................................................... 15 Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994) .................................................................................................. 17 Villanueva v. City of Colton, 160 Cal. App. 4th 1188 (2008) ..................................................................................... 16 White v. Ultramar Inc., 21 Cal. 4th 573 (1999) ............................................................................................ 22, 23 Wilkinson v. Times Mirror Corp., 215 Cal.App.3d 1034 (1989) .......................................................................................... 5 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 9 of 37 Page ID #:352 vii WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005) ................................................................................................ 16 Yanting Zhang v. Superior Court, 57 Cal. 4th 364 (2013) .................................................................................................. 10 Yurick v. Superior Court, 209 Cal.App.3d 1116 (1989) ........................................................................................ 24 Zumbrun v. Univ. of S. California, 25 Cal.App.3d 1 (Ct.App. 1972) ................................................................................... 12 State Statutes California Civil Code § 3294 ................................................................................... 1, 20, 21 California Civil Code § 3294(b) ........................................................................................ 22 California Government Code § 12926(i) ........................................................................... 11 California Government Code § 12926(f)(1)(A)................................................................. 11 California Government Code § 12926(f)(1)(B) ................................................................. 11 California Government Code § 12940(i) ........................................................................... 15 California Government Code § 12940(a) .......................................................................... 10 California Government Code § 12940(e) ............................................................................ 2 California Government Code § 12940(f)(2) ........................................................................ 2 California Government Code § 12940(h) .................................................................... 15, 16 California Government Code § 12940(k) .......................................................................... 15 California Government Code § 12940(n) .......................................................................... 14 California Government Code § 12960(b) .......................................................................... 19 California Government Code § 12960(d) .................................................................... 20, 25 California Labor Code § 1102.5 ...................................................................................... 6, 8 California Labor Code § 1102.5(c) ...................................................................................... 7 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 10 of 37 Page ID #:353 viii WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 Rules Federal Rules of Civil Procedure, Rule 12(b)(6) ............................................................. 1, 2 Federal Rules of Civil Procedure, Rule 12(f) ...................................................................... 9 Regulations 2 C.C.R. § 7293.6(e)(1)(A)(2)(a) ....................................................................................... 11 2 C.C.R. § 11065(b) ............................................................................................................. 3 2 C.C.R. § 11065(j) ............................................................................................................ 15 2 C.C.R. § 11065(k) ............................................................................................................. 3 2 C.C.R. § 11071(1) ............................................................................................................. 3 2 C.C.R. § 11071(2) ............................................................................................................. 3 Constitutional Provisions California Constitution, Article 1 ........................................................................................ 6 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 11 of 37 Page ID #:354 1 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. (“Defendants”) move to: (1) dismiss Counts 1-11 in Plaintiff Kris Kenny’s (“Plaintiff”) First Amended Complaint (“FAC”); (2) dismiss Plaintiff’s claim for punitive damages; and (3) strike references to alleged claims that occurred in 2015 and are thus outside of the statute of limitations and have no bearing on the claims at issue. First, this Court should dismiss each cause of action alleged against the Wal-Mart Defendants (Counts 1-11). In direct contradiction to established pleading standards, the FAC rests on conclusions, not factual allegations. Each claim simply parrots the legal elements of the claim on which it is based. And, in some instances, Plaintiff even fails to parrot some of the elements of the claim he seeks to pursue. Second, Counts 1, 7, 8, 9, 10, and 11 should be dismissed with prejudice for the additional reasons that Plaintiff failed plead exhaustion of his administrative remedies as required under the Fair Employment and Housing Act (“FEHA”), the document that he attached to his pleading shows that he did not exhaust that remedy, and more than one year since the alleged unlawful acts has passed, such that Plaintiff cannot exhaust now.). Third, Plaintiff’s punitive damages allegations should be dismissed or stricken because Plaintiff fails to allege facts showing malice, oppression or fraud, much less corporate ratification as required by California Civil Code §3294, et seq. Fourth, Plaintiff’s allegations concerning actions occurring in 2015 should be stricken because such allegations are outside of limitations period, and constitute “redundant, immaterial, impertinent, or scandalous matter.” II. MOTION TO DISMISS PLEADING STANDARDS - IQBAL/TWOMBLY. A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 12 of 37 Page ID #:355 2 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Id.. See also Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“[B]are assertions . . . amounting to nothing more than a ‘formulaic recitation of the elements’” of a claim “are not entitled to an assumption of truth”) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)). In this regard, courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). See also In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (“Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.”). Further, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (emphasis added). The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully” or “facts that are ‘merely consistent with’ a defendant’s liability.” Iqbal, 556 U.S. at 678. It further asks whether the pleading’s “factual content … allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (Iqbal, 556 U.S. at 678 (emph. added)), such that “it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). A. Plaintiff’s Unlawful Medical Inquiry Claim (Count 1) Fails. Initially, this Count relies on Cal. Gov’t Code §12940(e), which relates exclusively to medical examinations of job applicants. Plaintiff alleges he was an employee, not an applicant, at the time of the purported unlawful medical inquiry. [FAC ¶¶ 56, 84-86.] Accordingly, the statute on he relies has no application, and this Count fails. Further, though Cal. Gov’t Code §12940(f)(2) is not referenced in the FAC and is not the basis for this Count, it permits an employer to require a medical or psychological examination of an employee where the examination is “job related and consistent with Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 13 of 37 Page ID #:356 3 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 business necessity.” Likewise, Cal. Code of Reg. sections 11071(1) and 11071(2) provide that an employer may require medical examinations of an employee where the inquiry is job-related4 and consistent with business necessity,5 and provide that an employer may conduct an alcohol or drug test of an employee where there is a “reasonable belief” that an employee may be under such influence. Here, the FAC contains no factual allegations that the requested drug/alcohol test at issue (i) was not job related, (ii) was not consistent with business necessity, and (iii) was requested despite there being no reasonable belief that Plaintiff may be under the influence of alcohol/drugs. Plaintiff offers only a single conclusion. [FAC ¶85 (drug test “not job-related, was unnecessary and had no bearing on the ability of Plaintiff […] to perform the essential duties of [his] job”).]6 Such allegations fail. Twombly, 550 U.S. at 555 (“a formulaic recitation of the elements of a cause of action will not do”); Watt, 643 F.2d at 624 (may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations”). B. Plaintiff’s Right to Privacy Claim (Count 2) Fails. To plead an Invasion of Privacy claim, Plaintiff must factually plead: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; 4 Job-related “means tailored to assess the employee’s ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to disability.” Cal. Code of Reg. § 11065(k). 