Chen v. Cozzoli LLC

• Court: District Court, D. Arizona
• Decided: March 22, 2022
• Docket: 2:21-cv-01025
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jennifer Chen, No. CV-21-01025-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Cozzoli LLC,

13 Defendant. 14 15 Jennifer Chen (“Plaintiff”) alleges that she was subjected to discriminatory 16 treatment and retaliation before being wrongfully terminated from her job as an assistant 17 manager at Villa Restaurant Group (“VRG”), which is operated by Cozzoli LLC 18 (“Defendant”). Plaintiff further alleges that Defendant caused her to be terminated from 19 her next job at a different food service company by bad-mouthing her to that company’s 20 management. Now pending before the Court is Defendant’s motion to dismiss. (Doc. 15.) 21 For the following reasons, the motion is granted in part and denied in part. 22 BACKGROUND 23 I. Factual History 24 The following facts, presumed true, are derived from Plaintiff’s complaint (Doc 1- 25 3 at 2-20) and the judicially noticeable materials submitted by Defendant (Doc. 15-2). 26 Plaintiff is an Asian-American woman who was hired to work at VRG in July 2016. 27 (Doc. 1-3 ¶¶ 3, 5, 8.) Plaintiff resigned for personal reasons in April 2018 but was rehired 28 as a Catering Hourly Assistant Manager in August 2019. (Id. ¶¶ 11-12.) 1 At relevant times, Plaintiff reported to Interim District Manager Patricia Cobain, 2 who is Hispanic. (Id. ¶¶ 15-17.) During her course of employment, Plaintiff was subjected 3 to recurrent race- and national origin-based insults, harassment, and acts of discrimination 4 and repeatedly reported those incidents to VRG representatives. (See, e.g., id. ¶ 39 [“On 5 August 20, 2019, [Plaintiff] emailed District Vice President Kelly Hernandez to request a 6 meeting with her. In that email, [Plaintiff] reported that she believed Cobain was providing 7 preferential treatment to Hispanic employees and that she was being subjected to a hostile 8 work environment.”]. See also id. ¶¶ 18, 23-35, 40-61.) 9 The complaint alleges that Plaintiff also reported two other categories of illegal 10 conduct—missing money and food-safety violations—to VRG representatives. (Id. ¶¶ 20, 11 62-78.) As for the first category, the complaint elaborates that Plaintiff “reported on two 12 separate occasions in which the Stores’ safe was short money.” (Id. ¶ 20.) However, the 13 complaint does not identify the VRG representative(s) to whom Plaintiff made those 14 reports and does not specify the dates on which those reports were made. 15 As for the second category, the complaint alleges that, on October 9, 2019, Plaintiff 16 observed a co-worker creating food-handling guidelines for an upcoming event in the Gila 17 River Indian Community that would “require[] VRG employees to violate numerous food 18 safety regulations.” (Id. ¶¶ 62-63.) In response, Plaintiff “consulted with both the 19 Maricopa County Food Inspector and the Gila River Supervisor of Environmental Health,” 20 and she “was advised that [the guidelines] did not comport with food safety regulations 21 and that VRG did not even have the food permit required to cater events at Gila River.” 22 (Id. ¶¶ 65-68.) On October 14, 2019, Plaintiff “reported her concerns regarding unsafe 23 food transportation and regulations to Catering Sales Manager Joanna Zabor,” but “Zabor 24 ignored [Plaintiff’s] concerns, and expected [Plaintiff] to proceed in a manner that violated 25 food safety regulations.” (Id. ¶ 70.) On an unspecified date, Plaintiff also “expressed her 26 concerns to Cobain about unsafe food transportation and handling,” but “Cobain told 27 [Plaintiff] not to worry about these issues because there were no pending issues with the 28 health inspector.” (Id. ¶¶ 75-76.) Finally, on October 24, 2019, Plaintiff was scheduled to 1 attend a catering event in Scottsdale, Arizona by herself. (Id. ¶ 92.) This staffing approach 2 was problematic because “health code regulations requir[ed] at least two people to attend 3 such events so that the person responsible for handling food would not also be required to 4 handle money.” (Id. ¶ 99.) Thus, “to remain in compliance with applicable health