Raya v. Calbiotech

• Court: District Court, S.D. California
• Decided: May 12, 2020
• Docket: 3:18-cv-02643
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT RAYA, Case No.: 18-cv-2643-WQH-BGS

8 Plaintiff, ORDER 9 v. 10 CALBIOTECH, 11 Defendant. 12

13 CALBIOTECH, 14 Counterclaimant, 15 v. 16 ROBERT RAYA, 17 Counterdefendant. 18 HAYES, Judge: 19 The matter before the Court is the Motion for Summary Judgment filed by 20 Defendant/Counterclaimant Calbiotech, Inc. (ECF No. 36). 21 I. BACKGROUND 22 On November 19, 2018, Plaintiff Robert Raya, proceeding pro se, filed a Complaint 23 against Defendant Calbiotech, Inc. (“Calbiotech”). (ECF No. 1). In the Complaint, Raya 24 alleges that he is a former employee of Calbiotech and a beneficiary of its 401(k) profit 25 sharing plan. Raya alleges that he made seven written requests to Calbiotech for a copy of 26 the 401(k) summary plan description between July 16, 2016, and February 23, 2018. Raya 27 alleges that Calbiotech provided “false or fraudulent” summary plan descriptions to Raya 28 1 Calbiotech “failed or refused to provide a [s]ummary [p]lan [d]escription or a written plan 2 description of any kind . . . until after [Raya’s] [seventh] request,” when Calbiotech 3 provided Raya with “Calbiotech Inc. Volume Submitter Profit Sharing/401(k) Plan 4 Adoption Agreement” on February 26, 2018. (Id. ¶ 9). Raya brings one claim against 5 Calbiotech for failing to provide Raya with a summary plan description of Calbiotech’s 6 401(k) profit sharing plan within thirty days of Raya’s written request in violation of the 7 Employee Retirement Income Security Act of 1974 (“ERISA”). Raya seeks statutory 8 penalties of $110 per day for the period of January 26, 2016 to December 14, 2018. 9 On February 21, 2019, Calbiotech filed an Answer to the Complaint. (ECF No. 6). 10 On May 21, 2019, Calbiotech filed a Counterclaim against Raya. (ECF No. 14). In the 11 Counterclaim, Calbiotech alleges that on December 7, 2016, Raya and Calbiotech entered 12 into a separation agreement. Calbiotech alleges that by signing the separation agreement, 13 Raya released all known and unknown claims against Calbiotech arising from Calbiotech’s 14 actions before December 7, 2016. Calbiotech brings one claim against Raya for breach of 15 the separation agreement. Calbiotech seeks dismissal of Raya’s Complaint with prejudice, 16 declaratory relief, an order requiring Raya to pay back $12,500 in severance pay that Raya 17 received from Calbiotech, and attorneys’ fees and costs. 18 On June 13, 2019, Raya filed a Motion to Dismiss Calbiotech’s Counterclaim. (ECF 19 No. 15). On August 15, 2019, the Court denied Raya’s Motion to Dismiss. (ECF No. 17). 20 On October 2, 2019, Raya filed an Answer to Calbiotech’s Counterclaim. (ECF No. 26). 21 On February 11, 2019, Calbiotech filed a Motion for Summary Judgment. (ECF No. 22 36). Calbiotech moves for summary judgment in its favor on Raya’s ERISA claim and 23 Calbiotech’s breach of contract claim. Raya did not file any opposition to the Motion for 24 Summary Judgment. 25 II. FACTS 26 On June 2, 2008, Calbiotech hired Raya as a full-time scientist. Except for a brief 27 separation from service in 2011, Raya was employed with Calbiotech until November 29, 28 2016, when he was terminated from his position as a production manager. 1 A. Raya’s Separation Agreement 2 Following Raya’s termination, Raya and Calbiotech entered into a Separation 3 Agreement and General Release (the “Separation Agreement”). The Vice President of 4 Calbiotech, David Barka, executed the Separation Agreement on Calbiotech’s behalf on 5 November 30, 2016. Raya executed the Separation Agreement on December 7, 2016. The 6 Separation Agreement provided, in relevant part: 7 2. Payment to Employee. 8 a. In exchange for the covenants and consideration herein, 9 Company will pay to Employee $12,500 (hereinafter “the Severance 10 Payment”) as full and complete settlement of any and all disputed claims or potential disputed claims that Employee may have against 11 Company . . . . 