5 Business necessity “means that the need for the disability inquiry or medical examination is vital to the business.” See Cal. Code of Reg. § 11065(b). 6 Notably, in declaring Defendants’ drug and/or urine testing to be illegal, Plaintiff misrepresents the law. First, the Consent Decree in EEOC v. Wal-Mart Stores, East, LP [see FAC, ¶¶ 38, 69] is wholly inapplicable, as it concerned a refusal to permit an employment candidate, who could not produce urine due to a medical condition, the opportunity to take a non-urine drug test pre-hire. Similarly, the OSHA rule on post- injury drug and/or urine testing [id., ¶ 38] (i) has no applicability here, including because it became final after Plaintiff left his employment with Wal-Mart, and (ii) does not prohibit employers from using drug testing (or the threat of drug testing), but opines only that post-incident testing should be limited to situations in which (a) employee drug use is likely to have contributed to the incident, and (b) for which the drug test can accurately identify impairment caused by drug use. Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 14 of 37 Page ID #:357 4 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 (3) conduct by the defendant constituting a serious invasion of privacy. TBG Ins. Servs. Corp. v. Superior Ct., 96 Cal. App. 4th 443 (2002); Hill v. Nat'l Collegiate Athl. Assn., 7 Cal. 4th 1, 35 (1994). Plaintiff fails to do so. First, Plaintiff fails to plead that he suffered an invasion of privacy in the first instance, much less that the (unalleged) invasion was “serious.” He does not allege - even in conclusory form - that his privacy was intruded upon, but claims only that Defendants “requested” that he submit to a drug test. [See FAC, ¶¶ 67, 97 (emph. added) (Plaintiff “sought out the immediate medical attention that precluded [hi]m from taking the immediate unlawful drug test which Defendants demanded […] other members of the classes took such unlawful drug tests [and] their privacy rights were unlawfully violated”).] To be clear, Plaintiff alleges that he never took a drug test. Accordingly, any privacy invasion that could have resulted from such a test, were not suffered by Plaintiff. Second, even if Plaintiff could claim an invasion of privacy (he cannot), he must allege that the intrusion is so serious in “nature, scope, and actual or potential impact as to constitute an egregious breach of the social norms.” Hernandez v. Hillside, Inc., 47 Cal. 4th 272, 287 (2009); Sheehan v. San Francisco 49ers, Ltd., 45 Cal.4th 992, 998 (2009) (accord). “[T]he extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” Hill, 7 Cal. 4th at 37. Indeed, this “threshold element[] [is] necessary [to] permit courts to weed out claims that involve so insignificant or de minimis an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant.” Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307, 331 (1997). Here, the FAC does not conclude, much less allege facts that the (unalleged) privacy invasion was “serious.” Third, even if Plaintiff alleged that he suffered an invasion of privacy (he has not), and that it was “serious” in nature (he has not), this claim would still fail because Plaintiff fails to allege facts and circumstances showing an actual and reasonable expectation of privacy in the circumstances. “A reasonable expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 15 of 37 Page ID #:358 5 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 TBG Ins. Services Corp., 96 Cal. App. 4th at 449. Privacy interests, given their “amorphous character,” must be “assessed separately and in context.” Hill, 7 Cal. 4th at 35, 39-40. “This element rests on an examination of customs, practices, and physical settings surrounding particular activities as well as the opportunity to be notified in advance and consent to the intrusion.” Id. (int. cit. omit.). See also TBG, 96 Cal. App. 4th at 449 (“Assuming the existence of a legally cognizable privacy interest, the extent of that interest is not independent of the circumstances, and other factors (including advance notice) may affect a person’s reasonable expectation of privacy.”). Simply, “not every act which has some impact on personal privacy invokes the protections of the state’s Constitution and requires [] justification.” Wilkinson v. Times Mirror Corp., 215 Cal.App.3d 1034, 1047 (1989). A plaintiff must factually plead an actual and reasonable expectation of privacy in an alleged context. Hernandez, 47 Cal. 4th at 287. Further still, Plaintiff must allege that he conducted himself “in a manner consistent with an actual expectation of privacy, i.e., he [] must not have manifested by his [] conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify [] liability.” Hill, 7 Cal. 4th at 36 (emph. added); see also Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365, 377 (2001). Indeed, specifically in the context of a drug test, Courts have recognized that Plaintiff must allege “the context in which the alleged invasion took place … [including] facts regarding whether Plaintiff consented to or had foreknowledge of Wal-Mart’s testing procedures.” See Lockhart v. Wal-Mart Stores, Inc., CASE NO. 13-CV-1919- MMA (KSC), Dkt 26, at 5:18-26 (dismissing right to privacy claim with prejudice because “Plaintiff fails to include facts regarding whether Plaintiff consented to or had foreknowledge of Wal-Mart’s testing procedures.”).7 7 See also id. at 3:3-24 (dismissing claim; Plaintiff “alleges the existence of a ‘company policy’ which requires all employees who suffer an ‘an injury at work that requires medical treatment from an outside health care provider’ to submit to a drug and alcohol screening. Plaintiff further alleges that ‘[m]erely suffering a workplace injury, no Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 16 of 37 Page ID #:359 6 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 Despite this, Plaintiff’s FAC offers only the conclusions that Plaintiff “had a reasonable expectation of privacy in the workplace” and “reasonable expectations that, while employed by WAL-MART, [he would] be free from intrusive, unwarranted drug testing.” [FAC, ¶94.] Plaintiff fails to allege (much less factually) that he did not have advance notice of the drug testing policy - a fact that would obviate any reasonable expectation of privacy. Further, Plaintiff fails to allege that he did not consent to the test as a condition of employment, or in some other way.8 To the contrary, Plaintiff quotes the precise language of the drug policy at issue - demonstrating that he had, and continues to have, access to the policy. [FAC, ¶35.] For each of these reasons, Count 2 fails. C. Plaintiff’s Section 1102.5 Retaliation Claim (Count 3) Fails. Cal. Lab. Code §1102.5 protects employees against retaliation for acting as a “whistleblower” to government agencies and/or for refusing to participate in unlawful activity. To allege a prima facie case under §1102.5, a plaintiff must show (1) he engaged matter the context or circumstances, does not give rise to reasonable suspicion sufficient to justify such an intrusion.’ […] as the Court noted in its past order, the Court is unaware of any legal authority which provides that drug testing, even suspicionless drug testing, automatically creates a privacy claim under Article 1 of the California Constitution. This, however, is what Plaintiff’s allegations would require. Again, Plaintiff fails to allege facts speaking to the circumstances of the drug test; specifically, Plaintiff’s complaint lacks facts concerning the method in which the test was conducted and fails to allege whether Plaintiff had foreknowledge of Wal-Mart’s testing procedures. The circumstances under which the Plaintiff took the drug test are critical as “notice of and consent to an impending intrusion can ‘inhibit reasonable expectations of privacy.’” [Hernandez, supra]. Consequentially, without facts demonstrating the context in which the “invasion” took place, the Court cannot plausibly infer entitlement to relief.”) 