4848-7938-6947.2 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 R. Lindsay (SBN 110845) mlindsay@nixonpeabody.com Alicia C. Anderson (SBN 260937) acanderson@nixonpeabody.com Erin J. Holyoke (SBN 288137) eholyoke@nixonpeabody.com NIXON PEABODY LLP 300 South Grand Ave., Suite 4100 Los Angeles, CA 90071 Tel: 213-629-6000 Fax: 213-629-6001 Attorneys for Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VANESSA MACIAS and EVELYN BURGOS, Plaintiffs, vs. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a California Corporation; and DOES 1 through 50, inclusive, Defendants. Case No. 2:17-cv-01160-GW (KSx) DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S SECOND AND FOURTH CAUSES OF ACTION AND TO DISMISS AND/OR STRIKE PREEMPTED ALLEGATIONS IN PLAINTIFF’S FIRST, SECOND, THIRD and FIFTH CAUSES OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: March 27, 2017 Time: 8:30 a.m. Courtroom: 9D Honorable George H. Wu [Filed Concurrently with Proposed Order] Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 1 of 22 Page ID #:108 4848-7938-6947.2 1 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 PLAINTIFFS VANESSA MACIAS AND EVELYN BURGOS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 27, 2017 at 8:30 a.m., or as soon thereafter as the matter may be heard, by the Honorable George H. Wu in Courtroom 9D, of the United States District Court in and for the Central District of California, located at 350 West 1st Street, Los Angeles, CA 90012, defendant Southern California Permanente Medical Group (“SCPMG”) will and hereby does respectfully move this Court, pursuant to Federal Rule of Civil Procedure (“FRCP”)12(b)(6), for an order dismissing with prejudice the Second and Fourth Causes of Action of the Complaint of plaintiffs Vanessa Macias and Evelyn Burgos (collectively “Plaintiffs”) because Plaintiffs fail to state a claims upon which relief can be granted. SCPMG will and hereby does further move this Court, pursuant to FRCP 12(b)(6) and/or 12(f), for an order dismissing and/or striking specified claims supporting Plaintiffs’ First, Second, Third and Fifth Causes of Action to the extent that the basis of said claims are preempted, in whole or in part, and Plaintiffs are therefore unable to state a claim upon which relief can be granted. MOTION TO DISMISS SCPMG moves the Court, pursuant to FRCP 12(b)(6), for an order dismissing Plaintiffs’ Second and Fourth Causes of Action on the following grounds: (1) Plaintiffs’ Second Cause of Action, a state law claim for violation of California Labor Code section 6310, fails to plausibly allege facts supporting Plaintiffs’ conclusory allegation that Plaintiffs’ made a complaint regarding a health, safety and/or working condition, a required element to state such a claim; and (2) Plaintiffs’ Fourth Cause of Action, a claim for Breach of Contract, is preempted by Labor Management Relations Act (“LMRA”) Section 301 and is barred by the applicable statute of limitations. Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 2 of 22 Page ID #:109 4848-7938-6947.2 2 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 MOTION TO DISMISS AND/OR STRIKE Pursuant to FRCP 12(b)(6) and/or FRCP 12(f), SCPMG moves the Court for an order to dismiss and/or strike certain claims included within Plaintiffs’ First Cause of Action for Violation of California Labor Code section 1102.5, Second Cause of Action for Violation of California Labor Code section 6310, and Third Cause of Action for Wrongful Termination in Violation of Public Policy, on the ground that the basis of said claims are preempted, at least in part, by the doctrine of preemption set forth in San Diego Bldg. Trades Council v. Garmon. Specifically, Plaintiffs allege SCPMG retaliated against and wrongfully terminated them, in part, for making complaints about their working conditions to the National Labor Relations Board (“NLRB”), participating in an investigation being conducted by the NLRB, and engaging in other forms of protected concerted activity under the National Labor Relations Act (“NLRA”). To the extent that Plaintiffs’ causes of action for retaliation and wrongful termination are predicated on conduct actually or arguably protected by Section 7 or prohibited by Section 8 of the NLRA, Plaintiffs’ claims are barred because they fall within the exclusive jurisdiction of the NLRB. Accordingly, SCPMG respectfully requests that the Court enter an order dismissing Plaintiffs’ First, Second and Third causes of action and/or striking each of the following allegations from the Complaint as preempted and immaterial: Compl., p. 4, ¶ 15: “On February 6, 2014, David Mallon, National United Healthcare Representative and Organizer emailed Supervisor Cabello and stated he wanted to set up a meeting ‘to discuss…the inequities two of your employees perceive in their hours. They are Evelyn Burgos and Vanessa Macias.’” Compl., p. 4, ¶ 16: “On February 20, 2014, Mr. Mallon, Plaintiff Macias and Supervisor Cabello met to discuss the perceived inequities as to Ms. Macias, specifically regarding Supervisor Cabello scheduling her for only 32 hours per week, rather than 40.” Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 3 of 22 Page ID #:110 4848-7938-6947.2 3 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 Compl., p. 4, ¶ 17: “On April 22, 2014, Plaintiff Macias sent an email to other employees regarding ‘the CA Labor Law as it pertains to time off.’ Plaintiff Macias alerted her fellow union members, including Plaintiff Burgos, that ‘…we do not have to take ETO for such things as doctors appointments, etc.’” Compl., p. 4, ¶ 19: “On July 14, 2014, a Charge was filed with the National Labor Relations Board (NLRB) against Kaiser by the National Union of Healthcare Workers, with Case Number 21-CA-132788. Kaiser was provided notice of the Charge on July 16, 2014, when the NLRB sent Kaiser the Initial Letter to Charging Party.” Compl., p. 4, ¶ 20: “Plaintiffs were contacted by the NLRB in July and August 2014, and were requested to provide statements regarding the allegations in Case Number 21-CA-132788. Both Plaintiffs Macias and Burgos provided statements to the NLRB. The final versions of these statements were signed on September 4, 2014.” Compl., p. 6, line 11 through line 12: “working conditions” and “to a Federal Agency, the National Labor Relations Board (“NLRB”).” Compl., p. 6, line 16: “and to the NLRB.” Compl., p. 6, line 24: “and to a governmental entity.” Compl., p. 6, ¶ 31: “Plaintiffs are informed and believes and thereon alleges that because of their providing and testifying before the NLRB, which was conducting an investigation, hearing or inquiry into Kaiser, Plaintiffs were discharged from their employment and/or otherwise retaliated and discriminated against by Defendant.” Compl., p. 7, ¶ 32: “The retaliation and discrimination included wrongful discipline, termination, and other adverse employment actions including but not limited to a failure to rehire Plaintiffs after they had made said complaints and participated in an investigation being conducted by the NLRB. Defendant further preemptively retaliated against Plaintiffs by terminating their employment just prior their execution of the final witness affidavits prepared by the NLRB based upon Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 4 of 22 Page ID #:111 4848-7938-6947.2 4 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 information provided by Plaintiffs to the NLRB. Preemptive retaliation, and post- termination retaliation, is prohibited by Labor Code § 1102.5.” Compl., p. 8, line 21: “and to a governmental agency, the NLRB.” Compl., p.8, line 24: “and a governmental agency.” Compl., pp. 8 through 9, line 28 through line 1: “and the NLRB and the fact they were providing information to the NLRB resulting in a final affidavit signed in September 2014.” Compl., p. 11, line 1: “to a governmental agency.” Compl., p. 11, line 4: “and for participating in the NLRB investigation of Kaiser.” Furthermore, pursuant to FRCP 12(b)(6) and/or FRCP 12(f), SCPMG moves the Court for an order to dismiss and/or strike Plaintiffs’ Fifth Cause of Action for Violation of California Business and Professions Code Section 17200, on the ground that the basis of said claim is preempted, at least in part, by LMRA section 301and by Garmon, and Plaintiffs otherwise fail to state with sufficient certainty what acts constitute SCPMG’s unlawful business practice or act. As such, Plaintiffs fail to state a claim upon which relief should be granted and should be required to state the basis of their claims with sufficient specificity so that the claim can be understood by Defendant and the Court. SCPMG attempted to meet and confer with Plaintiffs’ counsel pursuant to Local Rule 7-3 on February 13, 2017. SCPMG’s counsel called Plaintiffs’ counsel to discuss the removal of the case and the anticipated Motion to Dismiss and/or Motion to Strike but was unable to reach Plaintiffs’ counsel and instead left a voicemail. Following the voicemail, SCPMG’s counsel sent Plaintiff’s counsel an email regarding the same. // // // Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 5 of 22 Page ID #:112 4848-7938-6947.2 5 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Motion is based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, as well as the pleadings, files and records on file herein, and such other and further evidence and argument as may be permitted by the Court at the hearing on this matter. Dated: February 21, 2017 NIXON PEABODY LLP By:__/s/ Erin Holyoke___________________ Michael Lindsay Alicia Anderson Erin Holyoke Attorneys for Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 6 of 22 Page ID #:113 4848-7938-6947.2 i DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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. STATEMENT OF RELEVANT COMPLAINT ALLEGATIONS ...................... 2 III. LEGAL ARGUMENT .......................................................................................... 3 a. Legal Standard on Motion to Dismiss ......................................................... 3 b. Legal Standard on Motion to Strike ............................................................ 4 c. Plaintiffs’ First, Second and Third Causes of Action of are Barred, In Part, Because They Are Preempted Under the Garmon Doctrine ......................................................................................... 5 d. Plaintiffs’ Fail To State a Claim for Violation of Labor Code Section 6310 ................................................................................................ 8 e. Plaintiffs’ Fourth Cause of Action for Breach of Contract is Preempted by LMRA Section 301 and Barred by the Applicable Statute of Limitations ............................................................... 9 f. To the Extent Plaintiffs’ Rely on Allegations Preempted by Garmon or LMRA Section 301, Their Fifth Cause of Action Fails ........................................................................................................... 11 IV. CONCLUSION ................................................................................................... 12 Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 7 of 22 Page ID #:114 4848-7938-6947.2 ii DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 520 S. Mich. Ave. Assocs. v. Shannon, 2008 U.S. App. LEXIS 25852 (7th Cir. 2008) ..................................................... 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................... 4, 8 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ................................................................................ 4 Belknap v. Hale, 463 U.S. 491 (1983) .............................................................................................. 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................. 