12 3. Release. Employee, on behalf of Employee and Employee’s 13 representatives, heirs, successors, and assigns, does hereby completely release 14 and forever discharge Company, including its related or affiliated companies, partnerships, subsidiaries, and other business entities and its and their present 15 and former respective officers, directors, shareholders, owners, agents, 16 employees, representatives, insurers, attorneys, successors, and assigns (referred to collectively as the “Company”), from and against all claims, 17 rights, demands, actions, obligations, liabilities, and causes of action, of any 18 and every kind, nature, and character whatsoever, that Employee has now, has ever had, or may have in the future against Company, or any of them, based 19 on any acts or omissions by Company, or any of them, as of the date of 20 execution of this Agreement by Employee . . . (referred to collectively as the “Released Claims”), to the fullest extent allowed by law. The Released Claims 21 do not include those that the law does not allow Employee to release. 22 Notwithstanding the foregoing, Employee agrees to waive the right to recover monetary damages in any charge, complaint, or lawsuit filed by Employee or 23 anyone else on Employee’s behalf for any Released Claims. 24 4. No Legal Action. Employee represents that Employee has not filed, 25 initiated, or caused to be filed or initiated any legal action covering any 26 Released Claim and agrees that Employee will never file, initiate, or cause to be filed or initiated, at any time after the execution of this Agreement, any 27 claim, charge, suit, complaint, action, or cause of action, in any state or federal 28 court or before any state or federal administrative agency, based in whole or 1 in part on any Released Claim. Further, Employee shall not participate, assist, or cooperate in any suit, action, or proceeding against or regarding the 2 Released Parties, or any of them, unless compelled to do so by law. 3 5. Release Full and Final. Employee understands and agrees that this is a 4 full and final release covering all unknown and unanticipated injuries, debts, 5 claims, or damages to Employee that may have arisen or may arise in connection with any act or omission by the Released Parties before the date 6 of execution of this Agreement. For that reason, Employee hereby waives any 7 and all rights or benefits that he may have under the terms of California Civil Code §1542 . . . . 8

9 . . .

10 7. Review Period. I acknowledge that I was given 21 calendar days to 11 consider this release. I waive my right that I might have to additional time beyond this consideration period. I have reviewed this release carefully and I 12 fully understand what it means, and I am entering into it knowingly and 13 voluntarily.

14 8. No Admission of Liability. It is understood and agreed that this is a 15 compromise settlement of doubtful and disputed claims, or potential disputed claims, and the furnishing of the consideration for this Agreement shall not be 16 deemed or construed as an admission of liability or responsibility at any time 17 for any purpose. It is further agreed and understood that this compromise and Agreement are being entered into solely for the purpose of avoiding further 18 expense and inconvenience from defending against any or all of the Released 19 Claims.

20 . . . 21 14. No Reliance; Consideration. The undersigned parties each acknowledge 22 that they have entered into this Agreement voluntarily, without coercion, and 23 on the basis of their own judgment and not in reliance on any representation or promise made by the other party, other than those contained in this 24 Agreement. This Agreement recites the sole consideration for the promises 25 exchanged in this Agreement. Each party has read this Agreement and is fully aware of its contents and legal effect. 26

27 . . .

