1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 RANDAL JEROME DALAVAI, Case No.: 25-CV-1841 JLS (AHG)
11 Plaintiff, ORDER GRANTING IN PART 12 v. MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED 13 AMAZON.COM, INC.; AMAZON WEB COMPLAINT SERVICES, INC.; AMAZON.COM 14 SERVICES LLC, (ECF No. 14) 15 Defendants. 16
17 Presently before the Court is Defendants Amazon.com, Inc.’s, Amazon Web 18 Services, Inc.’s, and Amazon.com Services LLC’s (“Defendants” or “Amazon”) Motion 19 to Dismiss Plaintiff’s First Amended Complaint (“Mot.,” ECF No. 14). Also before the 20 Court are Plaintiff Randal Jerome Dalavai’s Opposition to Defendants’ Motion to Dismiss 21 (“Opp’n,” ECF No. 17) and Defendants’ Reply (“Reply,” ECF No. 20). Having considered 22 Plaintiff’s First Amended Complaint (“FAC,” ECF No. 10), Defendants’ Motion, and the 23 law, the Court GRANTS IN PART and DENIES IN PART the Motion to Dismiss WITH 24 LEAVE TO AMEND. 25 / / / 26 / / / 27 / / / 28 / / / 1 BACKGROUND 2 Plaintiff Randal Jerome Dalavai, a resident of California proceeding pro se, brought 3 this action challenging allegedly unlawful provisions of Amazon’s Global Restricted Stock 4 Unit (“RSU”) Award Agreement (the “Agreement”). FAC ¶ 1. In March 2020, Plaintiff 5 was hired by Defendant Amazon Web Services, Inc. as an Apprentice Enterprise Account 6 Engineer, and in June 2021, he became a full-time employee. Id. ¶ 19. On April 4, 2024, 7 Plaintiff was awarded 162 RSUs. Id. ¶ 19. Under the Agreement, 74 shares would vest on 8 May 15, 2024, and November 15, 2024, and 7 shares would vest on May 15, 2025, and 9 November 15, 2025. Id. ¶ 22. The Agreement permitted the cancellation of unvested 10 shares if an employee was no longer “actively providing services” and the “suspension of 11 vesting during any leave unless continuous vesting [was] ‘required by applicable laws.’” 12 Id. The Agreement designated King County, Washington, as the exclusive venue for 13 disputes over the Agreement. Id. 14 In March 2023, prior to the award of RSUs, Plaintiff took paid time off and notified 15 his manager of health issues. Id. ¶ 27. On April 5, 2023, his manager conducted a 16 performance meeting, and on April 6, 2023, his manager emailed a summary of the 17 meeting, communicating concerns about Plaintiff’s “ownership” over his work. Id. 18 Plaintiff’s manager subsequently initiated a “coaching plan,” which required Plaintiff to 19 “meet specific performance metrics, complete defined tasks within set deadlines, and 20 demonstrate particular behavioral expectations.” Id. ¶ 28. In May 2023, Plaintiff took 21 approved medical leave. Id. The coaching plan remained open during that leave. Id. In 22 May 2024, Plaintiff return to work and requested accommodations on account of his 23 “health limitations.” Id. ¶ 29. Plaintiff submits that the coaching plan “required 24 deliverables and availability that exceeded Plaintiff’s physician-directed six-hour schedule, 25 and proceeding without accommodations would risk relapse and unsafe working 26 27 28 1 conditions.” Id. On July 12, 2024, Plaintiff emailed his Human Resources (“HR”) partner 2 and his manager, raising concerns about his requested accommodations, and noting that 3 “the process . . . established by Amazon did not allow [him] to evaluate the proper 4 accommodation required for [his] health and safety adequately, and that changes were 5 needed to ensure compliance with legal precedents and regulations.” Id. ¶ 30 (internal 6 quotation marks omitted). Plaintiff also emailed HR and his manager “invoking statutory 7 rights to representation for the purpose of negotiating the terms and conditions of 8 employment and requesting that all future employment discussions on legal or financial 9 matters be routed through his counsel.” Id. ¶ 31. On August 13, 2024, Plaintiff again 10 emailed HR and his manager raising concerns about his requested accommodations. Id. 11 ¶ 32. The next day, Plaintiff emailed his manager, stating that he declined to continue with 12 the coaching plan since he believed it violated federal and state regulations. Id. ¶ 33. 