1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 SYED NAZIM ALI Case No. 19-cv-00509 NC 11 Plaintiff, ORDER GRANTING 12 v. DEFENDANT’S MOTION TO DISMISS; DISMISSING CASE 13 ROBERT HALF INTERNATIONAL, INC, Re: Dkt. No. 10 14 Defendant. 15 16 In this employment discrimination case, defendant Robert Half International moves 17 to dismiss plaintiff Syed Nazim Ali’s second amended complaint for failure to state a 18 claim under Rule 12(b)(6). Dkt. No. 31. Ali’s Second Amended Complaint brings claims 19 for disability discrimination, failure to accommodate, failure to engage in the interactive 20 process, unlawful retaliation, and violation of business and professional codes. Dkt. No. 21 32. The claims arise out of a work arrangement where Ali alleges that he was not provided 22 with a permanent work location and instead had to relocate to different rooms multiple 23 times per day; he complained about the situation and was terminated. Dkt. No. 31. Ali’s 24 first two complaints in this matter were dismissed with leave to amend. The Court FINDS 25 that the Second Amended Complaint continues to insufficiently state claims and that the 26 deficiencies identified in the Court’s prior orders in this case have not been cured. As 27 such, the motion to dismiss is GRANTED and this case is hereby DISMISSED with 1 I. Background 2 A. Procedural History 3 Mr. Ali filed his original complaint against Robert Half International alleging 4 twelve causes of action stemming out of his twenty-three day employment with the 5 company. Dkt. No. 1. RHI moved to dismiss all twelve claims and this Court granted the 6 motion to dismiss in its entirety, giving Mr. Ali leave to amend the complaint. Dkt. No. 7 21. Mr. Ali filed his First Amended Complaint with the same causes of action as the 8 original. Dkt. No. 23. Again, RHI moved to dismiss the entire FAC. Dkt. No. 24. Again, 9 the Court granted the motion and granted Mr. Ali leave to amend. Dkt. No. 30. 10 Mr. Ali filed a Second Amended Complaint. Dkt. No. 31. In the SAC, Mr. Ali 11 brings seven causes of action: (1) disability discrimination in violation of 42 U.S.C. § 12 12101; (2) failure to accommodate in violation of Cal. Gov. Code § 12940; (3) failure to 13 engage in the interactive process in violation of Cal. Gov. Code § 12940(n); (4) unlawful 14 retaliation under Title VII and FEHA; (5) wrongful termination; (6) violation of business 15 and professional codes; and (7) declaratory relief. Dkt. No. 31. RHI moved to dismiss all 16 the claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 32.1 17 All parties consented to the jurisdiction of a magistrate judge. Dkt. Nos. 3, 13. 18 B. Facts Alleged in the Second Amended Complaint 19 Mr. Ali alleges the following facts in the SAC. Dkt. No. 31. In deciding this 20 motion, the Court takes them all as true. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337 21 (9th Cir. 1996). 22 Ali has over 20 years of experience working in IT and information security. SAC. ¶ 7, 23 1 Along with its motion to dismiss, RHI filed a request for judicial notice about 100 pages 24 of exhibits. These included Mr. Ali’s EEOC charge referenced in the SAC, the court docket in a case filed by Mr. Ali against PayPal, and materials allegedly related to Mr. 25 Ali’s business’s internet presence. Dkt. No. 33. In response, the Court ordered RHI to indicate whether it wished its motion to dismiss to be treated as a motion for summary 26 judgment under Federal Rule of Civil Procedure 56 because RHI presented materials outside the pleadings. Dkt. No. 34. RHI responded that it did not wish the Court to do so. 27 Dkt. No. 35. Therefore, the Court does not take notice of Exhibits 2–4, which relate to Mr. 1 9. He was employed by Robert Half International from February 5 through 28, 2018. Id. 2 ¶¶ 21, 39. He was hired as a Cybersecurity Lead for a project at Paypal, Inc. working on 3 cybersecurity compliance. Id. He was assigned to lead a team and educate new 4 employees. Id. RHI did not provide a permanent work location for Mr. Ali and his team, 5 so they had to move every one or two hours to find a new conference room to work in. Id. 6 ¶ 39. As a result, he suffered stress, anxiety, and elevated high blood pressure. Id. ¶¶ 56– 7 70. He requested to work remotely to avoid this stress. Id. ¶ 71. He made verbal and 8 written requests to both RHI and PayPal to give his team seating assignments. Id. ¶ 52, 9 57. His requests were not accommodated, and Mr. Ali was terminated on February 28, 10 2018. Id. ¶ 58. 