Raya v. Barka

• Court: District Court, S.D. California
• Decided: June 25, 2020
• Docket: 3:19-cv-02295
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 8 ROBERT RAYA, Case No.: 19-cv-2295-WQH-AHG

9 Plaintiff, ORDER 10 v. 11 DAVID BARKA; NOORI BARKA; EVELYN BARKA; 12 CALBIOTECH, INC.; 13 CALBIOTECH, INC. 401(k) PROFIT SHARING PLAN; 14 CALBIOTECH, INC. PENSION 15 PLAN; ERBA MANNHEIM, 16 Defendants. 17 HAYES, Judge: 18 The matter before the Court is the Motion to Dismiss Plaintiff’s Complaint, or 19 Motion for a More Definite Statement and Motion to Strike Portions of Plaintiff’s 20 Complaint filed by Defendants David Barka, Noori Barka, Evelyn Barka, Calbiotech, Inc., 21 Calbiotech, Inc. 401(k) Profit Sharing Plan, and Calbiotech, Inc. Pension Plan. (ECF No. 22 14). 23 I. BACKGROUND 24 On December 2, 2019, Plaintiff Robert Raya, proceeding pro se and in forma 25 pauperis, filed a Complaint against Defendants David Barka, Noori Barka, Evelyn Barka, 26 Calbiotech, Inc. (“Calbiotech”), Calbiotech, Inc. 401(k) Profit Sharing Plan (“401(k) 27 Plan”), Calbiotech, Inc. Pension Plan (“Pension Plan”), and Erba Mannheim. (ECF No. 1). 28 1 In the Complaint, Raya alleges that he is a former employee of Defendant Calbiotech. Raya 2 alleges that he worked as a scientist for Calbiotech beginning in May 2008 and ending in 3 late 2016. Raya alleges that Calbiotech is the administrator of the Pension Plan, which took 4 effect in September 2008. Raya alleges that the Pension Plan provided that “[a]ll employees 5 are eligible” to enroll in the Pension Plan. (Id. ¶ 16). Raya alleges that the Pension Plan did 6 not “describe any exclusionary provisions” that could apply to Raya. (Id. ¶ 17). Raya 7 alleges that he was eligible to enroll in the Pension Plan but “was never allowed to enroll.” 8 (Id. ¶ 18). Raya alleges that between 2008 and “at least 2017,” Calbiotech concealed the 9 existence of the Pension Plan from eligible employees. (Id. ¶ 20). 10 Raya alleges that the only employees allowed to enroll in the Pension Plan were four 11 immediate family members of Defendant Noori Barka, the founder and President/CEO of 12 Calbiotech. Raya alleges that he discovered the existence of the Pension Plan in 2018 and 13 requested that Calbiotech and Defendant Erba Mannheim, which acquired Calbiotech in 14 April 2017, retroactively enroll Raya in the Pension Plan. Raya alleges that Calbiotech and 15 Erba Mannheim determined that Raya was ineligible to enroll in the Pension Plan and 16 denied Raya’s claim for benefits. Raya alleges that Calbiotech and Erba Mannheim based 17 their determination and denial of benefits on fraudulent and backdated documents that do 18 not match the original Pension Plan documents Calbiotech filed with the IRS. 19 Raya alleges that Calbiotech is also the administrator of the 401(k) Plan, which took 20 effect in 2008. Raya alleges that he enrolled in the 401(k) Plan in 2010. Raya alleges that 21 David Barka, the Vice President of Calbiotech, told Raya in 2009 and 2010 that all 22 employer contributions to employees’ 401(k) accounts were “completely discretionary.” 23 (Id. ¶ 31). Raya alleges that he made written requests to Calbiotech for 401(k) Plan 24 documents “as early as 2009,” but “David Barka and Calbiotech failed to provide a written 25 plan description for any retirement plan during the entire 8 ½ years of Mr. Raya’s 26 employment.” (Id. ¶ 30). Raya alleges that 401(k) Plan documents Raya acquired in 2018 27 “describe employer contributions as automatic,” rather than discretionary. (Id. ¶ 32). Raya 28 alleges that Calbiotech’s failure or refusal to provide Raya with 401(k) Plan documents 1 “prevented Mr. Raya from identifying hundreds of missed contributions to his 401(k) 2 account as Calbiotech failed to make their mandatory contributions year after year.” (Id. ¶ 3 33). Raya alleges that between July 9, 2018, and January 6, 2019, he made nine “separate 4 requests that Calbiotech provide a record of deposits and payments made to his 401(k) 5 account during the time of his employment.” (Id. ¶ 50). Raya alleges that Calbiotech 6 “falsely claim[ed] that the data Mr. Raya requested is held only by their [third] party service 7 provider, Principal Financial” and that Calbiotech was “waiting for information from 8 Principal [Financial] in order to respond to Mr. Raya’s request.” (Id. ¶¶ 51, 53). 