4 Cuevas v. SkyWest Airlines, 17 F.Supp.3d 956, 964 (N.D. CA 2014) ........................................................... 8, 9 Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) .............................................................................................. 7 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) .............................................................................. 5 Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003) ............................................................................ 8, 9 Grant v. McDonnell Douglas Corporation, 163 F.3d 1136 (9th Cir. 1998) ............................................................................ 10 Livadas v. Bradshaw, 512 U.S. 107 (1994) .............................................................................................. 6 Mayes v. Kaiser Foundation Hospitals, 917 F.Supp.2d 1074 (E.D. CA 2013) ................................................................... 7 McClain & Co., Inc., 358 NLRB 1070 .................................................................................................... 7 Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 8 of 22 Page ID #:115 4848-7938-6947.2 iii DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 Miller v. AT&T Network Syst., 850 F.2d 543 (9th Cir. 1988) ................................................................................ 9 Moore v. Local Union 569 of the IBEW, 989 F.2d 1534 (9th Cir. 1993) ............................................................................ 10 Newberry v. Pac. Racing Ass’n, 854 F.2d 1142 (9th Cir. 1988) ............................................................................ 10 NLRB v. Griffin, 243 Fed.Appx. 771 (4th Cir. 2007) ...................................................................... 7 NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261 (9th Cir. 1995) .................................................................................. 7 Papasan v. Allain, 478 U.S. 265 (1986) .............................................................................................. 4 Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) .............................................................................. 10 Pareto v. Federal Deposit Insurance Corp., 139 F.3d 696 (9th Cir. 1998) ................................................................................ 2 San Diego Bldg. Trades Council v. Garmon 359 U.S. 236 (1959) ..................................................................................... passim Sidney-vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983) ................................................................................ 5 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) .............................................................................. 4 Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) .............................................................................................. 9 Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993 (9th Cir. 1987) .............................................................................. 10 Zuniga v. United Can Co., 812 F.2d 443 (9th Cir. 1987) .............................................................................. 10 Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 9 of 22 Page ID #:116 4848-7938-6947.2 iv DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 OTHER CASES Cal-Tech Commc’ns, Inc. v. L.A. Cellular Tele. Co., 20 Cal.4th 163 (1999) ......................................................................................... 11 FEDERAL STATUTES 29 U.S.C. § 158(a) ................................................................................................. 5, 6 29 U.S.C. §§ 157 ................................................................................................ 5, 6, 7 29 U.S.C. § 158 .................................................................................................. 5, 6, 7 LMRA § 301 .................................................................................................... passim OTHER STATUTES California Business & Professions Code § 17200 ............................................... 1, 11 California Labor Code § 1102.5 ............................................................................ 1, 5 California Labor Code § 6310 ........................................................................... 1, 8, 9 California Penal Code § 632 ...................................................................................... 2 RULES Federal Rule of Civil Procedure 8(a) ......................................................................... 4 Federal Rules of Civil Procedure 12(b)(6) ................................................................ 3 Federal Rules of Civil Procedure 12(f) ...................................................................... 4 Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 10 of 22 Page ID #:117 4848-7938-6947.2 1 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 This action arises from defendant Southern California Permanente Medical Group’s (“SCPMG”) employment of plaintiffs Vanessa Macias and Evelyn Burgos (collectively “Plaintiffs”). On August 24, 2016, Plaintiffs commenced an action against Kaiser Foundation Hospitals (“KFH”) by filing a complaint in the Superior Court of the State of California, County of Alameda, entitled Vanessa Macias and Evelyn Burgos v. Kaiser Foundation Hospitals, Case No. RG 16828643. On January 19, 2017, the State Court Action was transferred to Los Angeles Superior Court, Case No. LC104945. On January 13, 2017, Plaintiffs filed a Request for Dismissal as to KFH. Plaintiffs also filed an Amendment to Complaint substituting SCPMG for Doe Defendant One. SCPMG removed the action on February 13, 2017, on grounds that some or all of Plaintiffs’ claims were preempted