28 1 17. Rescission. This Agreement must be signed and returned by December 23, 2016 to commence your severance benefits. The severance payment will 2 be issued to you as soon as administratively possible after the date you sign 3 the Agreement. This Agreement may only be rescinded within 7 days after it is executed by hand-delivering a written notice of rescission to the President 4 of Company. 5 (Ex. B, Declaration of David Barka in Support of Motion for Summary Judgment (“Barka 6 Decl.”), ECF No. 36-5 at 2-5 (emphases in original)). On December 8, 2016, Raya returned 7 the executed Separation Agreement to Calbiotech, and Calbiotech remitted $12,500 to 8 Raya. 9 B. Calbiotech’s 401(k) Profit Sharing Plan 10 Calbiotech “established, maintains, and is the plan sponsor and designated plan 11 administrator of an ERISA-governed employee pension benefit plan––the Calbiotech Inc. 12 401(k) Profit Sharing Plan (the ‘Plan’).” (Barka Decl., ECF No. 36-3 ¶ 12). Calbiotech 13 adopted the Plan on December 30, 2009. The Plan was retroactively effective as of 14 September 1, 2008. Calbiotech prepared a Summary Plan Description (“SPD”) for Plan 15 participants after it adopted the Plan. 16 Calbiotech amended the Plan on April 26, 2012, retroactively effective on 17 September 1, 2011. Calbiotech again amended the Plan on April 26, 2016, retroactively 18 effective on January 1, 2015. After each amendment, “a new and updated [SPD] [ ] was 19 subsequently prepared for Plan participants.” (Id. ¶ 17). On July 26, 2016, Raya sent an 20 email to Thereza Lopez, the Office Manager of Calbiotech, requesting “a copy of our 401k 21 plan rules.” (Ex. M, Barka Decl., ECF No. 36-16 at 2). On August 8, 2016, Raya sent a 22 second email to Lopez, requesting “a copy of our 401k plan.” (Ex. N, Barka Decl., ECF 23 No. 36-17 at 2). On December 13, 2016, Raya sent an email to Dianna L. Simmons, the 24 Vice President of Crown Benefits, Inc., requesting “the plan rules.” (Ex. Q, Barka Decl., 25 ECF No. 36-20 at 3). On December 14, 2016, Simmons provided Raya with Calbiotech’s 26 SDP for the April 26, 2016, Plan amendment. 27 28 1 Calbiotech again amended the Plan on April 3, 2017, retroactively effective on 2 September 1, 2016. Calbiotech prepared an updated SPD after it amended the Plan. On 3 February 6, 2018, Raya sent an email to David Barka, requesting “summary plan 4 descriptions for both retirement plans as well as complete, whole plan documents for each 5 of Calbiotech’s retirement plans.” (Ex. O, Barka Decl., ECF No. 36-18 at 2). On February 6 23, 2018, Raya sent an email to Thereza Lopez that stated: 7 Thank you for the quick response and for providing the documents describing 8 the Calbiotech Pension Plan. In my letter, I also asked for a copy of the 9 complete plan document in addition to the summary plan description for each of Calbiotech’s retirement plans, including the 401K plan. Can you or David 10 please provide these as well? 11 (Ex. R, Barka Decl., ECF No. 36-21 at 3). On February 26, 2018, Lopez responded, 12 “Attached is the plan document for the 401(k) plan.” (Id. at 2). The document attached to 13 Lopez’s email was the Calbiotech Inc. Volume Submitter Profit Sharing/401(k) Plan 14 Adoption Agreement, adopted on April 3, 2017. 15 III. LEGAL STANDARD 16 “A party may move for summary judgment, identifying each claim or defense—or 17 the part of each claim or defense—on which summary judgment is sought. The court shall 18 grant summary judgment if the movant shows that there is no genuine dispute as to any 19 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 20 56(a). A material fact is one that is relevant to an element of a claim or defense and whose 21 existence might affect the outcome of the suit. See Matsushita Elec. Indus. Co., Ltd. v. 22 Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The materiality of a fact is determined 23 by the substantive law governing the claim or defense. See Anderson v. Liberty Lobby, Inc., 24 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The 25 moving party has the initial burden of demonstrating that summary judgment is proper. See 26 Adickes v. S.H. Kress & Co., 398 U.S. 144, 153 (1970). Where the party moving for 27 summary judgment does not bear the burden of proof at trial, “the burden on the moving 28 1 party may be discharged by ‘showing’—that is, pointing out to the district court—that there 2 is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. 