9 Raya further alleges that in 2012, he took out a loan from his 401(k) and began to 10 repay the loan through automatic deductions from his biweekly paychecks. Raya alleges 11 that between 2012 and 2016, $85.36 was deducted from each of Raya’s paychecks to repay 12 the 401(k) loan. Raya alleges that David Barka was responsible for remitting the entire 13 $85.36 to Principal Financial, the third-party administrator and service provider of the 14 401(k) Plan and Raya’s 401(k) loan. Raya alleges that David Barka remitted only $14.86 15 of each biweekly deduction to Principal Financial and kept the remaining $70.50 for David 16 Barka’s personal use. 17 Raya alleges that he was terminated from his position at Calbiotech on November 18 29, 2016. Raya alleges that David Barka told Raya that “things were not working out” and 19 that Raya’s position was being eliminated. (Id. ¶ 45). Raya alleges that Calbiotech “was 20 not honest when describing [its] motivations for terminating Mr. Raya.” (Id. ¶ 47). Raya 21 alleges that Calbiotech did not eliminate Raya’s position and began searching for an 22 applicant to replace Raya “immediately after, or possibly before” Raya was terminated. 23 (Id.). Raya alleges that “David Barka fired Mr. Raya in an effort to prevent Mr. Raya from 24 exercising his protected right to request and receive [ ] [d]ocuments describing 25 Calbiotech’s 40l(k) Plan and to release Calbiotech from any liability faced as a result of 26 failing to provide those plan documents.” (Id. ¶ 48). 27 Raya brings claims against 1) Calbiotech and Erba Mannheim for statutory penalties 28 under the Employee Retirement Income Security Act of 1974 (“ERISA”) for failing to 1 provide Raya with documents describing the Pension Plan ; 2) David Barka, Noori Barka, 2 Evelyn Barka, Calbiotech, and Erba Mannheim for breach of fiduciary duty under 29 3 U.S.C. §§ 1104(a)(l)(A), (a)(1)(B), (a)(1)(D), and 1105, and breach of fiduciary duty and 4 fraud under California state law; and 3) David Barka, Noori Barka, Calbiotech, and Erba 5 Mannheim for ERISA interference under 29 U.S.C. § 1140. Raya seeks statutory penalties, 6 damages, including punitive damages, injunctive relief, and declaratory relief. 7 On February 14, 2020, Defendants David Barka, Noori Barka, Evelyn Barka, 8 Calbiotech, the 401(k) Plan, and the Pension Plan2 filed a Motion to Dismiss Plaintiff’s 9 Complaint, or Motion for a More Definite Statement and Motion to Strike Portions of 10 Plaintiff’s Complaint. (ECF No. 14). Defendants move to dismiss the Complaint pursuant 11 to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that Raya fails 12 state a claim upon which relief can be granted.3 On March 10, 2020, Raya filed an 13 Opposition to Defendants’ Motion to Dismiss. (ECF No. 15). On March 16, 2020, 14 Defendants filed a Reply. (ECF No. 16). 15 II. LEGAL STANDARD 16 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 17 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state 18 19 20 1 On November 19, 2018, Raya filed a Complaint in a related case, Raya v. Calbiotech, Inc., Case No. 18- 21 cv-2643-WQH-AHG, against Calbiotech due to Calbiotech’s alleged failure to provide Raya with 401(k) Plan documents. 22 2 The docket does not reflect that Defendant Erba Mannheim has been served. (See ECF No. 13 (summons 23 returned unexecuted as to Erba Mannheim)).

