1 2 3 6 7 MONETTE ROCKYMORE, Case No. 3:22-cv-00176-WHO
8 Plaintiff, ORDER ON MOTION TO DISMISS v. 9 Re: Dkt. No. 33 TESTING, INC., et al., 11 Defendants.
12 13 Plaintiff Monette Rockymore alleges, as relevant to this motion, that her former employer, 14 defendant Eurofins Donor & Product Testing, Inc. (“Eurofins”), is liable for hostile work 15 environment harassment (and failure to prevent it), intentional infliction of emotional distress 16 (“IIED”), failure to prevent retaliation for opposing discrimination, and breach of contract for 17 terminating her without good cause. Eurofins moves to dismiss those claims, which I previously 18 dismissed with leave to amend. The motion is DENIED on the claims for harassment, IIED, and 19 failure to prevent retaliation, which are now plausibly pleaded. It is GRANTED without leave to 20 amend on the breach of contract claims; even accepting the well-pleaded allegations in the 21 complaint as true, no express or implied good-cause termination contract was formed.1 23 Rockymore is a woman and identifies herself as “Pacific Islander/Asian.” First Amended 24 Complaint (“FAC”) [Dkt. No. 32] ¶ 10.a. Some of the defendants are a related group of entities. 25 Eurofins is a corporation with its headquarters in Pennsylvania and, as relevant here, an office in 26 San Ramon, California. See Order on Motions to Remand and Dismiss (“Prior Order”) [Dkt. No. 27 1 30] 6; FAC ¶ 2. Several other associated entities are named as defendants in the complaint, which 2 will be collectively referred to here as the Divisional Defendants.2 Their status is one subject of 3 this motion and is discussed below; in short, they are divisions of Eurofins, not separate entities. 4 Rockymore has also sued individuals Brendan O’Neale, Sara Dionne, and Rohini Ratnam. 5 Eurofins hired Rockymore in July 2018 as a laboratory manager. FAC ¶ 8. She alleges 6 that she has “cervical lymphadenopathy,” which she calls a “viral infection that causes severe liver 7 and kidney inflammation.” Id. ¶ 10.b. This condition, she says, “required her to have frequent 8 doctor visits” that she informed the defendants about. Id. It also required her to “take protected 9 medical leaves.” Id. 10 In November 2019, Dionne hired O’Neale as a regional manager to whom Rockymore 11 reported. Id. ¶ 12.a. Rockymore alleges that she “immediately felt discriminated [against] and 12 harassed” by O’Neale. Id. She claims that he “disfavored” her and other women and 13 “disregarded” her advice. Id. At one point, he approached Rockymore and her team and 14 “sarcastic[ally]” said, “[i]s there anything you guys want to brag about?” Id. Rockymore reported 15 this to Dionne. Id. In February 2020, on a work trip, Dionne and another employee (who is not a 16 defendant) told Rockymore that “she was being written up for” coming “into the office in the 17 middle of the night to complete an urgent request from a client in a timely manner.” Id. ¶ 12.b. 18 Rockymore alleges that doing so was “normal practice,” that another employee had done the same 19 thing without being written up, and that she was “shocked.” Id. 20 In March 2020, O’Neale dismissed an employee that Rockymore supervised without her 21 knowledge and said it was part of a “reduction in workforce.” Id. ¶ 12.c. Rockymore complained 22 to human resources but never heard back. Id. She claims that “the majority of male and non- 23 Asian” managers at other labs “had access to subordinates to complete” their work while she “was 24 the only [one] affected by the ‘reduction in workforce.’” Id. She also complained to human 25 resources that she received less support than male and non-Asian employees, but there was no 26
27 2 The Divisional Defendants are Eurofins Denver Corporate, Eurofins Pre-Transplant Testing, 1 result. Id. Rockymore’s “workload became extremely high” and she could not fill three vacancies 2 in her lab. Id. She asked O’Neale and human resources to hire for these vacancies, but she was 3 not granted permission. Id. 4 In April 2020, Rockymore became “severely sick” with “COVID-19 symptoms.” Id. ¶ 5 12.d. She took medical leave and, after returning, claims that her “work environment worsened.” 