3 at 325; see also United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542-43 (9th 4 Cir. 1989) (“[O]n an issue where the plaintiff has the burden of proof, the defendant may 5 move for summary judgment by pointing to the absence of facts to support the plaintiff’s 6 claim. The defendant is not required to produce evidence showing the absence of a genuine 7 issue of material fact with respect to an issue where the plaintiff has the burden of proof. 8 Nor does Rule 56(c) require that the moving party support its motion with affidavits or 9 other similar materials negating the nonmoving party’s claim.” (citations omitted)). 10 If the moving party bears the burden of proof on an issue at trial, the moving party 11 must “establish[ ] a prima facie case on their motion for summary judgement.” UA Local 12 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994) (citing Celotex Corp., 13 477 U.S. 317; Matsushita Elec. Indus. Co., Ltd., 475 U.S. 574). The moving party must 14 present evidence that, if uncontroverted, would entitle to moving party to prevail on that 15 issue. Id. 16 If the moving party meets the initial burden, the burden shifts to the opposing party 17 to show that summary judgment is not appropriate. Anderson, 477 U.S. at 256; Celotex 18 Corp., 477 U.S. at 322, 324. The nonmoving party cannot defeat summary judgment 19 merely by demonstrating “that there is some metaphysical doubt as to the material facts.” 20 Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586; see also Anderson, 477 U.S. at 252 21 (“The mere existence of a scintilla of evidence in support of the [nonmoving party’s] 22 position will be insufficient.”). The nonmoving party must “go beyond the pleadings and 23 by her own affidavits, or by the depositions, answers to interrogatories, and admissions on 24 file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 25 477 U.S. at 324 (quotations omitted). The nonmoving party’s evidence is to be believed, 26 and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 256. 27 A district court may not grant a motion for summary judgment solely because the 28 opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 1 & n. 4 (9th Cir. 1994). However, the court may grant an unopposed motion for summary 2 judgment if the moving party’s papers are themselves sufficient to support the motion and 3 do not on their face reveal a genuine issue of material fact. Id. 4 IV. RAYA’S ERISA CLAIM 5 Raya brings one claim under ERISA against Calbiotech for failure to provide Raya 6 with SPDs that Raya requested in writing within thirty days of his requests on July 26, 7 2016, August 8, 2016, November 30, 2016, December 7, 2016, December 13, 2016, 8 February 6, 2018, and February 23, 2018. 9 Calbiotech asserts that it is entitled to summary judgment in its favor on Raya’s 10 ERISA claim. Calbiotech contends that by signing the Separation Agreement, Raya waived 11 his claims for Calbiotech’s alleged failure to provide Raya with SPDs before December 7, 12 2016. Calbiotech contends that it provided Raya with copies of the latest Plan documents 13 in compliance with 29 U.S.C. § 1024(b)(4) within thirty days of Raya’s written requests 14 after December 7, 2016. 15 Under ERISA, the administrator of an employee benefit plan is required to provide 16 plan participants and beneficiaries with a summary plan description, annual reports, and 17 pension benefit statements. 29 U.S.C. § 1021(a). 29 U.S.C. § 1024(b)(4) provides that the 18 plan administrator “shall, upon written request of any participant or beneficiary, furnish a 19 copy of the latest updated summary plan description, and the latest annual report, any 20 terminal report, the bargaining agreement, trust agreement, contract, or other instruments 21 under which the plan is established or operated.” Any plan administrator “who fails or 22 refuses to comply with a request for any information which such administrator is required 23 by this title to furnish to a participant or beneficiary . . . within 30 days after such request 24 may in the court’s discretion be personally liable to such participant or beneficiary in the 25 amount of up to [$110] a day from the date of such failure or refusal, and the court may in 26 its discretion order such other relief as it deems proper . . . .” 29 U.S.C. § 1132(c)(1); see 27 29 C.F.R. § 2575.502c-1 (increasing maximum civil penalty from $100 per day to $110 28 per day). 1 A. Calbiotech’s Failure to Provide Requested Plan Documents Due Before December 7, 2016 2 3 Raya alleges that he made written requests to Calbiotech for Calbiotech’s SPD on 4 July 26, 2016, and August 8, 2016. Raya alleges that Calbiotech failed to provide the 5 requested Plan documents within thirty days of Raya’s written requests. 