Jenna Noble v. Dorcy Inc.

Opinion

O 1

2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 JENNA NOBLE, Case No. 2:19-cv-08646-ODW (JPRx) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS [41]; 14 DORCY INC. et al. DENYING DEFENDANTS’ MOTION 15 Defendants. FOR ORDER MODIFYING THE SCHEDULING ORDER [51] 16

17 18 I. INTRODUCTION 19 Defendants Dorcy Inc. and Dorcy Pruter (collectively, “Defendants”) move to 20 dismiss certain claims in Plaintiff Jenna Noble’s (“Noble”) First Amended Complaint 21 alleging sexually harassing conduct during her employment. (See generally Mot. 22 Dismiss (“Mot.”), ECF No. 41.) Defendants also move to modify the scheduling 23 order to extend the deadline to hear motions to amend the pleadings or add parties. 24 (See generally Mot. Order Modifying Scheduling Order (“Mot. Modify”), ECF 25 No. 51.) For the reasons that follow, the Court GRANTS Defendants’ Motion to 26 27 28 1 Dismiss with leave to amend and DENIES Defendants’ Motion for Order Modifying 2 the Scheduling Order.1 3 II. BACKGROUND 4 Around April or May of 2018, Noble, a resident of Alberta, Canada, began her 5 position as an enrollment manager with Dorcy Inc., a California corporation. (First 6 Am. Compl. (“FAC”), ¶¶ 1–2, 8, ECF No. 38.) Her duties included: employee 7 training, customer service, customer solicitation, customer enrollment, secretarial 8 duties, and marketing Dorcy Inc. services at conventions. (FAC ¶ 9.) Noble alleges 9 that Dorcy Inc. agreed to pay her commission for participants she enrolled in Dorcy 10 Inc.’s coaching programs; however, Dorcy Inc. failed to pay any such commission. 11 (FAC ¶¶ 10, 11.) 12 Furthermore, Noble alleges that she “suffered from sexually harassing conduct 13 and battery by her supervisor Pruter that was severe and/or pervasive.” (FAC ¶ 12.) 14 On or around May 31, 2019, Noble and Pruter attended a business trip to the 15 Association of Family and Conciliation Courts in Toronto, Canada, where Pruter 16 allegedly forcefully grabbed Noble’s breasts. (FAC ¶ 12.) Noble made a police 17 complaint about this incident in Lloydminster, Alberta, Canada. (FAC ¶ 13.) Noble 18 also alleges that Pruter made sexually harassing comments to her in California. (FAC 19 ¶ 12.) On or about June 18, 2019, Dorcy Inc. terminated Noble. (FAC ¶ 14.) Noble 20 alleges “the decision to fire her was made in California because [she] did not submit 21 to and protested the sexually harassing conduct and battery by her supervisor Pruter.” 22 (FAC ¶ 14.) As a result, Noble suffered emotional injuries and loss of earnings and 23 benefits. (FAC ¶ 17.) 24 Noble brings this lawsuit in connection with her employment with Dorcy Inc. 25 (See FAC.) Specifically, Noble alleges six claims against both Defendants: (1) breach 26 of contract, (2) fraud, (3) nonpayment of wages, (4) sexual harassment in violation of 27

28 1 After carefully considering the papers filed in connection with the motions, the Court deems the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 the Fair Employment and Housing Act (“FEHA”), (5) sexual battery, and 2 (6) retaliation in violation of FEHA. (FAC ¶¶ 26–70.) Additionally, Noble adds three 3 claims against Dorcy Inc. in the FAC: (7) penalties pursuant to California Labor Code 4 section 2699, (8) rescission, and (9) declaratory relief regarding unenforceable 5 contract.2 (FAC ¶¶ 71–109.) In the instant motion, Defendants move to dismiss 6 Noble’s fourth and sixth claims. (Mot. 1–2.) 7 Additionally, in the Scheduling and Case Management Order (“Scheduling 8 Order”) governing this case, the Court set May 25, 2020, as the deadline to hear 9 motions to amend the pleadings or add parties. (Scheduling Order 24, ECF No. 43.) 10 On June 1, 2020, Defendants moved to modify the Scheduling Order to extend the 11 deadline to August 3, 2020. (See Mot. Modify) 12 III. MOTION TO DISMISS 13 A. Legal Standard 14 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 15 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 16 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). “To 17 survive a motion to dismiss . . . under Rule 12(b)(6), a complaint generally must 18 satisfy only the minimal notice pleading requirements of Rule 8(a)(2)”—a short and 19 plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see 20 also Fed. R. Civ. P. 8(a)(2). The “[f]actual allegations must be enough to raise a right 21