by Section 301 of the Labor Management Relations Act (“LMRA”). Plaintiffs were employed by SCPMG as Heath Educators. In their Complaint, Plaintiffs allege five causes of action: (1) Violation of California Labor Code section 1102.5; (2) Violation of California Labor Code section 6310; (3) Wrongful Termination in Violation of Public Policy; (4) Breach of Contract; and (5) Unfair Business Practices in Violation of Business & Professions Code section 17200. In this Motion, as discussed more fully below, SCPMG moves to dismiss the Second and Fourth Causes of Action on the grounds that Plaintiffs failed to state a cognizable claim upon which relief may be granted. SCPMG separately moves to dismiss and/or strike specified claims alleged in support of the First, Second and Third Causes of Action on the ground that the claims are preempted by the doctrine of preemption set forth in San Diego Bldg. Trades Council v. Garmon. SCPMG also moves to dismiss and/or strike specified claims alleged in support of Plaintiffs’ Fifth Cause of Action on grounds that the claim is based on conduct preempted by Garmon Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 11 of 22 Page ID #:118 4848-7938-6947.2 2 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 Section 301 of the LMRA and Plaintiffs’ otherwise fail to state a cognizable claim upon which relief may be granted. II. STATEMENT OF RELEVANT COMPLAINT ALLEGATIONS1 The Complaint alleges that Plaintiffs were employed by SCPMG as Health Educator IIs. (Compl. ¶ 2.) In their positions as Health Educator IIs, Plaintiffs worked as Wellness Coaches for the Wellness Coaching by Phone Unit of Regional Health Education. (Compl. ¶ 13.) During their employment, Plaintiffs were members of union United Healthcare Workers -West, a division of Service Employees International Union (“SEIU”). (Compl. ¶ 65.) As a result, Plaintiffs’ employment was covered by a collective bargaining agreement (“CBA”). Id. Particularly, the CBA contains Article VII, Section 801, which states that “[N]o employee shall be disciplined or discharged without just cause.” (Compl. ¶ 66.) The Complaint further alleges that during their employment, Plaintiffs raised several concerns regarding their working conditions. First, they allegedly reported to their supervisor their belief that the recording of patient calls without advising the patients was a violation of Penal Code section 632. (Compl. ¶ 14.) Second, in February 2014, they allegedly, through their union representative, raised concerns about alleged inequities they were receiving in regard to their hours. (Compl. ¶¶ 15- 16.) Plaintiff Macias allegedly then sent an email to other employees and fellow union members regarding California labor laws as it pertained to time off. (Compl. ¶17.) In July and August 2014, Plaintiffs allegedly provided statements to the NLRB related to an NLRB charge. (Compl. ¶ 20.) There are no allegations stating or describing the grounds for the NLRB charge or the content of their statements to the NLRB. 1 The statements set forth here are taken from the allegations of Plaintiff’s Complaint. SCPMG generally and specifically denies those allegations, and further deny any liability on the cause of action asserted. However, for purposes of this Motion only, SCPMG accepts the material allegations of the Complaint, together with the reasonable inferences therefrom, as true. Pareto v. Federal Deposit Insurance Corp., 139 F.3d 696, 699 (9th Cir. 1998). Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 12 of 22 Page ID #:119 4848-7938-6947.2 3 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 Plaintiffs further allege that on August 11, 2014, Plaintiff Macias sent a letter to Senior Human Resources Consultant Amy Janeski, wherein Ms. Macias allegedly “recounted the illegal activities, unsafe working conditions, and potential illegal activity” occurring in the department. (Compl. ¶ 21.) Plaintiffs do not attach a copy of the letter to Ms. Janeski or otherwise specify what illegal conduct was complained about. Instead, Plaintiffs merely allege that the letter stated, “[T]here have been issues with management for some time, as you are aware of, in the form of complaints to HR, calls to Compliance so much that an outside consulting firm has come to interview each and every one of us regarding management and the work environment. How many reported confrontations and admissions of fear and retaliation from employees will it take for the management issues to finally be addressed?” (Compl. ¶ 21). There are no further allegations stating or describing the alleged unsafe working conditions or illegal conduct. SCPMG terminated Plaintiffs’ employment on August 25, 2014. (Compl. ¶ 23.) The complaint is silent as to the reason SCPMG gave Plaintiffs for their termination. Although not relevant to this Motion, SCPMG terminated Plaintiffs’ employment for engaging in serious misconduct, including but not limited to repeatedly leaving work prior the end of their scheduled shift and other acts of dishonesty that negatively affected health plan members and the integrity of the Wellness Coaching by Phone program. III. LEGAL ARGUMENT a. Legal Standard on Motion to Dismiss Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the Court to dismiss a claim that fails to state a cause of action upon which relief can be granted. “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 13 of 22 Page ID #:120 4848-7938-6947.2 4 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 Although a court generally must accept allegations as true, this legal tenet “is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). A plaintiff’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). The allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. As the Ninth Circuit more recently held, “factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). To survive a motion to dismiss, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Federal Rule of Civil Procedure 8(a) “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. The rule “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-679. Accordingly, a complaint merely offering “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. b. Legal Standard on Motion to Strike Under Rule 12(f) of the Federal Rules of Civil Procedure, courts have authority to strike allegations from any pleadings that are improper, immaterial, impertinent or scandalous. “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigation spurious issues by dispensing with those prior to trial…” Sidney-vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 14 of 22 Page ID #:121 4848-7938-6947.2 5 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 1983). “Immaterial” matter has “no essential or important relationship to the claim for relief.