Kajberouni v. Bear Valley Community Services District

District Court, E.D. California·Decided November 21, 2022·No. 1:19-cv-01703·Unknown

Opinion

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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RAFFI H. KAJBEROUNI, ) Case No.: 1:19-cv-1703 JLT CDB ) 12 Plaintiff, ) ORDER GRANTING IN PART THE DISTRICT’S ) MOTION TO DISMISS 13 v. ) (Doc. 54) ) 14 BEAR VALLEY COMMUNITY SERVICES ) ORDER GRANTING THE DISTRICT’S MOTION DISTRICT, et al., ) TO STRIKE 15 ) (Doc. 55) Defendants. ) 16 ) ) 17

18 Raffi Kajberouni asserts he was required to perform work without proper compensation as an 19 officer of the Bear Valley Police Department. Kajberouni seeks to hold the Bear Valley Community 20 Services District and the BVPD liable for violations of federal and state employment laws. (See 21 generally Doc. 51.) 22 The District seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 23 arguing Kajberouni failed to allege facts sufficient to support his claim for reimbursement of necessary 24 business expenses, and his requests for injunctive relief are fatally flawed. (Doc. 54.) In addition, the 25 District seeks to strike reference to BVPD as a separate entity pursuant to Rule 12(f). (Doc. 55.) The 26 Court finds the matters suitable for decision without oral arguments, and no hearing date will be set 27 pursuant to Local Rule 230(g) and General Order 618. For the reasons set forth below, the motion to 28 dismiss is GRANTED IN PART and the motion to strike is GRANTED. 1 I. Background and Allegations 2 Kajberouni was employed in the position of “Police Officer I” with the BVPD from November 3 24, 2015 to May 15, 2019. (Doc. 51 at 4, ¶ 5.) Kajberouni asserts that while “a direct employee of 4 BVPD, [he] was simultaneously an indirect employee” of the Bear Valley Community Services 5 District, which “acts as the local government in Bear Valley Springs.” (Id. at 4-5, ¶¶ 5, 7.) 6 According to Kajberouni, the BVPD and the District required him “to work, perform duties and 7 spend time” without compensation. (Doc. 51 at 6, ¶ 9.) Kajberouni alleges the BVPD expected 8 officers “to be ready to start patrolling at the beginning of their scheduled shift,” which required several 9 tasks without compensation. (Id. at 8, ¶ 10.) For example, Kajberouni asserts that prior to clocking in, 10 he was required to don his uniform; “check[] equipment attached to duty belts and tactical ballistic 11 vests to ensure that all safety equipment was functioning properly;” and load the “patrol vehicle with 12 duty equipment, including but not necessarily limited to a Police Department issued laptop, gun(s), 13 ammunition, lidar/radar, breathalyzer, defibrillator, and first aid bag.” (Id. at 7, ¶ 9(b)-(c).) 14 Kajberouni alleges that if he was scheduled to start a shift starting at 6:00 am, he arrived 15 “anywhere between 5:15 to 5:30 am” and took 10-15 minutes “to don his police uniform and safety and 16 protective gear” in the locker room. (Doc. 51 at 8, ¶¶ 11, 12(a).) He asserts there were also times when 17 he talked with other officers or sergeants about their shifts prior to going to the locker room, in which 18 instance Kajberouni asserts BVPD and the District failed to compensate his for “approximately 15 to 19 30 minutes” of work. (Id. at 8-9, ¶ 12(b).) Kajberouni contends similar work—including doffing the 20 uniform and protective gear—was required off the clock, after his shift. (Id. at 6-7, ¶ 9.) He asserts 21 that he was compensated for the scheduled 12-hour shifts only, and “BVPD and [the District] did not 22 compensate BVPD officers for any pre or post shift work.” (Id. at 8, ¶ 10.) 