Robert Kalestian v. Performing Arts Center of Los Angeles County, et al

Filing 16

MINUTES (IN CHAMBERS) - Defendant Performing Arts Center of Los Angeles Motion to Dismiss 11 by Judge Christina A. Snyder: Defendant Motion to Dismiss is DENIED. Defendant shall file an answer to plaintiff first amended complaint within fourteen (14) days of the date of this Order. (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

Present: The Honorable 
Catherine M. Jeang 
Deputy Clerk 

CHRISTINA A. SNYDER 

N/A 

Tape No.

Attorneys Present for Defendants: 

Not Present 
Court Reporter / Recorder

Attorneys Present for Plaintiffs: 

Not Present 
Not Present 
(IN CHAMBERS) - DEFENDANT PERFORMING ARTS
Proceedings:  
CENTER OF LOS ANGELES’ MOTION TO DISMISS (Dkt. 11,
filed September 12, 2016)

The Court finds this motion appropriate for decision without oral argument. Fed.
R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing date of October 24, 2016 is
vacated, and the matter is hereby taken under submission. 

I.

INTRODUCTION

On June 24, 2016, plaintiff Robert Kalestian filed a complaint in the Los Angeles
County Superior Court against defendants Performing Arts Center of Los Angeles
County and Does 1–35, inclusive. Dkt 1-2, Ex. A. The complaint alleged one cause of
action: interference and retaliation in violation of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2615 et seq. Dkt 1-2, Ex. A.
On August 9, 2016, defendant Performing Arts Center of Los Angeles County
(“defendant”) removed this action to this Court. Dkt. 1. On August 16, 2016, the parties
stipulated to plaintiff’s filing a first amended complaint. Dkt. 8. Plaintiff filed his first
amended complaint on August 22, 2016. Dkt. 9 (“FAC”).
On September 12, 2016, defendant filed the instant motion to dismiss, arguing that
plaintiff has failed to state a claim on which relief can be granted because his claim is
barred by the FMLA’s two-year statute of limitations. Dkt. 11 (“Motion”). Plaintiff filed
his opposition on October 3, 2016, dkt. 14, and defendant filed its reply on October 7,
2016, dkt. 15.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

II.

BACKGROUND

In his FAC, plaintiff alleges that he was employed by defendant beginning on or
about November 2011 until he was terminated on June 26, 2013. FAC ¶ 12. Plaintiff
was employed first as a security guard and then as a sergeant. Id. ¶ 14. From on or about
May 24, 2013 to May 25, 2013, plaintiff took medical leave under the FMLA to care for
his wife, who suffered from a health condition that required hospital care. Id. ¶ 15.
Plaintiff provided defendant’s human resources office with notice and doctor’s note
explaining the need for family care leave. Id. Plaintiff alleges that Gloria Schaffer,
defendant’s human resources director, and/or Larry Goebel, security director, did not
approve of plaintiff’s taking family care leave and “attempted to find a reason to
terminate plaintiffs employment because he exercised his right to family care leave under
the FMLA.” Id.
Approximately two weeks after plaintiff took family care leave, Goebel told
plaintiff that plaintiff had engaged in “fraud” and that Goebel was investigating plaintiff’s
fraud because plaintiff had taken leave for someone other than his wife. Id. ¶ 16. Goebel
told plaintiff that Schaffer had told Goebel that plaintiff was not married. Id. Plaintiff
alleges that, at this point, Goebel had already resolved to terminate plaintiff because he
took family care leave. Id. Goebel also demanded that plaintiff prove he was married.
Id. Plaintiff showed Goebel photographs of plaintiff’s wedding on his mobile phone. Id.
Goebel ordered plaintiff to submit a copy of his marriage license to human resources to
prove that he was married and plaintiff did so the following day. Id.
Plaintiff alleges that Goebel and Schaffer did not waver from their decision to
terminate plaintiff because the family care leave he took, even though they “knew” that
plaintiffs leave was covered by the FMLA and that leave was taken for a serious
condition of plaintiff’s legal wife. Id. ¶ 17. On approximately June 26, 2013, Goebel and
commander of operations Bedros Ohanian told plaintiff that his employment with
defendant was terminated. Id.
Plaintiff alleges that defendant terminated his employment “in retaliation for
requesting and taking leave that was protected under the [FMLA]” and that
“[d]efendant’s acts were a willful violation of the [FMLA].” Id. ¶ 22.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

III.

