Brazill v. California Northstate College of Pharmacy, LLC et al

Filing 9

ORDER signed by Judge William B. Shubb on 08/02/2012 GRANTING #5 Motion to Dimiss Claims One, Two, Three, Four, and Six. Plaintiff has twenty days from the date of this Order to file an Amended Complaint, if he can do so consistent with this Order. (Streeter, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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BRADLEY BRAZILL, an
individual,

NO. CIV. 2:12-1218 WBS GGH

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Plaintiff,

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

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v.
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CALIFORNIA NORTHSTATE COLLEGE
OF PHARMACY, LLC, CALIFORNIA
NORTHSTATE UNIVERSITY, LLC,
and DOES 1 through 10,
inclusive,

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Defendants.
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/

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----oo0oo---Plaintiff Bradley Brazill brings this action against

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defendants California Northstate College of Pharmacy, LLC and

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California Northstate University, LLC (“College” collectively),

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arising from defendants’ allegedly wrongful conduct related to

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defendants’ termination of plaintiff’s employment.

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now move to dismiss the Complaint, with the exception of the

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fifth claim, for failure to state a claim upon which relief can
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Defendants

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be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

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(Docket No. 5.)

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I.

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Factual and Procedural Background
Plaintiff is a 55-year-old licensed pharmacist who owns

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and operates a pharmacy in Yolo County.

(Compl. ¶ 14 (Docket No.

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1).)

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professor of pharmacy for over twenty years.

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defendants hired plaintiff full-time as Chair of the Department

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for Clinical and Administrative Sciences at the College, a for-

Plaintiff has been a pharmacist for over 25 years and a
(Id.)

In 2009,

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profit, unaccredited college located in Rancho Cordova,

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California.

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under a one-year contract that was later extended “up to and

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including his last day of employment.”

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began working for the College in August 2009 and his duties

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included overseeing the clinical curriculum and evaluating and

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supervising the clinical teaching staff.

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alleges that after his “outstanding 2010 performance review,” he

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received a four percent raise.

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(Id.

¶ 15.)

Plaintiff alleges that he was hired

(Id. ¶ 16.)

(Id.)

Plaintiff

Plaintiff

(Id.)

The College is currently a candidate for accreditation

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by the Western Association of Schools and Colleges (“WASC”).

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(Id. ¶ 17.)

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College to assess its candidacy.

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asked plaintiff to give an assessment as to whether the College

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had appropriate resources to complete its mission, he responded

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that it did not.

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reasserted that the College had insufficient resources and

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explained that the College’s cost-cutting measures put profits

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before students’ education.

In October 2010, members of the WASC visited the

(Id.)

(Id. ¶ 18.)

When WASC members

In several follow-up meetings, plaintiff

(Id.)
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Plaintiff states that during that same academic year,

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he began vocally challenging the College administration’s tuition

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practices as illegal and detrimental to the College’s

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accreditation process.

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College does not receive federal student aid assistance because

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it is unaccredited.

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knew, or reasonably believed, that the some of the College’s

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tuition practices violated federal law.

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Specifically, plaintiff alleges that the College participated in

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a scheme in which it encouraged students to apply for enrollment

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at an accredited school in Michigan, apply for excess student

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loans, and then use the excess loan money to pay for the

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College’s tuition.

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practice violated federal provisions requiring that student loans

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be used by students only at “eligible institution[s].”

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(Id. ¶ 19.)

(Id. ¶ 17.)

(Id. ¶ 19.)

Plaintiff alleges that the

Plaintiff also alleges that he

(Id. ¶ 20.)

Plaintiff believed that this

(Id.)

Plaintiff alleges that the President of the College,

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Alvin Cheung, discovered what plaintiff had told WASC members

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during their accreditation investigation and that plaintiff had

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been complaining about the College’s tuition practices.

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20.)

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Cheung and the College administration treated him hostilely and

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told him that he was not considered a “team player.”

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Plaintiff alleges that the administration implied it was

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displeased with plaintiff’s critical comments to the WASC and his

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disapproval of its tuition practices.