11 I. Legal Standard 12 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 13 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 14 motion to dismiss, all allegations of material fact are taken as true and construed in the 15 light most favorable to the non-movant. Cahill, 80 F.3d at 337–38. The Court, however, 16 need not accept as true “allegations that are merely conclusory, unwarranted deductions of 17 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th 18 Cir. 2008). Although a complaint need not allege detailed factual allegations, it must 19 contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible 20 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 21 plausible when it “allows the court to draw the reasonable inference that the defendant is 22 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a court 23 grants a motion to dismiss, leave to amend should be granted unless the pleading could not 24 possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1127 25 (9th Cir. 2000). 26 II. Discussion 27 A. General Problems with the Second Amended Complaint 1 Court found that the complaints were “internally consistent” and “unclear.” Dkt. Nos. 21, 2 30. The Court found that Ali’s first amended complaint failed to cure deficiencies that it 3 identified in the original complaint. Dkt. No. 30. In particular, Ali had repeatedly 4 attributed conduct in the FAC to people and entities who were not defendants in this case, 5 sometimes calling them “defendants” anyway. Id. at 3. Additionally, Ali had not clarified 6 when he was terminated and by whom, describing two separate terminations but not 7 clarifying which formed the basis of his claims. Id. Moreover, Ali “create[d] some 8 confusion” by giving various reasons for his termination throughout the FAC. 9 These problems remain. He still refers to people and entities as “defendants” even 10 though they are not parties to this case. See, e.g., SAC ¶ 27. He describes two 11 terminations, one by PayPal and one by Protiviti, and gives multiple reasons for these 12 terminations (including those employers’ knowledge that he had filed lawsuits against 13 eBay and Gilead Science).
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 SYED NAZIM ALI Case No. 19-cv-00509 NC 11 Plaintiff, ORDER GRANTING 12 v. DEFENDANT’S MOTION TO DISMISS; DISMISSING CASE 13 ROBERT HALF INTERNATIONAL, INC, Re: Dkt. No. 10 14 Defendant. 15 16 In this employment discrimination case, defendant Robert Half International moves 17 to dismiss plaintiff Syed Nazim Ali’s second amended complaint for failure to state a 18 claim under Rule 12(b)(6). Dkt. No. 31. Ali’s Second Amended Complaint brings claims 19 for disability discrimination, failure to accommodate, failure to engage in the interactive 20 process, unlawful retaliation, and violation of business and professional codes. Dkt. No. 21 32. The claims arise out of a work arrangement where Ali alleges that he was not provided 22 with a permanent work location and instead had to relocate to different rooms multiple 23 times per day; he complained about the situation and was terminated. Dkt. No. 31. Ali’s 24 first two complaints in this matter were dismissed with leave to amend. The Court FINDS 25 that the Second Amended Complaint continues to insufficiently state claims and that the 26 deficiencies identified in the Court’s prior orders in this case have not been cured. As 27 such, the motion to dismiss is GRANTED and this case is hereby DISMISSED with 1 I. Background 2 A. Procedural History 3 Mr. Ali filed his original complaint against Robert Half International alleging 4 twelve causes of action stemming out of his twenty-three day employment with the 5 company. Dkt. No. 1. RHI moved to dismiss all twelve claims and this Court granted the 6 motion to dismiss in its entirety, giving Mr. Ali leave to amend the complaint. Dkt. No. 7 21. Mr. Ali filed his First Amended Complaint with the same causes of action as the 8 original. Dkt. No. 23. Again, RHI moved to dismiss the entire FAC. Dkt. No. 24. Again, 9 the Court granted the motion and granted Mr. Ali leave to amend. Dkt. No. 30. 