13 Amazon issued a formal Performance Improvement Plan (“PIP”) on August 27, 14 2024, due to Plaintiff’s “failure to demonstrate ownership” over his work. Id. ¶ 34. The 15 next day, Plaintiff began an ADA-approved medical leave. Id. ¶ 35. Plaintiff returned 16 from leave on August 15, 2025, and requested unpaid personal leave because the 17 unresolved PIP, accommodations request, and employment status disputes “continue[d] to 18 jeopardize his RSU rights . . . .” Id. ¶ 36. Plaintiff alleges that an unresolved PIP “directly 19 threaten[s] [his] ability to retain and timely receive his awarded equity.” Id. ¶ 34. Amazon 20 denied him personal leave. Id. ¶ 36. Plaintiff asserts that Amazon’s conduct “makes 21 continued service untenable and operates as a present refusal to perform in good faith under 22 the RSU Agreement, creating an ongoing and concrete controversy over Plaintiff’s 23 contractual and statutory rights.” Id. 24 / / / 25 / / / 26 27 28 1 Plaintiff further submits that his request for accommodations is under review by the California Civil 1 LEGAL STANDARD 2 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 3 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To 4 survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as 5 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 6 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 7 facially plausible when the facts pled “allow[] the court to draw the reasonable inference 8 that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim 9 must be probable, but there must be “more than a sheer possibility that a defendant has 10 acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of 11 a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). 12 Though this plausibility standard “does not require ‘detailed factual 13 allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully- 14 harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). In other words, a 15 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 16 enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Put 17 differently, “a formulaic recitation of the elements of a cause of action will not do.” 18 Twombly, 550 U.S. at 555. 19 Review under Rule 12(b)(6) requires a context-specific analysis involving the 20 Court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679. In performing 21 that analysis, “a district court must accept as true all facts alleged in the complaint, and 22 draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 23 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). “[W]here the well-pleaded facts do not 24 permit the court to infer more than the mere possibility of misconduct, the complaint has 25 alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. 26 at 679 (second alternation in original). If a complaint does not survive Rule 12(b)(6), a 27 court grants leave to amend unless it determines that no modified contention “consistent 28 1 with the challenged pleading could . . . possibly cure the deficiency.” Schreiber Distrib. 2 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 3 DISCUSSION 4 Defendants generally argue that Plaintiff fails to allege sufficient facts to support his 5 claims. See Mot. at 3–10. Defendants also argue that Plaintiff’s addition of Amazon.com, 6 Inc. and Amazon.com Services LLC as defendants is improper since they do not employ 7 Plaintiff. Id. at 11. The Court addresses each argument in turn. 8 I. Invalid Forum-Selection Clause 9 Defendants first argue that Plaintiff fails to plead sufficient facts to support his claim 10 for declaratory relief invalidating the forum-selection clause of the Agreement, which 11 requires adjudication of disputes about the Agreement in King County, Washington. Mot. 12 at 4. Plaintiff seeks a declaratory judgment that the forum-selection clause “is void and 13 unenforceable under California Labor Code § 925” and that the Parties’ dispute “shall be 14 adjudicated in California and governed by California law . . . .” FAC ¶ 51. Defendants 15 contend that to invalidate a forum-selection clause under § 925, a plaintiff must show that, 16 as a condition of employment, they were required to agree to adjudicate outside of 17 California a claim arising in California, and here, the Agreement is not an employment 18 agreement, but instead “a grant of equity that constitutes supplemental compensation 19 without any bearing on whether Plaintiff remained employed.” Mot. at 4–5. Defendants 20 further suggest that there is no actual controversy as to the forum-selection clause since 21 they have not sought to transfer venue to Washington State. Id. at 5. 22 The Court agrees with Defendants. California Labor Code § 925 provides in part: 23 (a) An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a 24 provision that would do either of the following: 25 (1) Require the employee to adjudicate outside of California a claim arising in California. 