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alleges that the administration decried his “old school ways of

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thinking,” and “implied that it would seek to replace Plaintiff

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with someone with a younger, more modern perspective . . . .”

(Id. ¶

Plaintiff alleges that from that point forward, President

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(Id.)

(Id.)

Plaintiff further

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(Id.)

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On July 14, 2011, the administration notified plaintiff

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that President Cheung, Dean David Hawkins, and the Director of

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Human Resources, Yasmin Vera, wished to meet with him to discuss

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a “conflict of interest” issue.

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that he met with Ms. Vera and Vice President Norman Fong, who

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advised him that he could resign or be terminated.

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Vera allegedly stated that plaintiff was being terminated because

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he had allowed faculty members to work in his retail pharmacy.

(Id. ¶ 21.)

Plaintiff alleges

(Id.)

Ms.

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(Id.)

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authorized this practice, Vice President Fong allegedly responded

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that it did not matter and that plaintiff was terminated.

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When plaintiff advised them that the Dean had expressly

(Id.)

Plaintiff filed this action on May 7, 2012, alleging

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six causes of action under federal and state law: (1) age

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discrimination under the Age Discrimination in Employment Act

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(“ADEA”), 29 U.S.C. §§ 621-634; (2) age discrimination under the

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California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t

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Code §§ 12900-12996; (3) retaliation under the False Claims Act

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(“FCA”), 31 U.S.C. § 3730(h); (4) retaliation under California

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Labor Code § 1102.5; (5) wrongful termination (Cal. Gov’t Code §§

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12900-12996; 31 U.S.C. § 3730(h); Cal. Lab. Code § 1102.5); and

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(6) breach of employment contract.

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does not include claim five for wrongful termination.

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II.

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Defendants’ motion to dismiss

Request for Judicial Notice
A court may take judicial notice of facts “not subject

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to reasonable dispute” because they are either “(1) generally

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known within the territorial jurisdiction of the trial court or

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(2) capable of accurate and ready determination by resort to
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sources whose accuracy cannot reasonably be questioned.”

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Evid. 201.

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public record or of documents whose contents are alleged in the

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complaint and whose authenticity is not questioned.

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of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).

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Fed. R.

The court may take judicial notice of matters of

Lee v. City

Plaintiff has requested that the court take judicial

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notice of: (1) a copy of the California Department of Industrial

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Relation’s webpage describing its Retaliation Complaint Unit; and

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(2) a copy of the California Department of Industrial Relation’s

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webpage describing the filing of a retaliation/discrimination

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complaint.

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on an official government website, its accuracy is not reasonably

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in dispute.

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2009 WL 1684714, at *4 (N.D. Cal. June 12, 2009); Piazza v. EMPI,

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Inc., No. 07–954, 2009 WL 590494, at *4 (E.D. Cal. Feb. 29,

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2008); see also Denius v. Dunlap, 330 F.3d 919, 926–27 (7th Cir.

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2003) (taking judicial notice of information on official

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government website).

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notice of these documents.

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III. Discussion

(Docket No. 6-2).)

Because the information appears

See, e.g., Edejer v. DHI Mortg. Co., No. 09–1302,

Accordingly, the court will take judicial

To survive a motion to dismiss, a plaintiff must plead

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“only enough facts to state a claim to relief that is plausible

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on its face.”

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(2007).

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than a sheer possibility that a defendant has acted unlawfully,”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[w]here a

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complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

This “plausibility standard,” however, “asks for more

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possibility and plausibility of entitlement to relief.’”

Id.

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(quoting Twombly, 550 U.S. at 557).

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plaintiff has stated a claim, the court must accept the

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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A.

In deciding whether a

Scheuer v. Rhodes, 416

Age Discrimination (Claims One and Two)
The ADEA makes it illegal for an employer “to fail or

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refuse to hire . . . any individual [age forty or above] . . .

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because of such individual’s age.”

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Similarly, FEHA makes it illegal for an employer “because of the

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. . . age . . . of any person, to refuse to hire or employ the

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person.”

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discrimination claims under the disparate treatment theory of

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both the ADEA and FEHA.