10 Mr. Ali filed a Second Amended Complaint. Dkt. No. 31. In the SAC, Mr. Ali 11 brings seven causes of action: (1) disability discrimination in violation of 42 U.S.C. § 12 12101; (2) failure to accommodate in violation of Cal. Gov. Code § 12940; (3) failure to 13 engage in the interactive process in violation of Cal. Gov. Code § 12940(n); (4) unlawful 14 retaliation under Title VII and FEHA; (5) wrongful termination; (6) violation of business 15 and professional codes; and (7) declaratory relief. Dkt. No. 31. RHI moved to dismiss all 16 the claims under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 32.1 17 All parties consented to the jurisdiction of a magistrate judge. Dkt. Nos. 3, 13. 18 B. Facts Alleged in the Second Amended Complaint 19 Mr. Ali alleges the following facts in the SAC. Dkt. No. 31. In deciding this 20 motion, the Court takes them all as true. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337 21 (9th Cir. 1996). 22 Ali has over 20 years of experience working in IT and information security. SAC. ¶ 7, 23 1 Along with its motion to dismiss, RHI filed a request for judicial notice about 100 pages 24 of exhibits. These included Mr. Ali’s EEOC charge referenced in the SAC, the court docket in a case filed by Mr. Ali against PayPal, and materials allegedly related to Mr. 25 Ali’s business’s internet presence. Dkt. No. 33. In response, the Court ordered RHI to indicate whether it wished its motion to dismiss to be treated as a motion for summary 26 judgment under Federal Rule of Civil Procedure 56 because RHI presented materials outside the pleadings. Dkt. No. 34. RHI responded that it did not wish the Court to do so. 27 Dkt. No. 35. Therefore, the Court does not take notice of Exhibits 2–4, which relate to Mr. 1 9. He was employed by Robert Half International from February 5 through 28, 2018. Id. 2 ¶¶ 21, 39. He was hired as a Cybersecurity Lead for a project at Paypal, Inc. working on 3 cybersecurity compliance. Id. He was assigned to lead a team and educate new 4 employees. Id. RHI did not provide a permanent work location for Mr. Ali and his team, 5 so they had to move every one or two hours to find a new conference room to work in. Id. 6 ¶ 39. As a result, he suffered stress, anxiety, and elevated high blood pressure. Id. ¶¶ 56– 7 70. He requested to work remotely to avoid this stress. Id. ¶ 71. He made verbal and 8 written requests to both RHI and PayPal to give his team seating assignments. Id. ¶ 52, 9 57. His requests were not accommodated, and Mr. Ali was terminated on February 28, 10 2018. Id. ¶ 58. 11 I. Legal Standard 12 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 13 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 14 motion to dismiss, all allegations of material fact are taken as true and construed in the 15 light most favorable to the non-movant. Cahill, 80 F.3d at 337–38. The Court, however, 16 need not accept as true “allegations that are merely conclusory, unwarranted deductions of 17 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th 18 Cir. 2008). Although a complaint need not allege detailed factual allegations, it must 19 contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible 20 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially 21 plausible when it “allows the court to draw the reasonable inference that the defendant is 22 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a court 23 grants a motion to dismiss, leave to amend should be granted unless the pleading could not 24 possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1127 25 (9th Cir. 2000). 26 II. Discussion 27 A. General Problems with the Second Amended Complaint 1 Court found that the complaints were “internally consistent” and “unclear.” Dkt. Nos. 21, 2 30. The Court found that Ali’s first amended complaint failed to cure deficiencies that it 3 identified in the original complaint. Dkt. No. 30. In particular, Ali had repeatedly 4 attributed conduct in the FAC to people and entities who were not defendants in this case, 5 sometimes calling them “defendants” anyway. Id. at 3. Additionally, Ali had not clarified 6 when he was terminated and by whom, describing two separate terminations but not 7 clarifying which formed the basis of his claims. Id. Moreover, Ali “create[d] some 8 confusion” by giving various reasons for his termination throughout the FAC. 9 These problems remain. He still refers to people and entities as “defendants” even 10 though they are not parties to this case. See, e.g., SAC ¶ 27. He describes two 11 terminations, one by PayPal and one by Protiviti, and gives multiple reasons for these 12 terminations (including those employers’ knowledge that he had filed lawsuits against 13 eBay and Gilead Science). SAC ¶ 52, 57, 58, 70. 