24 3 Defendants request that the Court take judicial notice of 1) the April 26, 2012, Pension Plan Adoption 25 Agreement; 2) the Separation Agreement and General Release between Raya and Calbiotech; 3) the April 30, 2019, written determination of Calbiotech denying Raya’s claim for benefits; 4) the 401(k) Plan 26 document (ECF No. 14-2 at 2); 5) the Complaint filed by Raya in Raya v. Calbiotech, Inc., Case No. 3:18- cv-2643-WQH-AHG; and 6) forms filed by Raya with the California Employment Development 27 Department (ECF No. 16-1 at 2). Judicial notice of the requested documents is unnecessary for this Order. Defendants’ requests for judicial notice are denied. See Asvesta v. Petroutsas, 580 F.3d 1000, 1010 n. 12 28 1 a claim for relief, a pleading “must contain . . . a short and plain statement of the claim 2 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 3 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 4 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 5 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quotation omitted). 6 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 8 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 9 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 10 court to draw the reasonable inference that the defendant is liable for the misconduct 11 alleged.” Id. at 678 (citation omitted). However, “a plaintiff’s obligation to provide the 12 ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a 13 formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. 14 at 555 (alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to 15 accept as true allegations that are merely conclusory, unwarranted deductions of fact, or 16 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 17 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 18 content, and reasonable inferences from that content, must be plausibly suggestive of a 19 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 20 2009) (quotation omitted). 21 III. 401(k) PLAN AND PENSION PLAN AS DEFENDANTS 22 Defendants contend that the Court should dismiss the 401(k) Plan and Pension Plan 23 as Defendants because Raya names the 401(k) Plan and the Pension Plan in the caption of 24 the Complaint but does not bring any claim against them. “[T]he determination of whether 25 or not a defendant is properly in the case hinges upon the allegations in the body of the 26 complaint and not upon his inclusion in the caption.” Hoffman v. Halden, 268 F.2d 280, 27 304 (9th Cir. 1959), overruled on other grounds by Cohen v. Norris, 300 F.2d 24 (9th Cir. 28 1962). Raya names the 401(k) Plan and the Pension Plan in the caption of the Complaint 1 and in the “Parties” section of the Complaint. (See ECF No. 1 at 1 and ¶¶ 12, 13). However, 2 Raya does not bring any claim in the body of the Complaint against the 401(k) Plan or the 3 Pension Plan. Defendants’ Motion to Dismiss the Calbiotech, Inc. 401(k) Profit Sharing 4 Plan and the Calbiotech, Inc. Pension Plan 401(k) Plan as Defendants is granted. 5 IV. ERISA STATUTORY PENALTIES CLAIM 6 Raya brings his first cause of action for ERISA statutory penalties against 7 Defendants Calbiotech and Erba Mannheim for failing to provide Pension Plan documents4 8 to Raya within thirty days of his written request. Defendants contend that Raya’s claim for 9 statutory penalties is barred by the three-year statute of limitations. Raya contends that the 10 Court should toll the statute of limitations because Raya “did not discover irregularities 11 connected to Calbiotech retirement plans until January of 2018 . . . [and] did not suspect 12 fraud until February of 2018 as [D]efendants adopted a policy of refusing to provide 13 information or to communicate in any meaningful way with [Raya].” (ECF No. 15 at 4). 14 Under ERISA, the administrator of an employee benefit plan “shall, upon written 15 request of any participant or beneficiary, furnish a copy of the latest updated summary plan 16 description, and the latest annual report, any terminal report, the bargaining agreement, 17 trust agreement, contract, or other instruments under which the plan is established or 18 operated.” 29 U.S.C. § 1024(b)(4). Any plan administrator “who fails or refuses to comply 19 with a request for any information which such administrator is required by this title to 20 furnish to a participant or beneficiary . . . within 30 days after such request may in the 21 court’s discretion be personally liable to such participant or beneficiary in the amount of 22 up to [$110] a day from the date of such failure or refusal, and the court may in its discretion 23 order such other relief as it deems proper . . . .” 