Hill v. Gergun Transportation Inc.

• Court: District Court, E.D. California
• Decided: September 16, 2024
• Docket: 2:24-cv-01751
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STELLA MAE HILL, Case No. 2:24-cv-1751-CSK 12 Plaintiff, ORDER ON DEFENDANT’S MOTION TO DISMISS AND MOTION TO TRANSFER 13 v. VENUE 14 GERGUN TRANSPORTATION, INC, (ECF No. 11) 15 Defendant. 16 17 Plaintiff Stella Mae Hill asserts California state law claims for failure to pay final 18 wages upon termination, failure to reimburse business expenses, retaliation, and 19 wrongful termination in violation of public policy against Defendant Gergun 20 Transportation, Inc. and 25 Doe Defendants.1 Compl. (ECF No. 1 at 9-20.) Currently 21 before the Court is Defendant’s motion to dismiss for lack of personal jurisdiction, 22 improper venue, and failure to state a claim. Def. Mot. (ECF No. 11.) A hearing was held 23 on Defendant’s motion to dismiss on August 27, 2024. (ECF No. 15.) 24 For the reasons that follow, Defendant’s motion to dismiss is GRANTED IN PART 25 and DENIED IN PART. The Court finds it has personal jurisdiction over Defendant and 26 venue is proper in this district. Further, Plaintiff’s claims for failure to pay final wages 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636(c) on the 28 consent of all parties. (ECF Nos. 7, 9, 10.) 1 under California Labor Code § 201 and failure to reimburse business expenses under 2 California Labor Code § 2802 may proceed. The retaliation claim under California Labor 3 Code § 1102.5 and the wrongful termination claim are dismissed. 4 I. BACKGROUND 5 A. Facts2 6 Plaintiff is a California citizen who resides in the City of Sacramento. Compl. ¶ 1. 7 She is a truck driver who possesses a Commercial Driver’s License and a security 8 clearance that allows her to deliver or pick-up cargo at military bases. Compl. ¶ 11. 9 Defendant is engaged in the transportation and trucking industry. Compl. ¶ 2. 10 Defendant incorporated in California on May 15, 2014. See Oleg Gherghi Decl. (ECF No. 11 11-2) at 8. However, on August 23, 2023, Defendant filed Articles of Domestication with 12 the South Carolina Secretary of State and, on September 26, 2023, dissolved the 13 California corporation. Id. ¶¶ 2-4, Exh. A (California Certificate of Dissolution), Exh. B 14 (South Carolina Articles of Domestication). During the events of this litigation, Defendant 15 was a South Carolina corporation with its principal place of business in Piedmont, South 16 Carolina. Compl. ¶ 2. According to a July 8, 2024 Statement of Information on file with 17 the California Secretary of State, Defendant maintains an office in California at 3602 18 West Capitol Ave., West Sacramento, CA, 95691. Gregory P. Wong Decl. (ECF No. 12- 19 2) Exh. B. 20 On March 4, 2024, Plaintiff went to Defendant’s West Sacramento office (the 21 same office identified in Defendant’s 2024 Statement of Information filed with the 22 California Secretary of State) and submitted a job application. Compl. ¶ 12.3 Defendant’s 23 2 These facts derive from the Complaint (ECF No. 1) and supplemental materials from 24 the parties’ supporting declarations and exhibits as pertains to the personal jurisdiction and venue issues. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (courts may 25 consider facts outside of the pleadings to determine personal jurisdiction); Kelly v. 26 Qualitest Pharm., Inc., 2006 WL 2536627, at *7 (E.D. Cal. Aug. 31, 2006) (courts may consider facts outside of the pleadings to determine venue). 27 3 The Court notes that in Plaintiff’s declaration, she states that she went to Defendant’s 28 1 signage was posted in this office, and Defendant uses this office to recruit, hire, assign, 2 and manage its employees. Hill Decl. ¶ 4. On this date, Plaintiff interviewed with one of 3 Defendant’s representatives in the office; was hired; was told her first route would begin 4 with a delivery to a military facility in Texarkana, Texas; and was told her assignments 5 would begin and end in California. Hill Decl. ¶ 3. Defendant assigned Plaintiff a company 6 truck and instructed her to pick up cargo from one of Defendant’s customers in Stockton, 7 California. Compl. ¶ 14; Hill Decl. ¶ 4. 8 After Plaintiff transported the cargo from Stockton to Texarkana, she was 9 instructed to transport additional loads on a route that ran through Kansas, Arkansas, 10 and Michigan, terminating in South Carolina. Compl. ¶ 14; Hill Decl. ¶ 5. Throughout this 11 run, Plaintiff observed an issue with the truck’s braking system. Compl. ¶ 15. An 12 inspection at a truck stop in Frenchtown, Michigan led Plaintiff to believe the safety of the 13 vehicle was compromised and was in violation of Department of Transportation 14 regulations. Compl. ¶ 15. Plaintiff called Defendant to relay the results of the inspection 15 and to request permission to complete the repairs at the Frenchtown truck stop. Compl. 16 ¶ 16. Defendant denied this permission, instead instructing Plaintiff to drive the vehicle to 17 Defendant’s facility in Highmont, South Carolina. Compl. ¶¶ 16-17. Plaintiff arrived at 18 Defendant’s facility on March 15, 2024, at which point Defendant decided to terminate 19 her because of her complaints about the unsafe working condition of the truck and her 20 request to have the vehicle repaired at the Frenchtown truck stop. Compl. ¶ 17. 21 Plaintiff alleges Defendant fired her on March 15, 2024, did not pay her final 22 wages at this time, and left her “stranded across the country from her home without any 23

24 West Sacramento office in April 2024, and reported for duty in March 2024 to the West Sacramento office. Stella Mae Hill Decl. (ECF No. 12-1) ¶¶ 3, 4. All of the other facts 25 pled in the Complaint indicate Plaintiff applied, was hired, and fired in March 2024. See 26 Compl. Due to the requirement that the Court resolve conflicts in the record in Plaintiff’s favor to decide whether a prima facie case for personal jurisdiction exists, 27 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004), the Court resolves this conflict in the record to find that Plaintiff first went to Defendant’s West 28 Sacramento office in March 2024 as alleged in the Complaint. 1 money.” Compl. ¶ 18. Defendant also failed to reimburse Plaintiff for the cost of a tire 2 repair “(that she did not damage),” did not return Plaintiff’s personal effects from the 3 truck, and did not reimburse Plaintiff’s expenses for her travel back to California. Id. 4 Plaintiff alleges she was subject to the control and direction of Defendant in the 5 performance of her duties because she: drove a vehicle owned and assigned to her by 6 Defendant under Defendant’s name; was given a schedule of deliveries to make and 7 instructed as to the routes she was to follow; and was told where and when she could 8 stop for breaks, where she could refuel, and where she could go to address 9 maintenance issues. Compl. ¶ 13. Plaintiff alleges she performed work that was within 10 the scope of Defendant’s usual course of business because she was delivering cargo to 11 Defendant’s customers under Defendant’s name and using Defendant's vehicle. Id. In 12 this way, Plaintiff alleges she was an employee, and Defendant misclassified her as an 13 independent contractor. Id. 14 Because of the nature of Defendant’s business and work performed by its 15 employees, Plaintiff alleges Defendant “is either a citizen of California, has sufficient 16 minimum contacts in California, or otherwise intentionally avails itself of the California 17 market so as to render the exercise of jurisdiction over it by [a California court sitting in 18 Sacramento] consistent with traditional notions of fair play and substantial justice.” 