De Souza v. Dawson Technical, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Case No.: 21-CV-1103 JLS (MSB) LYAN FRANCIS DE SOUZA, 12 an individual, ORDER (1) GRANTING 13 Plaintiff, DEFENDANT DAWSON 14 v. TECHNICAL, INC.’S REQUEST FOR JUDICIAL NOTICE AND 15 DAWSON TECHNICAL, INC., (2) GRANTING IN PART AND a Hawaiian Corporation; and DENYING IN PART ITS MOTION [16] DOES 1-50, inclusive, TO DISMISS 17 Defendants. (ECF Nos. 6, 6-2) [20] 21 Presently before the Court is Defendant Dawson Technical, Inc.’s (“Defendant” or 22 “Dawson”) Motion to Dismiss Complaint Pursuant to Federal Rules of Civil Procedure 23 Rule 12(b)(6) and Rule 8 (“Mot.,” ECF No. 6), as well as Defendant’s Request for Judicial 24 Notice in support of the same (“RJN,” ECF No. 6-2). Plaintiff Lyan Francis De Souza 25 (“Plaintiff” or “De Souza”) filed an Opposition to (“Opp’n,” ECF No. 8), and Defendant 26 filed a Reply in support of (“Reply,” ECF No. 12), the Motion. Following briefing on the 27 issue, see ECF Nos. 15–17, Plaintiff further filed a Supplemental Brief (“Surreply,” ECF 28 No. 18), and Defendant filed a Reply thereto (ECF No. 20). The Court took this matter 1 under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF 2 No. 15. Having carefully reviewed Plaintiff’s Complaint, the Parties’ arguments, and the 3 law, the Court GRANTS Defendant’s RJN and GRANTS IN PART AND DENIES IN 4 PART Defendant’s Motion, as set forth below. 5 BACKGROUND1 6 Plaintiff is a former senior executive-level employee of Dawson. See Decl. of 7 Adrienne L. Conrad in Support of Notice of Removal (ECF No. 1-2) Ex. A (“Compl.”) 8 ¶ 10. As Director of Strategy and Development, “Plaintiff was responsible for all business 9 development, sales, and marketing.” Id. In or around March 2020, Plaintiff determined 10 that Defendant was compensating various unrelated ventures owned and operated by 11 Defendant’s executives and managers despite the fact that those ventures had not 12 performed any work for Defendant. Id. ¶ 12. Plaintiff also discovered that Defendant 13 previously “represented” to the federal government that it had paid subcontractors for work 14 on federal contracts when no such payments, in fact, had been made. Id. 15 Plaintiff decided to speak with his direct supervisor, Dave Johnson, and informed 16 his coworker, Juan Herrada, of this intention on or about March 31, 2020. Id. ¶ 13. Later 17 that same day, Mr. Johnson called Plaintiff. Id. ¶ 14. During this call, Mr. Johnson told 18 Plaintiff that he had received a call from Mr. Herrada informing him that Plaintiff intended 19 to file a complaint against Defendant. Id. Plaintiff told Mr. Johnson that, as a senior 20 manager, “he was obligated to come forward when there was evidence of fraud and 21 wrongdoing, especially with regards to Defendant’s federal contracts.” Id. Plaintiff also 22 indicated “[he] needed to discuss the issue further with management.” Id. Plaintiff sensed 23 Mr. Johnson was reacting hostilely to his statements and asked if his job was in jeopardy. 24 Id. ¶ 15. Mr. Johnson told Plaintiff, “You are the one who told me, I should always keep 25 my options open.” Id. [27] 1 The facts alleged in Plaintiff’s Complaint are accepted as true for purposes of Defendant’s Motion. See 28 Vasquez v. Los Angles Cty., 487 F.3d 1246 , 1249 (9th Cir. 2007) (holding that, in ruling on a motion to 1 The next morning, Mr. Johnson called Plaintiff again and terminated him, allegedly 2 because of “restructuring” within the company. Id. ¶ 16. Plaintiff was not aware of any 3 restructuring plan prior to this phone call, see id. ¶ 17, and thus believes he was terminated 4 because of his stated intention to report the fraudulent activities he had earlier discovered 5 and/or discuss the issue further with management, id. Plaintiff had accrued approximately 6 $7,000 in unpaid vacation time at the time of his termination, which he has not received. 7 Id. ¶ 18. 