29 U.S.C. § 1132(c)(1); see 29 C.F.R. § 24 2575.502c-1 (increasing maximum civil penalty from $100 per day to $110 per day). 25 26 27 4 Raya’s ERISA statutory penalties claim is based only upon Calbiotech and Erba Mannheim’s alleged failure to provide Pension Plan documents. Raya brings a claim against Calbiotech for its alleged failure 28 1 “[T]he recovery of up to [$110] per day provided to a participant or beneficiary by ERISA 2 § 1132(c) is not a penalty or forfeiture, but is instead a remedy sought by an individual as 3 compensation to address a private wrong.” Stone v. Travelers Corp., 58 F.3d 434, 439 (9th 4 Cir. 1995) (internal quotation marks omitted). Accordingly, “the three-year limitation of 5 Cal. [ ] Civ. Proc. Code § 338(a) applies.” Id.; see Cal. Code. Civ. Proc. § 338(a) (providing 6 a three-year statute of limitations for “[a]n action upon a liability created by statute, other 7 than a penalty or forfeiture”). 8 Raya alleges that Defendant Calbiotech, which was acquired by Defendant Erba 9 Mannheim in 2017, is the administrator of the Pension Plan. Raya alleges that “[i]n 2009, 10 Mr. Raya emailed a request for a written description describing Calbiotech’s retirement 11 plan to David Barka. Mr. Raya’s request was ignored.” (ECF No. 1 ¶ 61). Raya further 12 alleges that “[i]n July and August of 2016, Mr. Raya made written requests for copies of 13 the plan rules describing Calbiotech’s retirement plan. Mr. Raya’s requests were ignored 14 or denied.” (Id. ¶ 40). Taking Raya’s factual allegations as true, Raya requested documents 15 from Calbiotech in 2009, and in July of August of 2016, and never received any documents. 16 Taking Raya’s factual allegations as true, Raya possessed all of the information necessary 17 to bring a claim against Calbiotech for ERISA statutory penalties in September 2016, at 18 the latest. Raya filed the Complaint in this case on December 2, 2019, after the three-year 19 statute of limitations expired. Raya fails to state facts that support tolling the statute of 20 limitations. Raya was aware in 2009 and 2016 that he requested documents and that 21 Calbiotech did not provide any documents within thirty days of Raya’s written requests. 22 The Court concludes that Raya’s claim for ERISA statutory penalties is barred by the 23 statute of limitations. Defendants’ Motion to Dismiss Raya’s first cause of action for 24 ERISA statutory penalties is granted. 25 V. ERISA BREACH OF FIDUCIARY DUTY CLAIMS 26 Raya brings his second and third causes of action for breach of fiduciary duty against 27 Defendants David Barka, Noori Barka, Evelyn Barka, Calbiotech, and Erba Mannheim 28 under 29 U.S.C. § 1104(a)(1)(A), (a)(1)(B), and (a)(1)(D). Defendants contend that § 1104 1 does not provide for a civil claim. Defendants contend that 29 U.S.C. § 1132(a) provides 2 the exclusive remedies for rights guaranteed under ERISA, and Raya does not bring a 3 breach of fiduciary duty claim under § 1132(a). Defendants further contend that Raya’s 4 claims for breach of fiduciary duty under ERISA are time-barred. Raya contends that the 5 Court should toll the applicable statute of limitations. 6 29 U.S.C. § 1104 provides the “[p]rudent man standard of care” by which retirement 7 benefit plan fiduciaries must abide. 29 U.S.C. § 1104(a). Section 1104(a)(1)(A) states that 8 “a fiduciary shall discharge his duties with respect to a plan solely in the interest of 9 participants and beneficiaries and . . . for the exclusive purpose of: (i) providing benefits 10 to participants and their beneficiaries; and (ii) defraying reasonable expenses of 11 administering the plan.” 29 U.S.C. § 1104(a)(1)(A). Section 1104(a)(1)(B) states that a 12 fiduciary shall discharge his duties “with the care, skill, prudence, and diligence under the 13 circumstances then prevailing that a prudent man acting in a like capacity and familiar with 14 such matters would use in the conduct of an enterprise of a like character and with like 15 aims.” 29 U.S.C. § 1104 (a)(1)(B). Section 1104(a)(1)(D) states that a fiduciary shall 16 discharge his duties “in accordance with the documents and instruments governing the plan 17 insofar as such documents and instruments are consistent with the provisions of this title 18 and title IV.” 29 U.S.C. § 1104(a)(1)(D). 