19 Compl. at ¶ 8. In addition to the facts of her case described above, Plaintiff points to a 20 July 1, 2024 job posting recruiting truck drivers in Sacramento that includes routes to 21 California. Wong Decl., Exh A. 22 B. Procedural Posture 23 On May 10, 2024, Plaintiff filed her Complaint in Sacramento County Superior 24 Court. (ECF No. 1 at 9.) Defendant was served with process on May 13, 2024. (Id. at 2.) 25 On June 20, 2024, Defendant removed the action to federal court on diversity jurisdiction 26 grounds. (Id. at 1-3.) On July 16, 2024, this Court noted the docket did not reflect that 27 Defendant's response to the Complaint had been filed, citing to Federal Rule of Civil 28 Procedure 81(c)(2)(C). (ECF No. 6.) 1 On July 18, 2024, Defendant filed the instant motion to dismiss. (ECF No. 11.) 2 Plaintiff filed her opposition on July 30, 2024 (ECF No. 12), and Defendant did not file a 3 reply. The Court held a hearing by Zoom on August 27, 2024. (ECF Nos. 14, 15.) 4 II. LEGAL STANDARDS 5 A. Time for Response to the Complaint in Removal Cases 6 Federal Rule of Civil Procedure 81 states that for actions removed from state 7 court, a defendant who did not answer before removal must answer or present other 8 defenses within the longest of these periods: (A) 21 days after receiving—through 9 service or otherwise—a copy of the initial pleading stating the claim for relief; (B) 21 days 10 after being served with the summons for an initial pleading on file at the time of service; 11 or (C) 7 days after the notice of removal is filed. Fed. R. Civ. P. 81(c)(2). 12 B. Personal Jurisdiction under Rule 12(b)(2) 13 Rule 12(b)(2) allows a party to assert lack of personal jurisdiction as a defense 14 and request dismissal of the suit. Fed. R. Civ. P. (12)(b)(2). However, it is the plaintiff 15 who bears the burden to establish the court has personal jurisdiction over this defendant. 16 Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). To determine 17 whether a court has personal jurisdiction over a nonresident defendant, it examines the 18 forum state’s long-arm statute and federal due process. Axiom Foods, Inc. v. Acerchem 19 International, Inc., 874 F.3d 1064, 1067 (9th Cir. 2017). 20 In resolving jurisdictional issues, the court may consider evidence presented in 21 affidavits and may order discovery. Fred Martin Motor, 374 F.3d at 800. When no 22 evidentiary hearing is held, a plaintiff is only required to make a prima facie showing of 23 jurisdictional facts to withstand the motion. Id. The Court takes the plaintiff's facts as true 24 and resolves conflicts in the record in plaintiff’s favor for the purposes of deciding 25 whether a prima facie case for personal jurisdiction exists under a Rule 12(b)(2) motion. 26 Id. 27 C. Venue under Rule 12(b)(3) and 28 U.S.C. § 1406(a) 28 Rule 12(b)(3) and 28 U.S.C. § 1406(a) authorize the court to entertain a challenge 1 to an action on grounds that venue is improper. The court may consider supplemental 2 written materials and consider facts outside the pleadings in adjudicating a venue 3 question. Kelly v. Qualitest Pharm., Inc., 2006 WL 2536627, at *7 (E.D. Cal. Aug. 31, 4 2006). 5 If the court determines that venue is improper, it may dismiss the case, or, if the 6 interests of justice require, the court may transfer the case to any district in which it 7 properly could have been brought. 28 U.S.C. § 1406(a). The decision to transfer rests in 8 the court's discretion. King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992). 9 D. Failure to State a Claim under Rule 12(b)(6) 10 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon 11 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if 12 it either lacks a cognizable legal theory or sufficient facts to support a cognizable legal 13 theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). When considering 14 whether a claim has been stated, the court must accept the well-pleaded factual 15 allegations as true and construe the complaint in the light most favorable to the non- 16 moving party. Id. However, the court is not required to accept as true conclusory factual 17 allegations contradicted by documents referenced in the complaint, or legal conclusions 18 merely because they are cast in the form of factual allegations. Paulsen v. CNF Inc., 559 19 F.3d 1061, 1071 (9th Cir. 2009). 20 III. DISCUSSION 21 A. Defendant’s Late Response 22 Defendant states it was served with process on May 20, 2024 and removed to 23 federal court on June 20, 2024 under 28 U.S.C. § 1446(b) and (c). (ECF No. 1 at 2.) 24 Defendant confirmed at the hearing that it did not file a response to the Complaint prior 25 to removing the action to federal court. Thus, under Rule 81, Defendant’s response was 26 due 7 days after the notice of removal was filed, or June 27, 2024. Fed. R. Civ. P. 27 81(c)(2)(C). Defendant did not file its motion to dismiss until July 18, 2024. (ECF No. 11.) 28 This is well beyond any of the time periods allowed by Rule 81(c). 1 Defendant’s motion to dismiss is untimely, as Defendant conceded at the hearing. 2 See Fed. R. Civ. P. 81(c)(2). Plaintiff did not, however, object to timeliness on the papers 3 or at the hearing. Plaintiff filed her opposition to the motion and Plaintiff’s counsel 4 appeared at the hearing for argument. Given that the parties may stipulate to extend the 5 deadline for Defendant’s response to the Complaint for up to 28 days, Plaintiff did not 6 object to the timeliness of Defendant’s response, and there is no prejudice to Plaintiff, 7 the Court sua sponte grants Defendant leave to file its motion to dismiss outside of the 8 proscribed time period. See Fed. R. Civ. P. 6(b)(2); E.D. Cal. Local Rule 144. The Court 9 addresses Defendant’s motion on the merits. 10 B. Personal Jurisdiction 11 California’s long-arm statute allows courts in the state to exercise personal 12 jurisdiction “not inconsistent with the Constitution of this state or of the United States.” 13 Cal. Code Civ. Proc. §410.10. Thus, the inquiry for California courts centers on whether 14 exercising personal jurisdiction comports with federal due process. Fred Martin Motor, 15 374 F.3d at 800-01 (“Because California's long-arm jurisdictional statute is coextensive 16 with federal due process requirements, the jurisdictional analyses under state law and 17 federal due process are the same.”). 18 Federal due process permits a court to exercise personal jurisdiction over a 19 nonresident defendant if that defendant has minimum contacts with the relevant forum 20 such that the exercise of jurisdiction “does not offend traditional notions of fair play and 21 substantial justice.’” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 351 22 (2021) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945)). Those 23 contacts may be so continuous and systematic as to render a defendant essentially at 24 home in the forum state and amenable to any suit there. Glob. Commodities Trading 25 Grp., Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1106 (9th Cir. 2020). 26 “Alternatively, a court may exercise jurisdiction over ‘issues deriving from, or connected 27 with, the very controversy that establishes jurisdiction.’” Id. (quotations omitted). These 28 different bases for personal jurisdiction are often referred to as “general” and “specific” 1 jurisdiction. Id. (quoting Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 2 1773, 1779-80 (2017)). 