22 2 The court may sua sponte dismiss claims under Federal Rule of Civil Procedure (“Rule”) 41(b) for a plaintiff’s failure to comply with the rules of civil procedure or court’s orders. Hells Canyon Pres. 23 Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); see Fed. R. Civ. P. 41(b). Here, Noble raises causes of action seven through nine for the first time in her FAC without complying 24 with Rule 15. Noble filed the FAC beyond the time permitted in Rule 15 for amendments as a 25 matter of right, yet she did not obtain consent from Defendants or leave of court to add the three additional claims. See Fed. R. Civ. P. 15. Furthermore, Noble did not comply with the Court’s 26 order on January 22, 2020, which granted Noble leave to amend a specific and limited set of issues in her original complaint. See DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390-LHK, 2010 27 WL 4285006, at *3 (N.D. Cal. Oct. 22, 2010) (“[W]here leave to amend is given to cure deficiencies 28 in certain specified claims . . . new claims alleged for the first time in the amended pleading should be dismissed or stricken.”). Therefore, the Court dismisses causes of action seven through nine. 1 to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 2 (2007). The “complaint must contain sufficient factual matter, accepted as true, to 3 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 4 678 (2009) (internal quotation marks omitted). “A pleading that offers ‘labels and 5 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not 6 do.’” Id. (quoting Twombly, 550 U.S. at 555). 7 Whether a complaint satisfies the plausibility standard is a “context-specific 8 task that requires the reviewing court to draw on its judicial experience and common 9 sense.” Id. at 679. A court is generally limited to the pleadings and must construe all 10 “factual allegations set forth in the complaint . . . as true and . . . in the light most 11 favorable” to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 12 2001). But a court need not blindly accept conclusory allegations, unwarranted 13 deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 14 266 F.3d 979, 988 (9th Cir. 2001). Accusations of fraud require a plaintiff to plead 15 with particularity the circumstances constituting fraud. See Fed. R. Civ. P. 9(b). Rule 16 9(b) requires that the complaint identify the “who, what, when, where, and how” of 17 the fraudulent activity, “as well as what is false or misleading about” it, and why it is 18 false. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 19 1055 (9th Cir. 2011) (internal quotation marks omitted). 20 Where a district court grants a motion to dismiss, it should generally provide 21 leave to amend unless it is clear the complaint could not be saved by any amendment. 22 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 23 1025, 1031 (9th Cir. 2008). 24 25 26 27 28 1 B. Discussion3 2 Defendants move to dismiss Noble’s fourth and sixth causes of action. 3 (Mot. 1–2.) Defendants assert that Noble has not provided sufficient factual 4 allegations to state a claim for harassment or retaliation under FEHA. (Mot. 3–4.) 5 Specifically, Defendants argue that Noble has not established a sufficient nexus 6 between the alleged tortious conduct and California to justify the application of 7 FEHA. (Mot. 4–7.) 8 1. Claim 4: Sexual Harassment in Violation of FEHA 9 In Noble’s FAC, she makes two allegations to support a claim for sexual 10 harassment under FEHA: (1) Pruter “forcefully grabbed [Noble’s] breasts during a 11 business trip . . . at a hotel in Toronto, Canada” and (2) “Pruter made sexually 12 harassing comments to [Noble] in California.” (FAC ¶ 12.) Defendants argue that 13 because Noble alleges Pruter grabbed her breasts in Canada, the first allegation does 14 not create a sufficient nexus to California as required by FEHA. (See Mot. 3.) 15 Furthermore, Defendants contend that even though the second allegation states that 16 the sexually harassing comments took place in California, it is conclusory, and 17 consequently, the Court must ignore it. (Mot. 3–4.) 18 To determine whether FEHA applies, courts must answer the threshold question 19 of whether the offending conduct occurred within California. See Poehls v. ENSR 20 Consulting & Eng’g, No. 04-cv-8885 MMM (SHx), 2006 WL 8431770, at *20 (C.D. 21 Cal. Aug. 31, 2006). FEHA does not apply uniformly “to all California-based 22 employers regardless of where the aggrieved employee resides and regardless of 23 3 In her Opposition, Noble argues that Defendants’ Motion should be dismissed because Defendants 24 failed to meet and confer in good faith, in contravention to Local Rule 7-3. (Opp’n to Mot. 25 (“Opp’n”) 4, ECF No. 45.) On February 25, 2020, Defendants emailed Noble about their intent to file a motion to dismiss on February 26, 2020. (Opp’n 4; Decl. of Daniel Nomanim ¶ 2, ECF 26 No. 45.) Although sending an email the day before filing the motion does not satisfy the meet and confer requirement, this is the second iteration of Defendants’ Motion and Noble had notice that 27 Defendants planned to file it. The Court finds the matter would benefit from consideration of the 28 motion on the merits. Accordingly, the Court accepts all filings and addresses the motion on its merits. 