Kymberleigh Newton v. Bank of America et al

NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint Pursuant to Fed. R. Civ. P. 12

C.D. Cal.February 16, 2017

86164195.1 DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) 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 Michael D. Mandel (SBN 216934) Lindsay L. Ryan (SBN 258130) Jared R. Zeidman (SBN 292383) MCGUIREWOODS LLP 1800 Century Park East, 8th Floor Los Angeles, California 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 mmandel@mcguirewoods.com lryan@mcguirewoods.com jzeidman@mcguirewoods.com Attorneys for Defendant Bank of America, N.A. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KYMBERLEIGH NEWTON Plaintiff, vs. BANK OF AMERICA, and DOES 1 through 10, Inclusive, Defendants. CASE NO. 2:16−cv−09581 AB (RAOx) DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) (1) NOTICE OF MOTION AND MOTION (2) MEMORANDUM OF POINTS AND AUTHORITIES Filed Under Separate Cover: (3) [PROPOSED] ORDER Date: March 27, 2017 Time: 10:00 a.m. Ctrm.: 7B Judge: Hon. Andre Birotte, Jr. Case 2:16-cv-09581-AB-RAO Document 18 Filed 02/16/17 Page 1 of 6 Page ID #:119 86164195.1 1 DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) 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 NOTICE OF MOTION AND MOTION TO PLAINTIFF AND HER COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that, on March 27, 2017, at 10:00 a.m., in Courtroom 7B of the United States District Court, Central District of California, located at 350 W. 1st Street, 10th floor, Los Angeles, California 90012, Defendant Bank of America, N.A. (erroneously sued as “Bank of America”) will and hereby does move the above-referenced Court to dismiss Plaintiff’s First Amended Complaint (“FAC”) pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that Plaintiff’s claims fail as a matter of law because they are time-barred and/or neglect to comply with the pleading requirements of Rule 8. Specifically, Plaintiff’s First (and only) Cause of Action for Violation of Cal. Lab. Code § 1102.5 fails to state a claim upon which relief can be granted because it is time-barred pursuant to Code Civ. Proc. § 340(a), which provides for a one-year statute of limitations. This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, the Court’s entire record in this action, and such other evidence and arguments as may be presented at or before this Motion’s hearing. This Motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on December 5, 2016, January 25, 2017, January 27, 2017 and February 7, 2017. DATED: February 16, 2017 MCGUIREWOODS LLP By: /s/ Lindsay L. Ryan Michael D. Mandel Lindsay L. Ryan Jared R. Zeidman Attorneys for Defendant Bank of America, N.A. (erroneously sued as “Bank of America”) Case 2:16-cv-09581-AB-RAO Document 18 Filed 02/16/17 Page 2 of 6 Page ID #:120 86164195.1 2 DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) 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 On or about January 30, 2014, Defendant Bank of America, N.A. (“Defendant” or the “Bank”) terminated the employment of Plaintiff Kymberleigh Newton (“Plaintiff” or “Ms. Newton”). Almost three years later, on September 30, 2016, Plaintiff filed a civil complaint against the Bank in Los Angeles County Superior Court for: (1) Retaliation in violation of Cal. Lab. Code § 1102.5; (2) Race Discrimination under the California Fair Employment and Housing Act (FEHA); and (3) Age Discrimination under FEHA. After the parties met and conferred with respect to the Bank’s anticipated motion to dismiss, Plaintiff filed the operative First Amended Complaint (“FAC”), dismissing her untimely claims for race and age discrimination under the California Fair Employment and Housing Act, Cal. Gov. Code §§ 12940, et seq. The only remaining claim is for alleged retaliation in violation of Cal. Lab. Code § 1102.5. However, Plaintiff’s remaining cause of action is time-barred as well. The only remedy available to an individual plaintiff (as opposed to a government entity) in a civil lawsuit for alleged