3 Here, Plaintiff does not argue Defendant has contacts with California that were so 4 continuous and systematic as to render it at home, instead focusing on Defendant’s 5 specific actions in California. See Pl. Opp. at 2-9. Thus, the Court considers whether 6 Defendant’s contacts with California during the relevant time sufficiently support the 7 exercise of specific personal jurisdiction over Defendant. See Glob. Commodities, 972 8 F.3d at 1107 (focusing on specific jurisdiction given plaintiff’s arguments and cited facts). 9 The test for analyzing specific personal jurisdiction examines whether: 10 1. The non-resident defendant purposefully directed its activities or consummated some transaction with the 11 forum or resident thereof, or performed some act by which it purposefully availed itself of the privilege of conducting 12 activities in the forum, thereby invoking the benefits and protections of its laws; 13 2. The plaintiff’s claim arises out of or relates to the 14 defendant's forum-related activities; and 15 3. The exercise of jurisdiction is reasonable. 16 Fred Martin Motor, 374 F.3d at 802. For tort claims, courts use the “purposeful direction” 17 prong of this test, while contract claims focus on the “purposeful availment” prong. Doe 18 v. WebGroup Czech Republic, a.s., 93 F.4th 442, 452 (9th Cir. 2024). Plaintiff has the 19 burden on the first two prongs which, if satisfied, shifts the burden to Defendant so it can 20 “present a compelling case” that the exercise of jurisdiction would be unreasonable. Id. 21 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)). 22 Here, Plaintiff asserts claims for failure to pay final wages upon termination (Cal. 23 Labor Code § 201), failure to reimburse business expenses (Cal. Labor Code § 2802), 24 retaliation (Cal. Labor Code § 1102.5(b)), and wrongful termination in violation of public 25 policy. Courts construe these claims as arising in tort, and so use the purposeful 26 direction test for personal jurisdiction issues. See Ting v. Orbit Commc'n Co., 105 F.3d 27 666 (9th Cir. 1997) (applying purposeful direction test to a California tort claim of 28 wrongful termination in violation of public policy); Yocum v. Rockwell Med. Techs., Inc., 1 2012 WL 2502701, at *4-6 (S.D. Cal. June 27, 2012) (applying purposeful direction test 2 to claims of wrongful termination and Cal. Labor Code § 201 failure to pay wages); 3 Green v. Hepta Run, Inc., 2020 WL 1638273, at *2 (C.D. Cal. Apr. 2, 2020) (applying 4 purposeful direction test to failure to reimburse business expenses under Cal. Labor 5 Code § 2802); Mewawalla v. Middleman, 601 F. Supp. 3d 574, 592 (N.D. Cal. 2022) 6 (noting that while wrongful retaliation claim under Cal. Labor Code § 1102.5 was not a 7 tort per se, use of the purposeful direction test was proper and in line with other 8 California courts). 9 1. Purposeful Direction 10 A “forum State's exercise of jurisdiction over an out-of-state intentional tortfeasor 11 must be based on intentional conduct by the defendant that creates the necessary 12 contacts with the forum.” Walden v. Fiore, 571 U.S. 277, 286 (2014). This requires courts 13 to focus on the defendant, the forum, and the litigation. Id. at 287; WebGroup, 93 F.4th 14 at 452 (the purposeful direction test considers the “effects” of the defendant’s acts, as 15 set forth in Calder v. Jones, 465 U.S. 783 (1984)). Under the Calder effects test, the 16 defendant must have committed an intentional act, expressly aimed at the forum state, 17 causing harm the defendant knows is likely to be suffered in the forum state. Id. As the 18 Ninth Circuit has noted, the application of the purposeful direction test varies from case 19 to case and “depends, to a significant degree, on the specific type of tort or other 20 wrongful conduct at issue.” Fred Martin Motor, 374 F.3d at 807. 21 The Supreme Court in Walden revisited the facts of Calder, where the 22 defendants, Florida residents, were being sued for libel in California by a California 23 resident. 571 U.S. at 287. The Supreme Court noted the Calder defendants had 24 sufficient connection with California because they interviewed California sources for the 25 article, wrote about the plaintiff’s California activities, and caused the plaintiff reputational 26 injury in California by widely circulating the article in the state. Id. (citing Calder, 465 U.S. 27 at 788-89). The Walden Court reaffirmed that this adequately constituted purposeful 28 direction, given the Calder defendants’ intentional acts targeted California and given the 1 plaintiff suffered her injuries in California.4 Id. 2 Here, like Calder, Plaintiff has made a prima facie showing that Defendant 3 purposefully directed its activities at California, such that the first prong of the specific 4 personal jurisdiction test is met. See Fred Martin Motor, 374 F.3d at 802. It is true that, 5 before Defendant hired Plaintiff on March 4, 2024, it had dissolved the California 6 Corporation and reformed in South Carolina. Gherghi Decl. ¶¶ 2-4, Exh. A (Sept. 26, 7 2023 California Certificate of Dissolution), Exh. B (Aug. 23, 2023 South Carolina Articles 8 of Domestication). However, Defendant continued to maintain its license to do business 9 in California after incorporating in South Carolina. Wong Decl. Exh. B (July 8, 2024 10 Statement of Information filed with the California Secretary of State). Defendant also 11 continued to maintain offices in California, from which it recruits California truck drivers, 12 assigns routes to its drivers, and provides vehicles for the assigned jobs. See Compl. 13 ¶¶ 10, 14; Hill Decl. ¶¶ 3-4; Wong Decl. ¶¶ 2-3 & Exh. A-B 14 For additional support, Plaintiff also provides a July 1, 2024 job posting for a 15 “Class A [Over the Road] Driver Dedicated Lanes – Drop and Hook (Sacramento)” that 16 displays a location in North Sacramento, California, and lists routes that include a drop- 17 off in San Jose, California. Wong Decl. Exh. A. Plaintiff also points to Defendant’s July 8, 18 2024 Statement of Information showing it maintains a “California Office of Corporation” 19 at “3602 West Capitol Ave., West Sacramento, CA, 95691.” Wong Decl. Exh. B.5 These 20 facts demonstrate Defendant’s intentional acts expressly aimed at California. See 21 Walden, 571 U.S. at 286-88; see also Leitzbach v. Atlas Van Lines, Inc., 2017 WL