codes,” 5 as well as for other reasons, Plaintiff asked a former employee “to work the event with 6 her.” (Id. ¶ 94.) When Cobain “arrived at the event unannounced” and saw that Plaintiff 7 was not alone, Cobain “immediately reprimanded [the other individual] in Spanish for 8 providing assistance to [Plaintiff].” (Id. ¶ 95.) The following day, October 25, 2019, 9 Plaintiff reported to Eric Lingzhi Wang, “the Stores’ General Manager,” “that she felt 10 discriminated and retaliated against, that her superiors were instructing her to violate food 11 safety regulations, and that she was reprimanded for refusing to do so.” (Id. ¶¶ 49, 100.) 12 On October 27, 2019, Plaintiff reminded Cobain that she had been approved to take 13 paid sick time on October 28, 29, and November 11 to see her doctor. (Id. ¶ 101.) The 14 next day, Plaintiff received a voice message that she had been terminated. (Id. ¶ 102.) 15 On December 23, 2019, Plaintiff secured new employment at Fooda, another 16 catering company. (Id. ¶ 107.) This employment lasted until October 2020, when Plaintiff 17 was laid off by Fooda. (Id. ¶ 111.) The complaint alleges that the layoff decision was 18 prompted by a phone call from Stephanie Beamer, VRG’s Vice President of Catering, to a 19 Fooda representative on December 27, 20201 in which Beamer “disparaged [Plaintiff’s] 20 character and reputation.” (Id. ¶ 108.) 21 On March 5, 2020, Plaintiff filed a charge of discrimination with the Arizona 22 Attorney General’s Office. (Doc. 15-2.) 23 On June 25, 2020, Plaintiff filed a charge of discrimination with the EEOC. (Doc. 24 1-3 ¶ 113.) 25 On October 27, 2020, the parties entered into a written tolling agreement with an 26 expiration date of January 26, 2021. (Id. ¶ 115.) 27 … 28 1 As discussed in more detail below, Plaintiff now acknowledges this date is a typo. 1 II. Procedural History 2 On May 4, 2021, Plaintiff initiated this action by filing a complaint in Maricopa 3 County Superior Court. (Doc. 1-3 at 2-20.) 4 On June 11, 2021, Defendant removed the action to this Court. (Doc. 1.) 5 On August 23, 2021, Defendant filed the pending motion to dismiss. (Doc. 15.) 6 The motion is now fully briefed. (Docs. 18, 21.)2 7 DISCUSSION 8 I. Legal Standard 9 “[T]o survive a motion to dismiss under Rule 12(b)(6), a party must allege 10 ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 11 face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the 13 plaintiff pleads factual content that allows the court to draw the reasonable inference that 14 the defendant is liable for the misconduct alleged.” Id. (citation omitted). “[A]ll well- 15 pleaded allegations of material fact in the complaint are accepted as true and are construed 16 in the light most favorable to the non-moving party.” Id. at 1444-45 (citation omitted). 17 However, the Court need not accept legal conclusions couched as factual allegations. 18 Iqbal, 556 U.S. at 679-680. Moreover, “[t]hreadbare recitals of the elements of a cause of 19 action, supported by mere conclusory statements, do not suffice.” Id. at 679. The court 20 also may dismiss due to “a lack of a cognizable theory.” Mollett v. Netflix, Inc., 795 F.3d 21 1062, 1065 (9th Cir. 2015) (citation omitted). 22 II. Counts One And Two 23 A. The Parties’ Arguments 24 In Counts One and Two of the complaint, Plaintiff asserts claims for wrongful 25 termination in violation of the Arizona Employment Protection Act (“AEPA”). (Doc. 1-3 26 at 13-14 ¶¶ 119-35.) Specifically, in Count One, Plaintiff contends she was wrongfully 27

28 2 Defendant requested oral argument, but this request is denied because the issues are fully briefed and argument would not aid the decision process. See LRCiv 7.2(f). 1 terminated in retaliation for her efforts to report to VRG that the company (or an employee 2 of the company) had engaged in three discrete categories of illegal conduct: (1) subjecting 3 Plaintiff to racial and national origin discrimination and retaliation in violation of the 4 Arizona Civil Rights Act (“ACRA”); (2) stealing money; and (3) failing to abide by food 5 safety laws, regulations, and permitting requirements. (Id. ¶¶ 121-23.) In Count Two, 6 Plaintiff contends she was wrongfully terminated in retaliation for her refusal to personally 7 commit a violation of food safety laws and regulations. (Id. ¶ 131.) 