1 where the tortious conduct took place.” Campbell v. ARCO Marine, Inc., 42 Cal. App. 2 4th 1850, 1859 (1996) (finding that FEHA does not apply, although the defendant 3 company was headquartered in California, as the alleged tortious conduct occurred 4 while at sea or near the state of Washington). Instead, to state a claim under FEHA, 5 the plaintiff must show either that she had been employed in California or that the 6 allegedly tortious conduct took place in California. Sims v. Worldpac Inc., No. C 12- 7 05275 JSW, 2013 WL 663277, at *2 (N.D. Cal. Feb. 22, 2013) (citing Campbell, 42 8 Cal. App. 4th at 1858–59). Noble does not dispute that Pruter’s alleged physical 9 contact took place outside of California in Canada. (See Opp’n 3, 9.) Accordingly, 10 the FEHA claim cannot be premised on the physical conduct. However, Noble alleges 11 that Pruter’s sexually harassing comments occurred in California. (FAC ¶ 12.) A 12 FEHA claim may be cognizable if Noble sufficiently alleges factual support. 13 To state a claim for sexual harassment under the FEHA, Noble must plead that 14 “(1) she was subjected to verbal or physical contact of a sexual nature, (2) the conduct 15 was unwelcome, and (3) the abusive conduct was sufficiently severe or pervasive so 16 as to alter the conditions of her employment thus creating an abusive working 17 environment.” Lewis v. City of Benicia, 224 Cal. App. 4th 1519, 1524 (2014) (citing 18 Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 279 (2006)). Courts allow 19 recovery for harassing comments where the plaintiff shows a “concerted pattern of 20 harassment of a repeated, routine, or a generalized nature,” but not where the 21 comments are “occasional, isolated, sporadic, or trivial.” Lyle, 38 Cal. 4th at 283; see 22 Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 910 (E.D. Cal. 2017) (finding the 23 plaintiff’s allegations insufficient because the alleged comments were not made 24 repeatedly and did not interfere with the plaintiff’s work performance); cf. Singleton v. 25 U.S. Gypsum Co., 140 Cal. App. 4th 1547, 1551–53 (2006) (reversing summary 26 judgment in favor of the defendant where the plaintiff’s male coworkers made 27 comments every night about him wearing a G-string, performing oral sex on his 28 supervisor and engaging in anal sex—making his job a “living hell”). 1 Noble completely fails to provide details regarding the nature of the comments 2 made in California—including the content or frequency—to establish severity and 3 pervasiveness as required by the FEHA. However, she may amend her complaint to 4 add allegations giving rise to a plausible claim of sexual harassment in California. 5 Hence, the Court DISMISSES the claim with leave to amend. 6 2. Claim 6: Retaliation in Violation of the FEHA 7 Defendants contend that Noble’s allegation about her termination is 8 “impermissibly vague” and a termination decision alone is insufficient to establish a 9 nexus with California. (Mot. 5–6.) Noble counters that she may state a claim for 10 retaliation under the FEHA because Defendants made the decision in California to 11 terminate Noble for protesting Pruter’s harassment. (Opp’n 9.) 12 Courts have held that where California-based employees carry out the allegedly 13 tortious conduct—such as retaliatory firing—a FEHA claim may be cognizable. See, 14 e.g., Sims, 2013 WL 663277, at *4; Stovall v. Align Tech., Inc., No. 5:18-cv-07540- 15 EJD, 2020 WL 264402, at *3 (N.D. Cal. Jan. 17, 2020). To show that the retaliatory 16 firing occurred in-state, the plaintiff must describe “who was responsible for demoting 17 and firing [the plaintiff], where those individuals were located when they engaged in 18 such conduct, or where [the plaintiff] was located when [s]he was allegedly 19 discriminated against.” Gonsalves v. Infosys Techs., LTD., No. C 09-04112 MHP, 20 2010 WL 1854146, at *2 (N.D. Cal. May 6, 2010). 21 Noble alleges that “the decision to terminate [her] was made in California.” 22 (FAC ¶ 14.). However, Noble does not explicitly identify who fired her, whether they 23 were California-based employees, or how they made the decision for her termination. 24 The Court lacks the necessary factual allegations to make a plausible inference that 25 the retaliatory firing occurred in California. See, e.g., Buchanan v. NetJets Servs., 26 Inc., No. 5:18-cv-00812-EJD, 2018 WL 1933189, at *3 (N.D. Cal. Apr. 24, 2018) 27 (dismissing the plaintiff’s argument that FEHA applies simply because he was 28 supervised by California managers); cf. Sims, 2013 WL 663277, at *3 (finding the 1 FEHA allegations sufficient where the plaintiff did not only imply that the defendants 2 worked at the California headquarters but described employment conversations the 3 parties had in the state). 