8 See Lockhart, supra, Dkt 26, Order Granting 12b6, 5:18-26 (“The Court previously advised Plaintiff that it could not infer entitlement to relief absent allegations demonstrating the context in which the alleged invasion took place. Specifically, the Court noted that “[t]o assess the reasonableness of a plaintiff’s expectations of privacy, courts ‘consider the customs, practices and physical settings surrounding the. . . [violation], placing particular emphasis on any notice provided or consent obtained.” Again, Plaintiff fails to include facts regarding whether Plaintiff consented to or had foreknowledge of Wal-Mart’s testing procedures.”) (int. cit. omitted). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 17 of 37 Page ID #:360 7 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in protected activity, (2) his employer subjected him to adverse employment action, and (3) there is a causal link between the two. Dowel v. Contra Costa County, 928 F. Supp. 2d 1137, 1154 (2013) (citing Patten v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005)). Section 1102.5(c) prohibits retaliation against an employee for refusing to participate in unlawful conduct. See Carter v. Escondido Union High School Dist, 148 Cal. App. 4th 922, 933-55 (2007) (granting summary judgment for employer where conduct not illegal). The conduct must actually violate a state or federal statute, rule or regulation, and Plaintiff must show that he refused to engage in the conduct. Mayo v. Recycle to Conserve, Inc., 2011 U.S. Dist. LEXIS 62854, *45 (E.D. Cal. June 10, 2011) (granting summary judgment as plaintiff presented no evidence that he refused to participate in an illegal activity); Brewer v. Kmart Corp., 2010 U.S. Dist. LEXIS 57501, *8-9 (C.D. Cal. June 7, 2010) (same). The FAC does not state a claim. First, Plaintiff does not allege that he refused to participate in any activity, much less one that would result in a violation of law. To the contrary, Plaintiff complains that he was not given the opportunity to participate in the activity that he now claims would have violated his rights. Specifically, Plaintiff alleges he “left to see his own doctor […] because he was in such pain and needed immediate medical attention […¶ and] then [within 24 hours] asked when he could come in to […] see WAL-MART's own doctor” to take a drug test. [FAC, ¶¶ 62-63.] Plaintiff does not allege that he refused to take the drug test he now claims was “illegal,” but instead alleges that he attempted to take the test multiple times, and even went so far as to call Wal-Mart to “speak to the assistant manager approximately six times” so he could take the test. [Id.] The FAC does not contain any conclusions, much less facts, that Plaintiff exercised his right to refrain from participating in any conduct, let alone unlawful conduct - quite the opposite.9 9 Plaintiff does not allege that he raised concerns about the drug test legality. And, even if he had so alleged, such would still be insufficient to state a claim. Case law holds that raising concerns does not constitute a “refusal” under the statute. Scheu v. Charier Communications, LLC, 2011 U.S. Dist. LEXIS 81994, *135-37 (C.D. Cal. July 27, 2011) (applying California law; plaintiff did not “refuse[] to perform an act” where he merely Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 18 of 37 Page ID #:361 8 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Second, even if Plaintiff had refused to take the drug test at issue (he did not), Plaintiff fails to allege any facts substantiating that Defendants’ drug testing policy was “illegal” (as discussed in Section II(B), supra). No facts are alleged demonstrating that the drug/alcohol test at issue was (i) not job related, (ii) not consistent with business necessity, and (iii) was requested despite there being no reasonable belief that Plaintiff may be under the influence of alcohol/drugs. Further, the bare conclusion that the drug testing policy was illegal misrepresents the law. [See fn. 6.] Third, even if Plaintiff had refused to take the drug test at issue (he did not), and the drug test was “illegal” (it is not), this claim would still fail because the FAC is devoid of facts establishing a causal link between Plaintiff’s (unalleged) refusal to engage in conduct that violated the law and Defendants’ decision to terminate his employment. See King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 433-34 (2007) (plaintiff must establish that there was “an actual causal link between” any such protected activity and his termination).10 For each and all of these reasons, Plaintiff’s claim fails. D. Plaintiff’s Claim for Declaratory and Injunctive Relief (Count 5) Fails. These requests fail for three independent reasons. First, Plaintiff’s claim for declaratory and injunctive relief is entirely derivative of Counts 1-4 and 6-11, and thus fails for all the reasons cited above and should dismissed. Second, as an alleged former employee [FAC ¶46] Plaintiff lacks standing to reported some concerns about the functionality of a technology his company was marketing but did not refuse to go make sales presentations). 10 Plaintiff alleges various, conflicting, reasons for his termination. In several instances Plaintiff alleges, not that he was terminated for refusing to engage in illegal conduct, but that he was terminated due to his disabilities and/or his requests for reasonable accommodations. [E.g. FAC, ¶72.] And, Plaintiff alleges he was told “he had been terminated because he did not take a urine test within 24 hours after his injury” [FAC, ¶67] - the basis for his §1102.5 claim - only to later affirm that Defendants “fabricate[d] false reasons to justify his termination.” [FAC, ¶82.] If, as Plaintiff alleges, Defendants fabricated that he was terminated because he failed to take a drug/urine test within 24 hours of his workplace-related injury, his §1102.5 claim cannot survive. Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 19 of 37 Page ID #:362 9 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 assert a claim for declaratory or injunctive relief.11 Third, Plaintiff’s request for declaratory relief should be dismissed because it is redundant of the substantive relief sought, and therefore, constitutes “redundant, immaterial, impertinent, or scandalous matter.” Fed. Rule Civ. Pro. 12(f). Specifically, the damages Plaintiff seeks would make him whole without the need for declaratory relief, and an award of damages or a finding for Defendants would resolve one way or the other whether the alleged drug testing policy was unlawful and//or whether Plaintiff was discriminated or retaliated against, without the need for declaratory relief. Under these circumstances, courts have found that declaratory relief claims are improper.12 E. Plaintiff’s Unfair Competition Claim (Count 6) Fails. First, this claim is derivative of the foregoing claims and fails for the same 11 See Price v. Starbucks Corp., 192 Cal. App. 4th 1136, fn. 5 (2011) (plaintiff cannot “seek injunctive relief … because, as a former [] employee, he lacks standing.”); Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1,17 (2007) (former employee lacked standing to sue for injunctive relief because his relationship with the employer ended before he filed his lawsuit); Walsh v. Nevada Dept. of Human Res., 471 F. 3d 1033, 1037 (9th Cir. 2006) (former employees lack standing to seek injunctive relief because they would not stand to benefit from it); Delodder v. Aerotek, Inc., 2009 U.S. Dist. LEXIS 109256, *10 (C.D. Cal. Nov. 9, 2009) (plaintiffs “lack standing to seek prospective relief [… because] they cannot demonstrate ‘a real or immediate threat of irreparable injury’ by defendant’s employment practices”). 