8 Plaintiff initiated this action on May 21, 2021, in the Superior Court of the State of 9 California for the County of San Diego. See generally id. Plaintiff asserts three claims 10 against Defendant: (1) whistleblower retaliation in violation of section 1102.5 of the 11 California Labor Code; (2) failure to pay wages in violation of sections 200 et seq. of the 12 California Labor Code; and (3) wrongful termination in violation of public policy. See 13 generally id. On June 14, 2021, Defendant removed to the United States District Court for 14 the Southern District of California based on diversity jurisdiction. See generally ECF No. 15 1 (“Notice of Removal”). The instant Motion followed. See Mot. 16 REQUEST FOR JUDICIAL NOTICE 17 As an initial matter, in support of its Motion, Defendant requests judicial notice of 18 Plaintiff’s Complaint, originally filed in the Superior Court of California on May 21, 2021. 19 See generally RJN. “Judicial notice under Rule 201 permits a court to notice an 20 adjudicative fact if it is ‘not subject to reasonable dispute.’” Khoja v. Orexigen 21 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quoting Fed. R. Evid. 201(b)), cert. 22 denied, 139 S. Ct. 2615 (2019). “A fact is ‘not subject to reasonable dispute’ if it is 23 ‘generally known,’ or ‘can be accurately and readily determined from sources whose 24 accuracy cannot reasonably be questioned.’” Id. (quoting Fed. R. Evid. 201(b)(1)–(2)). 25 “Accordingly, ‘[a] court may take judicial notice of matters of public record.’” Id. 26 (alteration in original) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 27 2001)). “But a court cannot take judicial notice of disputed facts contained in such public 28 records.” Id. (quoting Lee, 250 F.3d at 689 ). 1 Because “filings and orders in other court proceedings[] are judicially noticeable for 2 certain purposes, such as to demonstrate the existence of other court proceedings,” Missud 3 v. Nevada, 861 F. Supp. 2d 1044, 1054 (N.D. Cal. 2012) (citing Fed. R. Evid. 201), aff’d, [4] 520 F. App’x 534 (9th Cir. 2013), the Court finds it appropriate to judicially notice the 5 Complaint and the date on which it was filed, particularly given that (1) the Complaint is 6 already a part of the record in this matter, see ECF No. 1-2 Ex. A; and (2) Plaintiff does 7 not oppose Defendant’s request. Accordingly, the Court GRANTS Defendant’s Request 8 for Judicial Notice. 9 MOTION TO DISMISS 10 I. Legal Standard 11 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 12 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 13 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 14 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 15 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 16 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 17 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully18 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 19 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 20 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 21 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 22 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 23 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 24 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557 ). 25 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 26 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 27 Twombly, 550 U.S. at 570 ); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 28 when the facts pled “allow the court to draw the reasonable inference that the defendant is 1 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 2 556). That is not to say that the claim must be probable, but there must be “more than a 3 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 4 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 5 Twombly, 550 U.S. at 557 ). This review requires context-specific analysis involving the 6 Court’s “judicial experience and common sense.” Id. at 675 (citation omitted). “[W]here 7 the well-pleaded facts do not permit the court to infer more than the mere possibility of 8 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 9 entitled to relief.’” Id. 10 “In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true 11 all facts alleged in the complaint, and draw all reasonable inferences in favor of the 12 plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019) 13 (citing Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938 , 14 945 (9th Cir. 2014)). Where a complaint does not survive 12(b)(6) analysis, the Court will 15 grant leave to amend unless it determines that no modified contention “consistent with the 16 challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., [17] 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 18 Co., 806 F.2d 1393 , 1401 (9th Cir. 1986)). 