23 In addition, Kajberouni contends the defendants failed to provide proper rest breaks and meal 24 periods. (Doc. 51 at 20, ¶ 36.) Kajberouni alleges that during a “typical 12-hour patrol, he would not 25 have a set time as to when his rest breaks and/or meal periods were.” (Id..) He asserts that he 26 attempted “to schedule these during slow patrol periods.” (Id.) However, Kajberouni alleges “he 27 remained on the clock for both rest breaks and meal breaks, and would have to interrupt them if he 28 received a call for service.” (Id.) 1 Finally, Kajberouni asserts BVPD and BVCSD either “failed to provide BVPD officers” with 2 adequate supplies, and the supplies he purchased were not reimbursed. (Doc. 51 at 11-14, ¶¶ 20-23.) 3 For example, Kajberouni asserts that “BVPD issued first-aid bags, but they were inadequate because 4 they were never stocked, i.e. one would not have eye wash drops, gauzes, or certain size Band-Aids.” 5 (Id. at 12, ¶ 21.) He alleges he purchased “emergency roadside first aid kits and medical gloves.” (Id., 6 ¶ 20.) Kajberouni reports he also carried a tourniquet and holster on his duty belt, “which BVPD 7 neither provided nor reimbursed him.” (Id. at 11, ¶ 20.) According to Kajberouni, the expenditures 8 “were incurred in direct consequence of [the] discharge of his duties, or obedience to the directions of 9 BVPD, and thus BVCSD, because BVPD officers are dispatched to every Bear Valley medical call.” 10 (Id., ¶ 21.) He contends the calls to which he responded included self-puncture and domestic violence 11 calls, for “which a tourniquet and adequate first aid supplies are crucial.” (Id.) Kajberouni alleges: “It 12 is standard for even deputies to wear a tourniquet. It is not an uncommon tool for other officers of 13 other police departments to carry, including but not limited to the following other police departments 14 nearest to Bear Valley: Stallion Springs, Tehachapi, and Kern County.” (Id. at 13, ¶ 22.) He contends 15 the defendants “either knew or had reason to know” of the expenses incurred by Kajberouni because 16 he wore the items every day and informed BVPD Sergeant David Pierce of the tourniquet and holster 17 purchases, to which Pierce responded: “Yeah, the department is not paying for it.” (Id. at 13-14, ¶ 23.) 18 Kajberouni contends the District and BVPD owe him “reimbursement for this necessary safety 19 business expense.” (Id. at 26, ¶ 42.) 20 Kajberouni initiated this action by filing a complaint on December 6, 2019, which he amended 21 on October 14, 2021. (Docs. 1, 29.) Kajberouni sought to hold the District and BVPD liable for the 22 failure to pay both minimum and regular wages, failure to pay overtime wages under the FLSA, meal 23 period violations, rest period violations, failure to pay all wages due upon separation, failure to 24 reimburse necessary business expenses, and unfair business practices. (See Doc. 29 at 1-2, 20-27.) The 25 Court dismissed the several causes of action—including the claims related to meal and rest break 26 violations, failure to pay wages due upon separation, and unfair business practices— failed as a matter 27 of law and dismissed the claims without leave to amend. (Doc. 50 at 13.) However, the Court 28 permitted Kajberouni to amend his claim for reimbursement of business expenses. (Id.) 1 On May 23, 2022, Kajberouni filed his Second Amended Complaint. (Doc. 51.) Kajberouni 2 now seeks to state the following claims: (1) failure to pay both minimum and regular wages under the 3 Fair Labor Standards Act, 29 U.S.C. § 206; (2) failure to pay overtime wages under the FLSA; (3) 4 failure to reimburse necessary business expenses; and (4) unfair practices in violation of Cal. Bus. & 5 Prof. Code § 17200. (See Doc. 51 at 1, 21-26.) Kajberouni also seeks injunctive relief, “requiring 6 Defendants refrain from violating the FLSA and relevant any California Labor Codes and/or applicable 7 Industrial Wage Order.” (Id. at 27.) 8 The District filed the pending motions to dismiss and to strike on June 6, 2022. (Docs. 54, 55.) 9 Kajberouni filed his oppositions to the motions on June 21, 2022.1 (Docs. 59, 60.) The District filed its 10 replies on June 30, 2022. (Docs. 61, 62). 11 II. Motion to Dismiss (Doc.