14 There are also new problems with the SAC. Now, Ali adds another company— 15 Protiviti, which he calls a “subsidiary service company” of RHI—to the complaint for the 16 first time. SAC ¶ 3. Ali attaches as exhibits to the SAC a Wikipedia page describing 17 Protiviti and what appears to be a screenshot from another website, perhaps Protiviti’s 18 website, without explanation. SAC Ex. K. Throughout the SAC, Ali seems to imply that 19 he was employed by Protiviti, rather than RHI. See, e.g., SAC ¶¶ 16, 68. He refers to 20 individuals who he previously alleged were employees of RHI as employees of Protiviti, 21 including the person who terminated him. SAC ¶ 16. However, he also attaches as 22 exhibits to the SAC documents suggesting otherwise: a “Notice to Employee” that says 23 that “Robert Half will be your sole employer” and paystubs that show that Ali was paid by 24 RHI. SAC Exs. D, F. As a result, the Court cannot determine who Ali alleges was his 25 employer. This significant problem undermines the entire SAC. 26 B. Mr. Ali’s Causes of Action 27 Mr. Ali brings seven causes of action in the SAC: (1) disability discrimination in 1 § 12940; (3) failure to engage in the interactive process in violation of Cal. Gov. Code § 2 12940(n); (4) unlawful retaliation under Title VII and FEHA; (5) wrongful termination; (6) 3 violation of business and professional codes; and (7) declaratory relief. Dkt. No. 31. The 4 sixth and seventh causes of action are derivative of the first five. 5 1. Disability Discrimination 6 To state a claim for disability discrimination under the Americans with Disabilities 7 Act, a plaintiff must allege that (1) he is disabled under the meaning of the statute; (2) he is 8 a qualified individual with a disability; and (3) he suffered an adverse employment action 9 because of his disability. Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 10 2001); 42 U.S.C. § 12112(a). The ADA defines disability as “a physical or mental 11 impairment that substantially limits one or more . . . major life activities.” 42 U.S.C. § 12 12102(1). A plaintiff must allege his disability with specificity and additionally allege 13 which major life activities this disability limits to state a claim under the ADA. Alejandro 14 v. ST Micro Electronics, Inc., 129 F.Supp.3d 898, 907–08 (N.D. Cal. 2015). 15 i. Whether Mr. Ali is Disabled 16 Previously, the Court found that Mr. Ali’s original complaint had not alleged 17 sufficient facts to show that he had a disability. Dkt. No. 20 at 4. The FAC added detail, 18 and these details remain in the SAC. Ali alleges that he “has a chronic history of physical 19 medical conditions,” including “high blood pressure, a cardiovascular condition, stress and 20 anxiety, and severe depression” as well as “both joint knee, movements, locking, stiffness, 21 and pain and itching and numbness.” SAC ¶¶ 71, 72. The SAC obliquely implies, though 22 does not explicitly state, that these issues limit his major life activities of “walking, 23 standing, lifting, bending, speaking, breathing, thinking, concentrating, communication, 24 and working, sleeping.” SAC ¶ 80. 25 However, Mr. Ali attaches exhibits to the SAC that do not support this claim of 26 disability. He includes medical records and doctor’s notes from a time period prior to the 27 dates of this case (December 2016 through March 2017), and more beginning after that 1 the records he includes include the time period relevant to the SAC. Thus it is not clear 2 that Mr. Ali has alleged that he was disabled during the time that he worked for and was 3 terminated by RHI. 4 Because he does not allege sufficient facts alleging that his disabilities limit major 5 life activities and because his medical evidence does not include the time period relevant to 6 this case, the Court finds that Mr. Ali has not sufficiently pleaded that he was disabled 7 under the meaning of the statute. 8 ii. Whether Mr. Ali is a Qualified Individual 9 A “qualified individual” under the ADA is an individual “with a disability who, 10 with or without reasonable accommodation, can perform the essential functions of the 11 employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); 29 12 C.F.R. § 1630.2(m). The SAC does not include any facts to support Mr. Ali’s conclusory 13 allegation that he is a qualified individual under the ADA. Ali states that he “is a qualified 14 professional worker, covered under the” ADA and that he “has qualified disabilities.” 