26 (2) Deprive the employee of the substantive protection of California 27 law with respect to a controversy arising in California. (b) Any provision of a contract that violates subdivision (a) is voidable 28 1 by the employee, and if a provision is rendered void at the request of the employee, the matter shall be adjudicated in California and 2 California law shall govern the dispute. 3 4 Cal. Lab. Code § 925. Here, Plaintiff “primarily resides and works in California,” 5 and the Agreement requires the adjudication of disputes in King County, Washington. See 6 FAC ¶¶ 4, 22. However, Plaintiff “has not provided the Court with any information that 7 supports or suggests that Plaintiff was required to” sign the Agreement to “remain 8 employed with [Amazon].” Patel v. SAP Am., Inc., No. 25-CV-00608-NW, 2025 WL 9 1810011, at *3 (N.D. Cal. July 1, 2025); see also Montoya v. Ariba Inc., No. 22-CV-1861- 10 FWS-JDE, 2023 WL 2368701, *8–9 (C.D. Cal. Mar. 6, 2023) (finding that a forum- 11 selection provision in a “voluntary incentive plan” agreement was not a “condition of 12 employment”). Instead, the Agreement is related to a “[p]erformance-based equity grant,” 13 awarding Plaintiff RSUs for his performance during the previous year. FAC ¶¶ 20–21. 14 Plaintiff attempts to argue that the Agreement’s requirement of continuous employment 15 for the RSUs to vest constitutes a “condition of employment” under § 925. Opp’n at 1–2. 16 The consequence of failing to sign the Agreement, however, would not be losing his job— 17 but rather losing out on the award of equity. Plaintiff’s acquiescence to adjudication in 18 Washington was therefore not a “condition of employment,” and does not violate § 925. 19 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to Plaintiff’s First 20 Cause of Action. 21 II. Unlawful Forfeiture and Leave Penalties 22 Defendants next argue that Plaintiff’s reliance on California Civil Code § 1668 to 23 support his claim that the Agreement’s allowance of forfeiture of RSUs upon termination 24 of employment or the delay of vesting during leaves of absence is “misplaced,” and that 25 Amazon has not otherwise sought to cancel the vesting of Plaintiff’s pending RSUs. Mot. 26 at 5–6. Plaintiff responds that he challenges the portion of the Agreement providing for 27 the forfeiture of pending RSUs upon termination of employment, “regardless of the reason 28 for such termination and whether or not later found to be invalid or in breach of 1 employment laws,” FAC ¶ 53, which Plaintiff contends is an “an exculpatory design barred 2 by Civ. Code § 1668,” Opp’n at 4. Defendants reject this argument, as the provision “does 3 not attempt to immunize Amazon from the consequences of wrongfully terminating an 4 employee,” but instead “provides that an employee will not continue to vest stock after 5 their employment has ended.” Reply at 4. 6 The Court finds that the Agreement does not violate California Civil Code § 1668. 7 California Civil Code § 1668 provides that: “All contracts which have for their object, 8 directly or indirectly, to exempt any one from responsibility for his own fraud, or willful 9 injury to the person or property of another, or violation of law, whether willful or negligent, 10 are against the policy of the law.” Cal. Civ. Code § 1668. Neither Plaintiff nor Defendants 11 point to any cases considering whether an agreement with a similar provision violates § 12 1668. See Opp’n 4–6; Reply at 3–4 (noting that Plaintiff has not cited helpful case law— 13 while also neglecting to cite any cases). Nevertheless, the Court finds that the language 14 Plaintiff challenges, see FAC ¶ 53, does not purport to exempt Amazon from responsibility 15 for terminating an employee “in breach of employment laws,” see id. Accordingly, the 16 Court GRANTS Defendants’ Motion to Dismiss as to Plaintiff’s Second Cause of Action. 17 III. Retaliation via Constructive Discharge 18 Defendants contend that Plaintiff fails to plead sufficient facts showing that the 19 issuance of the August 2024 PIP amounted to retaliation and that any potential termination 20 constitutes “constructive discharge.” Mot. at 6; Reply at 4. According to Plaintiff, the 21 issuance of the PIP following Plaintiff’s complaints about workplace conditions, as well as 22 the denial of his request for personal leave and his unresolved accommodations requests, 23 amounts to retaliation under California Labor Code § 6310. FAC ¶ 66. Plaintiff further 24 argues that any termination that may follow his refusal “to work under those conditions” 25 constitutes “constructive discharge.” Id. Defendants argue that even if the PIP was 26 retaliatory, that alone would not support a claim for constructive discharge. Reply at 4. 