8 Defendant moves to dismiss Counts One and Two for failure to state a claim. (Doc. 9 15 at 4-8.) According to Defendant, the complaint is conclusory and fails to set forth facts 10 establishing that (1) Plaintiff made the alleged reports “in a reasonable manner”; (2) the 11 recipients of the reports were VRG employees whom Plaintiff “reasonably believed to be 12 in a position to investigate”; and/or (3) the illegal conduct that Plaintiff was reporting 13 constituted a violation of Arizona law. (Id.) Defendant further contends that an AEPA 14 claim cannot be premised on a reported ACRA violation, because ACRA has its own 15 remedial scheme, and that Plaintiff’s allegations regarding theft and food safety violations 16 are deficient because Plaintiff has not been able to identify (either in the complaint or 17 during the meet-and-confer process) “any specific Arizona statute that Plaintiff reasonably 18 believe[s] Defendant . . . violated.” (Id.) 19 Plaintiff opposes Defendant’s dismissal request. (Doc. 18 at 2-8.) As an initial 20 matter, Plaintiff acknowledges that “her remedies for . . . violations of the ACRA are 21 limited to those provided under the ACRA” and thus her AEPA wrongful termination claim 22 must be premised on “her reports of other illegal conduct.” (Id. at 6 n.1.) As for the non- 23 ACRA reports, Plaintiff contends the complaint adequately alleges that the reports were 24 made in a reasonable manner and to appropriate officials. (Id. at 2-7 & n.2.) As for 25 Defendant’s contention that she must identify the specific Arizona laws she believed were 26 being violated, Plaintiff argues that “this is a more appropriate discovery request rather 27 than a basis for a Motion to Dismiss” and that she “need not identify the law or legal citation 28 for the claim[s] to be actionable.” (Id. at 6-8.) 1 In reply, Defendant argues that Plaintiff should be required, at the pleading stage, 2 to identify the specific laws at issue (because, otherwise, Defendant will be unable to 3 evaluate whether the other laws have their own remedial schemes); reiterates that the 4 factual allegations in the complaint fail to show that Plaintiff’s reports were made in a 5 reasonable manner or to an appropriate official; and reiterates that Counts One and Two 6 can’t be premised on ACRA violations. (Doc. 21 at 1-3.) 7 B. Analysis 8 1. Count One 9 Under A.R.S. § 23-1501(A)(3)(c)(ii), “[a]n employee has a claim against an 10 employer for termination of employment” if: 11 The employer has terminated the employment relationship of an employee in retaliation for . . . [t]he disclosure by the employee in a reasonable manner 12 that the employee has information or a reasonable belief that the employer, 13 or an employee of the employer, has violated, is violating or will violate the Constitution of Arizona or the statutes of this state to either the employer or 14 a representative of the employer who the employee reasonably believes is in 15 a managerial or supervisory position and has the authority to investigate the information provided by the employee and to take action to prevent further 16 violations of the Constitution of Arizona or statutes of this state or an 17 employee of a public body or political subdivision of this state or any agency of a public body or political subdivision. 18 Id. Thus, to prevail on a claim under this provision of AEPA (which gives rise to Plaintiff’s 19 claim in Count One), Plaintiff “must establish: (1) she had information or a reasonable 20 belief that her employer or another employee had violated an Arizona statute or 21 constitutional provision; (2) she disclosed the information or belief to an employer or a 22 representative of the employer whom she reasonably believed was in a managerial or 23 supervisory position and had the authority to investigate the information and take action to 24 prevent further violations of the Arizona constitution or statutes; and (3) she was terminated 25 because of the first two steps.” Denogean v. San Tan Behavioral Health Servs., LLC, 2017 26 WL 4922035, *3 (D. Ariz. 2017). 