Ward v. COMMSCOPE, Inc.

• Court: District Court, S.D. California
• Decided: April 6, 2021
• Docket: 3:21-cv-00370
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 THOMAS WARD, an individual, Case No.: 21-cv-00370-H-DEB 12

Plaintiff, 13 ORDER DENYING DEFENDANT’S v. MOTION TO DISMISS AND 14 MOTION TO STRIKE COMMSCOPE, INC., a Delaware 15 corporation; and DOES 1-20, inclusive, [Doc. No. 3.] 16 Defendants. 17

18 On March 9, 2021, Defendant CommScope, Inc. filed: (1) a motion to dismiss 19 Plaintiff Thomas Ward’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) 20 for failure to state a claim; and (2) a motion to strike certain allegations from the complaint 21 pursuant to Federal Rule of Civil Procedure 12(f). (Doc. No. 3.) On March 29, 2021, 22 Plaintiff filed a response in opposition to Defendant’s motions. (Doc. No. 4.) On April 5, 23 2021, Defendant filed its reply. (Doc. No. 5.) A hearing on the motions is currently 24 scheduled for Monday, April 12, 2021 at 10:30 a.m. The Court, pursuant to its discretion 25 under Civil Local Rule 7.1(d)(1), determines the matter is appropriate for resolution 26 without oral argument, submits the motions on the parties’ papers, and vacates the hearing. 27 For the reasons below, the Court denies Defendant’s motion to dismiss, and the Court 28 denies Defendant’s motion to strike. 1 Background 2 The following background is taken from the factual allegations in Plaintiff’s 3 complaint. In June 2012, Plaintiff was hired as in-house patent counsel by Motorola shortly 4 after Motorola’s acquisition by Google.1 (Doc. No. 1-3, Compl. ¶ 9.) As in-house patent 5 counsel, Plaintiff was charged with advising the company on its active and potential 6 patents, as well as preparing and prosecuting patent applications before the U.S. Patent and 7 Trademark Office. (Id. ¶ 10.) 8 Plaintiff alleges that during his employment, his manager instructed him to continue 9 to prosecute and maintain certain patent applications – even though there was no good faith 10 basis to continue such prosecution – or he would face immediate termination. (Id. ¶¶ 11- 11 14, 26-27.) Plaintiff alleges that he reported these instructions to the company’s Human 12 Resources department. (Id. ¶ 14.) 13 Plaintiff also alleges that his manager told him that he was: “too old to carry the 14 work load; too lazy to do his work; unable to keep up with other younger attorneys; and a 15 ‘senior’ attorney and not living up to company expectations for his age.” (Id. ¶ 15; see also 16 id. ¶ 18.) Plaintiff also alleges that his manager also reassigned part of his work to a younger 17 attorney. (Id. ¶¶ 16, 21.) Plaintiff alleges that he also reported this to the company’s 18 Human Resources department. (Id. ¶ 17.) 19 Defendant terminated Plaintiff’s employment in August 2020. (Id. ¶ 29.) Plaintiff 20 alleges that in terminating him, Defendant unlawfully retaliated against him based on his 21 reporting acts of age discrimination and his reporting fraud and ethical misconduct 22 involving patent applications. (See id. ¶¶ 59, 65-66.) 23 On December 23, 2020, Plaintiff filed a complaint against Defendant in the Superior 24 Court of California, County of San Diego.2 (Doc. No. 1-3, Compl.) In the complaint, 25 26 1 Motorola Home was subsequently acquired by Arris International Limited in April 2013, Arris subsequently was acquired by Defendant CommScope, Inc. on or about April 4, 2019. (Doc. No. 3 at 2.) 27