19 II. Analysis 20 Defendant contends that the Court should dismiss Plaintiff’s first and third claims 21 with prejudice because Plaintiff’s first claim based on Defendant’s alleged violation of 22 section 1102.5 of the California Labor Code is time-barred or, alternatively, fails as a 23 matter of law to state a whistleblower retaliation claim; and Plaintiff’s third claim for 24 wrongful termination fails as a matter of law because it is “completely derivative” of the 25 allegedly defective retaliation claim. Mot. at 3. The Court addresses each argument in 26 turn. 27 / / / 28 / / / 1 A. Section 1102.5 Whistleblower Retaliation Claim 2 1. Is Plaintiff’s Claim Time-Barred? 3 Section 1102.5 does not itself specify a statute of limitations. Section 340 of the 4 California Code of Civil Procedure prescribes a one-year statute of limitations for “[a]n 5 action upon a statute for a penalty or forfeiture.” Cal. Code Civ. Proc. § 340(a). Defendant 6 argues that this one-year limitations period applies to Plaintiff’s claim. Mot. at 5. Even 7 though Plaintiff does not expressly seek civil penalties, Defendant claims “that because 8 Section 1102.5 provides for a mandatory civil penalty, it is governed by the one-year statute 9 of limitations contained within California Code of Civil Procedure section 340(a), 10 regardless of whether the plaintiff affirmatively seeks the civil penalty.” Id. (citing, inter 11 alia, Delgado v. MillerCoors LLC, CV 16-5241 DMG (ASx), 2017 WL 1130165 , at *4–5 12 (C.D. Cal. Mar. 16, 2017)). Defendant further argues that, because Plaintiff asks for “other 13 damages” and “other such relief” in his Complaint, his pleading “implicitly includes a 14 request for penalties” pursuant to section 1102.5(f). Id. at 5–6. Because Plaintiff was 15 terminated on or around April 1, 2020, but did not file this action until May 21, 2021, more 16 than one year later, Defendant argues that Plaintiff’s claim is facially time-barred and 17 subject to dismissal. See id. at 5 (citing Compl. ¶ 16; RJN ¶ 1; id. Ex. 1). 18 In response, Plaintiff asserts that the “vast majority” of courts in California have 19 determined that the three-year statute of limitations set forth in section 338(a) of the 20 California Code of Civil Procedure applies to section 1102.5 claims for individual damages 21 alone and not civil penalties. Opp’n at 4 (citations omitted). Plaintiff further argues that, 22 to the extent a one-year limitations period applies, his claim is timely as a result of the 23 Judicial Council of California’s Emergency Rule of Court 9. See generally Surreply. 24 As an initial matter, the Court finds unavailing Defendant’s assertion that the 25 Complaint implicitly requests penalties. The Complaint is clear that Plaintiff seeks only 26 general and special damages, punitive damages, and attorneys’ fees and costs for his first 27 claim. See FAC ¶¶ 22–24; id. at 8–9 (“Prayer for Relief”). The Court thus construes the 28 Complaint as seeking no civil penalty for the purported section 1102.5 violation. 