27 28 1 The Court finds that Plaintiff has failed to state a claim for constructive discharge. 2 “Constructive discharge occurs when the employer’s conduct effectively forces an 3 employee to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244–45 (1994). 4 “Although the employee may say, ‘I quit,’ the employment relationship is actually severed 5 involuntarily by the employer’s acts, against the employee’s will, 6 and, as a result, a constructive discharge is legally regarded as a firing rather than a 7 resignation.” Id. (internal quotation marks and citation omitted) (cleaned up). The relevant 8 inquiry is whether the “employer either intentionally created or knowingly permitted 9 working conditions that were so intolerable or aggravated at the time of the employee’s 10 resignation that a reasonable employer would realize that a reasonable person in the 11 employee’s position would be compelled to resign.” Id. at 1251. “[W]orking conditions 12 must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation 13 will be deemed intolerable.” Id. at 1247. “[A] poor performance rating or a demotion, 14 even when accompanied by reduction in pay, does not by itself trigger a constructive 15 discharge.” Id. 16 Here, Plaintiff has not pled sufficient facts demonstrating working conditions that 17 are “unusually aggravated” or that amount to “a continuous pattern,” nor has Plaintiff pled 18 facts showing that Amazon “intentionally created or knowingly permitted” such 19 conditions. See FAC ¶¶ 60–66. Plaintiff appears to allege that the denial of his request for 20 personal leave and potentially returning to work under the “disputed PIP,” or otherwise 21 risking classification as “inactive” and facing discipline for not complying with the PIP, 22 creates a situation that may lead to a constructive discharge. Id. ¶ 65. However, Plaintiff 23 continues to be employed by Amazon, and “a poor performance rating or a demotion does 24 not by itself trigger a constructive discharge.” Turner, 7 Cal. 4th at 1247; see also Mot. 25 at 6. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to Plaintiff’s 26 27 28 2 The Court considers Plaintiff’s claim for retaliation in connection with Plaintiff’s Fifth Cause of Action, 1 Third Cause of Action. 2 IV. Defamation 3 Defendants next argue that Plaintiff’s claim for defamation over his manager’s 4 statement, at the time of issuing the PIP, that he “failed to demonstrate ownership” by 5 declining to deliver an internal presentation fails because “Plaintiff’s dissatisfaction with 6 his performance feedback does not imbue that feedback as defamatory.” Mot. at 7. 7 Plaintiff responds that this statement constitutes defamation because it “impl[ies] a false 8 defamatory fact”—that he “refused out of neglect/incompetence rather than a protected 9 legal pause.” Opp’n at 9. 10 The Court agrees with Defendants that Plaintiff fails to state a claim for defamation. 11 “Defamation is ‘the intentional publication of a statement of fact which is false, 12 unprivileged, and has a natural tendency to injure or which causes special damage.’” 3D 13 Sys., Inc. v. Wynne, No. 21-CV-01141-AGS-DDL, 2024 WL 1099677, at *8 (S.D. Cal. 14 Mar. 12, 2024) (quoting Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1157 (9th Cir. 15 2021)). “It is an essential element of defamation that the publication be of a false statement 16 of fact rather than opinion.” Erhart v. BofI Holding, Inc., 269 F. Supp. 3d 1059, 1083 (S.D. 17 Cal. 2017) (quoting Ringler Assocs. Inc. v. Maryland Cas. Co., 80 Cal. App. 4th 1165, 18 1181 (2000)). In distinguishing between fact and opinion, a court considers the totality of 19 circumstances, “put[ting] itself in the place of an average reader and decid[ing] the natural 20 and probable effect of the statement, and look[ing] at the nature and full content of the 21 communication and to the knowledge and understanding of the audience to whom the 22 publication was directed.” Ola v. Galaxee.solutions LLC, No. 24-CV-00345-JWH-DFM, 23 2024 WL 6907187, at *3 (C.D. Cal. Sept. 3, 2024), reconsideration denied, No. 24-CV- 24 00345-JWH-DFM, 2025 WL 3236208 (C.D. Cal. Feb. 18, 2025) (internal quotation marks 25 and citation omitted). 