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6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

3 Iqbal, 556 U.S. at 678 (internal citations omitted). 4 “The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled 5 to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery 6 is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The 7 Court “will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to 8 plead sufficiently all required elements of a cause of action.” Student Loan Marketing Assoc. v. Hanes, 9 181 F.R.D. 629, 634 (S.D. Cal. 1998). To the extent pleading deficiencies can be cured by the plaintiff 10 alleging additional facts, leave to amend should be granted. Cook, Perkiss & Liehe, Inc. v. Northern 11 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 12 A. Third Claim for Relief: Reimbursement of Expenses 13 Kajberouni seeks reimbursement of necessary business expenses under Cal. Lab. Code § 2802, 14 which provides in relevant part: “An employer shall indemnify his or her employee for all necessary 15 expenditures or losses incurred by the employee in direct consequence of the discharge of his or her 16 duties, or of his or her obedience to the directions of the employer….” To state a claim under Section 17 2802, a plaintiff must allege: “(i) the employee made expenditures or incurred losses; (ii) the 18 expenditures or losses were incurred in direct consequence of the employee’s discharge of his or her 19 duties, or obedience to the directions of the employer; and (iii) the expenditures or losses were 20 reasonable and necessary.” Marr v. Bank of Am., 2011 WL 845914, at *1 (N.D. Cal. Mar. 8, 2011) 21 (citing Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 568 (2007)). “In addition, the 22 employer ‘must either know or have reason to know that the employee has incurred [the] expense.’” Id. 23 (quoting Stuart v. RadioShack Corp., 641 F. Supp. 2d 901 (N.D. Cal. 2009)). 24 The District argues Kajberouni “continues to fail to state a claim” because “some of the newly 25 added facts also make it intrinsically implausible to state a claim under Labor Code section 2802.” 26 (Doc. 54 at 8.) The District argues that it provided Kajberouni, “according to his own allegations, with 27 lifesaving equipment and first aid supplies.” (Id. at 9.) The District contends Kajberouni “fails to 28 allege that he requested the District to re-stock the first aid bags at any point.” (Id. at 8.) The District 1 argues the “purchases were not necessary, rather they were the Plaintiffs’ preferred equipment and 2 method to obtain the tools he deemed as necessary.” (Id. at 8-9.) In addition, the District asserts “due 3 to stocking issues, [Kajberouni] unilaterally made the decision that the equipment provided by the 4 District was inadequate, without giving the District an opportunity to cure such alleged supply issues.” 5 (Id. at 9.) Thus, the District concludes the allegations in the SAC “make it implausible that his 6 purchases were necessary under Labor Code section 2802.” (Id.) 7 In response, Kajberouni contends for the first time in his opposition that he “was told by 8 Sergeant Pierce that the department (BVPD) would not purchase ancillary items despite BVPD’s 9 issuance of inadequate first-aid bags that were never stocked, which BVPD had a duty to stock.” 10 (Doc. 59-1 at 5.) In addition, he asserts that he “complain[ed] multiple times about the inadequately 11 stocked BVPD first-aid bags, so too did other BVPD Officers.” (Id. at 6.) He contends: 12 [P]rior to purchasing the equipment for which Mr. Kajberouni complains BVCSD failed to reimburse him, Mr. Kajberouni informed Sergeant 13 Pierce—who was responsible for and authorized to approve BVPD expenses for Officers—3-4 times that the first-aid bags were never 14 stocked. According to Mr. Kajberouni, Sergeant Pierce’s response to Mr. Kajberouni was either “It’s not in the budget” or “We’ll get to it”, but 15 BVCSD and BVPD neither added adequate first-aid kits to BVCSD and/or BVPD’s budget, nor ever got to it. Furthermore, other patrol 16 Officers Chad Foss and Stacey Arebalo also complained, Officer Foss at least once and Officer Arebalo at least 3 to 4 times like Mr. Kajberouni. 17 These complaints were met with BVCSD’s and/or BVPD’s rejection. So, Mr. Kajberouni ceased such complaints, and instead purchased his own 18 necessary equipment, because notifying and complaining to BVCSD through BVPD proved futile. 19 20 (Id.) Kajberouni contends that the facts as alleged are sufficient to support his claim but leave to amend 21 should be granted in light of these additional facts if the Court finds he fails to state a claim. (Id. at 4- 22 5.) 