27 Although the complaint identifies many instances in which Plaintiff reported to 28 1 VRG supervisors that suspected violations of Arizona law were occurring, the majority of 2 those reports concerned the race and national origin discrimination and retaliation that 3 Plaintiff was allegedly experiencing. (See, e.g., Doc. 1-3 ¶¶ 27, 39, 48, 50, 52, 60.) As 4 Defendant correctly notes, reports of such violations cannot give rise to an AEPA claim 5 because they are separately actionable under ACRA. Archer v. Partners in Recovery LLC, 6 2019 WL 3253175, *3 (D. Ariz. 2019) (citing Taylor v. Graham Cty. Chamber of 7 Commerce, 33 P.3d 518, 522 (Ariz. Ct. App. 2001)). Plaintiff concedes this point in her 8 response. (Doc. 18 at 6 n.1.) 9 This leaves the allegations in the complaint pertaining to reports of theft and food- 10 safety violations. As for the former, the difficulty is that the complaint does not allege 11 when or how Plaintiff made the reports or to whom she made them. (Doc. 1-3 ¶ 20 12 [“[Plaintiff] reported on two separate occasions in which the Stores’ safe was short 13 money.”].) Without those details, it is impossible to conclude that Plaintiff made the 14 disclosure “in a reasonable manner” or that the recipient was “a representative of the 15 employer who the employee reasonably believes is in a managerial or supervisory position 16 and has the authority to investigate the information provided by the employee and to take 17 action to prevent further violations,” as AEPA requires. 18 In contrast, the complaint adequately provides those details with respect to the 19 alleged reports of food-safety violations. It alleges that Plaintiff made one report on 20 October 14, 2019 to Zabor, who is identified as Defendant’s “Catering Sales Manager” (id. 21 ¶ 69); that Plaintiff made a second report on an unspecified date to Cobain, who is 22 elsewhere identified as an “Interim District Manager” (id. ¶¶ 17, 75); and that Plaintiff 23 made a third report to Wang, who is elsewhere identified as “the Stores’ General Manager” 24 (id. ¶¶ 49, 100). Those factual allegations plausibly establish that Plaintiff made the reports 25 in a reasonable manner and to an appropriate VRG representative. 26 The final issue is whether Plaintiff has identified the underlying violations with the 27 necessary degree of specificity. Defendant argues that Plaintiff must identify the specific 28 Arizona statute or constitutional provision that she reasonably believed had been violated, 1 while Plaintiff contends she should only be required to provide this level of detail at 2 summary judgment. 3 There is a split in authority on this issue. Foster v. Pinnacle Health Facilities XXI 4 LP, 2021 WL 4844102, *3 & n.2-3 (D. Ariz. 2021) (noting that “[m]any courts have 5 concluded that a plaintiff asserting an AEPA claim must” identify “the Arizona statute that 6 she reasonably believed [the employer] had violated” but also citing contrary cases 7 suggesting that “it might be possible for an AEPA plaintiff to avoid specifying the 8 underlying statutory or constitutional violation in a case where the factual allegations in 9 the complaint are sufficiently detailed to establish that a triggering violation occurred”). 10 To the extent it is necessary to wade into the debate here, the Court is persuaded by the 11 decisions concluding that an AEPA plaintiff must identify the underlying Arizona statute 12 or constitutional provision with specificity at the pleading stage. A plaintiff asserting an 13 unlawful termination claim under § 23-1501(A)(3)(c)(ii) of AEPA does not need to go 14 through the discovery process to determine why she chose to report illegal conduct to her 15 employer—that is historical information uniquely within the plaintiff’s possession. If the 16 plaintiff cannot articulate, at the pleading stage of the case, a theory as to why the report 17 was potentially actionable under § 23-1501(A)(3)(c)(ii), there is no point in allowing the 18 case to proceed—as the Ninth Circuit has recognized, a court may dismiss a complaint at 19 the pleading stage due to “a lack of a cognizable theory.” Mollett, 795 F.3d at 1065. Here, 20 the complaint does not identify, with specificity, the food safety laws and regulations that 21 Plaintiff believed were being violated. Nor did Plaintiff make any effort to identify a 22 specific law or regulation in response to the motion to dismiss. In light of these omissions, 23 the complaint is subject to dismissal. 