26 Considering the totality of circumstances, the Court finds the statement that Plaintiff 27 “failed to demonstrate ownership” is a statement of opinion—not fact—regarding 28 Plaintiff’s job performance. See Ola, 2024 WL 6907187, at *4 (finding that statements 1 about plaintiff’s job performance in PIP were “purely opinion”); Gilinsky v. DLC An 2 Addison Grp. Co., No. CV 24-04407 RAO, 2025 WL 1088080, at *11 (C.D. Cal. Mar. 10, 3 2025) (finding the statement that plaintiff was “not a team player” was an opinion that 4 could not be “proven true or false”). “Generally, performance evaluations are statements 5 of opinion.” Reese v. Barton Healthcare Sys., 606 F. Supp. 2d 1254, 1263 (E.D. Cal. 2008) 6 (citation omitted). Absent additional facts suggesting otherwise, the Court finds that 7 Plaintiff’s manager’s statement in connection with his PIP is no different. See Kim v. Yoon, 8 No. 21-CV-04454-SVK, 2021 WL 4442664, at *3 (N.D. Cal. Sept. 28, 2021) (A 9 defamation claim “cannot be based on performance reviews except in limited 10 circumstances, such as where they include accusations of criminal conduct, lack of 11 integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior.” 12 (internal quotation marks and citation omitted)); see also Rudwall v. Blackrock, Inc., No. 13 C06-2992 MHP, 2006 WL 3462792, at *5 (N.D. Cal. Nov. 30, 2006), aff’d, 289 F. App'x 14 240 (9th Cir. 2008) (“California law makes it clear that, except in egregious circumstances 15 not present here, the courts are not the proper venue for an employee to challenge his 16 employment evaluation.”). Plaintiff’s allegations therefore do not rise to the level of 17 defamation. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to 18 Plaintiff’s Fourth Cause of Action. 19 V. Retaliation 20 As to Plaintiff’s fifth and final claim for retaliation under California Labor Code §§ 21 1102.5(b), 1102.5(c), 6310, and 923, Defendants argue that Plaintiff fails to establish that 22 he engaged in a protected activity or that Defendants took any adverse action. Mot. at 7– 23 8. Specifically, Defendants argue that “discussing one’s personal accommodations with 24 one’s employer” is not protected activity and that Plaintiff “fails to identify any statutes 25 that conflicted with his coaching plan.” Id. at 8–9. Defendants further assert that the 26 issuance of a PIP does not constitute adverse employment action. Id. at 10. Plaintiff 27 responds that his disclosures regarding “ADA/FEHA noncompliance” and his refusal to 28 proceed under the coaching plan and PIP “while the ADA interactive process and a 1 physician-mandated six-hour schedule were ignored” constitute protected activity and that 2 the subsequent issuance of the PIP amounted to adverse employment action. Opp’n at 12– 3 13. 4 Beginning with California Labor Code §§ 1102.5(b), 1102.5(c), and 6310, the Court 5 finds that Plaintiff fails to state a claim for retaliation. Labor Code § 1102.5(b) provides 6 in part that an employer “shall not retaliate against an employee for disclosing information 7 . . . if the employee has reasonable cause to believe that the information discloses a 8 violation of state or federal statute, or a violation of or noncompliance with a local, state, 9 or federal rule or regulation, regardless of whether disclosing the information is part of the 10 employee’s job duties.” Cal. Lab. Code § 1102.5(b). Labor Code § 1102.5(c) further 11 provides that an employer “shall not retaliate against an employee for refusing to 12 participate in an activity that would result in a violation of state or federal statute, or a 13 violation of or noncompliance with a local, state, or federal rule or regulation.” § 1102.5(c). 14 Similarly, Labor Code § 6310 limits an employer’s ability to “discharge[], threaten[] with 15 discharge, demote[], suspend[], or in any other manner discriminate[] against” an employee 16 “because the employee has made a bona fide oral or written complaint” concerning “unsafe 17 working conditions, or work practices, in their employment or place of employment . . . .” 18 § 6310(b). 