22 4 As to the defendant in Walden, the Supreme Court held that there was no personal 23 jurisdiction in Nevada over the Georgia police officer because none of the defendant’s conduct occurred in Nevada and the only ties to Nevada was the plaintiffs’ residence. 24 571 U.S. at 287-89. 5 Defendant’s assertion that when Plaintiff first began working for Defendant in March 25 2024, “the only office space that Defendant maintained was [] in Piedmont, South 26 Carolina” (Gherghi Decl. ¶ 6), is directly contradicted by Defendant’s own July 2024 filing with the California Secretary of State. See Wong Decl. Exh. B (signed by Oleg Gherghi 27 on July 8, 2024). It is concerning that the individual who made this assertion is the same individual who recently filed Defendant’s Statement of Information with the California 28 Secretary of State. 1 11617904, at *3 (C.D. Cal. Feb. 22, 2017) (finding purposeful direction where the 2 defendant shipping company, headquartered and incorporated outside of California but 3 licensed to do business in California, employed California drivers to serve its California 4 business interests). 5 Plaintiff’s specific interactions with Defendant further supports a finding of 6 purposeful direction. Plaintiff alleges she went to Defendant’s West Sacramento office; 7 noted Defendant’s signage in this office; submitted a job application, interviewed with 8 Defendant’s representative and was hired in Defendant’s West Sacramento office; was 9 given her first assignment in Defendant’s West Sacramento office upon hiring; and was 10 directed to pick up cargo for one of Defendant’s customers from a Stockton, California 11 facility. Compl. at ¶¶ 3-4, 11-14; Hill Decl. ¶ 4. This West Sacramento office is the same 12 office identified in Defendant’s July 8, 2024 Statement of Information. See Wong Decl. 13 Exh. B; Compl. ¶ 12; Hill Decl. ¶¶ 3-4. These facts further support a connection between 14 Defendant, California, and Plaintiff’s claims. See Axiom Foods, 874 F.3d at 1069-70; see 15 also McGechie v. Atomos Ltd., 2024 WL 1054924, at *4 (E.D. Cal. Mar. 11, 2024) 16 (collecting cases and finding first two prongs of the purposeful direction test satisfied 17 where the defendant hired the plaintiff in California and used her specific skillset to 18 further its interests and conduct its business in California). 19 As to whether Defendant’s acts caused harm it knew was likely to be suffered in 20 California, Plaintiff has again made out a prima facie case. Critically, the Ninth Circuit 21 has stated that only “a jurisdictionally sufficient amount of harm” need be suffered in the 22 forum state. Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 23 1199, 1207 (9th Cir. 2006) (reminding that the “brunt” of the harm need not be suffered 24 in the forum state: “[I]t does not matter that even more harm might have been suffered 25 in another state.”). Here, Defendant would have known that drivers it hires in California 26 would suffer harm if, like Plaintiff, they were promised routes that would begin and end in 27 California, but then were terminated out of state and not paid their final wages and 28 reimbursements upon termination. See Compl. ¶¶ 17-18; Hill Decl. ¶ 3. Courts in the 1 Ninth Circuit have found a jurisdictionally sufficient amount of harm under similar 2 circumstances. See Davis v. NIH Federal Credit Union, 2013 WL 2147468, at *7 (N.D. 3 Cal. May 15, 2013) (finding jurisdictionally sufficient harm where the plaintiff had 4 connections with the forum state, was hired by the defendant while in the forum state, 5 was required to move to a different state for the job, was fired while performing her 6 duties in the non-forum state, and returned to the forum state after being fired). 7 The Court concludes that these facts show purposeful direction on Defendant’s 8 part: intentional acts, expressly aimed at California, causing harm Defendant knows is 9 likely to be suffered in California. See WebGroup, 93 F.4th at 452 (citing Calder, 465 10 U.S. at 783); Davis, 2013 WL 2147468 at *7. 11 2. Affiliation of Claims to Defendant’s Forum-Related Activities 12 In addition to inquiring whether the defendant satisfies the purposeful direction (or 13 availment) prong, the forum State may exercise specific personal jurisdiction in cases 14 where the plaintiff’s claims “arise out of or relate to the defendant's contacts” with the 15 forum. Ford Motor Company, 592 U.S. at 359. “There must be an affiliation between the 16 forum and the underlying controversy, principally, [an] activity or an occurrence that 17 takes place in the forum State and is therefore subject to the State's regulation.” Bristol- 18 Myers, 582 U. S. at 262 (quotations omitted). After Ford Motor, courts in the Ninth Circuit 19 no longer require a showing of “but for” causation to determine whether the claim arises 20 out of the non-resident defendant’s forum-related activities. See Ayla, LLC v. Alya Skin 21 Pty. Ltd., 11 F.4th 972, 983 n.5 (9th Cir. 2021). 22 Here, this action both arises out of and relates to Defendant’s contacts with 23 California. Defendant interviewed and hired Plaintiff (a California resident) in Defendant’s 24 California office; promised that Plaintiff’s routes would begin and end in California; 25 assigned Plaintiff a truck in California; gave Plaintiff her first assignment in California; 26 instructed her to pick up cargo in California; and used her specialized skillset 27 (commercial driving and security clearance) to transport goods for Defendant’s 28 customers in California. See Compl. ¶¶ 1, 11, 12, 14; Hill Decl. ¶¶ 3-4. This is in line with 1 other cases finding a sufficient nexus between an employer’s hiring in the forum and 2 adverse employment actions, even where some of the events giving rise to the claim 3 occurred out of the forum state. See Soto v. United Airlines, Inc., 2024 WL 2260362, at 4 *5 (E.D. Cal. May 17, 2024) (finding tort claims related to the defendant’s employment of 5 the plaintiff in California and its conducting of business in the state, despite the fact that 6 defendant’s “employment decisions and policies” being challenged in the lawsuit were 7 adopted and implemented at defendant’s out-of-state headquarters); Franey v. Am. 8 Battery Sols. Inc., 2022 WL 4280638, at *10 (N.D. Cal. Sept. 15, 2022) (finding the 9 plaintiff's claims arose out of the defendants’ conducting business in the state and 10 employing the plaintiff to serve those business interests). 11 3. Reasonableness of Exercise of Jurisdiction 12 Finally, the specific personal jurisdiction test requires that the exercise of 13 jurisdiction be reasonable. Axiom Foods, 874 F.3d at 1068. This prong considers: (1) the 14 extent of the defendant's purposeful interjection into the forum state's affairs; (2) the 15 burden on the defendant of defending in the forum; (3) the extent of conflict with the 16 sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the 17 dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of 18 the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence 19 of an alternative forum. Ayla, 11 F.4th at 984. Defendant has the burden to “present a 20 compelling case” that the exercise of jurisdiction would be unreasonable. Axiom Foods, 21 874 F.3d at 1069. 22 Here, the first, fourth, fifth, and sixth factors weigh in Plaintiff’s favor. The 23 purposeful interjection factor is “analogous to the purposeful direction” factor. Ayla, 11 24 F.4th at 984. As discussed above, Defendant has continued to inject itself into California 25 by soliciting business and hiring drivers here to serve its customers, even after dissolving 26 its California corporation in 2023 and reincorporating in South Carolina. Compl. at ¶¶ 3-4 27 and 11-14; Hill Decl. ¶¶ 3-5; Wong Decl., Exhs. A and B. California has a strong interest 28 in adjudicating this dispute, given Plaintiff’s California residence, Defendant’s actions 1 taken in and directed at California, and at least part of the injury occurred in California. 2 See Franey, 2022 WL 4280638, at *10. Regarding judicial efficiency, the Court is already 3 familiar with the dispute and, given the Court’s decision on Defendant’s Rule 12(b)(6) 4 arguments, the parties can now turn to the merits of the case. See id. Finally, litigating in 5 California is important to Plaintiff given her residence here. See id. 6 The second and seventh factors weigh in Defendant’s favor. Having to litigate in 7 California would be more burdensome for Defendant than litigating in South Carolina. 