19 A plaintiff who alleges that a fiduciary violated § 1104(a) may bring a claim under 20 29 U.S.C. § 1132(a). See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 144 (1990) 21 (“Congress intended [§ 1132(a)] to be the exclusive remedy for rights guaranteed under 22 ERISA . . . .”). 29 U.S.C. § 1132(a)(1)(B) authorizes a civil action to be brought “by a 23 participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to 24 enforce his rights under the terms of the plan, or to clarify his rights to future benefits under 25 the terms of the plan.” 29 U.S.C. § 1132(a)(2) authorizes a participant or beneficiary to 26 bring a civil action “for appropriate relief under [29 U.S.C. § 1109],” which provides: 27 Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title 28 1 shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such 2 fiduciary which have been made through use of assets of the plan by the 3 fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary . . . . 4

5 29 U.S.C. § 1109(a). 29 U.S.C. § 1132(a)(3) authorizes a participant or beneficiary to bring 6 a civil action “(A) to enjoin any act or practice which violates any provision of this title or 7 the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such 8 violations or (ii) to enforce any provisions of this title or the terms of the plan.” 9 Subdivision (a)(2) differs from subdivision (a)(3) in that subdivision (a)(2) “gives a 10 remedy for injuries to the ERISA plan as a whole, but not for injuries suffered by individual 11 participants as a result of a fiduciary breach.” Wise v. Verizon Commc’ns, Inc., 600 F.3d 12 1180, 1189 (9th Cir. 2010) (citing LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 13 248, 254, 256 (2008)). By contrast, subdivision (a)(3) allows a plaintiff to bring an 14 individual claim for breach of fiduciary duty. See Paulsen v. CNF Inc., 559 F.3d 1061, 15 1075 (9th Cir. 2009) (“Unlike 29 U.S.C. § 1132(a)(2), which requires that relief sought 16 must be on behalf of the entire plan, the Supreme Court has held that a participant or 17 beneficiary has standing pursuant to section 1132(a)(3) to seek individual recovery in the 18 form of appropriate equitable relief.” (internal quotation marks omitted)). Subdivision 19 (a)(3) is a “catchall provision[ ] [that] act[s] as a safety net, offering appropriate equitable 20 relief for injuries caused by violations that [§ 1132] does not elsewhere adequately 21 remedy.” Moyle v. Liberty Mut. Retirement Benefit Plan, 823 F.3d 948, 959 (9th Cir. 2016) 22 (alterations in original) (quotation omitted). 23 In this case, Raya alleges that Defendants “violated 29 U.S.C. 1104 . . . .” (ECF No. 24 1 ¶¶ 63, 64, 65). Raya does not identify any claim under § 1132(a)(1)(B), (a)(2), or (a)(3). 25 In a similar case, the Court of Appeals for the Ninth Circuit held that a district court 26 properly granted summary judgment in the defendant’s favor where the plaintiff 27 improperly asserted a claim under a substantive ERISA provision rather than under § 28 1 1132(a) and failed to correct the error in subsequent pleadings. May v. Honeywell Int’l, 2 Inc., 331 F. App’x 526, 530 (9th Cir. 2009). 3 In addition, each subdivision of § 1132(a) has a different pleading requirement, a 4 different statute of limitations, and a different administrative exhaustion requirement. 5 Compare 29 U.S.C. § 1113 (providing a three or six-year statute of limitations for an 6 ERISA breach of fiduciary duty claim), with Wetzel v. Lou Ehlers Cadillac Grp. Long Term 7 Disability Ins. Program, 222 F.3d 643, 648 (9th Cir. 2000) (explaining that “California’s 8 [four-year] statute of limitations for suits on written contracts, California Code of Civil 9 Procedure Section 337, provides the applicable statute of limitations for an ERISA cause 10 of action based on a claim for benefits under a written contractual policy in California”); 11 see Wise, 600 F.3d at 1189 (explaining that “[t]o allege a fiduciary breach under § 12 1132(a)(2), [the plaintiff] must allege that the fiduciary injured the benefit plan or 13 otherwise ‘jeopardize[d] the entire plan or put at risk plan assets’” (third alteration in 14 original) (quoting Amalgamated Clothing & Textile Workers Union, AFL-CIO v. Murdock, 15 861 F.2d 1406, 1414 (9th Cir. 1988))); see also Vaught v. Scottsdale Healthcare Corp. 16 Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (explaining that before bringing suit under 17 § 1132(a)(1)(B), “an ERISA plaintiff claiming a denial of benefits ‘must avail himself or 18 herself of a plan’s own internal review procedures . . .’” (quoting Diaz v. United Agric. 