19 To state a claim for retaliation under any of these provisions, Plaintiff must show 20 that (1) he “engaged in a protected activity,” (2) Defendants then subjected Plaintiff to 21 “adverse employment action,” and (3) there was a “causal connection between the two.” 22 Sustrick v. CI Cap. Partners LLC, No. 24-CV-06463-SK, 2025 WL 162617, at *2 (N.D. 23 Cal. May 5, 2025), appeal dismissed, No. 25-3568, 2025 WL 2542182 (9th Cir. July 22, 24 2025) (internal quotation marks and citation omitted) (explaining requirements for a 25 retaliation claim under § 1102.5(b)); Ferretti v. Pfizer Inc., 855 F. Supp. 2d 1017, 1025 26 (N.D. Cal. 2012) (same under § 1102.5(c)); Khraibut v. Chahal, No. 15-CV-04463-CRB, 27 2021 WL 1164940, at *9 (N.D. Cal. Mar. 26, 2021) (same under § 6310). 28 / / / 1 The Court first considers whether Plaintiff engaged in a protected activity and 2 concludes that Plaintiff did not. Under § 1102.5(b), “protected activity is the disclosure of 3 or opposition to a violation of a state or federal statute, or a violation or noncompliance 4 with a state or federal rule or regulation.” La v. San Mateo Cnty. Transit Dist., No. 14- 5 CV-01768-WHO, 2014 WL 4632224, at *4 (N.D. Cal. Sept. 16, 2014) (quoting Edgerly v. 6 City of Oakland, 211 Cal. App. 4th 1191, 1199 (2012)) (cleaned up). Section 1102.5(b) 7 protects whistleblowing employees “who report their concerns to public agencies,” not 8 “employees who only report their suspicions directly to their own employer.” Federico v. 9 Overland Contracting, Inc., No. C 12-2588 MEJ, 2013 WL 5516187, at *18 (N.D. Cal. 10 Oct. 4, 2013) (citing Green v. Ralee Eng’g Co., 19 Cal. 4th 66, 76–77 (1998)). “[T]he 11 majority of courts require plaintiffs . . . to allege the specific rule, regulation[,] or statute 12 they reasonably believed had been violated, and the factual basis for their reasonable 13 belief.” Id. at *5; see also De Souza v. Dawson Tech., Inc., No. 21-CV-1103 JLS (MSB), 14 2022 WL 298368, at *5 (S.D. Cal. Feb. 1, 2022) (noting that a majority of courts require 15 plaintiffs to allege a specific rule, regulation, or statute to bring a claim under § 1102.5(b)) 16 (collecting cases); Pham v. Talkdesk, Inc., No. 22-CV-05325-MCS-JPR, 2022 WL 17 18584764 (C.D. Cal. Nov. 14, 2022) (same) (collecting cases). 18 Here, Plaintiff emailed HR and his manager on multiple occasions between June and 19 August 2024, stating that he believed changes to his employment were needed to “ensure 20 compliance with legal precedents and regulations,” FAC ¶ 30, that he had not received “the 21 required analysis of the job’s purpose and essential functions” in connection with his 22 requested accommodations, id. ¶ 31, and that he believed the coaching plan violated 23 “federal and state statutes and regulations,” id. ¶ 33. Plaintiff’s allegations that Defendants 24 violated “federal and state statutes and regulations,” without identifying a particular statute 25 or regulation, fall short of what is required by most courts to state a claim for retaliation 26 under § 1102.5(b). See San Mateo Cnty. Transit Dist., 2014 WL 4632224, at *4. And, 27 importantly, Plaintiff’s concerns that Defendants violated “federal and state statutes and 28 regulations” were communicated to HR and his manager—not disclosed to a public agency. 1 See Weingand v. Harland Fin. Sols., Inc., No. C-11-3109 EMC, 2012 WL 3537035, at *4 2 (N.D. Cal. Aug. 14, 2012) (“Plaintiff cannot make out a § 1102.5 claim because he does 3 not allege that he reported any suspicions of unlawful activity to any government agency, 4 nor does he allege that he refused to do anything that would violate the law. Rather, he 5 merely asserts that he complained about Defendant’s practices and questioned whether they 6 were legal to his own human resources department. Such a complaint does not raise 7 whistleblower protection under § 1102.5.”). Therefore, Plaintiff fails to establish he 8 engaged in a protected activity under § 1102.5(b). 9 The Court reaches the same conclusion under § 1102.5(c). A protected activity 10 under § 1102.5(c) includes “refusing to participate in an activity that would result in a 11 violation of state or federal statute, or a violation of or noncompliance with a local, state, 12 or federal rule or regulation.” § 1102.5(c). “For an employee’s refusal to be protected 13 under this provision, ‘the employer must be on notice that the employee’s reason for 14 refusing to participate in the conduct is that the conduct violates a state or federal statute, 15 rule, or regulation.’” Singh v. IKEA Distrib. Servs., Inc., No. 20-CV-975 NONE JLT, 2021 16 WL 1907608, at *5 (E.D. Cal. May 12, 2021), report and recommendation adopted, No. 17 20-CV-975 NONE JLT, 2021 WL 6775890 (E.D. Cal. June 16, 2021) (quoting Ferretti v. 18 Pfizer Inc., 2013 WL 140088, at *8 (N.D. Cal. Jan. 10, 2013)). 