6 Calbiotech “is the plan sponsor and designated plan administrator of an ERISA- 7 governed employee pension benefit plan––the Calbiotech, Inc. 401(k) Profit Sharing Plan 8 [ ].” (Barka Decl., ECF No. 36-3 ¶ 12). On July 26, 2016, Raya sent an email to Thereza 9 Lopez, the Office Manager of Calbiotech, requesting “a copy of our 401k plan rules.” (Ex. 10 M, Barka Decl., ECF No. 36-16 at 2). On August 8, 2016, Raya sent a second email to 11 Lopez, requesting “a copy of our 401k plan.” (Ex. N, Barka Decl., ECF No. 36-17 at 2). 12 On December 7, 2016, Raya executed the Separation Agreement between Raya and 13 Calbiotech. By signing the Separation Agreement, Raya agreed to “completely release and 14 forever discharge [Calbiotech] . . . from and against all claims, rights, demands, actions, 15 obligations, liabilities, and causes of action . . . that [Raya] has now, has ever had, or may 16 have in the future against [Calbiotech] . . . based on any acts or omissions by [Calbiotech] 17 . . . as of the date of execution of this Agreement by [Raya] . . . (referred to collectively as 18 the ‘Released Claims’) . . . .” (Ex. B, ECF No. 36-5 at 3). Raya “waive[d] the right to 19 recover monetary damages in any charge, complaint, or lawsuit filed by [Raya] or anyone 20 else on [Raya’s] behalf for any Released Claims.” (Id.). Raya “represent[ed] that [Raya] 21 ha[d] not filed, initiated, or caused to be filed or initiated any legal action covering any 22 Released Claim” and “agree[d] . . . [to] never file, initiate, or cause to be filed or initiated, 23 at any time after the execution of this Agreement, any claim, charge, suit, complaint, action, 24 or cause of action, in any state or federal court or before any state or federal administrative 25 agency, based in whole or in part on any Released Claim.” (Id.). Raya “underst[ood] and 26 agree[d] that this is a full and final release covering all unknown and unanticipated injuries, 27 debts, claims, or damages to [Raya] that may have arisen or may arise in connection with 28 any act or omission by [Calbiotech] before the date of execution of this Agreement.” (Id.). 1 “In exchange for the covenants and consideration [in the Separation Agreement],” 2 Calbiotech agreed to pay Raya $12,500 “as full and complete settlement of any and all 3 disputed claims or potential disputed claims that [Raya] may have against [Calbiotech].” 4 (Id. at 2). Calbiotech remitted $12,500 to Raya on December 8, 2016. (Ex. D, Barka Decl., 5 ECF No. 36-7 at 2). 6 Raya’s ERISA claim for statutory penalties based on Calbiotech’s failure to provide 7 Raya with Plan documents within thirty days of his requests on July 26, 2016, and August 8 8, 2016, is “based on [ ] acts or omissions by [Calbiotech] . . . as of the date of execution 9 of [the Separation Agreement] by [Raya] . . . .” (Ex. B, ECF No. 36-5 at 3). Raya released 10 these claims by signing the Separation Agreement. The Court finds that Calbiotech has met 11 its burden to demonstrate that there is an “absence of facts to support [Raya’s] claim” for 12 statutory penalties under ERISA arising from Raya’s requests for Plan documents on July 13 26, 2016, and August 8, 2016. United Steelworkers, 865 F.2d at 1542 (citation omitted). 14 The moving papers do not on their face reveal a genuine issue of material fact. Cristobal, 15 26 F.3d at 1494-95 & n. 4. The Court concludes that Calbiotech is entitled to summary 16 judgment in its favor on Raya’s ERISA claim for statutory penalties arising from Raya’s 17 requests for Plan documents on July 26, 2016, and August 8, 2016. 18 B. Calbiotech’s Alleged Failure to Provide Requested Plan Documents Due in December 2016 and January 2017 19 20 Raya alleges that he made written requests to Calbiotech for Calbiotech’s SPD on 21 November 30, 2016, December 7, 2016, and December 13, 2016. Raya alleges that on 22 December 14, 2016, Calbiotech provided Raya with “a false or fraudulent document titled 23 Calbiotech, Inc. 401(k) Profit Sharing Summary Plan Description.” (ECF No. 1 ¶ 10). Raya 24 alleges that the SPD provided by Calbiotech “failed to correctly identify the plan as a Safe 25 Harbor plan and [ ] made no mention of the major identifying feature of the plan, which is 26 a mandatory automatic employer match of elected deferrals, up to 4%,” failing to meet the 27 requirements of 29 C.F.R. § 2520.102-3. (Id.). 