12 See Schessler v. Keck, 125 Cal.App.2d 827 (1954) (An action for declaratory relief “is usually unnecessary where an adequate remedy exists under some other form of action.”); Broffman v. Klassman, 183 Cal. App. 2d 117, 126 (1960) (same); see also Lewis v. Trans Union, LLC, 2013 WL 1680639, *5 (E.D. Cal. Apr. 17, 2013) (“While a claim for declaratory judgment could stand alone as a cause of action, it becomes ‘duplicative and unnecessary when it is commensurate with the relief sought through other causes of action.’”) (quoting Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir.1986)); Philips Med. Capital, LLC v. Med. Insights Diagnostics Ctr., Inc., 471 F. Supp. 2d 1035, 1048 (N.D. Cal. 2007) (same); U.S. v. State of. Wash., 759 F.2d 1353, 1356-57 (9th Cir. 1985) (“Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties”); Lenhoff Enterprises, Inc. v. United Talent Agency, Inc., 2015 WL 7008185 *7 (C.D. Cal. 9/18/15) (dismissing declaratory relief as redundant). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 20 of 37 Page ID #:363 10 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 reasons. Second, a private plaintiff’s remedies under the UCL are limited to injunctive relief and restitution. Here, as a former employee, Plaintiff lacks standing to pursue injunctive relief. See Estrada, 154 Cal. App. 4th at 17 (former employee lacked standing to sue for prospective equitable relief because his relationship with the employer ended before he filed his lawsuit); Price v. Starbucks Corp., 192 Cal. App. 4th 1136, fn. 5 (2011) (same). Third, UCL restitution “‘requires both that [1] money or property have been lost by a plaintiff, on the one hand, and [2] [] have been acquired by a defendant, on the other,’” and [3] that the plaintiff “once ‘had an ownership interest in . . . money or property acquired by the defendant through unlawful means.’” Yanting Zhang v. Superior Court, 57 Cal. 4th 364, 371 (2013) (first quote; cit. omitted); Watts v. Enhanced Recovery Corp., 2010 WL 4117452, *3 (N.D. Cal. Oct. 19, 2010) (second quote). “Absent a showing that a defendant actually received any money, there is nothing to disgorge, and the UCL provides no monetary relief.” Bank of the West v. Superior Court, 2 Cal.4th 1254, 1266 (1992); see also Asghari v.Volkswagen Grp. of Am., Inc., 42 F. Supp. 3d 1306, 1324-25 (C.D. Cal. Nov. 4, 2013) (dismissing UCL claim for failure to allege that defendants obtained or possessed funds rightfully belonging to plaintiff). The FAC seeks to disgorge Defendants of “profits,” and in no way alleges a claim for restitution of monies obtained from Plaintiff by Defendants. [FAC, ¶132.] Thus, Plaintiff has also not alleged a restitutionary injury recoverable under the UCL. Again, it fails to state a claim. F. Plaintiff’s Disability Discrimination Claim (Count 7) Fails. FEHA makes it unlawful for an employer - because of the medical condition or the physical disability of a person - to bar or to discharge that person from employment, or discriminate in compensation or in terms, conditions, or privileges of employment. See Cal. Gov‘t Code §12940(a). To allege a prima facie case of disability discrimination, Plaintiff must allege that he: (1) suffered from a disability; (2) could perform the essential duties of the job with or without accommodations; and (3) was subjected to an adverse Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 21 of 37 Page ID #:364 11 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 employment action because of the disability. See Brundage v. Hahn, 57 Cal App 4th 228, 236 (1997). Under FEHA, a “medical condition” includes cancer health impairments related to or associated with a diagnosis of cancer or a record or history of cancer, or genetic characteristics. Cal. Gov. Code §12926(i). A “physical disability” includes any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that both affects one or more bodily systems and limits an individual’s ability to participate in major life activities. See Cal. Gov’t Code §§ 12926(f)(1)(A)-(B). “Major life activities” include physical, mental, and social activities, such as caring for oneself, performing manual tasks, walking seeing, hearing, speaking, learning, and working. 2 Cal. C. Regs. §7293.6(e)(1)(A)(2)(a). The FAC fails to satisfy these requirements.13 First, Plaintiff fails to identify what his “disability” was, much less provide any factual allegations supporting that his (unidentified) condition constituted a “disability”, i.e. substantially limited his ability to participate in major life activities.14 Plaintiff offers only the conclusion that he “had actual and/or perceived physical and/or mental 13 Plaintiff cannot state a Disability Discrimination claim based on his purported September/October 2015 workplace injury, as Plaintiff failed to exhaust his administrative remedies as to these allegations. See Section XII infra. 14 See e.g. Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 4 (2006) (holding that merely identifying a condition is insufficient; a plaintiff must demonstrate the condition “makes ‘difficult’ the achievement of work or some other major life activity.”); Arteaga v. Brink’s Inc., 163 Cal. App. 4th 327, 348-49 (2008) (recognizing that diagnoses of carpal tunnel syndrome does not establish that a plaintiff has a disability within the meaning of FEHA; the mere identification of a condition does not establish that a major life activity was affected, as there are “large potential differences in the severity and duration of the effects of [different physiological conditions]”); Lockhart, supra, Dkt 20, at 8:24-9:5 (Plaintiff “fails to identify his disability or otherwise allege facts which demonstrate that his condition would be recognized as a disability under FEHA. Specifically, while Plaintiff apparently alleges that his qualifying disability is ‘pain,’ ‘discomfort,’ and ‘diminished mobility’ as a result of his workplace slip and fall, Plaintiff fails to demonstrate that he suffers from an impairment that substantially limits a major life activity. Plaintiff merely concludes that his injury ‘negatively affected’ his ability to work and restricted his ability to participate in other life activities without providing any factual support for his claim. This is insufficient.”). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 22 of 37 Page ID #:365 12 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 disabilities.” [FAC, ¶135.] In doing so, he fails to (i) identify what “actual or perceived” disability he suffered, including even whether it was mental or physical, (ii) factually allege that he suffered this (unidentified) disability, and (iii) allege - even in conclusory form - that the (unidentified disability) substantially limited his ability to participate in major life activities.15 These allegations plainly do not state a claim. Second, Plaintiff does not factually allege that he could perform the essential duties of the job with or without reasonable accommodations; he offers only a conclusion in this regard. [FAC, ¶138.] Unalleged is: (i) whether Plaintiff did or did not need an accommodation; (ii) the identity of any accommodation needed; (iii) the identity of the “position [that Plaintiff] desired and held”; and (iv) what the duties of the position were. Third, Plaintiff fails to plead causation. First, because Plaintiff fails to factually allege that he suffered from a disability in the first instance, he cannot allege that he was subjected to an adverse employment action because of his (unidentified and unsubstantiated) disability. Second, the FAC is devoid of any allegations concerning a causal link between Plaintiff’s (unalleged) disability and his termination. See Faust v. Calif. Portland Cement Co., 150 Cal.App.4th 864, 886 (2007) (plaintiff must establish that there was a causal link between the disability and the adverse employment action). Plaintiff’s FAC offers only the (vague) conclusion that Defendants “terminat[ed] his employment because of such actual and/or perceived disabilities.”16 [FAC ¶138.]17 15 The FAC is ripe with conflicting allegations regarding Plaintiff’s ability to work (a major life activity). As a non-exhaustive example, Plaintiff claims his “physician took [him] off of work from [sic] for three days” [FAC, ¶ 61], but later alleges the day after his “injury” he returned to work and “swiped his ID card to clock in.” [Id., ¶ 66.]. 16 See e.g. Ankeny v. Lockheed Missiles & Space Co, 88 Cal.App.3d 531, 537 (Ct.App. 1979) (plaintiff must “set forth facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source, and extent of his cause of action.”; facts should be stated clearly “so that nothing is left to surmise.”); Zumbrun v. Univ. of S. California, 25 Cal.App.3d 1, 8 (Ct.App. 1972) (General and indefinite assertions of liability will not suffice; “[f]acts, not conclusions, must be pleaded.”). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 23 of 37 Page ID #:366 13 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 / / / G. Plaintiff’s Claims for Failure to Reasonably Accommodate (Count 8) And Failure to Engage in an Interactive Process (Count 9) Fail. These claims fail on several levels.18 First, as with a Disability Discrimination claim, to prevail on these claims, a plaintiff must first prove he/she is disabled. Scotch v. Art Inst. of Cal. Orange County, Inc., 173 Cal. App. 4th 986, 1009-10 (2009) (citing Wilson v. Cty. of Orange, 169 Cal. App. 4th 1185, 1192 (2009). As discussed in Section II(F), Plaintiff fails to factually plead that he had an impairment constituting a disability according to the statutory definition. Gelfo, 140 Cal.App.4th at 47 (“To qualify as a member of the protected class under FEHA, [a plaintiff] must demonstrate that his[/her] impairment constitutes a disability according to the statutory definition.”). The failure to factually plead that Plaintiff suffered from a disability renders these Counts deficient. Second, as discussed in Section II(F), Plaintiff fails to factually allege that he could perform the essential duties of the job with or without reasonable accommodations, as is required. See FAC, ¶138; Scotch, 173 Cal. App. 4th at 1009-10; Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 975 (2008) (to prevail on a Failure to Accommodate or Failure to Engage in an Interactive Process claim, a plaintiff must first prove he/she is qualified to perform the “essential functions” of his/her job with or without reasonable accommodation; duty to engage in interactive process axiomatically extends only to qualified employees because the duty “extends only to accommodations that would enable the employee to perform the essential functions of the position”). Third, Plaintiff does not allege that Defendants knew about his disability. Under 17 As noted in fn. 10 above, throughout the FAC, Plaintiff alleges various, conflicting, reasons for his termination. In several instances Plaintiff alleges that he was terminated for refusing to take a drug test. [E.g. FAC, ¶107.] 18 Here too, Plaintiff cannot state a Failure to Accommodate and Failure to Engage in an Interactive Process claim based on his purported September/October 2015 workplace injury, because he failed to exhaust his administrative remedies as to these allegations. See Section XII, infra. Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 24 of 37 Page ID #:367 14 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 FEHA, a duty of an employer to accommodate and/or to engage in a good faith interactive process with an employee to assess a reasonable accommodation “does not arise until the employer is made aware of [the plaintiff’s] disability and physical limitations.” Avila v. Cont’l Airlines, Inc., 165 Cal. App. 4th 1237 at 1252 (2008) (citing Raine v. City of Burbank, 135 Cal. App. 4th 1215, 1222 (2006)). In this regard, “[t]he employee bears the burden of giving the employer notice of his or her disability.” Id. “[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge....” Id. at 1252-53 (quoting Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 949 (1997)). Yet Plaintiff offers only the conclusion that Defendants “learn[ed] of Plaintiff’s disabilities.” [FAC, ¶147.] No facts are alleged concerning who (if anyone) was aware of his (unidentified) disability, how any such (unidentified) persons were made aware, or when any such (unidentified) persons became aware. Plaintiff has not factually pled that Defendants knew of his disability, and thus had a duty to engage in a good faith interactive process (much less provide a reasonable accommodation). Fourth, an employer is only required to “engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee...with a known physical or mental disability or known medical condition.” Cal. Gov. Code §12940(n) (emph. added). Here, Plaintiff fails to allege that he triggered Defendants’ duty to engage in the interactive process by requesting an accommodation, or otherwise. Plaintiff merely concludes that he “requested reasonable accommodation the form of medical treatment” [FAC, ¶147], and thus fails to factually allege (i) that he made a request for accommodation, (ii) the timing of the request, (iii) to whom it was made, and (iv) what the request entailed. Fifth, Plaintiff alleges that Defendants engaged in an interactive process with him and he received the “medical treatment” accommodation he now claims an entitlement Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 25 of 37 Page ID #:368 15 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to. [FAC, ¶147 (“Plaintiff requested reasonable accommodations in the form of medical treatment.”).] Indeed, Plaintiff alleges that Defendants were in the process of providing him medical treatment when he determined that he would not await completion of the requisite paperwork, and that Defendants accommodated his request to leave and seek alternative medical treatment. [FAC ¶60 (Plaintiff was told that he would see a company doctor once the paperwork was finished. Plaintiff then asked “if he could leave to see his own doctor” and was told that “if he felt he needed immediate medical attention, he could leave and obtain it. As such, after receiving permission to leave, [Plaintiff] left to go see a doctor and receive the medical attention.”).] The only inference to be drawn from the FAC is that Defendants engaged in an interactive process19 and provided Plaintiff the accommodation at issue - medical treatment from Defendants’ doctor or his own. H. Plaintiff’s Failure to Prevent Claim (Count 10) Fails. Plaintiff’s Failure to Prevent Discrimination and Retaliation claim fails on various levels.20 First, a claim for “Failure to Prevent Retaliation” does not exist at law. Subsection (k) of §12940 makes no mention of “retaliation,” but provides only a cause of action against an employer who purportedly fails “to prevent discrimination and harassment from occurring.” Cal. Gov. Code §12940(h). Second, even if §12940(k) did encompass retaliation claims, Plaintiff’s claim 19 An “interactive process” is defined as a “timely, good faith communication between the employer or other covered entity and the applicant or employee or, when necessary because of the disability or other circumstances, his or her representative to explore whether or not the applicant or employee needs reasonable accommodation for the applicant’s or employee’s disability to perform the essential functions of the job, and, if so, how the person can be reasonably accommodated.” Cal. Code Regs. tit. 2, § 11065(j). 20 Plaintiff’s “Failure to Maintain a Workplace Free from Discrimination and Retaliation” claim is merely a Failure to Prevent claim by a different name. See Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1315 (2015) (treating as interchangeable claims for “failure to provide an environment free from discrimination” and “failure to take all reasonable steps necessary to prevent discrimination from occurring”)’ Scotch v. Art Inst. of Cal., 173 Cal. App. 4th 986, 1021 (2009) (finding a “failure to provide an environment free from discrimination” is derived from Section 12940(k)). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 26 of 37 Page ID #:369 16 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 would still be improper because a claim for failure to prevent discrimination or harassment cannot lie absent a proper claim for discrimination/harassment. Trujillo v. North County Transit Dist., 63 Cal.App.4th 280, 287-89 (1998) (considering “whether a violation of §12940, subdivision (i) may give rise to a private right of action where there is no related factual finding of discrimination or harassment” and holding “[w]e do not believe the statutory language supports recovery on such.”). As such, Plaintiff has failed to plead a Failure to Prevent claim. I. Plaintiff’s Retaliation in Violation of FEHA Claim (Count 11) Fails. To allege a prima facie case of Retaliation in violation of FEHA, Plaintiff must show that he “(1) engaged in a protected activity; (2) was thereafter subjected to adverse employment action by his employer; and (3) there was a causal link between the two.” Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 614-15 (Ct.App. 1989) (citing Wrighten v. Metropolitan Hosp., Inc. 726 F.2d 1346, 1354 (9th Cir. 1984).) Protected activity means that the employee “has opposed any practices forbidden under [FEHA] or … has filed a complaint, testified, or assisted in any proceeding under [FEHA].” Cal Gov’t Code §12940(h). A showing that a plaintiff engaged in “protected activity” requires that plaintiff demonstrate that he “voiced … allegations of unlawful discrimination” prior to being subjected to an adverse employment action. Rhodes v. Elec. Data Sys. Corp., 2007 U.S. Dist. LEXIS 48253, *21 (E.D.CA 7//2/07). To qualify as a “protected activity,” the employee’s communications to the employer must sufficiently convey a reasonable concern that the employer has acted in an unlawful discriminatory manner. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005) (int. cit. omit.) (“The question here is whether [Plaintiff’s] refusal to follow [Defendant’s] directive qualifies under the first category-that is, whether by refusing the directive, [Plaintiff] opposed any practices forbidden under the [FEHA].”). Here, Plaintiff fails to allege a prima facie claim. Plaintiff concludes that he “engaged in protected activities by informing WAL-MART of his disabilities and/or- injuries and/or by requesting reasonable accommodations to treat and/or recover from Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 27 of 37 Page ID #:370 17 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 such disabilities.” [FAC, ¶166.] First, Plaintiff does not allege that he engaged in a “protected activity” because he does not allege that he opposed any practices illegal under FEHA. See Villanueva v. City of Colton, 160 Cal. App. 4th 1188, 1198 (2008) (dismissing retaliation absent showing that plaintiff “ever engaged in a protected activity related to an employment practice proscribed by the FEHA”). Second, Plaintiff fails to plead any causal connection, i.e. proximity in time, between his (unalleged) opposition to practices illegal under FEHA and the adverse employment actions alleged.21 Fisher, 214 Cal. App. 3d at 615. Third, Plaintiff’s engagement in (the unidentified and unsubstantiated) protected activities are described as “partially” the reason for the adverse actions identified. [FAC, ¶166.] Thus, Plaintiff does not even conclude that he was subjected to the adverse actions because he had engaged in a “protected activity.” Plaintiff’s allegations are vague, conclusory, conflicting - and most importantly - unsupported by any facts. This claim too fails. J. Plaintiff’s Wrongful Termination Claim (Count 4) Fails. To allege a claim for Wrongful Termination in Violation of Public Policy, Plaintiff must allege that (1) his termination violated a fundamental public policy concerning society at large that is delineated in some constitutional or statutory provision; and (2) there was a causal “nexus” between the employee’s protected activity and the termination.22 Plaintiff does not begin to properly allege these elements. First, Plaintiff 21 Indeed, the FAC contains a long list of vague adverse actions that Plaintiff concludes he was subjected to, including “retaliation” in the form of refusal to accommodate, refusal to engage in a good-faith interactive process, request to take a drug and/or urine test, “and/or terminating him.” [FAC, ¶166.] 22 Hunter v. Up-Right, Inc., 6 Cal. 4th 1174, 1186 (1993) (internal citations omitted) (“[A]n action for wrongful termination in violation of public policy must be predicated on a fundamental, well-established, substantial policy that concerns society at large rather than the individual interests of the employer or employee, and that is delineated in some constitutional or statutory provision.”); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1257-58 (1994) (dismissing wrongful termination claim where Plaintiff “cannot demonstrate the required nexus between his reporting of alleged statutory violations and his allegedly adverse treatment.”). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 28 of 37 Page ID #:371 18 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 merely sets forth a laundry list of statutes and concludes that his termination violated each. These conclusions - beyond being ambiguous at best - are patently insufficient. Second, Plaintiff fails to even approach the pleading standards required for the statutes listed. Because he cannot allege violations of these statutes, he likewise cannot sustain a Wrongful Termination in Violation of Public Policy claim where those statutes serve as the public policy basis for the claim. Arteaga, 163 Cal. App. 4th at 355 (“The wrongful termination claim is, after all, based on the FEHA’s prohibition of physical disability discrimination. As a result, the wrongful termination claim fails for the same reasons as the FEHA claim.”). Third, Plaintiff fails to plead a nexus between his (ambiguous) protected action(s) and subsequent termination, and only concludes that he was terminated “for reasons that violate public policy.” [FAC, §114.]. K. Counts 1, 7, 8, 9, 10, And 11 Fail For The Additional Reason That Plaintiff Failed To Exhaust His Administrative Remedies As Required. “Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the DFEH and must obtain from the DFEH a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” Blum v. Sup. Ct., 141 Cal. App. 4th 418, 422 (2006) (citing Medix Ambulance Service, Inc. v. Superior Court, 97 Cal.App.4th 109, 116 (2002)).23 Such exhaustion must be affirmatively pled.24 23 See also Miller v. United Airlines, Inc., 174 Cal. App. 3d 878, 890 (Ct. App. 1985) (dismissing claim brought under FEHA on the basis that the plaintiff failed to exhaust the administrative remedies; “[plaintiff] could not maintain a civil action alleging violations of the FEHA until after she had exhausted her administrative remedies pursuant to the FEHA.”); Johnson v. City of Loma Linda, 24 Cal. 4th 61, 70 (2000) (“Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’”). 24 Kim v. Konad USA Distribution, Inc., 226 Cal. App. 4th 1336, 1345 (2014) (“it is plaintiff’s burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.” (citation omitted)); Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390, 1402 (2015) (same). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 29 of 37 Page ID #:372 19 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 Furthermore, and importantly, before a plaintiff can sue on an allegedly unlawful act, he/she “must [have] specif[ied] that act in the administrative complaint.” Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1724 (1994) (affirming summary judgment as to all causes of action based on “theories of recovery” not stated in plaintiff’s DFEH complaint); see also Okoli v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607, 1617 (1995) (retaliation claim barred for failure to include retaliation allegations in DFEH complaint). Additionally, to satisfy the exhaustion requirement, the written, verified DFEH complaint “shall set forth the particulars [of the alleged unlawful practice] and contain other information as may be required by the department,” including the facts and theories to support such alleged violations. Cal. Gov. Code §12960(b). Plaintiff failed to plead satisfaction of these threshold requirements. First, Plaintiff’s claim that he “exhausted [his] administrative remedies by the timely request of a Right-to-Sue notice from the California Department of Fair Employment and Housing within one year of the events alleged herein” [FAC, ¶4] is an improper conclusion that fails as a matter of law. Second, a review of Plaintiff’s actual Notice (attached to the Complaint) demonstrates that - as to each and every FEHA claim alleged (Counts 1, 7-11) - Plaintiff failed to properly exhaust because the Notice fails to set forth the particulars of the complaints and other information required, including the facts and theories to support such alleged violations.25 The Notice patently fails to provide the requisite particulars, as 25 The requirement of particularity is necessary because “the purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation.” Hobson v. Raychem Corp., 73 Cal. App. 4th 614, 630 (1999), disapproved on other grounds by Colmenares v. Braemar Ctry. Club, Inc., 29 Cal. 4th 1019 (2003); Foster v. Bank of Am., Nat. Ass’n, 2014 WL 4092311, *3 (E.D.CA 8/14/14) (same). Stated another way, “a FEHA claim must. . .