23 Significantly, the Court may not consider the new allegations made in the opposition by 24 Kajberouni to evaluate the sufficiency of his claim. See Schneider v. Cal. Dep't of Corr., 151 F.3d 25 1194, 1197 n. 1 (9th Cir. 1998) (concluding that new allegations in opposition were irrelevant for Rule 26 12(b)(6) purposes and that “court may not look beyond the complaint… such as a memorandum in 27 opposition to a defendant’s motion to dismiss”); see also Arres v. City of Fresno, 2011 WL 284971, at 28 *18 (E.D. Cal. Jan. 26, 2021) (“a complaint is judged based on its allegations, not new facts or claims 1 raised in F.R.Civ.P. 12(b)(6) opposition”). Therefore, the Court declines to consider the additional 2 allegations made by Kajberouni in his opposition. 3 In the SAC, Kajberouni clearly alleges he made expenditures, including purchases of a 4 tourniquet, holster, emergency first aid kits, and medical gloves. (Doc. 51 at 11-12, ¶ 20.) Kajberouni 5 alleges he was dispatched to medical calls, including self-puncture and domestic violence calls, “for 6 “which a tourniquet and adequate first aid supplies are crucial.” (Id. at 11, ¶ 20.) Furthermore, he 7 contends that “[i]t is standard” for officers and deputies in the region to wear a tourniquet, including 8 “other police departments nearest to Bear Valley: Stallion Springs, Tehachapi, and Kern County.” (Id. 9 at 13, ¶ 22.) Taking the facts as alleged in the light most favorable to Kajberouni, the Court may infer 10 that use of tourniquet was a “consequence of [the] discharge of his duties,” which included responding 11 to medical calls. Similarly, the fact that tourniquets were “standard” piece of equipment for officers 12 and deputies with other departments in the region, also supports a conclusion that the purchases of a 13 tourniquet and its holster were “reasonable and necessary” expenditures for Kajberouni. Finally, 14 Kajberouni alleges that the District was aware of the purchases for his duty belt and and failed to 15 reimburse him. (See id. at 13-14, ¶ 23.) Therefore, the Court finds the facts alleged in the SAC are 16 sufficient to state a cognizable claim under Section 2802, and the motion to dismiss the third cause of 17 action is denied. 18 B. Fourth Claim for Relief: Cal. Bus. & Prof Code § 17200 19 Kajberouni included a claim for “unfair practices” in violation of Section 17200 in his SAC. 20 (Doc. 51 at 26.) However, as the District observes, the Court previously determined that “Kajberouni 21 is unable to state a claim against the District under the UCL,” and the claim was dismissed without 22 leave to amend. (Doc. 50 at 12, 13.) Accordingly, the fourth claim for relief is again dismissed.2 23

24 2 Kajberouni asserts in his opposition that he intended to change the cause of action to state a violation of California’s Unfair Practices Act (as provided in Cal. Bus. & Prof. Code §§ 17000-17101, § 17076, and §17082) rather than the Unfair 25 Competition Law. (Doc. 59-1 at 6.) The Court declines to address the merits of a claim under the Unfair Practices Act, as such is clearly not plead in the SAC. See, e.g., Gerritsen v. Warner Bros. Entm't, 116 F. Supp. 3d 1104 (C.D. Cal. 2015) 26 (“As courts routinely recognize, it is improper for a plaintiff to assert an unpled theory of liability in opposition to a defendant’s Rule 12(b)(6) motion to dismiss”); Brown v. Martinez, 2015 WL 4730186 at *4 (E.D. Cal. Aug. 7, 2015) (“an 27 opposition to a motion to dismiss is not an appropriate place to raise and argue new claims”); Elizabeth L. v. Aetna Life Insurance Co., 2014 WL 2621408, *4 (N.D. Cal. June 12, 2014) (refusing to consider unpled theories of liability raised for the first time in opposition to defendant’s motion to dismiss). Because such a claim was not raised in the SAC, any request 28 to add a claim under the UPA it must now be raised by a properly noticed motion to amend. 1 C. Prayer for Injunctive Relief 2 Kajberouni indicates he seeks “an injunction requiring Defendants refrain from violating the 3 FLSA and relevant any California Labor Codes and/or applicable Industrial Wage Order.” (Doc. 51 at 4 27.) The District contends this “prayer for injunctive relief has two separate, but equally fatal flaws.” 5 (Doc. 54 at 10.) The District argues: 6 Since the Order dismissed with prejudice wage and hour claims under California law, the only remaining basis for such injunctive relief is the 7 FLSA. However, such relief is unavailable to Plaintiff, as the ability to obtain injunctive relief for violations of overtime and minimum wage 8 provisions of the FLSA rests exclusively with the United States Secretary of Labor. See Silveira v. Beard, 2013 WL 2458393, at * 5 (E.D. Cal. Jun 9 6, 2013). Further, Plaintiff’s prayer for injunctive relief fails, because as a former employee, Plaintiff does not have standing to obtain injunctive 10 relief against the District. Id. at *6.