15 SAC ¶¶ 76–80. He does not plead any facts about the essential functions of his job, but 16 makes the conclusion that he “was able to perform the essential job duties.” SAC ¶ 112. 17 These conclusory statements are insufficient to identify the essential functions of the role 18 or to show that he was able to perform them. The Court finds that Mr. Ali has not 19 sufficiently pleaded that he was a qualified individual under the ADA. 20 iii. Whether Mr. Ali Suffered an Adverse Employment Action Because of 21 his Disability 22 In the Court’s order granting the motion to dismiss the First Amended Complaint, 23 the Court found that Mr. Ali had failed to plead that RHI had discriminated against him. 24 Dkt. No. 30 at 4. Rather than allege conduct by RHI, Ali had alleged that he was 25 terminated by PayPal via its manager Tim O’Brien. FAC ¶ 56. Now, Ali alleges that he 26 was terminated by Gary Leach, who he identifies as “VP/Director of Protiviti.” SAC ¶ 69. 27 As the Court discussed previously, it is unclear whether Mr. Ali alleges he worked for RHI 1 has not alleged facts to show that RHI should be liable for Protiviti’s actions. 2 But even if RHI is liable for Protiviti’s conduct, the SAC does not sufficiently 3 allege that Protiviti’s adverse employment action—Ali’s termination—was because of his 4 disability. As in his first two complaints, Ali also attributes his termination to his 5 employer’s knowledge of his other litigation. SAC ¶ 130 (“On and about February 19, 6 2018, Gary Leach, Vice President of the Protiviti-Cybersecurity Services, was come to 7 know about the plaintiff pending litigation . . . which were exposed on consumer 8 background screening report and has retaliated against the plaintiff terminating the 9 employment at no good cause.”). For the third time, Ali fails to plausibly allege that he 10 suffered an adverse employment action because of his disability. 11 In sum, the Court FINDS that Mr. Ali has not stated a claim for disability 12 discrimination and this claim is hereby DISMISSED. The Court further finds that another 13 opportunity to amend the complaint would be futile, and therefore does not grant leave to 14 amend. 15 2. Failure to Accommodate 16 The elements of a claim for failure to accommodate under FEHA are (1) the 17 plaintiff has a disability covered by FEHA, (2) the plaintiff is a qualified individual, and 18 (3) the employer failed to reasonably accommodate the plaintiff’s disability. Taylor v. 19 Trees, Inc., 58 F. Supp. 3d 1092, 1111 (E.D. Cal. Nov. 5, 2014). 20 As the Court discussed above, Ali’s allegations regarding his disability are 21 inconsistent and his attached medical exhibits do not cover the time period that he worked 22 for RHI. Furthermore, the Court has found that Ali failed to plead that he was a qualified 23 individual under FEHA. Ali’s allegations about accommodations are also inconsistent. He 24 alleges that he requested but was not provided with a permanent work location, but he 25 attaches emails to the SAC wherein he only requests a projector and RHI offers to rent a 26 projector for five months for the PayPal project. SAC ¶ 39, Ex. J. In addition, the Court 27 remains unsure whether Ali alleges that he worked for the defendant, RHI, or for Protiviti, 1 In the face of these inconsistencies and factual deficiencies, Ali’s claim for failure 2 to accommodate under FEHA fails and this claim is hereby DISMISSED. The Court 3 further finds that another opportunity to amend the complaint would be futile, and 4 therefore does not grant leave to amend. 5 3. Failure to Engage in Interactive Process 6 A claim for failure to engage in an interactive process under FEHA requires 7 pleading that an employer failed “to engage in a timely, good faith, interactive process 8 with the employee or applicant to determine effective reasonable accommodations, if any, 9 in response to a request for reasonable accommodation by an employee or applicant with a 10 known physical or mental disability or known medical condition.” Cal. Gov’t Code § 11 12940(n). The Court has found that Ali has not sufficiently pleaded that he was disabled 12 or was a qualified individual under FEHA. Moreover, the SAC’s lack of clarity about who 13 Ali identifies as his employer during this time period causes this claim to fail. As such, 14 this claim is hereby DISMISSED. The Court further finds that another opportunity to 15 amend the complaint would be futile, and therefore does not grant leave to amend. 