‘identify with specificity the discrimination alleged and the facts supporting it’ because ‘the purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation.’” Foster, 2014 WL 4092311 *4 (emph. added). “The procedural requirement that [a plaintiff] formally make each of her theories of violation known to the DFEH [is]…by no means a[]…procedural technicality.” Martin, 29 Cal. App. 4th at 1728. Rather, administrative exhaustion “is necessary to give the DFEH the Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 30 of 37 Page ID #:373 20 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff provides only a generic list of causes of action and then concludes that he was subjected to each. And, because more than one year since the alleged unlawful acts has passed, Plaintiff cannot seek to exhaust now such that each of Plaintiff’s FEHA claims is subject to dismissal with prejudice. See Cal. Gov’t Code § 12960(d); Vizcaino v. Areas USA, Inc., Case No. CV 15-417-JFW (PJWx), ECF Dkt. No. 30, at 3 (C.D. Cal. Apr. 17, 2015) (dismissing FEHA claims with prejudice where “Plaintiff wholly failed to ‘set forth the particulars’ of the alleged violations of FEHA and his DFEH complaint did not contain the ‘other information [that] may be required,’ including facts and theories to support the alleged violations of FEHA.”); Foster, 2014 WL 4092311, *5 (granting summary judgment where “DFEH complaint lacked a recitation of the underlying facts”, did “not contain any facts as to [defendant’s] allegedly unlawful conduct”, and “merely assert[ed] in conclusory fashion that [plaintiff] experienced unlawful discrimination, harassment, and retaliation, which caused her various damages.”). Third, even if the Notice were otherwise sufficient, the Unlawful Medical Inquiry claim (Count 1) still would fail because it is not mentioned in the Notice. See Martin, 29 Cal. App. 4th at 1724 (affirming summary judgment as to claims based on “theories of recovery” not stated in DFEH complaint); Okoli, 36 Cal. App. 4th at 1617 (retaliation claim barred for failure to include allegations of same in DFEH complaint). Fourth, the Notice conspicuously fails to exhaust as to alleged actions that occurred in 2015. Thus, as discussed in Section III(A) below, such actions are barred as outside of the statute of limitations, and all references to alleged conduct that took place in 2015 should be stricken. L. Plaintiff’s Request for Punitive Damages Fails. First, to plead a punitive damages claim, Plaintiff must plead factual allegations demonstrating that Defendants are guilty of oppression, fraud, or malice. Brousseau v. Jarrett, 73 Cal. App. 3d 864, 872 (1977) (“[Plaintiff]’s conclusory characterization of opportunity…to pursue the vital policy interests embodied in [the Act], i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation.” Id. Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 31 of 37 Page ID #:374 21 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud or malice…within the meaning of section 3294” (internal quot. omitted)); Smith v. Super. Ct., 10 Cal. App. 4th 1033, 1041 (1992)(“conclusory allegations…[are] devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice”; striking punitive damage claim).26 Here, Plaintiff fails to set forth the factual basis for a claim that either Defendant engaged in fraudulent, malicious or oppressive conduct,27 but instead offers only conclusory allegations. Plaintiff’s punitive damages claim relies exclusively on the following: “Plaintiff […is] informed and believes, and based thereon alleges, that [Defendants] conduct against [him] was done with an intent to cause injury to [hi]m. Moreover, the malicious, fraudulent and/or oppressive conduct was engaged in, authorized or ratified by officers; directors or managing agents of the corporation and/or was the result of the application of 26 Compare Kelley v. Corrs. Corp. of Am., 750 F. Supp. 2d 1132, 1147-48 (E.D. Cal 2010) (finding that Plaintiff’s “conclusory allegations of ‘conscious disregard of [Plaintiff’s] rights and with the intent to vex, injure and annoy [Plaintiff] such as to constitute oppression, fraud or malice’” were insufficient as they were “unsupported by allegation of any facts” and thus must be dismissed under federal pleading standards); Rhynes v. Stryker Corp., 2011 WL 2149095, *5 (N.D. Cal. May 31, 2011) (dismissing Plaintiffs’ punitive damages claim because the pled allegations were “merely conclusory statements not entitled to the presumption of truth”). 27 Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294. Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id. Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Id. “The question is whether defendants’ conduct may be characterized as ‘despicable.’” Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1050 (2002). Despicable conduct is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Id (internal quot. and citation omitted). Importantly, “[t]he law does not favor punitive damages and they should be granted with the greatest caution.” Beck v. State Farm Mutual Auto. Ins. Co., 54 Cal. App. 3d 347, 355 (1976). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 32 of 37 Page ID #:375 22 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 unlawful, malicious or oppressive policies and procedures. As a consequence of the aforesaid oppressive, malicious, and despicable conduct, Plaintiff […is] entitled to an award of punitive damages in a sum to be shown according to proof.” [FAC, ¶¶ 90, 102, 111, 118, 143, 150, 157, 163, 169.] This is not permissible pleading. Second, even if Plaintiff properly alleged oppression, fraud, or malice (he does not), this claim would still fails because he fails to allege employer ratification. Per Civil Code § 3294(b), a plaintiff cannot maintain a claim for punitive damages against a corporate Defendant unless he shows that a corporate officer, director or managing agent engaged in malicious, fraudulent or oppressive conduct. Civil Code §3294(b) states: “(b) An employer shall not be liable for [punitive] damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer . . . was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge, . . . ratification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” Cal. Civ. Code § 3294(b); Grieves v. Super. Ct., 157 Cal. App. 3d 159, 167 (1984) (“a corporate employer may be liable only if the knowledge, authorization, ratification or act was on the part of an officer, director or managing agent of the corporation”); Kuchta v. Allied Builders Corp., 21 Cal. App. 3d 541, 550 (1971) (“the rule in California is that [punitive damages] liability without ratification or authorization should be limited to those acting in a managerial capacity”). In White v. Ultramar Inc., 21 Cal. 4th 573, 572- 73 (1999), the California Supreme Court confirmed that the intended purpose of Section 3294(b) is to limit punitive damage claims against corporate defendants, by requiring a plaintiff prove the alleged wrongful act giving rise to such a claim was committed by an officer, director or managing agent of the corporation. The statutory limitation to officers, directors or managing agents ensures punitive damages are only imposed for conduct committed by the specific “employees who in fact exercise substantial authority over decisions that ultimately determine corporate policy.” Id. at 576. Conclusory allegations of authorization or ratification fail to satisfy California pleading standards. Rather, to plead ratification, a plaintiff must allege facts tending to Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 33 of 37 Page ID #:376 23 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 show that an officer, director, or managing agent took an action amounting to authorization or ratification of the alleged misconduct. Grieves, 157 Cal. App. 3d at 167- 68 (holding trial court should have granted defendants’ motion to strike punitive damages; where pleading alleged that defendants were “negligent and careless in the hiring of the other [employee] defendants” and allowed employee defendants to engage in conduct alleged to be negligent, failed to “set[] forth facts to show [defendant’s] advance knowledge, authorization or ratification.”); Ebaugh v. Rabkin, 22 Cal. App. 3d 891, 896 (1972) (“to hold the employer responsible for punitive damages it must be shown that the employee’s malicious acts were done with the knowledge, or under the direction, of the employer or were ratified by him with knowledge of the wilful and malicious quality of such acts.”).28 Despite these authorities, Plaintiff alleges only the conclusion that the conduct of “Wal-Mart” was “malicious, fraudulent and/or oppressive [and] was engaged in, authorized or ratified by officers, directors or managing agents of the corporation and/or was the result of the application of unlawful, malicious or oppressive policies and procedures.” [FAC, ¶¶ 90, 102, 111, 118, 143, 150, 157, 163, 169.] Plaintiff fails to even identify who performed these discriminatory and retaliatory actions, instead identifying only generally “Wal-Mart” - a title that could refer to one of two corporate entities -Wal- Mart Stores, Inc. or Wal-Mart Associates, Inc. And, aside from offering only an impermissible conclusion of ratification, Plaintiff fails to identify the actor(s) whose outrageous acts were apparently ratified, labeling them only as “their agents and employees” or “subordinates.” Similarly, the identity of those that purportedly ratified the outrageous conduct of the (unidentified) “agents and employees” and “subordinates” remains unalleged. Absent these basic factual allegations, Defendants cannot even begin 28 Compare Kelley, 750 F. Supp. 2d at 1145-46 (allegation that “[Defendant’s] acts were carried out by its managerial employees, officers and directors, and were directed or ratified by [Defendant]” was insufficient.); Washington v. Cal. City Corr. Ctr., 2011 U.S. Dist. LEXIS 9095, *26-27 (E.D. Cal. 2011) (striking punitive damages claim where allegations of managing agent or ratification absent). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 34 of 37 Page ID #:377 24 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to determine which entities employee(s) allegedly committed the complained of conduct, much less whether these (unidentified) employee(s) in fact exercised substantial authority over decisions that ultimately determine corporate policy.” White, 21 Cal. 4th at 576. For this reason too, Plaintiff’s punitive damage claim fails. III. MOTION TO STRIKE STANDARD. A motion to strike may be brought to strike from a pleading any allegation that is “redundant, immaterial, impertinent or scandalous.” F.RC.P. 12(f). The standards articulated above with equally to motions to strike. New Name, Inc. v. Walt Disney Co., 2007 WL 5061697, *5 (C.D.CA 12/30/17)(striking claim under Twombly); Hynix Semiconductor, Inc. v. Rambus Inc., 2007 WL 4062845, *3 (N.D.CA 11/15/07) (accord). A. Plaintiff’s References to Allegations That Occurred In 2015, And Are Outside Of the Limitations Period and Should Be Stricken. “Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the DFEH and must obtain from the DFEH a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” Blum v. Sup. Ct., 141 Cal. App. 4th 418, 422 (2006) (citing Medix Ambulance Service, Inc. v. Superior Court, 97 Cal.App.4th 109, 116 (2002)). Exhaustion in this context requires filing a written charge with DFEH within one year of the alleged unlawful employment discrimination, and obtaining notice from DFEH of the right to sue. Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 492 (1996); Okoli, 36 Cal.App.4th at 1613. The scope of the written administrative charge defines the permissible scope of the subsequent civil action. Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121-23 (1989). Allegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust. Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1724 (1994) (affirming summary judgment as to all causes of action based on “theories of recovery” not stated in plaintiff’s DFEH complaint); Okoli, 36 Cal. App. 4th at 1617 Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 35 of 37 Page ID #:378 25 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 (retaliation claim barred for failure to include retaliation allegations in DFEH complaint). A review of the Notice attached to the Complaint reveals that Plaintiff purported to exhaust only as to actions that occurred “[o]n or around January 16, 2016.” The Notice conspicuously fails to exhaust as to alleged actions that occurred more than three months earlier in “late September 2015 or early October 2015” and - because more than one year since the alleged unlawful acts has passed - Plaintiff cannot do so now. Cal. Gov’t Code § 12960(d). Thus, references to claims that occurred in 2015 are barred by the statute of limitations and should be stricken.29 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528-29 (9th Cir.1993) (affirming striking of time-barred allegations as such “created serious risks of prejudice [], delay, and confusion of the issues ... unwarranted and prejudicial inferences … [and] unnecessary complicat[ions].”); Tounget v. City of Hemet, 2009 WL 536835, *13 (C.D. Cal. Feb. 24, 2009) (striking time-barred allegations). And, though Plaintiff may claim otherwise in an attempt to correct his exhaustion error, the 2015 allegations have no relevance to the 2016 Disability Discrimination, Failure to Accommodate, Failure to Engage in an Interactive Process, Retaliation, or Failure to Maintain a Workplace Free From Discrimination and Retaliation claims. Rather, the 2015 allegations relate to a wholly separate alleged (i) workplace-related injury, (ii) accommodations request that spurred therefrom, and (iii) subsequent adverse employment action, namely a decrease in hours. In all, Plaintiff failed to timely exhaust his administrative remedies as to the 2015 allegations pled in the FAC, such that they are outside of the statute of limitations. And, these allegations have no bearing on the claims that occurred in or after January 2016. Thus, these allegations should be stricken. IV. CONCLUSION For each and all of the foregoing reasons, the Wal-Mart Defendant respectfully requests that their Motion to Dismiss/Strike Plaintiff’s FAC be granted in its entirety. 29 Specifically, Defendants move to strike the following allegations for claims outside of the statute of limitations: ¶¶ 46-56, Page 20, lines 24-25 (“second”); Page 21, line 6 (“second”); Page 21, line15 (“second”); Page 22, line 2 (“second”). Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 36 of 37 Page ID #:379 26 WAL-MART DEFENDANTS’ MOTION TO DISMISS/STRIKE FAC LA 133066354 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 DATED: May 24, 2017 GREENBERG TRAURIG, LLP By /s/ Mark D. Kemple Mark D. Kemple Attorneys for Defendants Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. Case 5:17-cv-00967-R-KK Document 11 Filed 05/24/17 Page 37 of 37 Page ID #:380 [PROPOSED] ORDER RE. MOTION TO DISMISS/STRIKE FAC LA 133064304 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP MARK D. KEMPLE (SBN 145219) ASHLEY FARRELL PICKETT (SBN 271825) 1840 Century Park East, Suite 1900 Los Angeles, California 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 Email: kemplem@gtlaw.com Email: farrellpicketta@gtlaw.com Attorneys for Defendants WAL-MART STORES, INC. and WAL-MART ASSOCIATES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KRIS KENNY, Plaintiff, vs. WAL-MART STORES, INC., a Delaware Corporation; WAL-MART ASSOCIATED, INC., a Delaware Corporation; US HEALTHWORKS MEDICAL GROUP, a California Corporation; and DOES 1 through 100, Inclusive, Defendants. CASE NO. 5:17-cv-00967-R-KK [PROPOSED] ORDER RE: DEFENDANTS WAL-MART ASSOCIATES, INC. AND WAL- MART STORES, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT AND REQUEST FOR PUNITIVE DAMAGES AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT [FED. R. CIV. P. 12(b)(6), 12(f)] Date: July 17, 2017 Time: 10:00 a.m. Dept.: 880 Judge: Hon. Manuel L. Real Action Filed: January 13, 2017 Removed: May 17, 2017 Case 5:17-cv-00967-R-KK Document 11-1 Filed 05/24/17 Page 1 of 2 Page ID #:381 1 [PROPOSED] ORDER RE. MOTION TO DISMISS/STRIKE FAC LA 133064304 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 Court, having considered Defendants Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. (hereafter “Defendants”) Motion to Dismiss/Strike Plaintiff’s First Amended Complaint (“FAC”) and for GOOD CAUSE shown, GRANTS Defendants’ Motion. It is hereby ORDERED that: (1) All causes of action in Plaintiff’s FAC (Counts 1-11) are dismissed pursuant to FRCP Rule 12(b)(6) for failure to state a claim and for uncertainty, and (2) Counts 1, 7, 8, 9, 10, and 11 are further dismissed with prejudice pursuant to FRCP Rule 12(b)(6) on the separate grounds that Plaintiff failed to exhaust administrative remedies as to these claims, and - because more than one year since the alleged unlawful acts has passed - cannot seek to exhaust now such that amendment would be futile; and (3) Plaintiff’s claim for punitive damages is dismissed pursuant to FRCP Rule 12(b)(6) for failure to state a claim and for uncertainty; and (4) References to alleged claims that occurred in 2015, and thus (i) are outside of the statute of limitations, and (ii) have no bearing on the claims at issue, are stricken in their entirety pursuant to FRCP Rule 12(f).1 Dated: _____________, 2017 HON. MANUEL L. REAL 1 Specifically, the following allegations that relate to alleged claims outside of the statute of limitations: ¶¶ 46-56; Page 20, lines 24-25 (“second”); Page 21, line 6 (“second”); Page 21, line15 (“second”); Page 22, line 2 (“second”) are hereby stricken. Case 5:17-cv-00967-R-KK Document 11-1 Filed 05/24/17 Page 2 of 2 Page ID #:382