6 Id. She alleges that O’Neale gave her assignments with “unrealistic timelines, provided her with 7 no support, and heavily micromanaged her,” causing “stress and anxiety.” Id. She “repeatedly” 8 informed O’Neale that she had inadequate support, but he denied her any more. Id. She also 9 repeatedly complained over three months to O’Neale because he failed to conduct a performance 10 review for her, despite doing so for “all other managers.” Id. ¶ 12.e. That review was finalized in 11 August 2020; Rockymore alleges that O’Neale gave her an “unde[]served negative performance 12 review despite her continued perform [sic] her job duties in an exemplary manner as exemplified 13 by the successful support of projects as noted in her performance reviews.” Id. 14 Rockymore also alleges that an unspecified “defendant” “would make oral and written 15 assurances of continued employment, and job security and including [sic] that Rockymore 16 continued to perform her job duties in an exemplary manner and that defendants would ‘continue 17 to work with Rockymore on stabilizing the San Ramon Lab Operations.’” Id. ¶ 12.f. (alteration 18 omitted). She characterizes this as creating a for-cause termination protection, an issue discussed 19 below. Id. 20 On September 10, 2020, Rockymore developed a high fever and was told by her doctor not 21 to go into work due to concerns about COVID-19. Id. ¶ 12.g. Rockymore then developed 22 “inflammation to her liver and kidney.” Id. She was placed on medical leave through September 23 30, 2020. Id. During this leave, O’Neale and Dionne “continued to email her requesting tasks to 24 be completed for work related [sic] projects.” Id. Rockymore responded by asking Dionne to 25 “request help from others.” Id. On September 17, she complained to Dionne about “being 26 removed from communications regarding a business project” with which she had been heavily 27 involved and received no response. Id. 1 “performance issues.” Id. She was “shock[ed]” and “felt sick to her stomach.” Id. She alleges 2 that she had “just launched a successful project” and had never been “informed of any 3 performance issues.” Id. 4 Rockymore filed this suit in California state court on December 6, 2021, and it was 5 removed to this court in January 2022. Dkt. No. 1. In April 2022, I granted in part and denied in 6 part a motion to dismiss and denied a motion to remand. See generally Prior Order. I found 7 Rockymore’s claims for race and gender discrimination, retaliation, failure to provide a reasonable 8 accommodation, and negligent supervision plausibly pleaded. Id. 1. But I granted the motion 9 with leave to amend on claims for disability discrimination, hostile work environment, breach of 10 contract, and IIED. Id. Rockymore filed her FAC in May 2022 and Eurofins again moves to 11 dismiss. 13 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 14 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 15 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 16 face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 17 when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the 18 defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 19 (citation omitted). There must be “more than a sheer possibility that a defendant has acted 20 unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff 21 must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, 22 550 U.S. at 555, 570. 23 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 24 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 25 plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court 26 is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 27 fact, or unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 1 If the court dismisses the complaint, it “should grant leave to amend even if no request to 2 amend the pleading was made, unless it determines that the pleading could not possibly be cured 3 by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In 4 making this determination, the court should consider factors such as “the presence or absence of 5 undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous 6 amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See 7 Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). 9 Eurofins moves to remove the Divisional Defendants from the suit because they are not 10 legal entities that can be sued. Motion to Dismiss (“Mot.”) [Dkt. No. 33] 11–12. It also moves to 11 dismiss the claims for harassment (and failure to prevent it), failure to prevent retaliation, IIED, 12 and breach of contract for failure to state a claim. Id. 12–16. 14 As I explained in denying a motion to remand, Eurofins “ha[s] shown—and Rockymore 15 has no evidence to dispute—that [the Divisional Defendants] are simply unincorporated divisions 16 of [Eurofins] (not, for instance, subsidiaries that are themselves incorporated).” Prior Order 7. 