19 Plaintiff does not allege that his participation in the coaching plan would result in 20 the violation of a statute, rule, or regulation. See generally FAC. Instead, as Defendants 21 point out, Mot. at 9, Plaintiff believes the coaching plan itself violates “federal and state 22 statutes and regulations,” FAC ¶ 33. As allegations of this kind are not covered by 23 1102.5(c), Plaintiff fails to establish he engaged in a protected activity. See Singh, 2021 24 WL 1907608, at *5 (“A plaintiff is unable to establish a claim under Section 1102.5(c) 25 when the claim is predicated on an allegation that the plaintiff was a victim of an 26 employer’s unlawful labor practices.”) (collecting cases); Weingand, 2012 WL 3537035, 27 at *5 (“[T]he language of subsection (c) traditionally applies to employees who take or 28 refuse to take action which facilitates an employer’s violation of the law.”) (collecting 1 cases); Navarro v. DHL Glob. Forwarding, No. 15-CV-5510-CAS (Ex), 2017 WL 901880, 2 at *11 n.11 (C.D. Cal. Mar. 6, 2017) (“Where an employee is the victim of an unlawful 3 labor practice, they cannot be said to have ‘participated’ in the practice.” (cleaned up) 4 (citation omitted)). 5 Although Labor Code § 6310 offers generally broader protections for 6 whistleblowing employees than §§ 1102.5(b) and 1102.5(c), see Weingand, 2012 WL 7 3537035, at *4, Plaintiff also fails to establish he engaged in protected activity under this 8 provision. Section 6310 protects employees from retaliation for reporting working 9 conditions they believe to be unsafe. Ferretti, 855 F. Supp. 2d at 1028 (citation omitted). 10 Here, however, Plaintiff did not make complaints about unsafe working conditions. See 11 generally FAC. Instead, his complaints to HR and his manager were focused on his belief 12 that he had not received “the required analysis of the job’s purpose and essential functions” 13 with respect to his requested accommodations and that the coaching plan violated “federal 14 and state statutes and regulations.” FAC ¶¶ 31, 33. 15 The closest Plaintiff comes to alleging a protected activity under § 6310 is his 16 complaint that “the process . . . established by Amazon did not allow [him] to evaluate the 17 proper accommodation required for [his] health and safety adequately, and that changes 18 were needed to ensure compliance with legal precedents and regulations.” FAC ¶ 30 19 (internal quotation marks omitted). Plaintiff’s email may indirectly relate his “health and 20 safety,” but fails to identify specific unsafe working conditions or the reasons why he 21 believed they were unsafe. Cf. Khraibut, 2021 WL 1164940, at *9 (finding protected 22 activity under § 6310 where plaintiff repeatedly complained of safety concerns relating to 23 employer’s “pervasive drug and alcohol abuse,” pressing of other employees to “take illicit 24 drugs,” and “verbally threatening . . . physical safety”); Cuevas v. SkyWest Airlines, 17 F. 25 Supp. 3d 956, 964 (N.D. Cal. 2014), aff’d sub nom., 644 F. App'x 791 (9th Cir. 2016) 26 (finding protected activity under § 6310 where plaintiff made several formal safety 27 complaints to employer); Rodriguez v. Lab’y Corp. of Am., 623 F. Supp. 3d 1047, 1056 28 (C.D. Cal. 2022) (finding protected activity under § 6310 where plaintiff made multiple 1 complaints “related to overfilled biohazard bags, disinfection logs, and [defendant’s] 2 COVID-19 protocol”). Plaintiff therefore fails to state a claim under § 6310. As Plaintiff’s 3 claims under Labor Code §§ 1102.5(b), 1102.5(c), and 6310 fail at the first step, the Court 4 need not determine whether the adverse employment action and causation requirements are 5 met. 6 Finally, Labor Code § 923 provides for the right of workers in California to 7 “effectively vindicate their fundamental rights to full freedom of association, self- 8 organization, and designation of representatives of their own choosing, free from retaliation 9 or intimidation by their employer.” § 923. Although § 923 is a declaration of public policy, 10 “[v]iolations of statute embodying public policy are actionable even though a specific 11 remedy is not provided in statute and any injured member of the public for whose benefit 12 the statute was enacted may bring an action.” San Diego Police Officers’ Ass’n v. Aguirre, 13 No. 05-CV-1581 H (POR), 2005 WL 3180000, at *13 (S.D. Cal. Nov. 5, 2005) (citations 14 omitted). Typically, § 923 functions “as a basis for a wrongful termination claim in 15 violation of public policy.” Caldwell v. OS Rest. Servs., LLC, No. ED CV 19-754-DMG 16 (MRWx), 2021 WL 3264306, at *8 (C.D. Cal. May 13, 2021) (citing Santillan v. USA 17 Waste of California, Inc., 853 F.3d 1035, 1047 (9th Cir. 2017)). 