28 2 Plaintiff alleges that the California Department of Fair Employment and Housing (“DFEH”) 1 Plaintiff alleges claims for: (1) age discrimination in violation of the California Fair 2 Employment and Housing Act (“FEHA”), California Government Code § 12940 et seq.; 3 (2) harassment in violation of FEHA; (3) failure to prevent discrimination; (4) retaliation 4 in violation of FEHA; (5) retaliation in violation of California Labor Code § 1102.5; (6) 5 wrongful termination in violation of public policy; and (7) violations of California’s Unfair 6 Competition Law, California Business and Professions Code § 17200 et seq. (Id. ¶¶ 32- 7 81.) 8 On March 2, 2021, Defendant removed the action to the Southern District of 9 California pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction under 28 10 U.S.C. § 1332. (Doc. No. 1, Notice of Removal.) By the present motion, Defendant moves 11 pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss all of the claims in 12 Plaintiff’s complaint for failure to state a claim. (Doc. No. 3 at 2, 6-15.) In addition, 13 Defendant moves pursuant to Federal Rule of Civil Procedure 12(f) to strike certain 14 allegations from the complaint. (Id. at 2, 15-16.) 15 Discussion 16 I. Defendant’s Rule 12(b)(6) Motion to Dismiss 17 A. Legal Standards for a Rule 12(b)(6) Motion to Dismiss 18 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 19 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 20 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 21 646 F.3d 1240, 1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2) requires that 22 a pleading stating a claim for relief containing “a short and plain statement of the claim 23 showing that the pleader is entitled to relief.” The function of this pleading requirement is 24 to “give the defendant fair notice of what the . . . claim is and the grounds upon which it 25 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 26 27 28 U.S. Equal Employment Opportunity Commission (“EEOC”) provided him with right to sue letters on 1 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 2 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 3 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable 5 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading 6 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of 7 action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint 8 suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. 9 (quoting Twombly, 550 U.S. at 557). Accordingly, dismissal for failure to state a claim is 10 proper where the claim “lacks a cognizable legal theory or sufficient facts to support a 11 cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 12 (9th Cir. 2008). 13 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true 14 all facts alleged in the complaint, and draw all reasonable inferences in favor of the 15 claimant. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 16 938, 945 (9th Cir. 2014). But a court need not accept “legal conclusions” as true. Ashcroft 17 v. Iqbal, 556 U.S. 662, 678 (2009). Further, it is improper for a court to assume the 18 claimant “can prove facts which it has not alleged or that the defendants have violated the 19 . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. 20 Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 21 In addition, a court may consider documents incorporated into the complaint by 22 reference and items that are proper subjects of judicial notice. See Coto Settlement v. 23 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). If the court dismisses a complaint for 24 failure to state a claim, it must then determine whether to grant leave to amend. See Doe 25 v. United States, 58 F.3d 494, 497 (9th Cir. 1995); see Telesaurus, 623 F.3d at 1003 (9th 26 Cir. 2010). 27 /// 28 /// 1 B. Analysis 2 Defendant argues that all of the claims in Plaintiff’s complaint are barred because as 3 an in-house attorney, Plaintiff must satisfy a higher standard of proof to bring these claims, 4 and Plaintiff has failed to do so. (Doc. No. 3 at 6-13.) In addition, Defendant argues that 5 the claims are barred because they are predicated on the use and disclosure of attorney- 6 client privileged information. (Id. at 1, 13-14.) 7 Defendant’s arguments for dismissal are premised on the California Supreme 8 Court’s decision in General Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (1994). 9 (See id. at 6-15.) In General Dynamics, the California Supreme Court considered the issue 10 of “whether an attorney’s status as an employee bars the pursuit of . . . retaliatory discharge 11 tort causes of action against the employer that are commonly the subject of suits by non- 12 attorney employees who assert the same claims.” 