24 The Court further notes that paragraphs 65-66 and 73 of the complaint seem to 25 suggest that any food-safety violations involved regulations promulgated by county 26 (Maricopa and Pinal) and/or tribal (Gila River) authorities. It is questionable whether such 27 violations could give rise to a claim under § 23-1501(A)(3)(c)(ii), which only bars 28 termination in retaliation for a disclosure that the employer “has violated, is violating or 1 will violate the Constitution of Arizona or the statutes of this state.” Id. (emphasis added). 2 Plaintiff has not identified any case suggesting that county and tribal regulations qualify as 3 state constitutional provisions or state statutes. Cf. Kramer v. Jenkins, 806 F.2d 140, 142 4 (7th Cir. 1986) (“[T]he violation of an administrative rule is not the same thing as the 5 violation of the Constitution.”). See generally Galati v. Am. W. Airlines, Inc., 69 P.3d 6 1011, 1014 (Ariz. Ct. App. 2003) (“The language chosen by our legislature is unequivocal 7 . . . . No mention is made of any federal provision, statute or regulation. . . . The statute 8 reiterates that it is against violations of the Arizona Constitution and Arizona statutes that 9 protection is provided.”). At any rate, this issue provides all the more reason to require 10 Plaintiff to specifically identify, at this stage of the case, the underlying state law that was 11 the subject of her report. 12 2. Count Two 13 Under A.R.S. § 23-1501(A)(3)(c)(i), “[a]n employee has a claim against an 14 employer for termination of employment” if the “employer has terminated the employment 15 relationship of an employee in retaliation for . . . [t]he refusal by the employee to commit 16 an act or omission that would violate the Constitution of Arizona or the statutes of this 17 state.” Thus, to prevail on a claim under this provision of AEPA (which gives rise to 18 Plaintiff’s claim in Count Two), Plaintiff must establish that she refused to commit a 19 violation of an Arizona statute or constitutional provision and was terminated due to that 20 refusal. 21 Count Two fails for the same reasons as Count One. Although the complaint alleges 22 that Plaintiff was terminated for “refus[ing] to violate various food safety laws and 23 regulations when [in]structed to do so by her supervisors” (Doc. 1-3 ¶ 131), the complaint 24 does not identify the underlying laws and regulations and seems to suggest they are 25 regulations promulgated by county and/or tribal bodies, not state statutes or state 26 constitutional provisions. 27 … 28 … 1 III. Count Five 2 A. The Parties’ Arguments 3 In Count Five of the complaint, Plaintiff asserts a claim for race and national origin 4 discrimination in violation of ACRA. (Id. ¶¶ 152-56.) 5 Defendant argues that Count Five must be dismissed because it was filed outside 6 ACRA’s one-year statute of limitations. (Doc. 15. at 8-9.) Defendant contends that the 7 limitations period began running on March 5, 2020, when Plaintiff filed a charge of 8 discrimination with the Arizona Attorney General; that although the parties entered into a 9 tolling agreement in October 2020, it expired on January 26, 2021; and that the statute of 10 limitations had therefore expired by the time Plaintiff filed suit on May 4, 2021. (Id.) 11 In response, Plaintiff acknowledges that her ACRA claim is subject to a one-year 12 statute of limitations and that she filed her complaint 14 months after the limitations period 13 began running. (Doc. 18 at 8-10.) Nevertheless, Plaintiff contends her claim should be 14 considered timely because “the parties entered into a Tolling Agreement that tolled the 15 applicable statute of limitations.” (Id.) Plaintiff further contends that, although the tolling 16 agreement originally had an expiration date of January 26, 2021, the expiration date was 17 extended twice: first, when her “former