18 Defendants argue that Plaintiff fails to allege facts to support his contention that 19 Amazon impeded his right to designate representation to negotiate the terms and conditions 20 of his employment. Mot. at 9. Defendants further argue that § 923 does not “insulate[] 21 employees from directly receiving performance feedback or suggest[] that counsel 22 designation prohibits such feedback from being issued.” Id. Plaintiff responds that he 23 properly invoked his right to designate counsel under § 923, and Defendants “bypassed 24 counsel” by subsequently issuing a PIP. Opp’n at 13. 25 Defendants’ conduct was not contrary to the policy set forth under § 923. Plaintiff 26 alleges that he “invok[ed] his statutory rights to representation for the purpose of 27 negotiating the terms and conditions of employment,” FAC ¶ 31; however, Plaintiff does 28 not allege facts demonstrating that the subsequent issuance of the PIP somehow impeded 1 his right to designate representation. See generally id. Nor was Plaintiff’s employment 2 terminated. See generally id.; Caldwell, 2021 WL 3264306, at *8. The Court thus 3 concludes that Plaintiff fails to allege a public policy violation pursuant to § 923. 4 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to Plaintiff’s Fifth 5 Cause of Action. 6 VI. Improper Addition of Defendants 7 Finally, Defendants argue that Amazon.com, Inc. and Amazon.com Services LLC 8 are improperly named as defendants since Plaintiff fails to plead that they were his 9 employers and should thus be dismissed from this action. Mot. at 11. Here, Plaintiff 10 alleges that “Defendants Amazon.com, Inc., Amazon.com Services LLC, and Amazon 11 Web Services, Inc. are affiliated entities and jointly participate in the employment, 12 compensation, and administration of restricted stock unit awards that give rise to the causes 13 of action alleged herein.” FAC ¶ 18; see Opp’n at 14–15. Plaintiff also asserts that his 14 “payroll records list Amazon.com Services LLC as employer of record” and that the “RSU 15 Award Agreement is between Amazon.com, Inc. and Plaintiff.” Opp’n at 15. At this stage, 16 this alleged factual connection is sufficient to name Amazon.com, Inc. and Amazon.com 17 Services LLC as defendants. See Ashcroft, 556 U.S at 678. Accordingly, the Court 18 DENIES Defendants’ Motion to Dismiss as to their request to dismiss Amazon.com, Inc. 19 and Amazon.com Services LLC from this action. 20 CONCLUSION 21 In light of the foregoing, the Court GRANTS IN PART Defendants’ Motion to 22 Dismiss Plaintiff’s First Amended Complaint (ECF No. 14) and DISMISSES Plaintiff’s 23 First Amended Complaint (ECF No. 10) WITH LEAVE TO AMEND. See Eminence 24 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (noting that the general 25 policy provided by Rule 15(a)(2) that the court should freely give leave “when justice so 26 requires” is “to be applied with extreme liberality”). 27 Within twenty-one (21) days of this Order, Plaintiff either (1) SHALL FILE an 28 amended complaint, or (2) SHALL INDICATE to the Court that he will not do so. 1 || Failure to timely select either of the above options may result in the dismissal of all 2 ||claims for failure to comply with a court order pursuant to Federal Rule of Civil 3 || Procedure 41(b). See Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890-91 4 || (9th Cir. 2019) (explaining courts may dismiss an action under Rule 41(b) when a plaintiff 5 || fails to comply with a court order requiring the filing of an amended complaint). Any 6 |}amended complaint must be complete in and of itself without reference to Plaintiff's First 7 || Amended Complaint; claims not realleged in the amended complaint will be considered 8 || waived. See S.D. Cal. Civ LR 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 9 2012) (noting claims dismissed with leave to amend that are not realleged in an amended 10 || pleading may be “considered waived”). 11 IT IS SO ORDERED. 12 ll Dated: March 19, 2026
14 on. Janis L. Sammartino United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28