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29 U.S.C. § 623(a)(1).

Cal. Gov’t Code § 12940(a).

Plaintiff brings age

To establish a prima facie case of age discrimination

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under the disparate treatment theory under the ADEA, plaintiff

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must show that he: (1) was a member of the protected class (aged

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40 or older); (2) was performing his job satisfactorily; (3) was

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discharged; and (4) was replaced by a substantially younger

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employee with equal or inferior qualifications or some other

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circumstances that would lead to an inference of age

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discrimination.

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U.S. 133, 142 (2000); Rose v. Wells Fargo & Co., 902 F.2d 1417,

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1421 (9th Cir. 1990).

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precedent when interpreting FEHA because of its similarity to the

Reeves v. Sanderson Plumbing Prods., Inc., 530

California courts look to federal

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ADEA.

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To plead a claim for Age Discrimination under FEHA, a plaintiff

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must satisfy the same four-part test as the ADEA.

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will therefore consider claims one and two together.

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Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000).

Id.

The court

As to the fourth factor, a plaintiff must show that age

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was the basis of the employer’s adverse decision.

Gross v. FBL

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Fin. Servs., Inc., 557 U.S. 167, 176, (2009).

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has also held “that the failure to prove replacement by a younger

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employee is ‘not necessarily fatal’ to an age discrimination

The Ninth Circuit

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claim where the discharge results from a general reduction in the

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work force due to business conditions.”

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see also Ewing v. Gill Indus., Inc., 3 Cal. App. 4th 601, 610-11

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(6th Dist. 1992).

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“through circumstantial, statistical, or direct evidence that the

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discharge occurred under circumstances giving rise to an

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inference of age discrimination.”

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also Reeves, 530 U.S. at 132; Nesbit v. Pepsico, Inc., 994 F.2d

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703, 705 (9th Cir. 1993).

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Rose, 902 F.2d at 1421;

A plaintiff may instead meet his burden

Rose, 902 F.2d at 1421; see

Here, plaintiff alleges that the College administration

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“disparaged his ‘old school ways and thinking.’” (Compl. ¶ 20.)

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Although some courts have held that the term “old-school” could

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suggest age discrimination when combined with other evidence or

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allegations, the term alone is insufficient to support an

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inference of age discrimination.

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2007 WL 4105980, at *5 (Jan. 23, 2007) (finding performance

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appraisal that plaintiff had an “old school leadership style”

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insufficient); see also Nesbit, 994 F.2d at 705; Nidds v.

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Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996)

See Craig v. Sw. Airlines, Co.,

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(holding that employer’s use of the phrase “old timers” did not

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support inference of discriminatory motive); Alexander v. San

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Diego Unified Sch. Dist., No. 08-CV-01814, 2009 WL 3299813, at *7

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(S.D. Cal. Oct. 13, 2009).

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that the administration “implied that it would seek to replace

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Plaintiff with someone with a younger, more modern perspective,”

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(Compl. ¶ 20), is conclusory and not a recitation of defendants’

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actual statement.

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Similarly, plaintiff’s allegation

Plaintiff’s allegations of suggestive comments about

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his age along with mere recitation of the elements fall short of

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supporting an inference of discrimination.

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made by the plaintiff’s employer that “[we] don’t necessarily

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like grey hair” and “[w]e don’t want unpromotable [sic] fifty-

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year olds around” were found insufficient to satisfy the fourth

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element of an ADEA claim.

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made by the employer in Nesbit were far more suggestive than

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plaintiff’s allegations in this case.

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In Nesbit, comments

Nesbit, 994 F.2d at 705.

The comments

The replacement of a slightly younger employee will

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not give rise to a successful ADEA claim.

The replacement must

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be substantially younger.

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788, 793 (3d Cir. 1985); see also Venuti v. Superior Court, 232

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Cal. App. 3d 1463 (2d Dist. 1991).

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conclusory fashion, that “[d]efendants intentional terminated

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Plaintiff, because of his age, and replaced him with a

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substantially younger employee with equal or inferior

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qualifications . . . .”