28 ERISA requires that a summary plan description include: 1 The name and type of administration of the plan; . . . the name and address of the person designated as agent for the service of legal process, if such person 2 is not the administrator; the name and address of the administrator; names, 3 titles and addresses of any trustee or trustees (if they are persons different from the administrator); a description of the relevant provisions of any applicable 4 collective bargaining agreement; the plan’s requirements respecting eligibility 5 for participation and benefits; a description of the provisions providing for nonforfeitable pension benefits; circumstances which may result in 6 disqualification, ineligibility, or denial or loss of benefits; the source of 7 financing of the plan and the identity of any organization through which benefits are provided; the date of the end of the plan year and whether the 8 records of the plan are kept on a calendar, policy, or fiscal year basis; the 9 procedures to be followed in presenting claims for benefits under the plan including the office at the Department of Labor through which participants 10 and beneficiaries may seek assistance or information regarding their rights 11 under this Act . . ., the remedies available under the plan for the redress of claims which are denied in whole or in part . . ., and if the employer so elects 12 for purposes of complying with section 701(f)(3)(B)(i) [29 USC § 13 1181(f)(3)(B)(i)], the model notice applicable to the State in which the participants and beneficiaries reside. 14

15 29 U.S.C. § 1022(b); see also 29 C.F.R. § 2520.102-3. 16 On December 13, 2016, Raya sent an email to Dianna L. Simmons, the Vice 17 President of Crown Benefits, Inc., requesting “the plan rules.” (Ex. Q, Barka Decl., ECF 18 No. 36-20 at 3). On December 14, 2016, Simmons provided Raya with the SPD for the 19 amended Plan that Calbiotech adopted on April 26, 2016, and that was retroactively 20 effective on January 1, 2015. (Id. at 2). 21 Calbiotech has come forward with evidence that it complied with ERISA by 22 providing Raya with the “a copy of the latest updated summary plan description,” within 23 thirty days of Raya’s request on December 13, 2016. 29 U.S.C. § 1024(b)(4). Raya has not 24 identified any information that the SDP was required by ERISA to include and failed to 25 include. Neither party has submitted evidence that Raya made any written request for Plan 26 documents to Calbiotech on November 30, 2016, or December 7, 2016. However, taking 27 Raya’s allegation that he requested the SPD on November 30 and December 7 as true, 28 Calbiotech has come forward with evidence that it provided Raya with the SDP within 1 thirty days of those requests, on December 14, 2016. The Court finds that Calbiotech has 2 met its burden to demonstrate that there is an “absence of facts to support [Raya’s] claim” 3 for statutory penalties under ERISA arising from Raya’s alleged requests for Plan 4 documents on November 30, 2016, and December 7, 2016, and Raya’s request for Plan 5 documents on December 13, 2016. United Steelworkers, 865 F.2d at 1542 (citation 6 omitted). The moving papers do not on their face reveal a genuine issue of material fact. 7 Cristobal, 26 F.3d at 1494-95 & n. 4. The Court concludes that Calbiotech is entitled to 8 summary judgment in its favor on Raya’s ERISA claim for statutory penalties arising from 9 Raya’s alleged requests for Plan documents on November 30, 2016, and December 7, 2016, 10 and Raya’s request for Plan documents on December 13, 2016. 11 C. Calbiotech’s Alleged Failure to Provide Requested Plan Documents Due in 2018 12 13 Raya alleges that he made written requests to Calbiotech for Calbiotech’s SPD on 14 February 6, 2018, and February 23, 2018. Raya alleges that Calbiotech failed to provide 15 the requested Plan documents within thirty days of Raya’s written requests. 