11 (Id. at 10.) Thus, the District contends Kajberouni lacks standing to pursue injunctive relief and it fails 12 as a matter of law. (Id.) 13 In response, Kajberouni indicates he “seeks injunctive relief under the UPA (not FLSA) 14 because, on information and belief, BVCSD and/or BVPD has failed and continues to fail to 15 compensate BVPD patrol officers for donning and doffing and loading and unloading their patrol 16 vehicles.” (Doc. 59-1 at 9.) However, as noted above, Kajberouni did not include a claim under the 17 UPA in the SAC. Moreover, he does not address his lack of standing as a former employee. 18 Significantly, a state statute cannot alter the constitutional standing requirements of federal 19 courts, even for public policy reasons. See Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 20 998, 1022 (9th Cir. 2004). The Ninth Circuit explained: 21 Even if Cal. Bus. & Prof. Code § 17204 permits a plaintiff to pursue injunctive relief in California state courts as a private attorney general 22 even though he or she currently suffers no individualized injury as a result of a defendant’s conduct, “a plaintiff whose cause of action [under 23 § 17204] is perfectly viable in state court under state law may nonetheless be foreclosed from litigating the same cause of action in federal court, if 24 he cannot demonstrate the requisite injury” to establish Article III standing. 25 26 Id., quoting Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1001-1002 (9th Cir. 2001) (modification in 27 original). The Ninth Circuit observed that “Article III standing requires an injury that is actual or 28 imminent, not conjectural or hypothetical,” and a plaintiff seeking injunctive relief “must demonstrate 1 a real or immediate threat of an irreparable injury.” Id. at 1021 (citation omitted, emphasis in original). 2 Without a “contractual relationship” between the parties, the Ninth Circuit found there was no 3 personal threat of injury, and Hangarter lacked standing to pursue injunctive relief. Id. 4 In the employment context, the Ninth Circuit repeatedly applied this principal of standing and 5 determined a “former employee has no claim for injunctive relief addressing the employment practices 6 of a former employer absent a reasonably certain basis for concluding he or she has some personal 7 need for prospective relief.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017); 8 see also Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (holding a former 9 employee “lacked standing to sue for injunctive relief from which she would not likely benefit”); 10 Slayman v. FedEx Ground Package System, Inc., 765 F.3d 1033, 1048 (9th Cir. 2014) (finding former 11 employees “lacked Article III standing to seek prospective relief”). Because Kajberouni did not allege 12 any facts sufficient to support a conclusion that he has a need for prospective relief—or even could 13 benefit from it— as a former employee of the District, he lacks standing to purse injunctive relief. See 14 Slayman, 765 F.3d at 1048; Walsh, 471 F.3d at 1036-37. Therefore, the motion to dismiss the prayer 15 for injunctive relief is granted. 16 III. Motion to Strike (Doc. 55) 17 Pursuant to Rule 12(f), a district court “may strike from a pleading ... any redundant, 18 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). A “redundant” matter is 19 comprised “of allegations that constitute a needless repetition of other averments or which are foreign 20 to the issue to be denied.” Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005). An immaterial 21 matter “has no essential or important relationship to the claim for relief or the defenses being 22 pleaded,” while an “[i]mpertinent matter consists of statements that do not pertain, and are not 23 necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), 24 rev’d on other grounds (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and 25 Procedure § 1382, at 706-07, 711 (1990)). 26 The purpose of a Rule 12(f) motion “is to avoid the expenditure of time and money that must 27 arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. 28 A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Generally, motions to strike “are disfavored and 1 infrequently granted.” Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005). In 2 reviewing a motion to strike, the Court must view the pleadings under attack in the light most 3 favorable to the pleader. Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000). “If there 4 is any doubt whether the portion to be stricken might bear on an issue in the litigation, the court should 5 deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004). 6 The District argues references to the Bear Valley Police Department “as a separate 7 Defendant” should be stricken from the SAC. (Doc. 55 at 6.) The District notes the BVPD “is not an 8 individual entity, [but] rather they are an arm of the District.” (Id. at 7.) The District observes that the 9 SAC “implies that BVPD is merely a District department by imputing BVPD’s alleged knowledge of 10 Plaintiff’s incurred expenses onto the District.” (Id.) The District argues that “referencing the BVPD 11 as a separate defendant has no essential importance to whether the District is liable to Plaintiff.” (Id. at 12 6.) The District also contends “the BVPD’s status as a separate defendant creates confusion from the 13 early stages of litigation, all the way through trial.” (Id.) The District explains: 14 Essentially, a jury may easily find the claim that BVPD is a separate entity confusing in light of the fact that it is merely a department within the 15 District. Further, if Plaintiff’s allegations are evaluated by a jury, the jury would be faced with jury instructions concerning liability of each alleged 16 party, even though there is only one proper defendant.