16 4. Unlawful Retaliation 17 A claim for retaliation under FEHA or Title VII requires that the plaintiff plead (1) 18 engagement in a protected activity, (2) adverse employment action, and (3) a causal link 19 between the two. Miller v. Dep’t of Corr., 36 Cal. 4th 446, 472 (Cal. 2004); Villiarimo v. 20 Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). It is unclear from the SAC 21 whether Ali alleges he was terminated in retaliation for his alleged disability or for his 22 lawsuits against eBay and Gilead; the SAC suggests both motivations for his termination. 23 SAC ¶¶ 128–131. As to the disability motive, the Court has already dismissed Ali’s claims 24 for disability discrimination and failure to accommodate because Ali has insufficiently 25 pled his disability. As to the other lawsuits, the Court finds that the SAC does not 26 sufficiently allege that the person responsible for his termination was aware of that 27 pending litigation. To that end, the SAC only alleges that “[i]t is the plaintiff further belief 1 employment related lawsuits pending in Federal Court” and alleges that this information 2 came from a background report. The SAC dose not plead facts to suggest that this 3 information motivated anyone deciding upon Mr. Ali’s termination. A simple conclusory 4 allegation is not enough. The SAC fails to state a claim for unlawful retaliation and this 5 claim is hereby DISMISSED. The Court further finds that another opportunity to amend 6 the complaint would be futile, and therefore does not grant leave to amend. 7 5. Wrongful Termination 8 A claim for wrongful termination must allege (1) an employee-employer 9 relationship; a termination that: (2) violated public policy and (3) was the legal cause of 10 damages; and (4) the amount and nature of those damages. Ryan v. Sandia Corp., 2016 11 WL 1697946, Case No. 15-cv-4102-CRB, at *5 (N.D. Cal. Apr. 28, 2016). First, the SAC 12 fails to clarify what employee-employer relationship is relevant here due to the confusion 13 about whether Protiviti or RHI employed Ali. Next, the SAC is silent as to the public 14 policy implications of Ali’s termination in light of this Order’s dismissal of its disability 15 discrimination and unlawful retaliation claims. Therefore, the wrongful termination claim 16 also fails and is hereby DISMISSED. The Court further finds that another opportunity to 17 amend the complaint would be futile, and therefore does not grant leave to amend. 18 C. Unfair Competition and Declaratory Relief Fail Because All Other Claims 19 Have Been Dismissed 20 California’s Unfair Competition Law, under Business and Professions Code § 21 17200, allows a plaintiff to seek damages based on a defendant’s violation of other laws, 22 including FEHA and Title VII. Herr v. Nestle U.S.A., Inc., 109 Cal. 4th 779, 789 (2003). 23 Similarly, a claim for “declaratory relief will not create a cause of action that does not 24 exist” and is not a standalone cause of action. City of Cotati v. Cashman, 29 Cal. 4th 69, 25 80 (2002). Because this Order has dismissed each of Mr. Ali’s other claims, neither his 26 UCL nor his declaratory relief claims can remain. As such, these causes of action are 27 DISMISSED. The Court further finds that another opportunity to amend the complaint 1 |} TIL. Request for Order to Show Cause why the Court Should Not Declare Mr. Alia 2 Vexatious Litigant 3 RHI requests that this Court issue an order to the plaintiff to show cause why it 4 || should not declare him a vexatious litigant and enter a pre-filing order against him. Dkt. 5 || No. 32 at 14-15. Entry of such a pre-filing order would require this Court to find that Mr. 6 || Ali’s filings are frivolous or harassing. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th 7 || Cir. 1990). The Court finds that Mr. Ali’s filings in this case are neither frivolous nor 8 || harassing, even though it has determined that they are subject to dismissal under Rule 9 12(b)(6). Therefore, the defendant’s request is DENIED. 10 || IV. Conclusion 11 The Second Amended Complaint is hereby DISMISSED for failure to allege 12 || sufficient facts to state facially plausible claims for relief. The Court finds that further = 13 || opportunity to amend would be futile, having already granted Mr. Ali leave to amend his 14 |) complaints twice and having considered both the SAC and the exhibits submitted along 15 || with it in determining this Order. This case is hereby DISMISSED with prejudice.
8 17 IT IS SO ORDERED
19 Dated: October 5, 2019 hGhe =< —s _ 20 United States Magistrate Judge 21 22 23 24 25 26 27 28