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) overruled on other grounds. “Impertinent” matter has “no essential or important relationship to the claim for relief.” Id. c. Plaintiffs’ First, Second and Third Causes of Action of are Barred, In Part, Because They Are Preempted Under the Garmon Doctrine Plaintiffs assert that they were retaliated against and wrongfully terminated, in part, for making complaints, through their union representative, about hour inequalities, discussing working conditions with fellow union members, making complaints about working conditions to the NLRB and participating in an investigation being conducted by the NLRB. These claims are the basis, in least in part, for Plaintiffs’ First Cause of Action for Violation of California Labor Code section 1102.5, Second Cause of Action for Violation of California Labor Code section 6310, and Third Cause of Action for Wrongful Termination in Violation of Public Policy. These specific claims are preempted by federal law as explained in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959) and should be stricken from the Complaint accordingly. Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 157, guarantees employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection…” Section 8, 29 U.S.C. § 158, makes it an unfair labor practice for an employer to “interfere with, retrain, or coerce employees in the exercise of the rights guaranteed in” Section 7 and to discrimination against employees to “encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(1), (3). Section 8 also specifically prohibits an employer from “discharge[ing] or otherwise discriminat[ing] against an employee because he has filed charges [with Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 15 of 22 Page ID #:122 4848-7938-6947.2 6 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 NLRB] under this subchapter.” 29 U.S.C. § 158(a)(4). Under the doctrine of preemption articulated in Garmon, the Supreme Court held that the NLRA preempts any cause of action concerning conduct the NLRA actually or arguably prohibits or protects, even if such claims constitute a tort under state law. Garmon, 359 U.S. at 244. “When an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. at 245; Belknap v. Hale, 463 U.S. 491, 498 (1983). This preemption, known as Garmon preemption, “seeks to prevent conflicts between state…regulation and Congress’s integrated scheme of regulation” under Section 7 and 8 and to “protect the NLRB’s primary jurisdiction.” 520 S. Mich. Ave. Assocs. v. Shannon, 2008 U.S. App. LEXIS 25852 (7th Cir. 2008)(citing Garmon, 359 U.S. at 244-45); Livadas v. Bradshaw, 512 U.S. 107, 117, n. 11 (1994). Plaintiffs’ allegations that SCPMG unlawfully retaliated against them and terminated their employment for making complaints, through their union representative, about hour inequalities; discussing working conditions with fellow union members; making complaints about working conditions to the NLRB and participating in an investigation being conducted by the NLRB are protected concerted activity preempted by the NLRA. (Compl. ¶¶ 15-17, 19, 20, 28-32.) Specifically, Plaintiffs allege that “Defendant discharged Plaintiffs’ employment, and further discriminated against Plaintiffs after Plaintiffs made oral and/or written complaints regarding health, safety and/or working conditions to Defendant, their employer, by and through their agent and employees, and to a Federal Agency, the National Labor Relations Board (“NLRB”).” (Compl. ¶ 28.) Further, Plaintiffs’ allege that “because of their providing information and testifying before the NLRB, which was conducting an investigation, hearing or inquiry into Kaiser, Plaintiffs were discharged from their employment and/or otherwise retaliated and discriminated against by Defendant.” Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 16 of 22 Page ID #:123 4848-7938-6947.2 7 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 (Compl. ¶ 31.) These facts, as alleged, fall squarely within the NLRA; Plaintiffs’ participation in concerted activities - including collectively complaining about their dissatisfaction with working conditions, making complaints together to the NLRB about working conditions and participating in a NLRB proceeding - are protected by Section 7 and any alleged termination or retaliation for engaging in such activity is prohibited by Section 8. Mayes v. Kaiser Foundation Hospitals, 917 F.Supp.2d 1074, 1084 (E.D. CA 2013). Like Mayes, in which an employee’s retaliation claim based on his complaint to management about working conditions (overtime), was protected activity under the NLRA and preempted, here Plaintiffs’ complaint, through their union representative, about pay inequalities is the type of conduct contemplated as protected by Section 7 and is preempted as a basis for their retaliation and wrongful termination claims. Id. at 1084; see also NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 266 (9th Cir. 1995)(an employer who discharges or disciplines employees for