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offers labels and conclusions or a formulaic recitation of the

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elements of a cause of action will not do.”

Maxfield v. Sinclair Int’l, 766 F.2d

Plaintiff merely alleges, in

(Compl. ¶¶ 24, 28.)

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“A pleading that

Iqbal, 556 U.S. at

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678 (quotation marks omitted).

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to the name, age, or qualifications of plaintiff’s replacement

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and plaintiff, therefore, does not sufficiently allege that he

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was replaced by a substantially younger employee.

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reasonable inferences in favor of plaintiff, the court finds that

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the College’s alleged remarks fall short of showing a plausible

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inference of age discrimination.

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grant defendants’ motion to dismiss plaintiff’s first and second

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claims for age discrimination.

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B.

The complaint offers no reference

Drawing all

Accordingly, the court will

Retaliation Under the FCA (Claim Three)

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The False Claims Act was enacted “with the purpose of

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[combating] widespread fraud by government contractors who were

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submitting inflated invoices and shipping faulty goods to the

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government.”

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1261, 1265-66 (9th Cir. 1996).

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liability for any person who, inter alia, conspires to or

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“knowingly presents, or causes to be presented, a false or

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fraudulent claim for payment or approval” to an officer or

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employee of the United States.

United States ex rel. Hopper v. Anton, 91 F.3d
To this end, the FCA creates

31 U.S.C. § 3729(a)(1)(A), (C).

The FCA protects employees from being “discharged,

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demoted, . . . or in any other manner discriminated against in

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the terms and conditions of employment . . . because of lawful

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acts done by the employee . . . in furtherance of an [FCA] action

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. . . .”

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requires proof of three elements: ‘(1) the employee must have

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been engaging in conduct protected under the Act; (2) the

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employer must have known that the employee was engaging in such

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conduct; and (3) the employer must have discriminated against the

31 U.S.C. § 3730(h).

“An FCA retaliation claim

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employee because of her protected conduct.’”

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rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060

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(9th Cir. 2011) (quoting Hopper, 91 F.3d at 1269).

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argue that plaintiff was not engaging in conduct that was

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protected under the FCA.

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United States ex

Defendants

Section 3730(h) only protects employees who have acted

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“in furtherance of an action” under the FCA.

Actions taken “in

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furtherance” include investigation for, initiation of, testimony

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for, or assistance in an action filed or to be filed, 31 U.S.C.

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§ 3730(h), and the text is interpreted broadly by courts,

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McKenzie v. Bell S. Telecomm., Inc., 219 F.3d 508, 513-14 (6th

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Cir. 2000).

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“the plaintiff must be investigating matters which are

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calculated, or reasonably could lead, to a viable FCA action.”

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Hopper, 91 F.3d at 1269 (citing Neal v. Honeywell Inc., 33 F.3d

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860, 864 (7th Cir. 1994)).

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compliance with state or federal regulations is insufficient to

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state a claim for retaliation under the FCA.

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States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.

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Cir. 1998).

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plaintiff’s investigation must concern ‘false or fraudulent’

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claims.”

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“Specific awareness of the FCA is not required,” but

Investigation into an employer’s non-

See id.; United

“To be covered by the False Claims Act, the

Yesudian, 153 F.3d at 740.
In this case, the Complaint does not allege that

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plaintiff was engaged in any actions related to false or

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fraudulent claims by the College.

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“challenged the administration” for “tuition practices that he

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believed to be illegal and had the potential to hurt the

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accreditation process.”

Plaintiff only alleges that he

(Compl. ¶ 19.)
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Plaintiff’s allegations

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only suggest that he was attempting to get the College to comply

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with federal law and meet accreditation standards, not that he

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was trying to recover money for the government or investigating

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fraud claims.

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motion to dismiss plaintiff’s claim for retaliation under the

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FCA.

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C.

Accordingly, the court will grant defendants’

Retaliation Under California Labor Code § 1102.5 (Claim

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Four)

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The “rule of exhaustion of administrative remedies is

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well established in California jurisprudence . . . .”