19 Emp. Welfare Benefit Plan & Trust, 50 F.3d 1478, 1483 (9th Cir. 1995))). The Court cannot 20 conclude that Raya has adequately and timely stated any claim for breach of fiduciary duty 21 under ERISA because Raya fails to identify any subdivision of § 1132(a) under which he 22 seeks recovery. The Court finds that Raya fails to state a claim for breach of fiduciary duty 23 under ERISA. Defendants’ Motion to Dismiss Raya’s second and third claims for breach 24 of fiduciary duty is granted. 25 VI. ERISA INTERFERENCE CLAIM 26 Raya brings his fourth cause of action for ERISA interference under 29 U.S.C. § 27 1140 against Defendants David Barka, Noori Barka, Calbiotech, and Erba Mannheim 28 based on his allegedly unlawful termination. Defendants contend that the Complaint states 1 the elements of an interference cause of action without supporting factual allegations. Raya 2 contends that adequately states a claim for ERISA interference based upon his wrongful 3 termination. 4 29 U.S.C. § 1140 provides: 5 “It shall be unlawful for any person to discharge . . . a participant or beneficiary for exercising any right to which he is entitled under the provisions 6 of an employee benefit plan [or] this title, . . . or for the purpose of interfering 7 with the attainment of any right to which such participant may become entitled under the plan [or] this title . . . .The provisions of section 502 [29 U.S.C. § 8 1132] shall be applicable in the enforcement of this section.” 9 “The purpose of [§ 1140] is to ‘prevent persons and entities from taking actions which 10 might cut off or interfere with a participant’s ability to collect present or future benefits or 11 which punish a participant for exercising his or her rights under an employee benefit plan.’” 12 Lessard v. Applied Risk Mgmt., 307 F.3d 1020, 1024 (9th Cir. 2002) (quoting Tolle v. 13 Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992)). To demonstrate a violation of 14 § 1140, the plaintiff must show 1) he was engaged in activity protected under ERISA; 2) 15 he suffered an adverse employment action; and 3) a causal link exists between the 16 employee’s protected activity and the employer’s adverse action. Kimbro v. Atl. Richfield 17 Co., 889 F.2d 869, 881 (9th Cir. 1989). “A claimant must show that employment was 18 terminated because of a specific intent to interfere with ERISA rights in order to prevail 19 under [§ 1140]; no action lies where the alleged loss of rights is a mere consequence, as 20 opposed to a motivating factor behind the termination.” Dytrt v. Mountain States Tel. & 21 Tel. Co., 921 F.2d 889, 896 (9th Cir. 1990) (citations omitted). 22 In this case, Raya alleges that he requested copies of Calbiotech’s retirement plans 23 in July and August 2016. Raya alleges that Calbiotech terminated Raya’s employment on 24 November 29, 2016. Raya alleges that David Barka told Raya that he was terminated 25 because “things were not working out” and because his position had been eliminated. (ECF 26 No. 1 ¶ 45). Raya alleges that his position had not been eliminated, and another employee 27 was hired to fill Raya’s position in February 2017. Raya alleges that “David Barka fired 28 1 Mr. Raya in an effort to prevent Mr. Raya from exercising his protected right to request 2 and receive Plan Documents describing Calbiotech’s 40l(k) Plan and to release Calbiotech 3 from any liability faced as a result of failing to provide those plan documents.” (Id. ¶ 48). 4 Raya fails to allege facts that support a reasonable inference that Defendants acted with the 5 “specific intent to interfere with [Raya’s] ERISA rights.” Dytrt, 921 F.2d at 896 (citation 6 omitted). Raya’s allegation that Defendants terminated Raya’s position in order to prevent 7 him from exercising his ERISA rights is not supported by any facts connecting the request 8 for plan documents and subsequent termination. Further, Raya fails to identify any claim 9 under § 1132(a). See May, 331 F. App’x at 530 (holding that the district court properly 10 granted summary judgment in defendant’s favor where the plaintiff “asserted one claim 11 under [ ] 29 U.S.C. § 1140, rather than under [§ 1132(a)] . . . [and] failed to correct this 12 error in any of her pleadings . . .”). Accordingly, the Court cannot determine that Raya 13 states a claim entitling him to any relief. The Court finds that Raya fails to state a claim for 14 ERISA interference. Defendants’ Motion to Dismiss Raya’s fourth claim for ERISA 15 interference is granted. 