LEGAL STANDARDS

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Polic Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles,
250 F.3d 668, 689 (9th Cir. 2001).
Federal Rule of Civil Procedure 8(a) provides that a pleading stating a claim for
relief must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to meet this standard, a claim for
relief must be stated with “brevity, conciseness, and clarity.” See Charles A. Wright &
Arthur R. Miller, 5 Fed. Practice and Procedure § 1215 (3d ed.). “The Plaintiff must
allege with at least some degree of particularity overt acts which Defendants engaged in
that support the Plaintiff’s claim.” Jones v. Community Redevelopment Agency, 733
F.2d 646, 649 (9th Cir. 1984). The purpose of Rule 8(a) is to ensure that a complaint
“fully sets forth who is being sued, for what relief, and on what theory, with enough
detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
As a general rule, leave to amend a complaint that has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
IV.

DISCUSSION

Defendant contends that plaintiff has failed to state a claim on which relief can be
granted because plaintiff failed to bring his FMLA claim within the FMLA’s statute of
limitations. Motion at 4. In general, an action under the FMLA must be brought no later
than two years after the last event constituting the alleged violation. 29 U.S.C.
§ 2617(c)(1). However, where a willful violation occurs, the statute of limitations is
extended to three years. Id. § 2617(c)(2).
Plaintiff filed his original complaint more than two years, but less than three years
after his employment was terminated. Defendant argues that plaintiff is subject to the
two-year limitations period because plaintiff fails to adequately plead that defendant’s
conduct constituted a “willful” violation of the FMLA. Motion at 4–6. Accordingly,

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

defendant argues that plaintiff’s claim is time-barred. Plaintiff, in turn, contends that he
has alleged facts sufficient to state a claim for willful violation of the FMLA.
Neither the Supreme Court nor the Ninth Circuit Court of Appeals has defined
willfulness under the FMLA. However, other circuits and district courts in the Ninth
Circuit have looked to the Supreme Court’s definition of “willful” in the context of the
Fair Labor Standards Act (“FLSA”). See, e.g., Golez v. Potter, No. 3:09-cv-0965-AJBWMC, 2012 WL 368218 at * 4 (S.D. Cal. 2012) (collecting cases). Under that definition,
an employer acts “willfully” when he or she “either knew or showed reckless disregard
for the matter of which its conduct was prohibited by the statute.” McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988). If “an employer acts reasonably in
determining its legal obligation, its action cannot be deemed willful . . . . If any employer
acts unreasonably, but not recklessly, in determining its legal obligation, then . . . it
should not be . . . considered [willful].” Id. at 135 n.13.
Here, plaintiff alleges that defendant’s conduct was “willful” and that defendant
terminated plaintiff’s employment in retaliation for taking family care leave. FAC ¶ 22.
Plaintiff avers that defendant accused him of fraud for exercise his rights under the
FMLA. Id. ¶ 16. And plaintiff alleges that he was terminated shortly after he took family
care leave. Id. ¶ 17.
Courts have found that allegations similar to plaintiff’s are sufficient to plead a
willful violation of the FMLA. For example, in Mesmer v. Charter Communications,
Inc., No. 3:14-cv-5915-RBL, 2015 WL 3649287 (W.D. Wash. June 11, 2015), defendant
argued that plaintiff had failed to adequately plead a willful violation of the FMLA such
that plaintiff was not entitled to the three-year statute of limitations. Plaintiff, an
employee at a call center, alleged that he provided notice to his employer of his intent to
take medical leave. Three days after this notice, he required multiple breaks and
disconnected 38 phone calls as a result of his medical condition. Id. at *3. Plaintiff’s
employer subsequently accused plaintiff of deliberately disconnecting calls Id. The
court concluded that, taken as true, the facts pleaded by plaintiff allowed a reasonable
inference that plaintiff’s employer violated his rights to exercise leave under the FMLA
and retaliated. Id. at *4. On those facts, the court found that “[w]hether [defendant]
willfully violated these rights invoking the three-year statute of limitations cannot be
determined at this stage” and declined to grant defendant’s motion to dismiss. Id. In
Akin-Taylor, v. Kaiser Found. Health Plan Inc., No. 3:13-cv-00039-JCS, 2013 WL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