16 Courts in this circuit have adopted the holdings of the Courts of Appeals for the 17 Second, Third, Sixth, Seventh, and Tenth Circuits that “claimants seeking documents 18 pursuant to § 1024(b)(4) must ‘provide clear notice to the plan administrator of the 19 information they desire.’” Cultrona v. Nationwide Life Ins. Co., 748 F.3d 698, 707 (6th 20 Cir. 2014) (quoting Kollman v. Hewitt Assocs., LLC, 487 F.3d 139, 145 (3d Cir. 2007) 21 (adopting the clear notice standard and collecting similar cases from the Second, Fifth, 22 Seventh, and Tenth Circuits)); see Williams v. Caterpillar, Inc., 944 F.2d 658, 667 (9th Cir. 23 1991) (“The district court found, however, that appellants had failed to offer any proof— 24 or even to allege—that they had ever requested any plan descriptions from appellees. Some 25 courts have suggested that where a pension plan participant fails to make a specific request 26 for the information at issue, he has no litigable claim under section 502(c). In any event, 27 even if appellants had proven that they requested a description from appellees, the district 28 court had discretion under the statute to refuse their request for relief.” (internal citations 1 omitted)), amended (Nov. 1, 1991); see also Michael v. La Jolla Learning Inst., Inc., No.: 2 17-CV-934 JLS (MDD), 2019 U.S. Dist. LEXIS 169369, at *17 (S.D. Cal. Sept. 30, 2019) 3 (adopting clear notice standard); Draney v. Westco Chems., Inc., No. 2:19-cv-01405-ODW 4 (AGRx), 2019 U.S. Dist. LEXIS 207356, at *10 (C.D. Cal. Dec. 2, 2019) (same). 5 On February 6, 2018, Raya sent an email to David Barka requesting “summary plan 6 descriptions for both retirement plans as well as complete, whole plan documents for each 7 of Calbiotech’s retirement plans.” (Ex. O, Barka Decl., ECF No. 36-18 at 2). On February 8 23, 2018, Raya sent an email to Thereza Lopez stating, “Thank you for . . . providing me 9 the documents describing the Calbiotech Pension Plan. In my letter, I also asked for a copy 10 of the complete plan document in addition to the summary plan description for each of 11 Calbiotech’s retirement plans, including the 401K plan. Can you . . . please provide these 12 as well?”. (Ex. R, Barka Decl., ECF No. 36-21 at 3). On February 26, 2018, Thereza Lopez 13 wrote to Raya, “Attached is the plan document for the 401(k) Plan.” (Id. at 2). Lopez 14 attached the Calbiotech, Inc. Volume Submitter Profit Sharing/401(k) Plan Adoption 15 Agreement that Calbiotech adopted on April 3, 2017, and that was retroactively effective 16 on September 1, 2016. (Id. at 4-56). 17 Calbiotech has come forward with evidence that it is “the plan sponsor and 18 designated plan administrator” of “the Calbiotech, Inc. 401(k) Profit Sharing Plan [ ].” 19 (Barka Decl., ECF No. 36-3 ¶ 12). Raya clearly requested that Calbiotech provide Raya 20 with two 401(k) Plan documents on February 6, 2018: the “summary plan description[ ]” 21 and the “whole plan document[ ].” (Ex. O, Barka Decl., ECF No. 36-18 at 2). Raya 22 reiterated this clear request for both documents on February 23, 2018. Calbiotech has come 23 forward with evidence that it provided Raya with the “whole plan document[ ]” within 24 thirty days of Raya’s requests. (Id.). Thereza Lopez provided Raya with the Calbiotech, 25 Inc. Volume Submitter Profit Sharing/401(k) Plan Adoption Agreement pursuant to 29 26 U.S.C. § 1024(b)(4), which requires that the plan administrator provide the “instrument[ ] 27 under which the plan is established or operated” upon a participant or beneficiary’s written 28 request. 29 U.S.C. § 1024(b)(4). 1 However, Calbiotech has not come forward with evidence that it provided Raya with 2 the “summary plan description[ ]” that Raya requested on February 6 and February 23. (Ex. 3 O, Barka Decl., ECF No. 36-18 at 2). After Calbiotech amended the Plan on April 3, 2017, 4 it prepared an updated SDP. Calbiotech attaches this SDP to the Declaration of David 5 Barka as “Exhibit L.” (Ex. L, Barka Decl., ECF No. 36-15). Calbiotech has not come 6 forward with evidence that it provided Raya with this SDP. The Calbiotech, Inc. Volume 7 Submitter Profit Sharing/401(k) Plan Adoption Agreement does not provide “the 8 procedures to be followed in presenting claims for benefits under the plan” or “the remedies 9 available under the plan for the redress of claims which are denied” and does not meet the 10 requirements of a summary plan description under 29 U.S.C. § 1022(b). The evidence 11 provided by Calbiotech demonstrates a material issue of fact as to whether Calbiotech 12 provided Raya with the “latest updated summary plan description” within thirty days of 13 Raya’s requests for the SPD pursuant to 29 U.S.C. § 1024(b)(4). The Court cannot 14 conclude that Calbiotech is entitled to summary judgment on Raya’s ERISA claim based 15 on Raya’s February 6, 2018, and February 23, 2018, requests for Plan information. 16 The Court concludes that Calbiotech is entitled to summary judgment in its favor on 17 Raya’s ERISA claim for statutory penalties based on Raya’s requests for Plan information 18 on July 26, 2016, August 8, 2016, November 30, 2016, December 7, 2016, and December 19 13, 2016. Calbiotech is not entitled to summary judgment in its favor on Raya’s ERISA 20 claim for statutory penalties based on Raya’s requests for Plan information on February 6, 21 2018, and February 23, 2018. 