counsel and counsel for VRG extended the Tolling 18 Agreement to February 16, 2021;” and second, when her current counsel emailed defense 19 counsel to request an open-ended extension beyond February 16, 2021 and defense counsel 20 “never objected to this or otherwise indicated that this was not her understanding of the 21 agreement.” (Id.) Plaintiff supplies, as an exhibit to her response, extensive email records 22 between her counsel and defense counsel. (Doc. 18-1.) Plaintiff also argues that the statute 23 of limitations “is subject to waiver, estoppel, and equitable tolling” and that she reasonably 24 relied on Defendant’s representation that the statute of limitations remained tolled. (Doc. 25 18 at 10.) 26 In reply, Defendant argues that the complaint does not allege that the parties entered 27 into an agreement to extend the tolling agreement, that the evidence Plaintiff attached to 28 her response cannot be considered on a motion to dismiss, and that Plaintiff’s evidence 1 fails to establish that the parties agreed to extend the tolling agreement indefinitely. (Doc. 2 21 at 4-7.) 3 B. Analysis 4 Defendant’s motion to dismiss Count Five on timeliness grounds is denied. 5 Although the parties spill much ink debating whether the tolling agreement was extended, 6 Count Five would be timely even under the agreement’s original, un-extended terms. 7 Under the tolling agreement, the parties agreed “to toll and suspend from running 8 for the Duration of this Agreement all limitations period(s) applicable to any and all . . . 9 causes of action . . . relating in any way to [Plaintiff’s] employment.” (Doc. 18-1 at 2.) 10 The parties further “agree[d] that they will not assert any defense . . . relying upon the 11 period of time that lapses while this Agreement is in effect.” (Id.) The tolling agreement 12 specified that it was “in effect beginning on October 28, 2020 . . . and ending on January 13 26, 2021” and clarified that any “limitations period(s) shall cease to be tolled and 14 commence running again on . . . January 26, 2021.” (Id. at 2-3.) 15 The plain, unambiguous meaning of this contractual language is that the limitations 16 period on Plaintiff’s ACRA claim stopped running between October 28, 2020 and January 17 26, 2021 and only resumed running on January 26, 2021. Because the parties agree that 18 Plaintiff’s claim accrued on March 5, 2020, when she filed her charge of discrimination 19 with the Arizona Attorney General’s office, this means that 237 days of the limitations 20 period had run by the time the tolling provision kicked in on October 28, 2020, at which 21 point the clock stopped. It resumed running no earlier than January 26, 2021, meaning that 22 Plaintiff had another 128 days (i.e., 365 minus 237) from that point to file suit. Plaintiff 23 filed suit on May 4, 2021, which was only 98 days later. This was within the one-year 24 limitations period. 25 IV. Count Seven 26 A. The Parties’ Arguments 27 In Count Seven of the complaint, Plaintiff asserts a claim for intentional interference 28 with contract and contractual relations. (Doc. 1-3 ¶¶ 165-71.) In a nutshell, Plaintiff 1 contends that Defendant caused her to be fired by Fooda, which is where she was hired 2 after being terminated by Defendant, by “disparag[ing]” her “character and reputation” 3 during a phone call to Fooda. (Id. ¶ 108.) 4 Defendant moves to dismiss Count Seven because the complaint fails to allege facts 5 establishing a plausible causal connection between the phone call and Fooda’s termination 6 decision. (Doc. 15 at 10-13.) As an initial matter, Defendant contends that the complaint 7 erroneously identifies the date of the phone call as December 27, 2020, which is obviously 8 a typo because Fooda’s termination decision is alleged to have occurred in October 2020. 