1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LYNCH, No. 2:22-cv-01908-TLN-DMC 12 Plaintiff, 13 v. ORDER 14 ULTA SALON, COSEMETICS & FRAGRANCE, INC., 15 Defendant. 16
17 18 This matter is before the Court on Defendant Ulta Salon, Cosmetics & Fragrance, Inc.’s 19 (“Defendant”) Motion to Dismiss. (ECF No. 36.) Plaintiff Brandon Lynch (“Plaintiff”) filed an 20 opposition. (ECF No. 37.) Defendant filed a reply. (ECF No. 39.) For the reasons set forth 21 below, the Court hereby GRANTS Defendant’s motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The Court need not recount all background facts, as they are set forth fully in the Court’s 3 June 14, 2023 Order. (ECF No. 34.) In short, this case arises from allegations that Defendant 4 unlawfully terminated Plaintiff’s employment because Plaintiff requested to use his accrued sick 5 leave. On July 12, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”), 6 alleging six state law claims against Defendant. (ECF No. 35.) On August 2, 2023, Defendant 7 filed the instant motion to dismiss Claim Two, which is a claim for retaliation under California 8 Labor Code § 98.6 (“§ 98.6”). (ECF No. 36.) 9 II. STANDARD OF LAW 10 A motion to dismiss for failure to state a claim upon which relief can be granted under 11 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 12 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 13 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 14 Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in 15 federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the 16 grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal 17 citation and quotations omitted). “This simplified notice pleading standard relies on liberal 18 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 19 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 20 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 21 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 22 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 23 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 24 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 25 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 26 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 27 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 28 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 1 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 2 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 3 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 4 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 6 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 7 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 8 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 9 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 10 Council of Carpenters, 459 U.S. 519, 526 (1983). 11 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 12 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 13 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 14 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 15 680. While the plausibility requirement is not akin to a probability requirement, it demands more 16 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 17 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 19 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 20 dismissed. Id. at 680 (internal quotations omitted). 21 If a complaint fails to state a claim, “[a] district court should grant leave to amend even if 22 no request to amend the pleading was made, unless it determines that the pleading could not 23 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 24 2000) (en banc). Although a district court should freely give leave to amend when justice so 25 requires under Rule 15(a)(2), “the court’s discretion to deny such leave is ‘particularly broad’ 26 where the plaintiff has previously amended its complaint.” Ecological Rights Found. v. Pac. Gas 27 & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 28 616, 622 (9th Cir. 2004)). 1 III. ANALYSIS 2 In moving to dismiss Claim Two, Defendant argues the SAC lacks facts necessary to 3 establish a claim for retaliation in violation of § 98.6. (ECF No. 36-1 at 2.) In opposition, 4 Plaintiff argues he alleges sufficient facts to state a claim. (ECF No. 37.) 5 The Court agrees with Defendant. The Court previously dismissed Plaintiff’s § 98.6 claim 6 with leave to amend because Plaintiff failed to allege sufficient facts to show he engaged in 7 “protected conduct” within the meaning of § 98.6. (ECF No. 34 at 5.) Plaintiff again fails to do 8 so in his SAC. 9 In arguing he sufficiently alleges he engaged in “protected conduct,” Plaintiff relies on 10 language in § 98.6(a) that states, “A person shall not discharge an employee or in any manner 11 discriminate, retaliate, or take any adverse action against any employee . . . because of the 12 exercise by the employee . . . of any rights afforded him or her.” (ECF No. 37 at 7.) However, 13 “[w]hile framed in broad language, a California court of appeal that has examined [§ 98.6(a)’s] 14 legislative history has found that the reference to ‘any rights’ covers only conduct protected by 15 the Labor Code.” Gwin v. Target Corp., No. 12-05995 JCS, 2013 WL 5424711, at *8 (N.D. Cal. 16 Sept. 27, 2013) (citing Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 86–88 (2004)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LYNCH, No. 2:22-cv-01908-TLN-DMC 12 Plaintiff, 13 v. ORDER 14 ULTA SALON, COSEMETICS & FRAGRANCE, INC., 15 Defendant. 16