7 Cal. 4th at 1169. The California 13 Supreme Court held that an in-house attorney may maintain a retaliatory discharge tort 14 cause of action against his employer “provided it can be established without breaching the 15 attorney-client privilege or unduly endangering the values lying at the heart of the 16 professional relationship.” Id. The California Supreme Court explained that this holding 17 “seeks to accommodate two conflicting values, both of which arise from the nature of an 18 attorney’s professional role: the fiducial nature of the relationship with the client, on the 19 one hand, and the duty to adhere to a handful of defining ethical norms, on the other.” Id. 20 The General Dynamics court then set out two circumstances when an in-house 21 attorney may bring a retaliatory discharge tort cause of action against his employer. First, 22 an in-house attorney may bring a claim if he can show that he was terminated for “following 23 a mandatory ethical obligation prescribed by a professional rule or statute.” Id. at 1188. 24 Second, an in-house attorney may bring a claim when the “in-house counsel’s nonattorney 25 colleagues would be permitted to pursue a retaliatory discharge claim and governing 26 professional rules or statutes expressly remove the requirement of attorney 27 confidentiality.” Id. In setting forth these two circumstances, the California Supreme 28 Court cautioned: “where the elements of a wrongful discharge in violation of fundamental 1 public policy claim cannot, for reasons peculiar to the particular case, be fully established 2 without breaching the attorney-client privilege, the suit must be dismissed in the interest of 3 preserving the privilege.” Id. at 1190. 4 In response to Defendant’s motion to dismiss, Plaintiff acknowledges the legal 5 standards set forth in General Dynamics but argues that they should not be applied at the 6 pleadings stage. (Doc. No. 4 at 9-10.) The Court agrees with Plaintiff. In providing its 7 holding, the California Supreme Court in General Dynamics explained: “in those instances 8 where the attorney-employee’s retaliatory discharge claim is incapable of complete 9 resolution without breaching the attorney-client privilege, the suit may not proceed. That 10 result, however, is rarely, if ever, appropriate where, as in this case, the litigation is still at 11 the pleadings stage.” Gen. Dynamics, 7 Cal. 4th at 1170. Later in the opinion, the 12 California Supreme Court reiterated “in most wrongful termination suits brought by 13 discharged in-house counsel, whether the attorney-client privilege precludes the plaintiff 14 from recovery will not be resolvable at the demurrer stage.” Id. at 1190 (“such drastic 15 action will seldom if ever be appropriate at the demurrer stage of litigation”). “Rather, in 16 the usual case, whether the privilege serves as a bar to the plaintiff’s recovery will be 17 litigated and determined in the context of motions for protective orders or to compel further 18 discovery responses, as well as at the time of a motion for summary judgment.” Id. 19 In light of this language in General Dynamics, California district courts have 20 declined to dismiss wrongful termination claims at the pleadings stage based on the 21 argument that the claims are barred by the attorney-client privilege. See, e.g., Tam v. 22 Qualcomm, Inc., No. 17-CV-710 JLS (AGS), 2018 WL 9918097, at *5 (S.D. Cal. Oct. 31, 23 2018) (“[I]n this case, as with most wrongful termination claims brought by in-house 24 counsel, the question of ‘whether the attorney-client privilege precludes [Plaintiff] from 25 recovery [is] not resolvable’ at the motion to dismiss stage.” (quoting Gen. Dynamics, 7 26 Cal. 4th at 1170)); Stein v. Tri-City Healthcare Dist., No. 12CV2524 BTM BGS, 2013 WL 27 2417772, at *3 (S.D. Cal. June 3, 2013) (“Although the Defendants cite General Dynamics 28 Corp. v. Superior Court in support of their motion to dismiss, the California Supreme 1 Court, in the same decision, recognized that dismissal of an attorney-employee’s retaliatory 2 discharge claim is ‘rarely if ever appropriate’ at the pleading stage. This Court does not 3 deem the present situation to be ‘appropriate.’” (quoting Gen. Dynamics, 7 Cal. 4th at 4 1170)); see also Stein, 2013 WL 2417772, at *2 (“Federal courts have consistently refused 5 to dismiss a claim on pretrial motions claiming potential violations of attorney-client 6 privilege.”).3 Here, Plaintiff asserts that his claims satisfy the General Dynamics standard 7 because he was terminated for following California Rule of Professional Conduct Rule 8 1.2.1(a) and U.S. Patent and Trademark Office rules, including 37 C.F.R. § 1.56 and 37 9 C.F.R. § 10.23. (Doc. No. 4 at 4-5.) Defendant may dispute this, (see Doc. No. 5 at 3-4), 10 but resolution of that dispute is not the appropriate at the pleadings stage. See Gen. 11 Dynamics, 7 Cal. 4th at 1170, 1190; Tam, 2018 WL 9918097, at *5; Stein, 2013 WL 12 2417772, at *3. As such, the Court declines to dismiss Plaintiff’s claims on the grounds 13 that they are barred by the attorney-client privilege.4 14 II. Defendant’s Rule 12(f) Motion to Strike 15 A. Legal Standards for a Rule 12(f) Motion to Strike 16 Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an 17 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. 18 R. Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of 19 time and money that must arise from litigating spurious issues by dispensing with those 20 issues prior to trial.” Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 21 1983). “Motions to strike are generally regarded with disfavor because of the limited 22