4456152, at *4 (N.D. Cal. Aug. 16, 2013), the court concluded that the plaintiff’s
allegations were sufficient to allege a willful violation of the FMLA where plaintiff
alleged (1) that she was reprimanded and terminated for taking leave to which she was
entitled and (2) that she was subjected to this treatment because of her race, national
origin, and gender and not on any reasonable basis. In Anusie-Howard v. Todd, 920 F.
Supp. 2d 623, 629 (D. Md. 2013), aff’d, 615 F. App’x 119 (4th Cir. 2015), plaintiff
alleged that her employer denied requested FMLA leave to care for her husband.
Because of this denial, plaintiff alleged that her employer forced her to use her vacation
days and other time off and that she then switched to part-time work. Id. On the basis of
those allegations, the court concluded that plaintiff adequately alleged willful conduct or
reckless indifference. Id.; see also Villalobos v. Vilsack, No. 3:12-cv-00138-MEJ, 2012
WL 4674056, at *11 (N.D. Cal. Oct. 1, 2012) (“Crediting Plaintiff’s allegations that he
took leave on or about June 10, 2010, and that the Agency terminated him shortly
thereafter and while still on leave, a rational jury could determine that the Agency
‘showed reckless disregard’ for whether its conduct was prohibited by the FMLA.”);
Valentine v. State Empl. Dev. Dep’t, No. 2:10-cv-8717-CAS-SS, 2012 U.S. Dist. LEXIS
14792, at *23 (C.D. Cal. Feb. 6, 2012) (“Crediting plaintiff’s testimony that she injured
her back, asked for leave, and as a result was fired shortly thereafter, a rational jury could
determine that [defendant] ‘showed reckless disregard’ for whether its conduct was
prohibited by the FMLA.”); Scharp v. Legacy Health System, No. 3:06-cv-1213-MO,
2007 WL 756716, at *4 (D. Or. Mar. 8, 2007) (concluding that the plaintiff adequately
pleaded a willful violation of the FMLA where plaintiff alleged that her employer was
aware that she was taking protected absences, the employer granted approval for such
absences, and then fired the employee for such absences); Beekman v. Nestle Purina
Petcare Co., 635 F. Supp. 2d 893, 909 (N.D. Iowa 2009) (plaintiff sufficiently pleaded a
willful violation of the FMLA where she alleged in her complaint that defendant
discriminated against her and fired her for exercising her rights under the FMLA and
because plaintiff “allege[d] conduct that inherently states willful conduct—for example,
willful actions are inherent in retaliatory conduct”); Block v. Sears Roebuck & Co., No.
2:07-cv-15323-DML-MKM, 2009 WL 36483, at *4 (E.D. Mich. Jan. 6, 2009)
(“retaliation automatically includes willfulness”) (quoting Lilley v. BTM Corp., 958 F.2d
746, 754 (6th Cir. 1992).
Defendants rely on Mazeau v. SHPS Acquisition Corp., No. 2:14-cv-00080-PHXJAT, 2015 WL 1309469 (D. Ariz. Mar. 24, 2015) for the proposition that plaintiff’s
allegations are too conclusory to adequately allege a willful violation of the FMLA. See

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-05928-CAS(SKx)
Date October 21, 2016
ROBERT KALESTIAN v. PERFORMING ARTS CENTER OF LOS
ANGELES COUNTY ET AL.

motion at 5–6. However, in Mazeau, the court concluded that the plaintiff failed to
adequately allege a willful violation because “Plaintiff directs the Court to no allegations
in the Complaint of a willful FMLA violation by Defendants.” Mazeau, 2015 WL
1309469 at *3. That stands in contrast to the instant case, in which plaintiff expressly
alleges a willful violation of the FMLA.
Accordingly, the Court finds that when evaluated in the light most favorable to
plaintiff, the evidence precludes a finding as a matter of law that defendant’s alleged
violation of the FMLA was not willful. Therefore, defendant’s motion to dismiss
plaintiff’s claim for failure to bring this action under the FMLA’s two-year limitations
period is DENIED.
V.

CONCLUSION

In accordance with the foregoing, defendant’s motion to dismiss is DENIED.
Defendant shall file an answer to plaintiff’s first amended complaint within fourteen (14)
days of the date of this Order.
IT IS SO ORDERED.
00 
Initials of Preparer

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CMJ 

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