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v. Regents of the Univ. of Cal., 35 Cal. 4th 311, 321 (2005).

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The essence of that rule is that “where an administrative remedy

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is provided by statute, relief must be sought from the

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administrative body and this remedy exhausted before the courts

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will act.”

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17 Cal. 2d 280, 292 (1941)).

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remedies is a “jurisdictional prerequisite to resort to the

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courts,” not a matter of judicial discretion.

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City of Loma Linda, 24 Cal. 4th 61, 70 (2000); Palmer v. Regents

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of the Univ. of Cal., 107 Cal. App. 4th 899, 904 (2003) (same, in

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the context of FEHA); George Arakelian Farms, Inc. v. Agric.

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Labor Relations Bd., 40 Cal. 3d 654 (1985) (same, in the context

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of challenging an adverse labor board decision); Abelleira, 17

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Cal. 2d at 293 (citing Myers v. Bethlehem Shipbuilding Corp., 303

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U.S. 41 (1938)) (National Labor Relations Board); Prentis v. Atl.

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Coast Line, 211 U.S. 210 (1908) (rate orders); Porter v.

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Investors’ Syndicate, 286 U.S. 461, 468 (1932) (investment

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commissioners and permit of investment company); Gorham Mfg. Co.

Id.

Campbell

(quoting Abelleira v. District Court of Appeal,
Exhaustion of administrative

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See Johnson v.

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v. State Tax Comm’n, 266 U.S. 265 (1924) (tax board)).

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Plaintiff’s fourth cause of action alleges violation of

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California Labor Code section 1102.5.

Section 1102.5 is a

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“whistle-blower” protection statute, intended to prevent

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employees from being restrained from, or retaliated against for,

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reporting wrongdoing to the appropriate authorities.

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1102.5’s statutory scheme contains a remedial provision that

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allows discharged employees to file a complaint before the

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California Labor Commissioner pursuant to California Labor Code

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section 98.7.

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that “[a]ny person who believes that he or she has been

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discharged or otherwise discriminated against in violation of any

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law under the jurisdiction of the Labor Commissioner may file a

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complaint with the division within six months after the

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occurrence of the violation.”

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remedy is neither mandatory nor exclusive does not abrogate the

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exhaustion requirement.

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Supp. 2d 1159, 1179-80 (E.D. Cal. 2005); Campbell, 35 Cal. 4th at

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333.

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Cal. Lab. Code § 98.6(b).

Section

Section 98.7 provides

The fact that this administrative

See Neveu v. City of Fresno, 392 F.

In Campbell, the California Supreme Court unanimously

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held that even though section 1102.5 is silent as to any

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requirement for administrative exhaustion, “the past 60 years of

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California law on administrative remedies” nevertheless compelled

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the conclusion that a person bringing a claim under the section

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is subject to the exhaustion requirement.

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As plaintiff correctly points out, however, the particular

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administrative remedy process that Campbell found to be

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applicable was the employer’s internal grievance procedures, not
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35 Cal. 4th at 329.

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a complaint filed with the Labor Commissioner.

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may not have reached section 98.7 in light of the plaintiff’s

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failure to exhaust even internal administrative grievance

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procedures, its reasoning is fully applicable to exhaustion

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requirements under the Labor Code, whether or not internal

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grievance procedures may also be at issue in a particular case.”

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Reynolds v. City & Cnty. of S.F., No. C 09-0301, 2011 WL 4808423,

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at *1 (N.D. Cal. Oct. 11, 2011).

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section 98.7, this court has previously held that plaintiffs

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alleging claims under section 1102.5 must first exhaust their

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administrative remedies.

12

S-06-0431-WBS, 2007 WL 1775474, at *3-4 (E.D. Cal. June 20, 2007)

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(citing Neveu, 392 F. Supp. 2d at 1180; Campbell, 35 Cal. 4th at

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333).

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“While Campbell

Consistent with Campbell and

See Lund v. Leprino Foods Co., No. Civ.