1 In light of the utter lack of controlling authority addressing what statute of 2 limitations applies to whistleblower retaliation claims that seek only damages and not civil 3 penalties, the Court finds the thorough and thoughtful analysis in Newton v. Bank of 4 America, No. CV1609581ABRAOX, 2018 WL 6219946 (C.D. Cal. Jan. 18, 2018), 5 concluding that a three-year limitations period applies to such claims, to be the most 6 persuasive treatment of this issue. The Court’s conclusion is further bolstered by the Rutter 7 Guide’s endorsement of a presumed three-year limitations period for such claims. See The 8 Rutter Group, Cal. Prac. Guide Civ. Pro. Trial Claims and Def. Ch. 13(V)-D ¶ 13:1125 9 (“There is no known authority specifically addressing the statute of limitations for a Lab.C. 10 § 1102.5 claim. Employees filing civil actions presumably have: . . . three years to sue for 11 violations of § 1102.5 (CCP § 338(a), governing suit for ‘liability created by statute’) 12 or . . . one year if the suit is for the civil penalty provided in § 1102.5(f) (CCP § 340(a), 13 governing suit for ‘penalty or forfeiture’).”). Accordingly, the Court concludes that 14 Plaintiff’s claim, which was asserted well before three years had passed, is not facially 15 time-barred, and DENIES Defendant’s Motion on this ground.2 16 2. Does Plaintiff Adequately State a Claim? 17 Alternatively, Defendant asserts that Plaintiff fails to state a cognizable claim. Mot. 18 at 6–8. California’s whistleblower retaliation statute provides, in relevant part: 19 An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information [20] . . . to a person with authority over the employee or another 21 employee who has the authority to investigate, discover, or correct the violation or noncompliance, . . . if the employee has [22] reasonable cause to believe that the information discloses a 23 violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation [24] . . . . 25 / / / [27] 28 2 In light of this disposition, the Court need not reach Plaintiff’s alternative argument regarding the Judicial [1] Cal. Lab. Code § 1102.5 (b). 2 “In order to plead a prima facie case of retaliation [under subsection 1102.5(b)], a 3 plaintiff must show that she engaged in a protected activity, her employer subjected her to 4 an adverse employment action, and there is a causal link between the protected action and 5 the adverse action.” Tam v. Qualcomm, Inc., 300 F. Supp. 3d 1130, 1148 (S.D. Cal. 2018) 6 (citing Patten v. Grant Joint Union High Sch. Dist., 134 Cal. App. 4th 1378, 1384 (2005)). 7 Furthermore, “[t]he employee must have an actual belief that the employer’s actions were 8 unlawful and the employee’s belief, even if mistaken, must be reasonable.” Id. (citing 9 Carter v. Escondido Union High Sch. Dist., 148 Cal. App. 4th 922 , 933–34 (2007)). 10 Defendant claims that Plaintiff’s retaliation claim fails because Plaintiff (1) does not 11 identify a specific law, rule, or regulation Defendant purportedly violated; (2) does not 12 allege that Plaintiff reported the activity to any governmental or law enforcement agency; 13 and (3) fails to allege that he refused to participate in the allegedly unlawful activity. Mot. 14 at 6–8.4 15 Plaintiff counters that there is no requirement that he identify a specific statute or 16 rule Defendant violated. Opp’n at 12–13 (citations omitted). “Plaintiff is not aware of any 17 case law that places an additional statute identification element for claims made under 18 section 1102.5(b), nor does Defendant cite to any.” Id. at 13. Plaintiff also contends that [20] 3 Plaintiff’s Opposition is clear that he seeks to bring a whistleblower retaliation claim only under 21 subsection (b) of section 1102.5. See Opp’n at 10–13. Although Defendant argues that Plaintiff fails to address and therefore concedes his inability to state a claim under subsection (c), see Reply at 6–7, the 22 Court sees no reason to rule on whether Plaintiff has stated a claim under a subsection he does not invoke. [23] 4 In its Reply, Defendant appears to raise the additional ground that Plaintiff’s allegations of fraud are 24 inadequate under Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. See Reply at 8– 10. The Court declines to address an argument improperly raised for the first time on reply. See Autotel 25 v. Nev. Bell Tel. Co., 697 F.3d 846 , 852 n.3 (9th Cir. 2012) (“[A]rguments raised for the first time in a reply brief are waived.”) (alteration in original) (quoting