exercising their right to engage in protected concerted activities violates the NLRA); McClain & Co., Inc., 358 NLRB 1070 (complaints about equitable distribution of work assignments, favoritism in making assignments, and bringing the matter up in meetings with management). The concerted effort of Plaintiffs’ conduct is further supported by the fact that Plaintiff Macias sent an email to her fellow union members regarding their working conditions. See NLRB v. Griffin, 243 Fed.Appx. 771, 775 (4th Cir. 2007)(three employees coming together to complain about working conditions is a concerted protected activity). Similarly, complaints made directly to the NLRB about working conditions and participating in NLRB proceedings are also protected activities and preempted. Eastex, Inc. v. NLRB, 437 U.S. 556, 565-567 (1978)(the mutual aid or protection clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums). Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 17 of 22 Page ID #:124 4848-7938-6947.2 8 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 Thus, to the extent that Plaintiffs base their retaliation and wrongful termination claims on any conduct protected by or prohibited by the NLRA, the NLRB has exclusive jurisdiction over those claims making them immaterial in this instance. As such, the claims should be stricken. d. Plaintiffs’ Fail To State a Claim for Violation of Labor Code Section 6310 Plaintiffs base their Second Cause of Action on the conclusion that their employment was terminated in retaliation for making an “oral and/or written complaint regarding health, safety and/or working conditions to SCPMG, their employer, by and through their agents and employees, and to a governmental agency, the NLRB.” (Compl. ¶ 42.) Plaintiffs’ claim fails because they fail to allege facts sufficient to demonstrate the necessary elements of the claim. Rather, Plaintiffs’ allegations are mere conclusory statements and a recital of the legal elements, and as such are wholly inadequate. Iqbal, 552 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim). 2 To sufficiently state a claim for a violation of California Labor Code section 6310, Plaintiffs must each allege: (1) that they made a workplace health or safety complaint to their employer or a government agency; (2) that SCPMG subjected Plaintiffs to an adverse employment action; and (3) there is a causal link between the adverse employment action and the protected activity. Cuevas v. SkyWest Airlines, 17 F.Supp.3d 956, 964 (N.D. CA 2014); see also Freund v. Nycomed Amersham, 347 F.3d 2 In Iqbal, the Supreme Court established two principles for determining whether allegations are sufficient to survive a motion to dismiss. First, courts should identify the allegations in the complaint that are not entitled to deference “because they are no more than conclusions.” Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, courts should consider any factual allegations in the complaint “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. Under these principles, plaintiffs fail to state a claim once the pure legal conclusions are filtered out. Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 18 of 22 Page ID #:125 4848-7938-6947.2 9 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 28 752, 759 (9th Cir. 2003).3 Plaintiffs fail to sufficiently plead the first element of the claim-that they engaged in a protected activity. Plaintiffs allege that they made an unidentified “complaint” regarding health, safety and/or working conditions to their employer and the NLRB in September 2014. They do not allege any additional facts as to the content of their complaint. (Compl. ¶ 42.) That is inadequate. A complaint under Section 6310 is only considered protected under the code if the employee made a good faith report of working conditions he or she believed unsafe. Freund, 347 F.3d at 759. At the very least, Plaintiffs are required to plead facts describing the nature of the of the health, safety and working condition they believed was unsafe and allegedly complained about, so that SCPMG and the Court may evaluate whether the complaint was made in good faith and supports a claim for a violation of law. Instead, Plaintiffs made a conclusory statement that the complaint was protected without sufficiently pleading facts to support the assertion. As a result, Plaintiffs claim for violation of California Labor Code section 6310 fails to state a cognizable claim and must be dismissed. e. Plaintiffs’ Fourth Cause of Action for Breach of Contract is Preempted by LMRA Section 301 and Barred by the Applicable Statute of Limitations. Plaintiffs’ cause of action for Breach of Contract, more specifically a cause of action for breach of their CBA, is preempted and barred by the statute of limitations. It is well settled that LMRA Section 301 “creates a federal cause of action for breach of collective bargaining agreements. Federal law governs suits brought for breach of a collective bargaining agreement, even if brought in state court.” Miller v. AT&T Network Syst., 850 F.2d 543, 545 (9th Cir. 1988); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456 (1957). In enacting Section 301, Congress intended that 3 Courts considering Section 6310 claims have applied the three-part burden-shifting framework set forth by the Supreme Court in McDonnell Douglas v. Green. See Cuevas, 17 F.Supp.3d at 964. Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 19 of 22 Page ID #:126 4848-7938-6947.2 10 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 uniform federal labor law would prevail and as such all state law causes of action which require interpretation of a labor contract’s terms would be preempted under the Section. Id. citing Local 174, Teamsters Union v. Lucas Flour Co., 369 U.S. 95, 104 (1962)(finding preempted a state breach of contract suit based on the collective bargaining agreement). Plaintiffs acknowledge that they were members of a union and that their employment was covered by a CBA. Moreover, Plaintiffs note that “Article VIII, Section 801 of the applicable CBA states that ‘[N]o employee shall be disciplined or discharged without just cause.’” (Compl. ¶ 66.) Based on these facts, Plaintiffs allege that SCPMG breached Article VIII of the CBA by terminating their employment without just cause. (Compl. ¶ 67.) Accordingly, Plaintiffs’ claim against SCPMG for a breach of employee rights guaranteed under the CBA and whose resolution would require interpretation of the terms of the CBA is preempted and deemed a federal claim arising under Section 301 of the LMRA. Id.; 29 U.S.C. §141, et seq., Parrino v. FHP, Inc., 146 F.3d 699, 704, fn. 2 (9th Cir. 1998) (complete preemption “negates state causes of action entirely and recasts them as federal claims”); see Newberry v. Pac. Racing Ass’n, 854 F.2d 1142, 1146 (9th Cir. 1988) (“A suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301.”); Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 1002 (9th Cir. 1987). The statute of limitations in a Section 301 action is six months. Moore v. Local Union 569 of the IBEW, 989 F.2d 1534, 1541 (9th Cir. 1993); Grant v. McDonnell Douglas Corporation, 163 F.3d 1136, 1138 (9th Cir. 1998). Generally, the limitations period accrues “when the employee discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.” Zuniga v. United Can Co., 812 F.2d 443, 448-49 (9th Cir. 1987). Plaintiffs’ Complaint is unambiguous as to when the alleged wrongful conduct occurred-termination-and Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 20 of 22 Page ID #:127 4848-7938-6947.2 11 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 when they knew of the conduct: August 25, 2014. Plaintiffs’ claim is thus time-barred, because Plaintiffs did not assert this claim until they filed the Complaint on August 24, 2016 - two years after all the alleged conduct underlying their claims occurred. Therefore, Plaintiffs claim for breach of contract fails to state a cognizable claim and must be dismissed. f. To the Extent Plaintiffs’ Rely on Allegations Preempted by Garmon or LMRA Section 301, Their Fifth Cause of Action Fails. Plaintiffs’ Fifth Cause of Action for Violation of Business and Professions Code Section 17200 (“UCL”) is based on certain of SCPMG’s purported unlawful business acts and practices. (Compl. ¶ 73.) Plaintiffs’ allegations, however, are unclear and vague as to what constitutes SCPMG’s unlawful business practice or act. (Compl. ¶ 66.) To state a claim under the UCL for an “unlawful” business practice, a plaintiff must assert the violation of another law. Cal-Tech Commc’ns, Inc. v. L.A. Cellular Tele. Co., 20 Cal.4th 163, 180 (1999). Plaintiffs, in a broad stroke, state that “Defendant’s policies and practices of engaging in illegal, unsafe, and/or retaliatory conduct violate California laws including Labor Code sections 200, 201, 203, 210, 216, 1102.5 and 6310, and laws of contract including the obligation to abide by contractual provisions…” (Compl. ¶ 74.) To the extent Plaintiffs’ are relying on business practices related to the CBA, those claims are preempted by LMRA section 301. See supra Section III.e. Similarly, to the extent Plaintiffs are relying on conduct related to complaints made to the NLRB or participation in the NLRB, those claims are preempted by Garmon. See supra Section III.c. Due to the lack of facts and specificity, however, there is no way for the Court or SCPMG to understand the claim. Based on the foregoing, Plaintiff’s Fifth Cause of Action should be dismissed and Plaintiffs should be required to replead with sufficient and certain facts to state a claim for unlawful business practice. Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 21 of 22 Page ID #:128 4848-7938-6947.2 12 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 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 IV. CONCLUSION For the foregoing reasons, SCPMG respectfully requests that the Court dismiss the Second and Fourth Causes of Action for failure to state a cognizable claim. SCPMG further requests that the Court dismiss and/or strike specified claims supporting Plaintiffs’ First, Second, Third and Fifth Causes of Action to the extent that the basis of said claims are preempted, in whole or in part, and Plaintiffs are therefore unable to state a claim upon which relief can be granted. Dated: February 21, 2017 NIXON PEABODY LLP By:__/s/ Erin Holyoke___________________ Michael Lindsay Alicia Anderson Erin Holyoke Attorneys for Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 22 of 22 Page ID #:129 4823-9691-3219.1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AND FOURTH CAUSES OF ACTION AND TO DISMISS AND/OR STRIKE PREEMPTED ALLEGATIONS IN PLAINTIFF’S FIRST, SECOND, THIRD and FIFTH CAUSES OF ACTION 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 R. Lindsay (SBN 110845) mlindsay@nixonpeabody.com Alicia C. Anderson (SBN 260937) acanderson@nixonpeabody.com Erin J. Holyoke (SBN 288137) eholyoke@nixonpeabody.com NIXON PEABODY LLP 300 South Grand Ave., Suite 4100 Los Angeles, CA 90071 Tel: 213-629-6000 Fax: 213-629-6001 Attorneys for Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA VANESSA MACIAS and EVELYN BURGOS, Plaintiffs, vs. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a California Corporation; and DOES 1 through 50, inclusive, Defendants. Case No. 2:17-cv-01160-GW (KSx) [PROPOSED] ORDER GRANTING DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S MOTION TO DISMISS PLAINTIFF’S SECOND AND FOURTH CAUSES OF ACTION AND TO DISMISS AND/OR STRIKE PREEMPTED ALLEGATIONS IN PLAINTIFF’S FIRST, SECOND, THIRD and FIFTH CAUSES OF ACTION Date: March 27, 2017 Time: 8:30 a.m. Courtroom: 9D Honorable George H. Wu [Filed Concurrently with Proposed Order] Case 2:17-cv-01160-GW-KS Document 9-1 Filed 02/21/17 Page 1 of 4 Page ID #:130 4823-9691-3219.1 4823-9691-3219.1 1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AND FOURTH CAUSES OF ACTION AND TO DISMISS AND/OR STRIKE PREEMPTED ALLEGATIONS IN PLAINTIFF’S FIRST, SECOND, THIRD and FIFTH CAUSES OF ACTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion of defendant Southern California Permanente Medical Group (“SCPMG”) to dismiss with prejudice Plaintiffs’ Second and Fourth Causes of Action of the Complaint and to dismiss and/or strike specified claims supporting Plaintiffs’ First, Second, Third and Fifth Causes of Action came on for hearing on March 27, 2017 at 8:30 a.m., in Courtroom 9D of the United States District Court in and for the Central District of California, located at 350 West 1st Street, Los Angeles, CA 90012. The Court being fully advised in the matter, GRANTS the Motion. ACCORDINGLY, IT IS ORDERED THAT: 1. Plaintiffs’ Second Cause of Action for Violation of California Labor Code section 6310, fails to state a claim and is dismissed [with or without] prejudice; 2. Plaintiffs’ Fourth Cause of Action for Breach of Contract, is preempted by Labor Management Relations Act Section 301 and is barred by the applicable statute of limitations and is dismissed [with or without] prejudice; 3. [Plaintiffs’ First, Second, and Third Causes of Action are based on allegations that are preempted by Garmon and are dismissed [with or without] prejudice ;] [and/or] 4. [The following allegations are preempted and immaterial and on that basis are stricken from the Complaint: • Compl., p. 4, ¶ 15: “On February 6, 2014, David Mallon, National United Healthcare Representative and Organizer emailed Supervisor Cabello and stated he wanted to set up a meeting ‘to discuss…the inequities two of your employees perceive in their hours. They are Evelyn Burgos and Vanessa Macias.’” • Compl., p. 4, ¶ 16: “On February 20, 2014, Mr. Mallon, Plaintiff Macias and Supervisor Cabello met to discuss the perceived inequities as to Ms. Case 2:17-cv-01160-GW-KS Document 9-1 Filed 02/21/17 Page 2 of 4 Page ID #:131 4823-9691-3219.1 2 [PROPOSED] ORDER GRANTING DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S MOTION TO DISMISS PLAINTIFF’S SECOND AND FOURTH CAUSES OF ACTION AND TO DISMISS AND/OR STRIKE PREEMPTED ALLEGATIONS IN PLAINTIFF’S FIRST, SECOND, THIRD and FIFTH CAUSES OF ACTION 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 Macias, specifically regarding Supervisor Cabello scheduling her for only 32 hours per week, rather than 40.” • Compl., p. 4, ¶ 17: “On April 22, 2014, Plaintiff Macias sent an email to other employees regarding ‘the CA Labor Law as it pertains to time off.’ Plaintiff Macias alerted her fellow union members, including Plaintiff Burgos, that ‘…we do not have to take ETO for such things as doctors appointments, etc.’” • Compl., p. 4, ¶ 19: “On July 14, 2014, a Charge was filed with the National Labor Relations Board (NLRB) against Kaiser by the National Union of Healthcare Workers, with Case Number 21-CA-132788. Kaiser was provided notice of the Charge on July 16, 2014, when the NLRB sent Kaiser the Initial Letter to Charging Party.” • Compl., p. 4, ¶ 20: “Plaintiffs were contacted by the NLRB in July and August 2014, and were requested to provide statements regarding the allegations in Case Number 21-CA-132788. Both Plaintiffs Macias and Burgos provided statements to the NLRB. The final versions of these statements were signed on September 4, 2014.” • Compl., p. 6, line 11 through line 12: “working conditions” and “to a Federal Agency, the National Labor Relations Board (“NLRB”).” • Compl., p. 6, line 16: “and to the NLRB.” • Compl., p. 6, line 24: “and to a governmental entity.” • Compl., p. 6, ¶ 31: “Plaintiffs are informed and believes and thereon alleges that because of their providing and testifying before the NLRB, which was conducting an investigation, hearing or inquiry into Kaiser, Plaintiffs were discharged from their employment and/or otherwise retaliated and discriminated against by Defendant.” Case 2:17-cv-01160-GW-KS Document 9-1 Filed 02/21/17 Page 3 of 4 Page ID #:132 4823-9691-3219.1 3 [PROPOSED] ORDER GRANTING DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S MOTION TO DISMISS PLAINTIFF’S SECOND AND FOURTH CAUSES OF ACTION AND TO DISMISS AND/OR STRIKE PREEMPTED ALLEGATIONS IN PLAINTIFF’S FIRST, SECOND, THIRD and FIFTH CAUSES OF ACTION 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 • Compl., p. 7, ¶ 32: “The retaliation and discrimination included wrongful discipline, termination, and other adverse employment actions including but not limited to a failure to rehire Plaintiffs after they had made said complaints and participated in an investigation being conducted by the NLRB. Defendant further preemptively retaliated against Plaintiffs by terminating their employment just prior their execution of the final witness affidavits prepared by the NLRB based upon information provided by Plaintiffs to the NLRB. Preemptive retaliation, and post- termination retaliation, is prohibited by Labor Code § 1102.5.” • Compl., p. 8, line 21: “and to a governmental agency, the NLRB.” • Compl., p.8, line 24: “and a governmental agency.” • Compl., pp. 8 through 9, line 28 through line 1: “and the NLRB and the fact they were providing information to the NLRB resulting in a final affidavit signed in September 2014.” • Compl., p. 11, line 1: “to a governmental agency.” • Compl., p. 11, line 4: “and for participating in the NLRB investigation of Kaiser.”] 5. Plaintiffs’ Fifth Cause of Action for Violation of California Business and Professions Code Section 17200 fails to state a claim and is dismissed [with or without] prejudice; 6. Plaintiffs shall take nothing in this action; and 7. SCPMG shall recover their costs of suit herein. IT IS SO ORDERED. Dated: _______________________________ Honorable George H. Wu United States District Court Case 2:17-cv-01160-GW-KS Document 9-1 Filed 02/21/17 Page 4 of 4 Page ID #:133