17 Eurofins now argues, as a result, that they cannot be subject to suit. Mot. 11–12. Rockymore’s 18 opposition brief did not address this issue except to say that she “has initiated a meet and confer 19 effort regarding the dismissal of” the Divisional Defendants and that she is “optimistic” it would 20 be completed before the reply brief was filed. Opposition to the Mot. [Dkt. No. 35] 7 n.1. The 21 reply brief states that the parties were “unable to stipulate” to that dismissal. Reply ISO Mot. 22 [Dkt. No. 36] 12. 23 Rockymore has shown no legal basis to be able to sue an entity that does not have any 24 independent legal status. Corporations are proper defendants; unincorporated divisions of them 25 are simply that—parts of them. Cf. Breitman v. May Co. Cal., 37 F.3d 562, 564 (9th Cir. 1994) 26 (so holding for jurisdictional purposes). And Rockymore’s failure to substantively engage with 27 the argument warrants dismissal anyway. 2 Eurofins moves to dismiss Rockymore’s claim for harassment under California’s Fair 3 Employment and Housing Act (“FEHA”). See Mot. 12–14. I previously dismissed the claim with 4 leave to amend. Prior Order 11–12. For the reasons that follow, the motion to dismiss is denied. 5 “FEHA prohibits harassment of an employee.” Lawler v. Montblanc N. Am., LLC, 704 6 F.3d 1235, 1244 (9th Cir. 2013); see also Cal. Gov’t Code § 12940(j). Under FEHA, a plaintiff 7 must demonstrate that “(1) she is a member of a protected group; (2) she was subjected to 8 harassment because she belonged to this group; and (3) the alleged harassment was so severe that 9 it created a hostile work environment.” Lawler, 704 F.3d at 1244. “Harassment cannot be 10 occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of 11 harassment of a repeated, routine or a generalized nature.” Aguilar v. Avis Rent A Car Sys., Inc., 12 21 Cal. 4th 121, 131 (1999) (internal alterations and citations omitted). 13 As a general matter, actions are not FEHA harassment if they are mere “commonly 14 necessary personnel management actions.” Lawler, 704 F.3d at 1244; Janken v. GM Hughes 15 Elecs., 46 Cal. App. 4th 55, 65, 80 (1996). Such actions are those “of a type necessary to carry out 16 the duties of business and personnel management.” Janken, 46 Cal. App. 4th at 65. They usually 17 include things like “hiring and firing, job or project assignments, office or work station 18 assignments, promotion or demotion, performance evaluations, the provision of support, the 19 assignment or non-assignment of supervisory functions, deciding who will and who will not attend 20 meetings, [and] deciding who will be laid off.” Id. at 64–65. Harassment, on the other hand, 21 “consists of actions outside the scope of job duties which are not of a type necessary to business 22 and personnel management.” Lawler, 704 F.3d at 1245. This does not mean that employers can 23 act discriminatorily and cloak their actions in the management exception; instead, “[t]hese actions 24 may retrospectively be found discriminatory if based on improper motives, but in that event the 25 remedies provided by the FEHA are those for discrimination, not harassment.” Janken, 46 Cal. 26 App. 4th at 65. 27 In addition to discrimination liability, the California Supreme Court has held that the 1 furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a 2 hostile message.” Roby v. McKesson Corp., 47 Cal. 4th 686, 709 (2009), as modified (Feb. 10, 3 2010). But, to establish this sort of liability, the actions must “establish a widespread pattern of 4 bias.” Id. 5 The allegations of harassment here are relatively thin, but I conclude that Rockymore has 6 alleged enough to state a claim at the pleadings stage. As I explained the last time around,
7 Almost everything [Rockymore] references in the complaint are “commonly necessary personnel actions”—namely, her termination, her supervisors requiring her to carry out 8 tasks while sick, the meeting at which she was admonished, and the refusals to hire more employees for her. They are not actionable as harassment unless they fall into Roby’s 9 exception. See Lawler, 704 F.3d at 1245; Janken, 46 Cal. App. 4th at 65. They do not. 10 She has not adequately pleaded that there was a “widespread pattern of bias” in these actions that had “a secondary effect of communicating a hostile message” sufficiently 11 severe to alter the terms and conditions of employment. Roby, 47 Cal. 4th at 709. Indeed, in the curt portion of her brief discussing Roby, Rockymore only regurgitates the basic 12 legal principle without engaging at all with her pleadings or explaining why it is met.