17 (Id.) Thus, the District argues “reference to the BVPD as a separate party and defendant, specifically in 18 paragraphs 6, 38, 39, and 41-43 of the SAC, should be stricken from the SAC.” (Id. at 7.) 19 Kajberouni contends “the Court should deny [the] Motion To Strike under Rule 12(f) because 20 Plaintiff’s SAC does not contain any immaterial matter as BVPD could be liable as the direct 21 employer of Plaintiff while BVCSD indirectly employed Plaintiff as a joint employer.” (Doc. 60 at 8.) 22 According to Kajberouni, the information provided on the District’s website does not “negate BVPD 23 from being a former joint employer of Plaintiff. (Id. at 7.) 24 The Court previously observed that “Kajberouni acknowledges the District compensated 25 BVPD officers, and the BVPD manual stated its ‘policies are not intended to supersede any related 26 Bear Valley Community Service District personnel Rules,’ which requires compliance with the 27 personnel policies of the District. (Doc. 60 at 5, citing Doc. 29 ¶¶ 6, 10.) In addition, the Court took 28 judicial notice of the website, which indicates it “acts as the local government in Bear Valley Springs” 1 and “manages and maintains the water utility, wastewater utility, solid waste transfer station, police, 2 gate, and infrastructure including roads and mailboxes.” (Id.) The Court observed that “Kajberouni 3 [did] not address the assertion that the District is the only proper defendant in the action,” and found 4 “dismissal of the BVPD as a separate defendant in the action appears appropriate.” (Id.) 5 Although Kajberouni alleges he was jointly employed by the department and the District, the 6 allegations to not support this legal conclusion. Rather, review of the allegations again indicates the 7 District is the only proper defendant. For example, Kajberouni alleges compensation for the BVPD 8 officers came from the District. (Doc. 51 at 7, ¶ 10.) In addition, Kajberouni was subject to 9 provisions in the District’s Employee Handbook (Id. at 5, ¶ 7.) Despite the issue being raised in a 10 prior motion to dismiss, Kajberouni neither alleged nor identified facts supporting a conclusion that 11 the BVPD is a separate entity, and information subject to judicial notice indicates the BVPD is merely 12 a department of the District. Accordingly, the Court finds the identified references to the BVPD are 13 immaterial to the claims raised, and the motion to strike is granted. 14 IV. Request for Leave to Amend 15 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, leave to amend “shall be freely 16 given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate 17 decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 18 1127 (9th Cir. 2000) (en banc) (alterations, internal quotation marks omitted). When dismissing a 19 complaint for failure to state a claim, “a district court should grant leave to amend even if no request to 20 amend the pleading was made, unless it determines that the pleading could not possibly be cured by 21 the allegation of other facts.” Id. at 1130 (internal quotation marks omitted). Accordingly, leave to 22 amend generally shall be denied only if allowing amendment would unduly prejudice the opposing 23 party, cause undue delay, or be futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v. 24 BMG Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008). 25 Kajberouni requests that if the motion to dismiss is granted, he be again granted leave to 26 amend. (Doc. 59-1 at 10.) However, as the Court previously determined, his claim for a violation of 27 unfair practices failed as a matter of law. In addition, Kajberouni is unable to establish standing for 28 injunctive relief as a former employee as the District. Because the defects identified in the SAC 1 || cannot be cured by amendment, the request for leave to amend is denied. 2 || NV. Conclusion and Order 3 For the reasons set forth above, the Court ORDERS: 4 1. The motion to dismiss (Doc. 54) is GRANTED IN PART. 5 2. Dismissal of the third claim for relief related to reimbursement is DENIED. 6 3. The fourth cause of action against the District is DISMISSED without leave to amen 7 4. The prayer for injunctive relief is DISMISSED without leave to amend. 8 5. The motion to strike (Doc. 55) is GRANTED. 9 6. References to the BVPD as an entity separate from the District in paragraphs 6, 38, 39 10 41, 42, and 43 of the Second Amended Complaint are STRICKEN. 11 12 || IT IS SO ORDERED. 13 | Dated: _ November 21, 2022 Charis [Tourn 14 TED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Kajberouni v. Bear Valley Community Services District, (E.D. Cal. 2022).

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