Turtle Island Restoration Network v. U.S. Dep’t 26 of Commerce, 672 F.3d 1160 , 1166 n.8 (9th Cir. 2012)); United States v. Boyce, 148 F. Supp. 2d 1069, 1085 (S.D. Cal. 2001), amended (Apr. 27, 2001) (collecting cases declining to consider arguments first [27] raised in reply briefs and “noting that considering arguments raised for first time in reply brief deprives 28 opposing party of adequate opportunity to respond”) (citations omitted), aff’d, 36 F. App’x 612 (9th Cir. 1 Defendant overlooks the fact that section 1102.5(b) concerns actual or possible disclosure 2 of alleged violations of law while section 1102.5(c) concerns refusal to participate in illegal 3 activity; as Plaintiff brings his claim under section 1102.5(b), refusal to participate is not a 4 required element of his claim. Opp’n at 12. Finally, Plaintiff argues that the statute was 5 amended in 2013 to protect employees making internal disclosures in addition to 6 employees who report to governmental or law enforcement agencies. Opp’n at 11. 7 As Plaintiff notes, under the plain language of subsection (b), internal disclosures or 8 complaints can constitute “protected activity.” See, e.g., Few v. Lenovo (U.S.), Inc., No. 9 4:20-CV-03115-KAW, 2021 WL 5973053 , at *10 (N.D. Cal. Dec. 14, 2021) (“Defendant 10 argues that Plaintiff admits that he did not make any external complaints, so the claim fails. 11 This is a misstatement of the law, as internal complaints satisfy the statute.”) (citation 12 omitted). Plaintiff is also correct that Defendant misses the mark in focusing solely on 13 Plaintiff’s alleged failure to participate in illegal activity, a requirement that applies only 14 to subsection (c) claims. 15 As to whether Plaintiff is required to identify a specific law or rule allegedly violated 16 by Defendant, however, “[a]lthough there is some split of authority, the majority of courts 17 require plaintiffs bringing section 1102.5(b) claims to allege the specific rule, regulation 18 or statute they reasonably believed had been violated, and the factual basis for their 19 reasonable belief.” La v. San Mateo Cty. Transit Dist., No. 14-CV-01768-WHO, 2014 WL 20 4632224, at *5 (N.D. Cal. Sept. 16, 2014) (emphasis added) (citations omitted). Indeed, 21 the Court notes that the majority of decisions issued by California district courts in recent 22 years seem to require such specificity in order to state a claim for violation of section 23 1102.5(b). See, e.g., Clevland v. Ludwig Inst. for Cancer Rsch. Ltd., No. 21CV871 JM 24 (JLB), 2022 WL 80265 , at *4 (S.D. Cal. Jan. 7, 2022) (dismissing portion of section 1102.5 25 claim premised on the plaintiffs’ belief that the “[d]efendant violated some provision of 2 26 CFR Part 200” as insufficiently pleaded because “[their] citation to a ‘whole statutory 27 framework does not serve this purpose [of giving the defendant fair notice of the grounds 28 on which the claim rests]’”); Fleeman v. Cty. of Kern, No. 120CV00321NONEJLT, 2021 1 WL 1221469 , at *5 (E.D. Cal. Mar. 31, 2021) (granting motion to dismiss section 1102.5 2 claim because, inter alia, “Plaintiff’s complaint also fails to identify what statute, rule, or 3 regulation that he believed the County violated”); Chan v. Canadian Standards Ass’n, No. 4 SACV192162JVSJDE, 2020 WL 2496174 , at *2 (C.D. Cal. Mar. 16, 2020) (concluding 5 that, to state a section 1102.5 claim, “[a] plaintiff must be able to identify a specific state 6 or federal statute, rule, or regulation which he believed was being violated”) (citations 7 omitted). Given this trend, the Court finds that Plaintiff has failed to adequately plead his 8 claim and GRANTS Defendant’s Motion on this ground. However, given that the Court 9 finds it likely that Plaintiff can cure this defect through amendment, the Court DISMISSES 10 the claim WITHOUT PREJUDICE. 