23 3 Defendant argues that the dismissal of claims under the General Dynamics standard is appropriate 24 at the pleadings stage and cites to the district court decision in Tam v. Qualcomm, Inc., 300 F. Supp. 3d 1130, 1141 (S.D. Cal. 2018). (Doc. No. 5 at 8.) The Court notes that, as cited above, the Tam court in a 25 subsequent decision explained that in “most wrongful termination claims brought by in-house counsel, the question of ‘whether the attorney-client privilege precludes [Plaintiff] from recovery [is] not 26 resolvable’ at the motion to dismiss stage.” Tam, 2018 WL 9918097, at *5 (quoting Gen. Dynamics, 7 Cal. 4th at 1170). 27

28 4 To the extent attorney-client privilege issues arise related to the protective order or discovery in 1 importance of pleading in federal practice, and because they are often used as a delaying 2 tactic.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003); 3 accord Kohler v. Islands Rests., LP, 280 F.R.D. 560, 563-64 (S.D. Cal. 2012); see also 4 Neveau v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (“Motions to strike 5 are disfavored and infrequently granted.”). Courts have utilized “‘Rule 12(f) to strike 6 sections of a pleading that include inadmissible or privileged information.’” Phoenix Ins. 7 Co. v. Diamond Plastics Corp., No. C19-1983-JCC, 2020 WL 4261419, at *2 (W.D. Wash. 8 July 24, 2020) (quoting Fodor v. Blakey, No. CV1108496MMMRZX, 2012 WL 9 12893986, at *5 (C.D. Cal. Dec. 31, 2012)); see, e.g., Rosenfield v. GlobalTranz 10 Enterprises, Inc., No. CV 11-02327-PHX-NVW, 2012 WL 12538606, at *1–2 (D. Ariz. 11 Jan. 27, 2012). 12 B. Analysis 13 Defendant moves to strike paragraphs 11, 13, 14, 17, 22-27, 29, 36, 65, 66, 71, 77, 14 and 78 from the complaint. (Doc. No. 3 at 15.) Defendant argues that these allegations 15 should be stricken because they contain references and disclosures of protected internal 16 attorney-client communications. (Id.) 17 “The attorney-client privilege protects confidential communications between 18 attorneys and clients, which are made for the purpose of giving legal advice.” United States 19 v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citing Upjohn Co. v. United States, 449 U.S. 20 383, 389 (1981)). “An eight-part test determines whether information is covered by the 21 attorney-client privilege:” 22 (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that 23 purpose, (4) made in confidence (5) by the client, (6) are at his instance 24 permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. 25 United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (quoting United States v. 26 Ruehle, 583 F.3d 600, 607 (9th Cir. 2009)). 27 28 1 “‘The party asserting the privilege bears the burden of proving each essential 2 element.’” Branch v. Umphenour, 936 F.3d 994, 1006 (9th Cir. 2019) (quoting Graf, 610 3 F.3d at 1156); see also Richey, 632 F.3d at 566 (“The party asserting the attorney-client 4 privilege has the burden of establishing the relationship and privileged nature of the 5 communication.”). “‘Because it impedes full and free discovery of the truth, the attorney- 6 client privilege is strictly construed.’” Branch, 936 F.3d at 1006 (quoting Graf, 610 F.3d 7 at 1156). 8 As the party asserting the attorney-client privilege, Defendant bears the burden of 9 establishing that the information at issue is covered by the attorney-client privilege. See 10 Branch, 936 F.3d at 1006; Richey, 632 F.3d at 566. Defendant has failed to do so. In its 11 motion, Defendant simply identifies certain paragraphs in Plaintiff’s complaint and asserts 12 that they contain privileged material. (See Doc. No. 3 at 15; Doc. No. 5 at 9.) Defendant 13 makes no attempt to explain what precise information in these paragraphs is purportedly 14 privileged or how the information at issue constitutes attorney-client privileged 15 information under the above test. The Court notes that many of the paragraphs Defendant 16 seeks to strike are cited to and quoted in the factual background section of Defendant’s 17 own motion. (See Doc. No. 3 at 3.) In light of this failure to identify the precise 18 information that is purportedly privileged and why it is privileged, the Court declines to 19 strike the paragraphs at issue from the complaint. See In re Wal-Mart Stores, Inc. Wage & 20 Hour Litig., 505 F. Supp. 2d 609, 614 (N.D. Cal. 2007) (“Any doubt concerning the import 21 of the allegations to be stricken weighs in favor of denying the motion to strike.”); Romero 22 v. Securus Techs., Inc., 216 F. Supp. 3d 1078, 1095 (S.D. Cal. 2016) (same).

23 /// 24 /// 25 /// 26 27 28 Conclusion 2 For the reasons above, the Court denies Defendant’s Rule 12(b)(6) motion to 3 ||dismiss, and the Court denies Defendant’s Rule 12(f) motion to strike. Defendant 4 ||CommScope must file an answer to Plaintiff's complaint within 30 days from the date this 5 || order is filed. 6 IT IS SO ORDERED. 7 DATED: April 6, 2021 ul | | | 8 MARILYN W. HUFF, Distric ge 9 UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28