22 D. Declaratory Judgment 23 Calbiotech requests that “in the event the Court is not persuaded to grant summary 24 judgment . . . in its favor, it nonetheless issue a declaratory judgment as to Plaintiff’s claim 25 against Calbiotech to the effect that Plaintiff would in no event be entitled to an award of 26 statutory penalties under 29 U.S.C. § 1132(c)(1) greater than $12,100.00––substantially 27 less than the $63,800 which Plaintiff seeks by way of his Complaint.” (ECF No. 36-1 at 28 27). 1 The Declaratory Judgment Act provides that, “[i]n a case of actual controversy 2 within its jurisdiction . . . any court of the United States, upon the filing of an appropriate 3 pleading, may declare the rights and other legal relations of any interested party seeking 4 such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 5 The declaratory judgment remedy is discretionary with the district judge, not mandatory. 6 See Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952) (“The Declaratory 7 Judgment Act of 1934 . . . confers a discretion on the courts rather than an absolute right 8 upon the litigant.”). The Court declines to exercise its discretion to grant declaratory relief 9 in Calbiotech’s favor at this stage in the litigation. Awarding Calbiotech declaratory relief 10 would require the Court to engage in unnecessary redundancy by deciding the same issue 11 of how much recovery Raya is entitled to, if any, that will be decided at trial. Calbiotech’s 12 request for declaratory relief is denied. 13 V. CALBIOTECH’S BREACH OF CONTRACT COUNTERCLAIM 14 Calbiotech brings one claim against Raya for breach of contract. Calbiotech alleges 15 that Raya breached the terms of the Separation Agreement by filing his ERISA claim 16 against Calbiotech arising from Calbiotech’s alleged actions before December 7, 2016. 17 Calbiotech asserts that it is entitled to summary judgment in its favor on its breach 18 of contract Counterclaim. Calbiotech contends that in exchange for $12,500, Raya 19 promised that he would not bring any claim against Calbiotech for actions that occurred 20 before December 7, 2016. Calbiotech contends that Raya breached that promise by filing 21 his ERISA action for Calbiotech’s alleged failure to provide Plan documents to Raya within 22 thirty days of Raya’s requests on July 26, 2016, and August 8, 2016. 23 The district court has a duty to sua sponte consider whether it has subject matter 24 jurisdiction over an action. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 25 2004) (citation omitted). Rule 8(a)(1) of the Federal Rules of Civil Procedure requires that 26 “a pleading that states a claim for relief must contain: (1) a short and plain statement of the 27 grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim 28 needs no new jurisdictional support[.]” Fed. R. Civ. P. 8(a)(1). “A party invoking the 1 || federal court’s jurisdiction has the burden of proving the actual existence of subject matter 2 || jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (citing Trentacosta 3 Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir. 1987)). 4 In this case, Calbiotech brings a Counterclaim against Raya for breach of contract 5 ||under California state law. Calbiotech seeks relief on its Counterclaim including a $12,500 6 || judgment against Raya. Calbiotech does not include any “statement of the grounds for the 7 || court’s jurisdiction” in its Counterclaim. Jd. The Court does not have federal question or 8 diversity jurisdiction over the Counterclaim. See 28 U.S.C. §§ 1331, 1332(a). Calbiotech 9 ||has not demonstrated that the Court has, and should exercise, supplemental jurisdiction 10 the Counterclaim. See 28 U.S.C. § 1367. Calbiotech has not come forward with 11 |}evidence “proving the actual existence of subject matter jurisdiction” over its claim. 12 || Thompson, 99 F.3d at 353 (citation omitted). The Court cannot conclude that it has subject 13 |}matter jurisdiction over Calbiotech’s Counterclaim. Calbiotech’s Motion for Summary 14 || Judgment on the Counterclaim is denied. 15 ||} VI. CONCLUSION 16 IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by 17 || Defendant/Counterclaimant Calbiotech, Inc. (ECF No. 36), is granted in part and denied in 18 || part. 19 || Dated: May 11, 2020 Nitta Z. A a 20 Hon, William Q. Hayes 71 United States District Court 22 23 24 25 26 27 28