11 B. Wrongful Termination Claim 12 Defendant contends that, because Plaintiff’s first claim is inadequately pleaded, 13 “Plaintiff fails to allege a predicate violation of Section 1102.5(b) or (c), and therefore his 14 wrongful termination claim fails on this basis.” Reply at 10. Plaintiff argues that, “even if 15 the Court were to hold that Plaintiff did not sufficiently plead a section 1102.5(b) claim, 16 Plaintiff sufficiently alleges facts to independently sustain a cause of action for wrongful 17 termination in violation of public policy.” Opp’n at 14. 18 “Wrongful termination in violation of public policy is a California common law 19 cause of action providing that ‘when an employer’s discharge of an employee violates 20 fundamental principles of public policy, the discharged employee may maintain a tort 21 action and recover damages traditionally available in such actions.’” Ferretti v. Pfizer Inc., [22] 855 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012) (citing Tameny v. Atl. Richfield Co., 27 Cal. 23 3d 167 (1980); Freund v. Nycomed Amersham, 347 F.3d 752, 758 (9th Cir. 2003)). “The 24 elements of a claim for wrongful discharge in violation of public policy are (1) an 25 employer-employee relationship, (2) the employer terminated the plaintiff’s employment, 26 (3) the termination was substantially motivated by a violation of public policy, and (4) the 27 discharge caused the plaintiff harm.” Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 28 / / / 1 4th 144, 154 (2014) (citing Haney v. Aramark Unif. Servs., Inc., 121 Cal. App. 4th 623 , 2 641 (2004)). 3 Here, Plaintiff pleads an employer-employee relationship, see Compl. ¶ 10, and the 4 termination of his employment, see id. ¶ 16. Plaintiff alleges that supposed restructuring 5 “was merely pretext for his termination, and . . . the termination was actually being driven 6 by Plaintiff’s intent to report the fraudulent activities he had discovered and his desire to 7 raise the issue further with Defendant.” Id. ¶ 17. Finally, Plaintiff alleges that his wrongful 8 termination in violation of the State’s public policy “to protect and safeguard employees 9 from retaliation from reporting or disclosing information that an employer is violating state 10 or federal statutes, rules, or regulations, if any employee has reasonable cause to believe 11 that information is a violation” caused his harm. Id. ¶¶ 32–35. 12 Nonetheless, Defendant asserts that, because Plaintiff’s retaliation claim is defective, 13 “Plaintiff’s wrongful termination claim must also fail.” Mot. at 9 (citing Pavloff v. Ashley 14 Distrib. Servs., Case No. CV 13-00214 BRO (SPx), 2013 WL 12438177 (C.D. Cal. June 15 21, 2013)). The Court recognizes that there are cases that stand for this proposition. See, 16 e.g., Sneddon v. ABF Freight Sys., 489 F. Supp. 2d 1124, 1131 (S.D. Cal. 2007) 17 (“Defendant correctly contends that if the claim for age discrimination fails, plaintiff’s 18 cause of action for wrongful termination in violation of public policy fails because it is 19 derivative of plaintiff’s statutory claim.”); Lozano v. Neovia Logistics Distribution, LP, 20 No. EDCV201683JFWSHKX, 2021 WL 4313869 , at *11 (C.D. Cal. Aug. 4, 2021) 21 (holding that “wrongful termination in violation of public policy [is] not [a] stand alone 22 cause[] of action and . . . cannot survive when a plaintiff has failed to establish the 23 underlying act of retaliation”) (citations omitted); Desmond v. Charter Commc’ns, Inc., 24 No. 3:19-CV-2392-AJB-MDD, 2021 WL 3034021 , at *12 (S.D. Cal. July 19, 2021); 25 Brager v. Costco Wholesale Corp., No. 219CV00044MCEKJN, 2021 WL 4443010 , at *14 26 (E.D. Cal. Sept. 28, 2021); Pavloff, 2013 WL 12438177 , at *3. 27 However, “[u]ltimately, ‘[a] plaintiff’s failure to prove an actual violation of law by 28 his employer does not defeat a wrongful termination cause of action’ . . . ; as the Court of 1 Appeal has held, an employee need not prove an actual violation of law; it suffices if the 2 employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.” 