violation of Cal. Lab. Code § 1102.5 is a penalty. Accordingly, private claims for alleged violation of Section 1102.5 are governed by Cal. Code Civ. Proc. § 340(a), which provides for a one-year statute of limitation. As Plaintiff filed this action nearly three years after her termination, Plaintiff’s claim is barred as a matter of law and must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Based on the foregoing, and as discussed further below, the Court should dismiss Plaintiff’s entire FAC with prejudice. II. STATEMENT OF FACTS A. THE BANK TERMINATES PLAINTIFF’S EMPLOYMENT ON JANUARY 30, 2014. Plaintiff Kymberleigh Newton began working for the Bank as a Collector II in June 2011. See Dkt. #13 (FAC), at ¶ 12. Thereafter, she was promoted to Foreclosure Case 2:16-cv-09581-AB-RAO Document 18 Filed 02/16/17 Page 3 of 6 Page ID #:121 86164195.1 3 DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) 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 Account Specialist, and then to Senior Collector in 2012. Id. at ¶¶ 14, 16. As a Senior Collector, Plaintiff was responsible for helping defaulting homeowners qualify for loan adjustments. Id. at ¶ 16. During this time, Plaintiff claims that she expressed concern to her supervisors on several occasions regarding the Bank’s loan modification process, which she believed to be unethical and illegal. Id. at ¶¶ 15-21. On January 30, 2014, the Bank terminated Plaintiff’s employment. Id. at ¶ 22. Plaintiff alleges that she was falsely accused of money laundering, but believes the Bank actually terminated her employment because she complained about the Bank’s loan modification practices. Id. B. PLAINTIFF WAITS NEARLY THREE YEARS AFTER HER TERMINATION TO FILE A CIVIL LAWSUIT. On September 30, 2016, nearly three years after her termination, Plaintiff filed a Complaint in Los Angeles County Superior Court for the following three causes of action: (1) Violation of Cal. Lab. Code § 1102.5; (2) Race Discrimination under FEHA; and (3) Age Discrimination under FEHA. See Dkt. #1, Exh. A (Complaint). Defendant thereafter removed the Complaint to this Court on December 28, 2016. See Dkt. #1. On February 2, 2017, Plaintiff filed the FAC, dismissing her untimely counts under FEHA, and leaving only one cause of action, for alleged retaliation in violation of Cal. Lab. Code § 1102.5. See Dkt. #13 (FAC). Because the statute of limitations on this remaining claim elapsed a year after termination, it is plainly time-barred and must be dismissed with prejudice. III. LEGAL ARGUMENT A. APPLICABLE LEGAL STANDARDS Dismissal is mandatory when a complaint fails to state facts sufficient to constitute a cause of action. See Fed. R. Civ. P. 12(b)(6); Balisteri v. Pacifica Police Case 2:16-cv-09581-AB-RAO Document 18 Filed 02/16/17 Page 4 of 6 Page ID #:122 86164195.1 4 DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) 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 Dept., 901 F.2d 696, 699 (9th Cir. 1990). To survive and comply with basic pleading standards set forth under Fed. R. Civ. P. 8, the alleged claims must be facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility mandates concrete facts that reasonably imply liability. See Ashcroft v. Iqbal, 556 U.S. 662, 663-65 (2009). This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. It, thus, cannot be satisfied with legal conclusions, which fail to suggest entitlement to relief and might be false. Id.; Twombly, supra, 550 U.S. at 555. Accordingly, Courts may ignore any legal conclusions that are not supported by facts. See Twombly, supra, 550 U.S. at 555-57. Claims that are time-barred based on the allegations of the complaint or other judicially-noticeable evidence fail to state facts sufficient for relief and must be dismissed. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); see also U.S. ex rel. Air Control Technologies, Inc. v. Pre Con Indus. Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (claim may be dismissed as untimely pursuant to a 12(b)(6) motion when “the running of the statute [of limitations] is apparent on the face of the complaint”). As discussed below, the only cause of action in Plaintiff’s FAC is time-barred, thereby commanding dismissal. B. PLAINTIFF’S FIRST CAUSE OF ACTION FOR ALLEGED RETALIATION UNDER CAL. LAB. CODE § 1102.5 IS TIME-BARRED. Plaintiff’s purported First (and only) Cause of Action for alleged retaliation in violation of Cal. Lab. Code § 1102.5 fails because it is barred by the statute of limitations. Section 1102.5(f) provides the exclusive remedy for a cause of action that an individual plaintiff pursues. That remedy is a $10,000 penalty for each proven violation of the statute. Accordingly, any claim for violation of this section is “an action upon a statute for penalty” and, therefore, governed by Cal. Code Civ. Proc. § 340(a), which provides for a one-year statute of limitations. For this reason, several Case 2:16-cv-09581-AB-RAO Document 18 Filed 02/16/17 Page 5 of 6 Page ID #:123 86164195.1 5 DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) 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 courts have applied a one-year statute of limitations to Section 1102.5 claims. See Fenters v. Chevron, 2009 U.S. Dist. LEXIS 115903, *22-23 (E.D. Cal. Dec. 14, 2009); Wilden v. County of Yuba, 2012 U.S. Dist. LEXIS 28067, *4 (E.D. Mar. 1, 2012).1 Here, Plaintiff was terminated on January 30, 2014. See Dkt. #13 (FAC), ¶ 22. Yet Plaintiff delayed filing this action until September 30, 2016, which is twenty months beyond the one-year limitations period. Accordingly, Plaintiff’s First Cause of Action for Violation of Cal. Lab. Code § 1102.5, and the entire FAC, should be dismissed with prejudice. IV. CONCLUSION Plaintiff’s single claim for relief is barred by the applicable statute of limitations. Accordingly, the Bank respectfully requests that the Court dismiss Plaintiff’s FAC, without leave to amend, and with prejudice. DATED: February 16, 2017 MCGUIREWOODS LLP By: /s/ Lindsay L. Ryan Michael D. Mandel Lindsay L. Ryan Jared R. Zeidman Attorneys for Defendant Bank of America, N.A. 1 Although there are no published California Court of Appeal decisions that have addressed the issue, Division Two of the Fourth District recently issued an unpublished decision applying a one-year statute of limitations to such claims. See Terbeek v. Panda Rest. Grp., Inc., 2015 Cal. App. Unpub. LEXIS 2840, *12-13 (Cal. Ct. App. Apr. 22, 2015). Case 2:16-cv-09581-AB-RAO Document 18 Filed 02/16/17 Page 6 of 6 Page ID #:124 [PROPOSED] ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KYMBERLEIGH NEWTON Plaintiff, vs. BANK OF AMERICA, and DOES 1 through 10, Inclusive, Defendants. CASE NO. 2:16−cv−09581 AB(RAOx) [PROPOSED] ORDER GRANTING DEFENDANT BANK OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Date: March 27, 2017 Time: 10:00 a.m. Ctrm.: 7B Judge: Hon. Andre Birotte Case 2:16-cv-09581-AB-RAO Document 18-1 Filed 02/16/17 Page 1 of 2 Page ID #:125 1 [PROPOSED] ORDER 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 [PROPOSED] ORDER The motion of Defendant Bank of America, N.A. (erroneously sued as “Bank of America”) (“Defendant”) to dismiss Plaintiff Kymberleigh Newton’s (“Plaintiff”) First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (the “Motion”) came on regularly for hearing before this Court on March 27, 2017. After full consideration of the written evidence and arguments submitted by the parties and the Court’s records and files in this action, IT IS HEREBY ORDERED AS FOLLOWS: 1. The Motion shall be and hereby is GRANTED. [and] 2. Plaintiff’s purported First Cause of Action for Retaliation under Cal. Lab. Code § 1102.5(c) shall be and hereby is dismissed without leave to amend and with prejudice because the claim is time-barred pursuant to Code Civ. Proc. § 340(a), which provides for a one-year statute of limitations. IT IS SO ORDERED. ___________________ ________________________________ DATE UNITED STATES DISTRICT JUDGE Case 2:16-cv-09581-AB-RAO Document 18-1 Filed 02/16/17 Page 2 of 2 Page ID #:126