8 However, “[u]nless such inconvenience is so great as to constitute a deprivation of due 9 process it will not overcome clear justification for the exercise of jurisdiction.” Caruth v. 10 International Psychoanalytical Ass’n, 59 F.3d 126, 128-29 (9th Cir. 1995). The 11 availability of technology permitting remote legal processes, including the hearing on this 12 motion to dismiss, “militates against affording this factor substantial weight.” Franey, 13 2022 WL 4280638, at *10. It is also clear that this case could have been brought in 14 South Carolina, given Defendant’s incorporation and headquarters in that state. 15 The third factor appears neutral, as the Court is not aware of any conflict with 16 Defendant’s state. 17 Balancing all the factors, the Court finds Defendant has not “present[ed] a 18 compelling case” that the exercise of jurisdiction would be unreasonable. Axiom Foods, 19 874 F.3d at 1069. 20 C. Venue 21 Where federal jurisdiction is founded on diversity of citizenship, venue is proper in 22 (1) a judicial district in which any defendant resides, if all defendants are residents of the 23 State in which the district is located; (2) a judicial district in which a substantial part of the 24 events or omissions giving rise to the claim occurred, or a substantial part of property 25 that is the subject of the action is situated; or (3) if there is no district in which an action 26 may otherwise be brought as provided in this section, any judicial district in which any 27 defendant is subject to the court's personal jurisdiction with respect to such action. 28 28 U.S.C. § 1391(b). 1 Here, Defendant asserts that venue is not proper in the Eastern District of 2 California under 28 U.S.C. § 1391(b)(1) because it is the only defendant and it resides in 3 South Carolina. Regarding residency, defendant entities are deemed to reside “in any 4 judicial district in which such defendant is subject to the court’s personal jurisdiction with 5 respect to the civil action in question.” 28 U.S.C. § 1391(c)(2). As a result, courts have 6 found venue proper when the court “can permissibly exercise personal jurisdiction over 7 [the defendant] in this specific matter.” Evanston Ins. Co. v. W. Cmty. Ins. Co., 13 F. 8 Supp. 3d 1064, 1072 (D. Nev. 2014) (noting that “the personal jurisdiction analysis and 9 the venue analysis effectively collapse into a single inquiry”). For § 1391(b)(1) purposes, 10 venue is proper in this district because Defendant is deemed to reside in California 11 where the Court has found that has personal jurisdiction over Defendant. 12 Venue in this district is also proper under § 1391(b)(2) because a substantial part 13 of the events occurred in this district. Plaintiff applied for, interviewed, was hired, and 14 was assigned a truck and her first assignment by Defendant in West Sacramento, which 15 is located in this district. See Compl. ¶¶ 10, 12-14; Hill Decl. ¶¶ 3-4. Plaintiff picked up 16 cargo from Defendant’s customer in Stockton, which is also located in this district. See 17 Compl. ¶ 14; Hill Decl. ¶ 4. In addition, Plaintiff suffered some harm in California when 18 Defendant promised her a route that would begin and end in California, but fired her 19 when she arrived in South Carolina and required her to travel back home to California at 20 her own expense. See Compl. ¶¶ 17-18; Hill Decl. ¶ 3. Regarding where a “substantial 21 part” of the case has occurred, the Ninth Circuit has held this venue factor is satisfied 22 when “at least one of the harms suffered by plaintiffs was felt” in the venue. See Myers v. 23 Bennett Law Offices, 238 F.3d 1068, 1076 (9th Cir. 2001); see also Rodriguez v. 24 California Highway Patrol, 89 F. Supp. 2d 1131, 1136 (N.D. Cal. 2000) (noting that, for 25 venue purposes, subsection (b)(2) does not require a majority of the events to have 26 occurred in district, nor that the events in that district predominate). 27 Therefore, the Court concludes that venue is proper in this district under 28 28 U.S.C. §§ 1391(b)(1) and 1391(b)(2). 1 D. Extraterritorial Application of California Law 2 Defendant moves to dismiss all claims against it on the grounds that it is not 3 required to adhere to the California labor and employment laws asserted by Plaintiff.6 4 Plaintiff opposes, arguing that Defendant’s argument is misplaced because Plaintiff’s 5 claim for wrongful termination in violation of public policy is based on a federal 6 regulation. Further, Plaintiff contends California state and federal courts have found that 7 California law applies to out of state parties in similar circumstances. 8 The parties’ arguments highlight two principles regarding the extraterritorial 9 application of California law. On one hand, courts have placed the onus on companies 10 conducting business in numerous states to be “aware of and comply with the law of a 11 state in which it chooses to do business.” Oman, et al. v. Delta Air Lines, Inc., 9 Cal.5th 12 762, 773 (2020). On the other hand, the California Supreme Court has noted a 13 presumption against applying California law to non-California persons or activities. 14 Sullivan v. Oracle, 51 Cal.4th 1191, 1207 (2011) (“However far the Legislature's power 15 may theoretically extend, we presume the Legislature did not intend a statute to be 16 operative, with respect to occurrences outside the state [] unless such intention is clearly 17 expressed or reasonably to be inferred “from the language of the act or from its purpose, 18 subject matter or history.”) (quotations omitted). To determine whether a particular law 19 applies extraterritorially, the court must perform a “separate analysis [on each claim] to 20 determine whether the California Supreme Court would apply California law [] under the 21 circumstances of this case.” Bernstein v. Virgin American Airlines, Inc., 3 F.4th 1127, 22 1136 (9th Cir. 2021). 23 In 2020, the California Supreme Court provided direction as to the extraterritorial 24 reach of one of California’s wage and hour statutes in Ward v. United Airlines, Inc., 9 25 Cal.5th 732 (2020). In Ward, a class of airline employees alleged their employer failed to 26 provide wage statements in compliance with California law. See id. This California 27 6 The Court notes that its analysis of the extraterritorial application of California law is 28 not a finding regarding Plaintiff’s employment status. 1 statute contained no explicit language specifying its intended geographic scope. Id. at 2 752. The defendant argued that because these employees performed most of their work 3 outside of California, it would be an unintended extraterritorial application to apply 4 California state law to these employees. Id. at 750. The plaintiffs argued that because 5 they lived in and were paid in California, California law presumably applied. Id. (citing 6 Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 578 (1996) (noting that 7 courts ordinarily interpret California statutes apply “to conduct occurring anywhere within 8 California’s borders”)). 