17 18 This matter is before the Court on Defendant Ulta Salon, Cosmetics & Fragrance, Inc.’s 19 (“Defendant”) Motion to Dismiss. (ECF No. 36.) Plaintiff Brandon Lynch (“Plaintiff”) filed an 20 opposition. (ECF No. 37.) Defendant filed a reply. (ECF No. 39.) For the reasons set forth 21 below, the Court hereby GRANTS Defendant’s motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The Court need not recount all background facts, as they are set forth fully in the Court’s 3 June 14, 2023 Order. (ECF No. 34.) In short, this case arises from allegations that Defendant 4 unlawfully terminated Plaintiff’s employment because Plaintiff requested to use his accrued sick 5 leave. On July 12, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”), 6 alleging six state law claims against Defendant. (ECF No. 35.) On August 2, 2023, Defendant 7 filed the instant motion to dismiss Claim Two, which is a claim for retaliation under California 8 Labor Code § 98.6 (“§ 98.6”). (ECF No. 36.) 9 II. STANDARD OF LAW 10 A motion to dismiss for failure to state a claim upon which relief can be granted under 11 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 12 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 13 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 14 Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in 15 federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the 16 grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal 17 citation and quotations omitted). “This simplified notice pleading standard relies on liberal 18 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 19 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 20 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 21 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 22 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 23 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 24 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 25 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 26 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 27 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 28 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 1 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 2 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 3 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 4 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 6 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 7 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 8 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 9 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 10 Council of Carpenters, 459 U.S. 519, 526 (1983). 11 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 12 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 13 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 14 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 15 680. While the plausibility requirement is not akin to a probability requirement, it demands more 16 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 17 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 18 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 19 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 20 dismissed. Id. at 680 (internal quotations omitted). 21 If a complaint fails to state a claim, “[a] district court should grant leave to amend even if 22 no request to amend the pleading was made, unless it determines that the pleading could not 23 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 24 2000) (en banc). Although a district court should freely give leave to amend when justice so 25 requires under Rule 15(a)(2), “the court’s discretion to deny such leave is ‘particularly broad’ 26 where the plaintiff has previously amended its complaint.” Ecological Rights Found. v. Pac. Gas 27 & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 28 616, 622 (9th Cir. 2004)). 1 III. ANALYSIS 2 In moving to dismiss Claim Two, Defendant argues the SAC lacks facts necessary to 3 establish a claim for retaliation in violation of § 98.6. (ECF No. 36-1 at 2.) In opposition, 4 Plaintiff argues he alleges sufficient facts to state a claim. (ECF No. 37.) 