9 (Id.) Assuming the date of the call is actually December 27, 2019, Defendant contends that 10 the eight-month gap between the call and the termination decision is too long to suggest a 11 plausible causal connection. (Id.) 12 In response, Plaintiff agrees that the call occurred in December 2019 but argues that 13 temporal proximity is not the only way to prove causation. (Doc. 18 at 10-13.) Plaintiff 14 argues that the existence or non-existence of temporal proximity is “a fact question, and 15 inappropriate for resolution at this stage in the proceedings.” (Id.) Plaintiff also argues 16 that the cases cited by Defendant are distinguishable because they did not analyze causation 17 at the motion-to-dismiss stage. (Id.) Finally, Plaintiff contends that Count Seven should 18 survive dismissal because she “has reason to believe” that employees of Defendant 19 “communicated negatively about her on more than one occasion between December 27, 20 2019 and her termination date.” (Id.) 21 In reply, Defendant argues that even taking Plaintiff’s allegations as true, the facts 22 alleged fail to support a causal connection. (Doc. 21 at 7-8.) Defendant states that if 23 Plaintiff was disparaged in December 2020 and terminated in October 2020, it would be 24 impossible for the phone call to be the cause of the termination, and Plaintiff has not offered 25 a valid reason for refusing to amend her complaint to allege the correct date. (Id.) As for 26 Plaintiff’s suggestion that there may have been other disparaging conversations beyond the 27 one alleged in the complaint, Defendant asserts that Plaintiff did not include any allegations 28 regarding those conversations in the complaint or mention them during the parties’ meet- 1 and-confer process. (Id.) 2 B. Analysis 3 Defendant’s motion to dismiss Count Seven is granted. The complaint alleges that 4 Plaintiff was terminated by Fooda in October 2020 based on a phone call that occurred in 5 December 2020. Under that chronology, the phone call obviously could not have caused 6 the termination decision. Although Plaintiff now contends the call actually occurred in 7 October 2019, the Court’s role under Rule 12(b)(6) is to evaluate the sufficiency of the 8 actual complaint, not a hypothetical future version of the complaint that Plaintiff has yet to 9 file. The better approach in this circumstance is to dismiss with leave to amend. 10 The Court also construes Plaintiff’s response as suggesting that, in a future version 11 of her complaint, she will be able to allege that Defendant’s representatives engaged in 12 additional instances of disparagement that were closer in time to (and preceded) the 13 October 2020 termination decision. Given that possibility, the Court finds it unnecessary 14 at this juncture to decide whether an eight-month gap between a disparaging call and a 15 termination decision would be enough to plausibly establish a causal connection between 16 the two events. 17 V. Leave To Amend 18 Plaintiff requests leave to amend in the event of dismissal. (Doc. 18 at 13.) 19 Defendant does not oppose this request in its reply. 20 Plaintiff’s request is governed by Rule 15(a) of the Federal Rules of Civil Procedure, 21 which “advises the court that ‘leave [to amend] shall be freely given when justice so 22 requires.’” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). 23 “This policy is ‘to be applied with extreme liberality.’” Id. (citation omitted). Thus, 24 Plaintiff’s amendment request should be granted unless “the amendment: (1) prejudices the 25 opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) 26 is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 27 2006). 28 Here, the Court will grant Plaintiff’s amendment request in light of the policies || favoring liberal amendment, Defendant’s apparent non-opposition to the request, and the fact that amendment would not clearly be futile. 3 Accordingly, 4 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 15) is granted in part □□ and denied in part. 6 IT IS FURTHER ORDERED that Plaintiff may file a First Amended Complaint 7\| (‘FAC’) within 14 days of the issuance of this order. If Plaintiff files an FAC, the changes 8 || shall be limited to attempting to cure the deficiencies raised in this order and Plaintiff shall, 9|| consistent with LRCiv 15.1(a), attach a redlined version of the pleading as an exhibit. 10 Dated this 22nd day of March, 2022. 11 12 om ee 13 } t _ Dominic W. Lanza 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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