9 The California Supreme Court found “an element of truth to both views,” which 10 suggested that framing the issue solely under territorial principles was not “particularly 11 helpful.” Ward, 9 Cal.5th at 750 (“Unless we are prepared to conclude that any 12 extraterritorial effect at all is sufficient to bar application of California law, or, conversely, 13 that any intraterritorial effect at all is sufficient to justify it, we cannot resolve this case 14 based on territorial presumptions alone.”). After reviewing relevant precedent, the 15 California Supreme Court concluded the focus should be on the “kinds of California 16 connections [that] will suffice to trigger the relevant provisions of California law,” keeping 17 in mind that “the connections that suffice for purposes of one statute may not necessarily 18 suffice for another.” Id. at 752. 19 The California Supreme Court then examined the specific California wage and 20 hour statute at issue in Ward, noting its “aims and its role in the surrounding statutory 21 scheme,” the increment of work covered by the statute, the proportion of work performed 22 in California, and the general liberal construction of wage and hour laws in favor of 23 worker protections. Id. at 752-54. The court noted the aims of the statute at issue, the 24 increment of work covered, and liberal construction all “logically depends on whether the 25 employee’s principal place of work is California.” Id. at 754. Relevant to the location of 26 the work performed, the Court stated: 27 To determine how far these protections extend, we return to the central insight that has long guided courts seeking to 28 discern the geographic scope of legislative enactments: that 1 the Legislature ordinarily does not intend for its enactments to create conflicts with other sovereigns. We can infer from this 2 that the Legislature intended for [this wage statute] to apply to workers whose work is not performed predominantly in any 3 one state, provided that California is the state that has the most significant relationship to the work. For interstate 4 transportation workers and others who do not work more than half the time in any one state, we conclude this 5 principle will be satisfied if the worker performs some work here and is based in California, meaning that 6 California serves as the physical location where the worker presents himself or herself to begin work. 7 8 Id. at 755 (emphasis added). The court concluded that, as applied to the particular 9 California wage and hour statute at issue, “workers are covered if they perform the 10 majority of their work in California; but if they do not perform the majority of their work in 11 any one state, they will be covered if they are based for work purposes in California.” Id. 12 at 755-56. 13 With these principles in mind, the Court examines Plaintiff’s claims to decide 14 whether each claim was intended to apply extraterritorially. 15 1. Payment of Final Wages, Cal. Labor Code § 201 16 California Labor Code § 201(a) states, “If an employer discharges an employee, 17 the wages earned and unpaid at the time of discharge are due and payable 18 immediately.” Section 203 sets forth penalties for the failure to comply with § 201. 19 Courts have recognized that this statute does not contain language expressly indicating 20 the California legislature’s intent for it to apply extraterritorially. See Poehls v. ENSR 21 Consulting & Eng'g, 2006 WL 8431770, at *22 (C.D. Cal. Aug. 31, 2006) (“There is 22 nothing in Labor Code §§ 201 and 203 from which the legislature's intent to give 23 extraterritorial effect to those statutes can be discerned.”). Thus, the Court examines 24 what can be inferred from the statute’s language, purpose, subject matter, and history, 25 as applied to Plaintiff’s case. See Sullivan, 51 Cal. 4th at 1207. 26 Viewing the allegations in the light most favorable to Plaintiff as required, Mollett, 27 795 F.3d at 1065, the Court finds Plaintiff fits squarely into Ward’s definition of an 28 interstate transportation worker “who [does] not work more than half the time in any one 1 state,” who “performed some work in California,” and who used California as “the 2 physical location where [she] presents [] herself to begin work.” Ward, 9 Cal.5th at 755. 3 Plaintiff alleges she was hired by Defendant out of its West Sacramento office, was 4 given her first route and truck upon hiring in California, was instructed to load cargo from 5 one of Defendant’s customers at a facility in Stockton, and was told her assignments 6 would begin and end in California. Compl. ¶¶ 12-14; Hill Decl. ¶¶ 3-4. Further, Plaintiff’s 7 route here began in California, took her through Texas, Kansas, Arkansas, Michigan, 8 and South Carolina; that Defendant terminated her on March 15, 2024 when she arrived 9 at Defendant’s facility in South Carolina; and that Defendant did not pay her final wages 10 upon being terminated. Compl. ¶¶ 14, 17, 18; Hill Decl. ¶ 5. 11 Further, the statutory scheme in § 201 is similar to the wage and hour statute 12 examined in Ward—as was explicitly found by the Ninth Circuit in a case similar to 13 Plaintiff’s case. In Bernstein v. Virgin America, Inc., the plaintiffs (flight attendants for an 14 interstate airline) did not perform a majority of their work in any state but were based in 15 California. 3 F.4th 1127, 1143 (9th Cir. 2021). The Ninth Circuit concluded the principles 16 behind § 201 analogous to those behind the statute at issue in Ward. Id. (stating that the 17 waiting time penalties of § 201 pertains to “a tangible object that the employer must give 18 to the employee,” is “technical in nature” because it specifies “the time in which an 19 employer must remit an employee's wages after separation from employment”). Thus, 20 the Ninth Circuit concluded that like the California wage and hour statute in Ward, 21 California Labor Code § 201 presented “the kinds of California connections” that sufficed 22 to find extraterritorial application for the flight attendant plaintiffs in Bernstein. Id. at 1143- 23 44. 24 Under Ward, California Labor Code § 201 applies to Plaintiff because though she 25 does not perform a majority of her work in any state, she is based in California, was 26 hired in California by Defendant, and presented herself to Defendant in California to 27 begin her work. See Ward, 9 Cal. 5th at 755-56. Under Bernstein, California Labor Code 28 § 201 applies to Plaintiff because it presents the “the kinds of California connections” 1 that suffice for extraterritorial application. See Bernstein, 3 F.4th at 1143-44. 2 2. Reimbursement of Business Expenses, Cal. Labor Code § 2802 3 California Labor Code § 2802(a) requires an employer to “indemnify his or her 4 employee for all necessary expenditures or losses incurred by the employee in direct 5 consequence of the discharge of his or her duties[.]” The statute defines “necessary 6 expenditures or losses” to include “all reasonable costs.” Cal. Labor Code. § 2802(c). 7 Here, Plaintiff alleges that when Defendant fired her on March 15, 2024, it failed to 8 reimburse her for the cost of a tire repair for Defendant’s truck, did not return Plaintiff’s 9 personal effects from the truck, and did not reimburse Plaintiff’s expenses for her travel 10 back to California. Compl. ¶ 18. 11 Courts have found repair costs and travel expenses fall within § 2802, requiring 12 reimbursement. Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 567 (2007) 13 (noting § 2802’s requirement to “indemnify its employees for expenses they necessarily 14 incur in the discharge of their duties” includes reimbursement for “the automobile 15 expenses they actually and necessarily incur in performing their employment tasks,” 16 including vehicle repair and travel costs); Mayen v. Cal Cent. Harvesting, Inc., 2022 WL 17 3587602, at *8 (E.D. Cal. Aug. 22, 2022) (finding employer’s alleged failure to reimburse 18 for travel to be a “necessary expenditure” that could form the basis of a plausible § 2802 19 claim). 