13 The only non-personnel-management act alleged in the complaint is O’Neale’s “sarcastic” comment to Rockymore and her team with the gist that they had no good news to report. 14 But that single comment (which is not facially discriminatory) was “isolated” and 15 relatively “trivial” rather than severe, “concerted,” or “routine.” Aguilar, 21 Cal. 4th at 131. Courts have found allegations significantly worse than this—and those more facially 16 discriminatory—to not be harassment. See, e.g. Brennan v. Townsend & O’Leary Enterprises, Inc., 199 Cal. App. 4th 1336, 1353–58 (2011) (rejecting as gender-based 17 harassment an email calling the plaintiff a “big-titted, mindless one” sent between coworkers, a male employee asking women to sit on his lap while dressed as Santa Clause, 18 an employee wearing a “veil . . . with a plastic penis attached” in a staff meeting, and a 19 supervisor asking questions about the plaintiff’s sex life). 20 Prior Order 12. 21 Rockymore has added allegations and argument that nudge the claim past the plausibility 22 line under Roby. Specifically, she included details about a persistent pattern of personnel actions 23 beyond the discrete ones about her firing. She alleges that O’Neale gave her assignments with 24 unrealistic timelines but that there was no similar treatment for other managers. FAC ¶ 12.d–12.f. 25 She states that he did so over the course of months. Id. She says that he refused to perform a 26 performance review for months despite doing so for others. Id. She asserts that she raised this 27 issue multiple times but was rebuffed. Id. This, coupled with the prior allegations that she was 1 plausibly have “a secondary effect of communicating a hostile message” severe enough to alter the 2 terms and conditions of employment. Roby, 47 Cal. 4th at 709. The new allegations—in part by 3 “casting [the previously alleged] decisions in a new light,” Quigley v. United Airlines, Inc., No. 4 3:21-CV-00538-WHO, 2021 WL 2590147, at *5 (N.D. Cal. June 24, 2021)—could plausibly 5 establish the necessary “pattern of bias.” Roby, 47 Cal. 4th at 709 (emphasis added). And while 6 many of these actions are still managerial, the Roby doctrine applies to them all the same. The 7 allegations are not particularly robust, but they are enough at this stage. 8 As a result, I also reject Eurofins’s argument that the failure to prevent harassment claim, 9 see Cal. Gov’t Code § 12940(k), must be dismissed because the arguments for dismissal are 10 derivative of those for the substantive claim. See Mot. 14–15. 12 Eurofins also moves to dismiss the IIED claim. See Mot. 15–16. I previously rejected its 13 argument that the IIED claim was preempted by California’s workers’ compensation scheme, but I 14 agreed with it that the claim was inadequately pleaded. See Prior Order 19–22. For the reasons 15 that follow, the motion to dismiss is denied. 16 “To state a cause of action for intentional infliction of emotional distress a plaintiff must 17 show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless 18 disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or 19 extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the 20 defendant’s outrageous conduct.” Vasquez v. Franklin Mgmt. Real Est. Fund, Inc., 222 Cal. App. 21 4th 819, 832 (2013) (internal quotation marks and alteration omitted). In this context, “outrageous 22 conduct” means conduct that is “so extreme as to exceed all bounds of that usually tolerated in a 23 civilized community.” Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009). It is not sufficient that the 24 conduct be “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” 25 Lawler, 704 F.3d at 1245. Just as with a FEHA harassment claim, IIED claims cannot be 26 premised on mere managerial actions unless there is something about it that elevates it to being 27 independently actionable. Id.; see, e.g., Cordova v. Target Corp., No. 2:16-cv-04809-SVW-AJW, 1 when a supervisor used “racially charged statements” and “made several other disparaging 2 comments towards him based on national origin, ancestry, age and parental-status”). 3 Just as with the harassment claim, the allegations here are thin but, at this early stage, 4 enough to get over the plausibility line. In particular, it is plausible (as explained above) that the 5 acts complained of constitute a widespread pattern of bias that sent Rockymore a message that she 6 was unwelcome in the workplace. And it is plausible, for the reasons explained in the Prior Order, 7 that some of the official actions were taken with discriminatory intent. See Prior Order 9–11. 8 Putting these together, it is therefore plausible that, considering the “whole gestalt of the FAC,” 9 Quigley, 2021 WL 2590147, at *5, the defendants were engaging in “outrageous conduct” in 10 reckless disregard of a probability of Rockymore suffering. In other words, this is plausibly not 11 just a case about a series of managerial actions that could not be independently actionable as IIED, 12 see Lawler, 704 F.3d at 1245; it is a case about such actions motivated by potential discriminatory 13 animus and resulting in a hostile work environment. 