5 The Court agrees with Defendant. The Court previously dismissed Plaintiff’s § 98.6 claim 6 with leave to amend because Plaintiff failed to allege sufficient facts to show he engaged in 7 “protected conduct” within the meaning of § 98.6. (ECF No. 34 at 5.) Plaintiff again fails to do 8 so in his SAC. 9 In arguing he sufficiently alleges he engaged in “protected conduct,” Plaintiff relies on 10 language in § 98.6(a) that states, “A person shall not discharge an employee or in any manner 11 discriminate, retaliate, or take any adverse action against any employee . . . because of the 12 exercise by the employee . . . of any rights afforded him or her.” (ECF No. 37 at 7.) However, 13 “[w]hile framed in broad language, a California court of appeal that has examined [§ 98.6(a)’s] 14 legislative history has found that the reference to ‘any rights’ covers only conduct protected by 15 the Labor Code.” Gwin v. Target Corp., No. 12-05995 JCS, 2013 WL 5424711, at *8 (N.D. Cal. 16 Sept. 27, 2013) (citing Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 86–88 (2004)). 17 In the instant case, Plaintiff alleges he was terminated due to his request to use accrued 18 sick leave. (ECF No. 35 at 3.) Plaintiff fails to cite any authority or provide any argument that 19 shows that requesting to use or using accrued sick days is “conduct protected by the Labor Code” 20 within the meaning of § 98.6(a). Instead, Plaintiff merely cites California Labor Code §§ 21 246(a)(1), 246.5(a), and 246.5(c)(1) without any further explanation.1 (Id. at 5.) The Court 22 construes Plaintiff’s argument to be that using accrued sick leave is “protected conduct” under § 23 98.6 because the California Labor Code requires an employer to provide paid sick days, prohibits 24 employers from denying an employee’s right to use accrued sick days, and prohibits employers 25 from discharging an employee for using accrued sick days. (ECF No. 35 at 5.) 26
27 1 The Court notes Plaintiff also cites California Labor Code § 246.5(c)(1) as a basis for Claim One, which similarly alleges Defendant retaliated against Plaintiff for his use of sick leave. 28 (ECF No. 35 at 3.) 1 The Court rejects Plaintiff’s argument. Notably, the Court already rejected this argument 2 in ruling on Defendant’s prior motion to dismiss the § 98.6 claim and incorporates the same 3 reasoning herein. (ECF No. 34 at 4–5.) Plaintiff again fails to cite authority for the sweeping 4 proposition that any conduct delineated in the Labor Code constitutes “protected conduct” within 5 the meaning of § 98.6(a). To the contrary, “protected conduct” is limited to conduct that falls 6 under the categories expressly enumerated in § 98.6(a), which includes “conduct delineated in 7 Chapter 4 of Division 1, or Chapter 5 of Part 3 of Division 2 of the California Labor Code” and 8 “filing a complaint or initiating an action or grievance procedure against an employer based on 9 Labor Code violations.” See Pursley v. VIA Prods., LLC, No. 2:16-CV-03745-RGK-SK, 2017 10 WL 11634360, at *3 (C.D. Cal. July 14, 2017) (dismissing a § 98.6(a) claim because the conduct 11 delineated in § 233 — which involves the use of sick leave — did not fall under any of the 12 limited categories of protected conduct set out in § 98.6); Hollie v. Concentra Health Servs., Inc., 13 No. C 10-5197 PJH, 2012 WL 993522, at *7 (N.D. Cal. Mar. 23, 2012) (finding the plaintiff’s 14 activities were not protected under § 98.6 because they do not fall within the categories set forth 15 in that statute); Hamilton v. Juul Labs, Inc., No. 20-CV-03710-EMC, 2021 WL 275485, at *11 16 (N.D. Cal. Jan. 27, 2021) (“[Section] 98.6 expressly prohibits employers from discharging or 17 discriminating against an employee for whistleblowing activities protected by § 1102.5 in Chapter 18 5 of Part 3 of Division 2 of the Labor Code.”); Franklin v. Sacramento Area Flood Control 19 Agency, No. CIV 07-1263 WBS GGH, 2009 WL 2399569, at *18 (E.D. Cal. Apr. 29, 2009) 20 (“[Plaintiff] engaged in protected activity by sending [Executive Director] a copy of her 21 administrative complaint . . . containing allegations of wage violations.”). 22 In the instant case, §§ 246(a)(1), 246.5(a), and 246.5(c)(1) are in Chapter 1 of Part 1 of 23 Division 2 of the Labor Code and have nothing to do with “filing a complaint or initiating an action 24 or grievance procedure against an employer based on Labor Code violations.” Since the statutes 25 Plaintiff cites do not fall within the categories of protected conduct set forth in § 98.6(a) — and 26 absent any meaningful argument from Plaintiff — the Court concludes Plaintiff fails to allege he 27 engaged in “protected conduct” within the meaning of § 98.6. 28 /// 1 IV. CONCLUSION 2 For the foregoing reasons, the Court hereby GRANTS Defendant’s Motion to Dismiss. 3 | (ECF No. 36.) Because the Court has already outlined for Plaintiff the deficiencies in his 4 | pleadings and Plaintiff has failed to correct these deficiencies, the Court finds further amendment 5 | would be futile. As such, the Court dismisses Claim Two without leave to amend. The case will 6 | proceed on Plaintiffs remaining claims, and Defendant shall file an answer no later than twenty- 7 | one (21) days from the electronic filing date of this Order. 8 IT IS SO ORDERED. 9 | Date: October 24, 2023 10 yy / “ \/ fb 12 — Troy L. Nunley } 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28