20 As to Plaintiff’s claim concerning reimbursement for her personal effects, the 21 Court finds the allegations in the Complaint sufficient to fall within the statute’s language. 22 Section 2802 requires indemnification for “losses incurred in direct consequence of the 23 discharge of her duties.” Though the Complaint does not provide a specific list of 24 Plaintiff’s personal effects left in the truck, it can be reasonably inferred at the pleadings 25 stage that Plaintiff brought personal effects to support her transport of the cargo from 26 California to South Carolina. See Mollett, 795 F.3d at 1065 (the court must accept all 27 well-pleaded factual allegations as true and construe the complaint in the light most 28 favorable to the non-moving party). 1 Regarding the extraterritorial application of § 2802, the Court concludes that 2 § 2802 applies to Plaintiff’s claim based on the facts of this case. As California courts 3 have noted, this provision of the Labor Code applies to expenses incurred by employees 4 in the course of business-related travel. For example, in Gattuso v. Harte-Hanks 5 Shoppers, Inc., the California Supreme Court reviewed the scope of § 2802, noted the 6 legislative history of the statute “to prevent employers from passing their operating 7 expenses on to their employees,” and noted state administrative interpretations, 8 including reimbursement for “damages or loss due to accident.” 42 Cal. 4th 554, 562-66 9 (2007). The California Supreme Court concluded, among other things, that a reasonable 10 interpretation of the statute’s language included a requirement that an employer “fully 11 reimburse its outside sales representatives for the automobile expenses they actually 12 and necessarily incur in performing their employment tasks.” Id. at 567. Based on the 13 principles espoused in Gattuso, it can be inferred that § 2802 applies here to the 14 reimbursement of expenses incurred outside of California, where those expenses were 15 “actually and necessarily incur[red]” by Plaintiff in the performance of her duties 16 transporting cargo from California to other parts of the country. See Gattuso, 42 Cal. 4th 17 at 567. Thus, as with Plaintiff’s § 201 claim, Plaintiff’s reimbursement claim applies 18 extraterritorially because it presents the “the kinds of California connections” that suffice 19 for extraterritorial application. See Bernstein, 3 F.4th at 1143-44. 20 Further, California Labor Code § 2802 applies to Plaintiff because, though she 21 does not perform a majority of her work in any one state, she is based in California, was 22 hired in California by Defendant, and presented herself to Defendant in California to 23 begin her work. See Ward, 9 Cal. 5th at 755-56. As in Ward, the purpose of § 2802, the 24 general protective nature of the wage and hour laws, and Plaintiff’s status as an 25 interstate transportation worker based in California support extraterritorial application 26 here. See id. at 752-55. 27 3. Retaliation, Cal. Labor Code § 1102.5(b) 28 California Labor Code §1102.5(b) prohibits an employer from retaliating against 1 an employee “for disclosing information . . . to a person with authority over the employee 2 or another employee who has the authority to investigate, discover, or correct [a] 3 violation or noncompliance . . . with a local, state, or federal rule or regulation.” To 4 establish a prima facie case of retaliation under § 1102.5(b), a plaintiff must show: 5 (1) she engaged in protected activity, (2) she was thereafter subjected to adverse 6 employment action by her employer, and (3) causation. Ferretti v. Pfizer Inc., 855 F. 7 Supp. 2d 1017, 1025 (N.D. Cal. 2012) (quotations omitted). 8 First, other California courts examining this statute have concluded that nothing in 9 the language of § 1102.5 indicates the California legislature’s intent for the statute to 10 apply extraterritorially, and this Court concurs. See Leibman v. Prupes, 2015 U.S. Dist. 11 LEXIS 80101, at *18-19 (C.D. Cal. June 18, 2015). Further, courts examining California’s 12 retaliation-based causes of action focus on “whether the individual's work had a 13 substantial connection to California through the (1) situs of employment and (2) material 14 elements of the cause of action.” Sexton v. Spirit Airlines, Inc., 2023 WL 1823487, at *3 15 (E.D. Cal. Feb. 8, 2023). 16 For situs of employment, the court in Sexton noted Ward’s test concerning 17 interstate transportation workers. 2023 WL 1823487 at *3-4. Here, as described above, 18 Plaintiff is an interstate transportation worker “who [does] not work more than half the 19 time in any one state,” who “performed some work in California,” and who used 20 California as “the physical location where [she] presents [] herself to begin work.” Ward, 21 9 Cal.5th at 755. 22 Even more than situs of employment, courts have consistently found that “the 23 location where the termination decision was made” to be “a crucial element of the claim 24 because this decision gives rise to the liability of the conduct.” Sexton, 2023 WL 25 1823487, at *4. For example, in Sexton, the court concluded that the claim for retaliation 26 under California’s Fair Employment and Housing Act (“FEHA”) could not stand against a 27 defendant who decided to fire the plaintiff in Florida, finding “the conduct that gave rise 28 to liability did not take place in California.” Id. 1 Similarly, the court in Elzeftawy v. Pernix Group, Inc. found that the plaintiff’s 2 retaliation claim under the California Labor Code § 1102.5 could not stand where the 3 plaintiff was injured in South Korea and the decision to fire him was made at the 4 defendant’s headquarters in Illinois. 477 F. Supp. 3d 734, 781-83 (N.D. Ill. 2020). 5 Though the Elzeftawy court dismissed the plaintiff’s § 1102.5 retaliation claim on 6 different grounds, it found “nothing to suggest that Section 1102.5 permits extraterritorial 7 application, and [the plaintiff] has failed to plausibly connect either his place of 8 employment or [the defendant’s] alleged unlawful retaliation to California.” Id. at 783 9 (citing Oman, et al. v. Delta Air Lines, 889 F.3d 1075, 1079 (9th Cir. 2018) (“[I]f the 10 liability-creating conduct occurs outside of California, California law generally should not 11 govern that conduct.”) and Weinberg v. Valeant Pharmaceuticals Int'l, 2017 WL 12 6543822, at *6 (C.D. Cal. Aug. 10, 2017) (noting that the § 1102.5 claim was predicated 13 on retaliatory decision-making that occurred outside the state)). Likewise, in English v. 14 General Dynamics Mission Sys., the court dismissed the plaintiff’s multiple retaliation- 15 based claims because the decision to fire her was made in Georgia, not California. 2019 16 U.S. Dist. LEXIS 79025, at *17-18 (C.D. Cal. May 8, 2019) (dismissing FEHA retaliation 17 and § 1102.5 “whistleblower protection act” retaliation claims on similar grounds). 