15 Eurofins moves to dismiss the claim for failure to prevent retaliation because, it argues, no 16 such cause of action exists. Mot. 14. I previously held that the substantive retaliation claim could 17 proceed on the basis of one alleged protected activity—complaints about O’Neale’s alleged 18 discrimination—but not others. Prior Order 12–15. I conclude that a claim for failure to prevent 19 retaliation is legally viable on facts like these and deny the motion to dismiss. 20 FEHA, everyone agrees, explicitly provides causes of action for failure to prevent 21 discrimination and harassment. Cal. Gov’t Code § 12940(k). Eurofins argues, however, that 22 retaliation does not appear in that list. Mot. 14. And, indeed, retaliation (not failure to prevent it) 23 is addressed in a different subsection of the statute. See Cal. Gov’t Code § 12940(h). 24 In Taylor v. City of Los Angeles Dep’t of Water & Power, the California Court of Appeal 25 addressed this precise question and held that, for purposes of the failure-to-prevent statute, 26 retaliation “is a form of discrimination” (at least when the retaliation is, as here, about complaints 27 of discrimination). 144 Cal. App. 4th 1216, 1239–40 (2006), disapproved of on other grounds by 1 the Hon. Phyllis Hamilton in this district, who reached the same conclusion. See Giovannetti v. 2 Trustees of California State Univ. (Humboldt State Univ.), No. C 04-5514 PJH, 2006 WL 3 1626990, at *9 (N.D. Cal. June 12, 2006). As Taylor explained, the California Supreme Court had 4 previously characterized retaliation for opposing discrimination under FEHA as itself a form of 5 discrimination. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1049 (2005). And, in fact, 6 the statute also characterizes retaliation for opposing discrimination as a form of discrimination. 7 See Cal. Gov’t Code § 12940(h). I agree with this reasoning. Even if I did not, I would be 8 obligated to follow the Court of Appeal’s interpretation of state law unless I were convinced it 9 erred. See N.L.R.B. v. Calkins, 187 F.3d 1080, 1089 (9th Cir. 1999).3 The claim is viable. 11 Eurofins moves to dismiss the breach of express contract and breach of implied contract 12 claims, which assert that Rockymore had good-cause protection from termination. Mot. 16–17. I 13 previously dismissed those claims with leave to amend. Prior Order 16–17. For the reasons that 14 follow, the claims are again dismissed, this time without leave to amend. 15 In California, there is a statutory presumption that employment is at will. Cal. Lab. Code § 16 2922; Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355 (2000). That presumption can be overcome if 17 the employer and employee provide otherwise by contract. See Guz, 24 Cal. 4th at 335–36. The 18 classic contractual alternative is “an agreement that the employee will be terminated only for 19 ‘good cause.’” Id. at 336. This “contractual understanding need not be express, but may be 20 implied in fact, arising from the parties’ conduct evidencing their actual mutual intent to create 21 such enforceable limitations.” Id. Under California law, “a contract implied in fact consists of 22 obligations arising from a mutual agreement and intent to promise where the agreement and 23 promise have not been expressed in words.” Retired Employees Assn. of Orange Cty., Inc. v. Cty. 24 of Orange, 52 Cal. 4th 1171, 1178 (2011) (internal quotation marks omitted); see also Cal. Civ. 25
26 3 Eurofins seeks to discount Taylor’s holding about retaliation because the California Supreme Court disapproved of its holding about a different issue in the case—whether non-employers could 27 be held liable for harassment. Jones v. Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1174 1 Code § 1621. 2 At the outset, I note that Rockymore does not allege that her written job contract actually 3 included a good-cause provision. To the contrary, her theory is that she later formed (1) an 4 express oral contract and (2) an implied-in-fact contract. 5 Rockymore includes two sets of allegations to support her assertion that she and Eurofins 6 had created contractual good-cause protection. The first just parrots the legal test. She alleges, for 7 instance, that:
8 On the basis of oral assurances of continued employment given to plaintiff by defendants’ supervisors, the length of plaintiff’s employment with defendants, defendants’ actual 9 practice of terminating employment only for cause, and the industry standard for the business defendants engaged in of terminating employment only for cause, plaintiff and 10 defendants shared the actual understanding that plaintiff’s employment could and would be 11 terminated only for cause. This shared understanding resulted in an implied contract requiring that defendants have good cause to terminate plaintiff’s employment. 