16 VII. CO-FIDUCIARY BREACH CLAIM 17 Raya brings his fifth cause of action against Defendants David Barka, Noori Barka, 18 Evelyn Barka, Calbiotech, and Erba Mannheim for co-fiduciary breach of fiduciary duty 19 under 29 U.S.C. § 1105. Defendants contend that Raya’s co-fiduciary breach claim fails 20 because Raya fails to state any underlying claim for breach of fiduciary duty. 21 29 U.S.C. § 1105(a) provides: 22 In addition to any liability which he may have under any other provision of this part [29 U.S.C. §§ 1101 et seq.], a fiduciary with respect to a plan shall 23 be liable for a breach of fiduciary responsibility of another fiduciary with 24 respect to the same plan in the following circumstances:

25 (1) if he participates knowingly in, or knowingly undertakes to conceal, an act 26 or omission of such other fiduciary, knowing such act or omission is a breach;

27 (2) if, by his failure to comply with section 404(a)(1) [29 U.S.C. § 1104(a)(1)] 28 in the administration of his specific responsibilities which give rise to his 1 status as a fiduciary, he has enabled such other fiduciary to commit a breach; or 2

3 (3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach. 4

5 A plaintiff cannot state a claim for co-fiduciary liability without first stating a claim for 6 breach of fiduciary duty under ERISA. 29 U.S.C. § 1105(a). The Court has determined that 7 Raya fails to state a claim for breach of fiduciary duty. Accordingly, Raya’s co-fiduciary 8 breach claim fails as a matter of law. Defendants’ Motion to Dismiss Raya’s fifth cause of 9 action for co-fiduciary breach is granted. 10 VIII. STATE LAW CLAIMS 11 Raya’s remaining claims arise under California law and include causes of action for 12 state law breach of fiduciary duty and fraud. The federal supplemental jurisdiction statute 13 provides, “[I]n any civil action of which the district courts have original jurisdiction, the 14 district courts shall have supplemental jurisdiction over all other claims that are so related 15 to claims in the action within such original jurisdiction that they form part of the same case 16 or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). 17 “The district courts may decline to exercise supplemental jurisdiction” for a number of 18 reasons, including if “the district court has dismissed all claims over which it has original 19 jurisdiction[.]” 28 U.S.C. § 1367(c)(3). 20 “Depending on a host of factors, then—including the circumstances of the particular 21 case, the nature of the state law claims, the character of the governing state law, and the 22 relationship between the state and federal claims—district courts may decline to exercise 23 jurisdiction over supplemental state law claims.” Chicago v. Int’l Coll. of Surgeons, 522 24 U.S. 156, 173 (1997). “While discretion to decline to exercise supplemental jurisdiction 25 over state law claims is triggered by the presence of one of the conditions in § 1367(c), it 26 is informed by the [United Mine Workers of America v.] Gibbs[,] [383 U.S. 715 (1966),] 27 values of economy, convenience, fairness, and comity.” Acri v. Varian Assocs., 114 F.3d 28 999, 1001 (9th Cir. 1997) (quotation omitted). “‘[I]n the usual case in which federal-law 1 claims are eliminated before trial, the balance of factors . . . will point toward declining to 2 || exercise jurisdiction over the remaining state law claims.’” Schneider v. TRW, Inc., 938 3 || F.2d 986, 993 (9th Cir. 1991) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 4 ||n. 7 (1970)). 5 Raya’s federal claims have been dismissed. The Court declines to exercise 6 supplemental jurisdiction over Raya’s state law claims. Defendants’ Motion to Dismiss is 7 || granted. Raya’s Complaint is dismissed without prejudice. 8 CONCLUSION 9 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiffs 10 Complaint (ECF No. 14) is granted. Raya’s Complaint is dismissed without prejudice. No 11 than thirty (30) days from the date of this Order, Raya may file a motion for leave to 12 ||amend pursuant to Civil Local Rules 7.1 and 15.1(c). If no motion is filed, the Clerk shall 13 close the case. 14 || Dated: June 25, 2020 Nitta Ze. A a 15 Hon, William Q. Hayes 16 United States District Court 17 18 19 20 21 22 23 24 25 26 27 28