18 Here, the Court concludes that California Labor Code § 1102.5 does not apply to 19 Plaintiff’s retaliation claim. Like the cases described above, Plaintiff was terminated in 20 South Carolina, not in California, and Plaintiff has not alleged any facts suggesting that 21 Defendant’s decision to terminate Plaintiff was made in California or tied to California. In 22 fact, Plaintiff explicitly alleges that Defendant decided to terminate her in South Carolina 23 when she arrived at Defendant’s facility on March 15, 2024. Compl. ¶ 17. Because the 24 Complaint does not allege that the decision to terminate Plaintiff was made in California, 25 but instead alleges that it was made in South Carolina, the Court dismisses Plaintiff’s 26 retaliation claim based on California Labor Code § 1102.5. See Sexton, 2023 WL 27 1823487, at *3-4; Oman, 889 F.3d at 1079; Elzeftawy, 477 F. Supp. 3d at 781-83; 28 English, 2019 U.S. Dist. LEXIS 79025 at *17-18. 1 4. Wrongful Termination in Violation of Public Policy 2 Finally, the Court turns to Plaintiff’s wrongful termination in violation of public 3 policy claim. Before considering the extraterritorial analysis, the Court first addresses 4 Plaintiff’s contention that her claim arises under federal law. Plaintiff argues that her 5 claim is predicated on her complaints regarding the truck’s non-compliance with 6 49 C.F.R. § 570.57. Pl. Opp. at 14. This federal regulation sets forth requirements and 7 exceptions applicable to “vehicles with air brake and air-over-hydraulic brake systems.” 8 While the federal regulation may serve as the basis for the violation of public policy, the 9 regulation itself does not provide a cause of action for Plaintiff for wrongful termination 10 and does not transform Plaintiff’s claim into one arising under federal law. See Lawrence 11 v. BNSF Ry. Co., 2016 WL 6993566, at *3 (E.D. Cal. Nov. 30, 2016) (“Basing a state law 12 claim on a federal public policy does not by itself invoke federal question jurisdiction 13 [because] when state and not federal law underlies a claim, referencing federal policy in 14 the complaint does not transform the state claim into a federal claim for relief. Rains v. 15 Criterion Sys., Inc., 80 F.3d 339, 346-47 (1996) (plaintiff's reliance on the federal policy 16 embodied in Title VII as a basis for a state wrongful discharge claim did not create 17 federal-question jurisdiction); see also Campbell v. Aerospace Corp., 123 F.3d 1308, 18 1315 (9th Cir. 1997) (plaintiff's reliance on federal False Claims Act as basis for a state 19 wrongful termination claim did not raise federal question jurisdiction).”). This authority 20 arises under California common law. 21 In Tameny v. Atl. Richfield Co., the California Supreme Court stated that “when an 22 employer's discharge of an employee violates fundamental principles of public policy, the 23 discharged employee may maintain a tort action and recover damages traditionally 24 available in such actions.” 27 Cal.3d 167, 170 (1980). To state a Tameny claim, a 25 plaintiff must allege facts indicating (1) she was employed by the defendant, (2) the 26 defendant discharged her, (3) a violation of public policy substantially motivated the 27 discharge, and (4) the discharge caused harm to her. Zolensky v. Am. Medflight, Inc., 28 2017 WL 1133926, at *6 (E.D. Cal. Mar. 27, 2017) (quoting Diego v. Pilgrim United 1 Church of Christ, 231 Cal. App. 4th 913, 920 (2014)). Courts have long held that a 2 protected activity under Tameny can include reporting of violations of federal regulations 3 or other occupational safety concerns. See Montag v. Aerospace Corp., 94 F.3d 652 4 (9th Cir. 1996) (finding allegations that the plaintiff was terminated for bringing to his 5 employer’s attention violations of federal regulation); Lindland v. TuSimple, Inc., 2022 6 WL 19001977, at *5 (S.D. Cal. Dec. 19, 2022) (finding Tameny action could be based on 7 terminated plaintiff’s reporting of employer’s violation of regulations promulgated by the 8 National Highway Transportation Safety Administration); Frazier v. United Parcel Serv., 9 Inc., 2005 WL 1335245, at *12 (E.D. Cal. May 3, 2005) (finding the plaintiff’s reporting of 10 a malfunctioning brake system could support a claim under Tameny). Here, Plaintiff has 11 sufficiently alleged the third element—a violation of public policy (the truck’s non- 12 compliance with a federal regulation) substantially motivated the discharge. 13 Despite this, the language of Tameny indicates that the source of an employee’s 14 claim for wrongful discharge arises from California common law. Tameny, 27 Cal. 3d at 15 172-78 (stating that “[a]n employee discharged for refusing to engage in illegal conduct 16 at his employer's request may bring a tort action for wrongful discharge,” and discussing 17 the common law origins of this claim in California). The California Supreme Court stated 18 the employer's obligation to not discharge an employee in violation of public policy 19 “reflects a duty imposed by law upon all employers in order to implement the 20 fundamental public policies embodied in the state's penal statutes.”) Id. at 176. Based on 21 these principles, courts have noted that a claim for wrongful termination in violation does 22 not “arise” under federal law for removal purposes. See Lawrence, 2016 WL 6993566 at 23 *3. Thus, the Court must examine whether California law should be applied 24 extraterritorially to Plaintiff’s wrongful termination claim. 25 The analysis is similar to the analysis of whether California law applies to 26 Plaintiff’s retaliation claim. Plaintiff was terminated in South Carolina, not in California, 27 and Plaintiff has not alleged any facts suggesting that Defendant’s decision to terminate 28 Plaintiff was made in California or tied to California. In fact, Plaintiff explicitly alleges that 1 | Defendant decided to terminate her in South Carolina when she arrived at Defendant’s 2 | facility on March 15, 2024. Compl. J 17. Because the Complaint does not allege that the 3 || decision to terminate Plaintiff was made in California, but instead alleges that it was 4 || made in South Carolina, and this fact is “a crucial element of the claim because this 5 || decision gives rise to the liability of the conduct,” Sexton, 2023 WL 1823487 at *4, the 6 | Court concludes that California law does not apply extraterritorially to Plaintiffs wrongful 7 | termination in violation of public policy claim and dismisses this claim. See English, 2019 8 | U.S. Dist. LEXIS 79025 at *18 n. 22 (finding the plaintiff's wrongful termination in 9 | violation of public policy claim was based on the same underlying conduct as the FEHA 10 | wrongful termination claim, and determining both claims could not apply extraterritorially 11 || because the decision to fire the plaintiff was made in Georgia, not California); see a/so 12 || Wood v. iGATE Techs., Inc., 2016 WL 3548410, at *6 (N.D. Cal. June 30, 2016) (finding 13 | Tameny claim arose out of state law, and geographical limitations inherent in the claim 14 | barred extraterritorial application where the plaintiff was not a California wage earner). 15 | IV. CONCLUSION 16 Defendant's motion to dismiss (ECF No. 11) is GRANTED IN PART and DENIED 17 | IN PART. For the reasons stated above, the Court finds it has personal jurisdiction over 18 | Defendant, and venue is proper in this district. Further, Plaintiff's claims for failure to pay 19 | final wages under California Labor Code § 201 (third cause of action) and failure to 20 | reimburse business expenses under California Labor Code § 2802 (fourth cause of 21 || action) may proceed, while the retaliation claim under California Labor Code § 1102.5 22 || (second cause of action) and wrongful termination claim (first cause of action) are 23 || dismissed. 24 25 || Dated: September 16, 2024 C iy S \U 26 CHI SOO KIM 7 UNITED STATES MAGISTRATE JUDGE 28 || 3, hill. 1751 26