12 FAC ¶ 70. This is conclusory and threadbare; it is therefore insufficient to state a claim. See Iqbal, 13 556 U.S. at 678; Gilead, 536 F.3d at 1055. It gives Eurofins no fair shot at arguing the alleged 14 representations of good-cause protection are insufficient and gives me no way to evaluate it. 15 The other set of allegations are, as they must be, less conclusory about why an express oral 16 contract or implied-in-fact contract exists. Rockymore alleges that, 17 During Rockymore’s employment with Defendant, Defendant would make oral and written 18 assurances of continued employment, and job security and including [sic] that Rockymore continued to perform her job duties in an exemplary manner and that defendants would 19 “continue to work with [Rockymore] on stabilizing the San Ramon Lab Operations[.]” Thus, Defendant’s [sic] expressly promised to Plaintiff to not terminate except for good 20 cause. 21 FAC ¶ 12.f (first alteration in original). This is the only allegation supporting this claim that is 22 more than conclusory about how any alleged good-cause contract was formed. But it is 23 insufficient as a matter of law. To start, Rockymore never identifies who made it. She states that 24 “defendant” did so, but there are many defendants in this case. Eurofins as an entity cannot have 25 “made” the statement because it must speak through its employees. Still more, parts of the 26 statement read in isolation—such as nebulous “oral and written assurances of continued 27 employment”—would be too conclusory on their own in any event. Read in context, it appears 1 that most of this legal verbiage is window-dressing. 2 More importantly (and setting these deficiencies aside) the only well-pleaded allegations in 3 the complaint do not amount to a good-cause termination contract. The only factual allegations 4 are that someone told Rockymore that (1) she was performing in “an exemplary manner” and (2) 5 that they would “continue to work with [Rockymore] on stabilizing the San Ramon Lab 6 Operations.” Neither of these (nor both of them together) even arguably would create good-cause 7 protection.4 Praising someone’s work in this way does not arguably manifest objective intent to 8 create a good-cause employment protection or evidence a commitment to only terminate the 9 employee for good-cause. Cf. Davis v. Zurich Am. Ins. Co., No. 3:19-CV-04397-WHO, 2021 WL 10 369538, at *15 (N.D. Cal. Feb. 3, 2021) (“Relatedly, Davis argues that ‘Zurich treated Davis as a 11 valuable asset and gave him consistently positive reviews.’ Again, such treatment cannot itself (or 12 coupled with longevity) transmute at-will employment into something more. Guz, 24 Cal. 4th at 13 341–42. Conspicuously absent from this ‘treat[ment],’ too, is any indication that either party 14 understood good performance reviews to lead to good-cause protection.” (citation omitted)). And 15 while Rockymore seeks to spin a statement about “continuing to work” together into a contract, no 16 reasonable jury would understand that in context as an objective manifestation of intent to create a 17 good-cause termination protection. Even as Rockymore alleges it, the statement is a descriptive 18 one about continuing to work on the particular job she was hired to do. Cf. id., at *16 (examining 19 even more definitive statements about a future working relationship and finding that they did not 20 create a good-cause contract as a matter of law). Finally, even though this allegation ends by 21 pleading that “[t]hus, Defendant’s [sic] expressly promised to Plaintiff to not terminate except for 22 good cause,” it is clear Rockymore means that the previously discussed allegations were that 23 alleged promise (and not that there was some vague separate express promise that has been, for no 24 apparent reason, not pleaded). 25
26 4 Rockymore argues that whether a contract did exist is a question for a jury. While “[g]enerally, the existence of an implied-in-fact contract requiring good cause for termination is a question for 27 the trier of fact,” Stillwell v. The Salvation Army, 167 Cal. App. 4th 360, 380 (2008), like any 1 The question, then, is whether to grant leave to amend. As noted, leave to amend should 2 generally be granted; here, however, it is not warranted. See Lopez, 203 F.3d at 1127. In ruling 3 on the previous motion to dismiss, I explained that “Rockymore has leave to amend to plead the 4 || factual allegations underlying this alleged contract so that the pleading is plausible.” Prior Order 5 17 (emphasis in original). She has now tried to do so, and I address those factual allegations 6 above. The problem now is not that her factual allegations are unpleaded, it is that they are 7 || pleaded but insufficient as a matter of law. And Rockymore has not indicated that there are 8 further allegations that she has, for whatever reason, decided not to plead about this issue. 9 Accordingly, this dismissal is without leave to amend. See Lopez, 203 F.3d at 1127 (withholding 10 || leave to amend when there are no further allegations that would cure the deficiency). 12 The motion to dismiss is GRANTED without leave to amend on the breach of express 13 contract and breach of implied contract claims and to the extent the suit is against the Divisional 14 || Defendants. It is otherwise DENIED. Eurofins shall answer the complaint within 14 days. See 3 15 || Fed. R. Civ. P. 12(a)(4)(A). a 16 A Case Management Conference is set for August 30, 2022, at 2:00 p.m. The Joint Case 3 17 Management Statement shall be filed by August 23, 2022. 19 || Dated: July 11, 2022 20 . 21 liam H. Orrick 22 United States District Judge 23 24 25 26 27 28