4 Based on the reasoning above, the Court DISMISSES Noble’s sixth claim. 5 The Court grants Noble leave to amend should she be able to allege with more detail 6 and specificity the tortious conduct that occurred in California. 7 IV. MOTION FOR ORDER MODIFYING THE SCHEDULING ORDER 8 Next, the Court addresses the Defendants’ second motion. Defendants move to 9 modify the Scheduling Order to extend the deadline to hear motions to amend 10 pleadings or add parties from May 25, 2020, to August 3, 2020. (Mot. Modify 2.) 11 A. Legal Standard 12 Rule 16 provides that “[a] schedule may be modified only for good cause and 13 with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ 14 standard primarily considers the diligence of the party seeking the amendment.” 15 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court 16 may modify the pretrial schedule “if it cannot reasonably be met despite the diligence 17 of the party seeking the extension.” Id. (quoting Rule 16 advisory committee’s notes 18 (1983 amendment) (internal quotation marks omitted). “Although the existence or 19 degree of prejudice to the party opposing the modification might supply additional 20 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons 21 for seeking modification. If that party was not diligent, the inquiry should end.” Id. 22 (citations omitted). 23 B. Discussion 24 Defendants moved to modify the Scheduling Order on June 1, 2020 and set the 25 motion on calendar for June 29, 2020—more than a month after the deadline to hear a 26 motion to amend pleadings or add parties. (See generally Mot. Modify.) Defendants 27 argue that good cause exists because they acted with diligence in trying to obtain 28 necessary information to add Pathways Family Coaching, Ltd. (“Pathways”), Noble’s 1 corporate entity, as a counter-defendant. (Mot. Modify 4.) Defendants assert that 2 they requested Pathways’ address from Noble during discovery on March 17, 2020, to 3 serve Pathways via registered mail, but Noble did not respond. (Mot. Modify 2–3.) 4 Defendants contend that when they finally received Pathways’ address on May 11, 5 2020, it was too late to file a motion by the deadline on May 25, 2020. 6 (Mot. Modify 3.) 7 Noble argues that Defendants knew Pathways existed as a potential counter- 8 defendant for at least seven months because they filed a subpoena in state court for 9 Pathways’ PayPal information on October 3, 2019. (Opp’n Mot. Modify (“Opp’n 10 Modify”) 3, ECF No. 52; see Decl. of Daniel Nomanim ¶ 2, Ex. B (“Subpoena”), ECF 11 No. 52.) Furthermore, Noble argues that both parties submitted a Joint Rule 26 12 Report on February 24, 2020, in which Defendants stated they wanted to amend to add 13 Pathways as a party. (Opp’n Modify 3.) 14 The Court agrees that Defendants have not demonstrated good cause. Not only 15 have Defendants known of Pathways’ relation to Noble since October 2019, they did 16 in fact indicate that they intended to add “the corporate form used by Ms. Noble” as a 17 party in the Joint Report filed four months ago. (Subpoena; Joint Report 6, ECF No. 18 40); see Oliver v. Ralphs Grocery Co., 654 F.3d 903, 906 (9th Cir. 2011) (finding no 19 good cause where the plaintiff stated his intent to amend one month before the 20 deadline for hearing such motions but sought amendment seventeen days after the 21 deadline). Defendants learned new information about Pathways in May 2020—the 22 entity’s mailing address. However, Defendants did not need the address to file a 23 motion to add Pathways as a party or at least file a motion seeking an extension prior 24 to the Scheduling Order’s deadline. “The good cause standard typically will not be 25 met where the party . . . has been aware of the facts and theories supporting 26 amendment since the inception of the action.” In re W. States Wholesale Nat. Gas 27 Antitrust Litig., 715 F.3d 716, 737–38 (9th Cir. 2013). Therefore, Defendants fail to 28 1 || meet the good cause standard in the instant case. Accordingly, the Court DENIES 2 | Defendants’ Motion for Order Modifying the Scheduling Order. 3 Vv. CONCLUSION 4 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss. 5 || (ECF No. 41.) Noble may amend her Complaint to address the deficiencies identified 6 || above within twenty-one (21) days from the date of this Order. Additionally, the 7 || Court DENIES Defendants’ Motion for Order Modifying the Scheduling Order. (ECF 8 | No. 51). 9 10 IT IS SO ORDERED. 11 12 July 23, 2020 “ 13 ‘ “ 14 Gill: Ya Mit 15 OTIS D. WRIGHT, II 16 UNITED STATES DISTRICT JUDGE

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