3 Green v. Ralee Eng’g Co., 960 P.2d 1046, 1059 (Cal. 1998) (emphasis in original); see 4 also Barbosa v. IMPCO Techs., Inc., 179 Cal. App. 4th 1116, 1120 (2009) (finding court 5 erred in granting motion for nonsuit to defendant as to wrongful termination in violation 6 of public policy claim where the plaintiff had a reasonable good faith belief he was entitled 7 to overtime even if such belief was mistaken, as jury could conclude the defendant 8 terminated the plaintiff for making such a claim); Freund v. Nycomed Amersham, 347 F.3d 9 752, 759 (9th Cir. 2003) (“As long as the employee makes the health or safety complaint 10 in good faith, it does not matter for purposes of a wrongful termination action whether the 11 complaint identifies an actual violation of other workplace safety statutes or regulations. 12 Nycomed’s argument would add a requirement that California law simply does not 13 support.”) (citation omitted); Banko v. Apple, Inc., No. 13-02977 RS, 2013 WL 6623913 , 14 at *4 (N.D. Cal. Dec. 16, 2013) (concluding “that Banko’s failure to state a claim under a 15 particular statute (e.g., Dodd–Frank) does not preclude him from relying on that statute’s 16 policies for purposes of his wrongful termination claim”). Accordingly, the Court 17 disagrees that Plaintiff’s wrongful termination in violation of public policy claim rises or 18 falls depending on the viability of Plaintiff’s retaliation claim. “[A plaintiff] is not required 19 . . . to establish that he was retaliated against in order to prove a claim for wrongful 20 discharge in violation of public policy. [He] is required only to establish the existence of 21 a public policy and a nexus between that policy and his [termination].” Ward v. Cadbury 22 Schweppes Bottling Grp., No. CV0903279DMGCWX, 2011 WL 13213887 , at *12 (C.D. 23 Cal. May 23, 2011) (citation omitted). 24 Courts have found repeatedly that California has a fundamental public policy 25 supporting the reporting of unlawful conduct to employers, and accordingly courts have 26 determined time and again that a plaintiff states a claim for wrongful termination when he 27 or she alleges that she was discharged in retaliation for such reports. See, e.g., Gould, 31 28 Cal. App. 4th at 1150 (“[W]e conclude if MSI discharged Gould in retaliation for his 1 ||reporting violations of the overtime wage law to MSI management, it violated a 2 || fundamental public policy of this state.”); Phillips v. Gemini Moving Specialists, 63 Cal. 3 || App. 4th 563, 571 (1998), as modified (Apr. 24, 1998) (“[I]s there a fundamental public 4 || policy against an employer’s retaliation for its employee having asserted a right to be free 5 || from the employer’s withholding of pay, as alleged to have occurred in this case? We 6 || conclude there is such a fundamental public policy.”); Wood v. Igate Techs., Inc., No. 3:157 || CV-00799 JSW, 2015 WL 13345325 , at *5 (N.D. Cal. Aug. 11, 2015) (“California cases 8 recognized that wrongful termination in contravention of public policy occurs when 9 ||the employee is terminated for reporting to the employer about existing unlawful 10 ||conduct.”). Plaintiffhas invoked this public policy and alleges a nexus between this policy 11 his termination. See Compl. 99 32-34. Accordingly, the Court concludes Plaintiff 12 || adequately has alleged a claim for wrongful termination in violation of public policy and 13 || DENIES the Motion as to this claim. 14 CONCLUSION 15 In light of the foregoing, the Court GRANTS Defendant’s RJN (ECF No. 6-2) and 16 |}GRANTS IN PART AND DENIES IN PART Defendant’s Motion (ECF No. 6). 17 || Specifically, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's first claim. 18 Plaintiff MAY FILE an amended complaint within thirty (30) days of the electronic 19 || docketing of this Order. Should Plaintiff elect to file an amended complaint, it must cure 20 || the deficiencies noted herein and must be complete in itself without reference to □□□□□□□□□□□ 21 complaint. See S.D. Cal. CivLR 15.1. Any claims not realleged in the amended 22 || complaint will be considered waived. See Lacey v. Maricopa Cty., 693 F.3d 896, 925 , 928 23 || (9th Cir. 2012). 24 IT IS SO ORDERED. 25 ||Dated: February 1, 2022 . tt f te 26 on. Janis L. Sammartino 07 United States District Judge