Plaintiff cites to the decision by Judge Wanger in

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Creighton v. City of Livingston (“Creighton II”), No. Civ. F-08-

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1507-OWW, 2009 WL 3245825 (E.D. Cal. Oct. 07, 2009), to argue

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that Campbell is not applicable in this case.

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reconsideration, in Creighton II Judge Wanger observed that the

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decisions he had relied upon in dismissing the plaintiff’s claim

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in Creighton I “were all federal district court decisions relying

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on Campbell to conclude that exhaustion of administrative

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remedies is required before the Labor Commissioner.”

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Reviewing California precedents and distinguishing Campbell,

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Judge Wanger held in Creighton II that exhaustion of

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administrative remedies was not required under section 1102.5.

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See id.

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Upon a motion for

Id. at *12.

In this court’s view, Creighton II is an aberration as
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“federal district courts addressing this issue have almost

2

uniformly agreed that a plaintiff alleging a violation of section

3

1102.5 is required to allege exhaustion of administrative

4

remedies with the Labor Commissioner before bringing suit.”

5

Hanford Exec. Mgmt. Emp. Ass’n v. City of Hanford, No.

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1:11–cv–00828–AWI, 2012 WL 603222, at *17 (E.D. Cal. Feb. 23,

7

2012) (citing cases); see also LaTourelle v. Barber, No. Civ S-

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10-2667-MCE-CMF, 2012 WL 218952, at *8 (E.D. Cal. Jan. 24, 2012);

9

Reynolds, 2011 WL 4808423, at *1; Dolis v. Bleum USA, Inc., No.

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C11-2713, 2011 WL 4501979, at *2 (N.D. Cal. Sept. 28, 2011);

11

Chacon v. Housing Auth. of Cnty. of Merced, No. 1:10-cv-2416-AWI-

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GSA, 2011 WL 2621313, at *4 (E.D. Cal. June 29, 2011) (FNR);

13

Carter v. Dep’t of Corr.-Santa Clara Cnty., No. C 09-2413, 2010

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WL 2681905, at *9-10 (N.D. Cal. July 6, 2010); Bowman v. Yolo

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County, No. 2:08-cv-00498-GEB, 2008 WL 3154691, at *1-2 (E.D.

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Cal. Aug. 4, 2008); Neveu, 392 F. Supp. 2d at 1180 (J. Wanger).

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Accordingly, the court will grant defendants’ motion to
dismiss plaintiff’s claim for retaliation under section 1102.5.
D.

Breach of Employment Contract
To state a claim for breach of contract under

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California law, a plaintiff must allege (1) the existence of a

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contract; (2) plaintiff’s performance or excuse for

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nonperformance of the contract; (3) defendant’s breach of the

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contract; and (4) resulting damages.1

Armstrong Petroleum Corp.

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The required elements for pleading a breach of
employment contract claim are the same as the elements for
general breach of contract actions. Wise v. S. Pac. Co., 223
Cal. App. 2d 50, 59 (1963), overruled on other grounds by Applied
Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503 (1994).
14

1

v. Tri-Valley Oil & Gas Co., 116 Cal. App. 4th 1375, 1390 (5th

2

Dist. 2004).

3

and that defendants breached the employment contract when they

4

terminated his employment without cause.2

5

Plaintiff alleges that he was a contract employee

(Compl. ¶ 46.)

Under California law, employees and employers are

6

presumed to be engaged in an at-will relationship.

7

Int’l Grp., Inc., 201 F.3d 446 (9th Cir. 1999).

8

Code section 2922 provides that “[a]n employment, having no

9

specified term, may be terminated at the will of either party on

Werner v. Am.

California Labor

10

notice to the other.”

Cal. Lab. Code § 2922; see also Guz, 24

11

Cal. 4th at 335.

12

employment for a period greater than one month.

13

§ 2922.

14

specified term may be terminated at any time by the employer in

15

case of any willful breach of duty by the employee in the course

Employment for a “specified term” means an
Cal. Lab. Code

California law provides that “[a]n employment for a

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2

Defendants attempt to submit an At-Will Acknowledgment
signed by plaintiff to demonstrate that the employment
relationship was in fact at-will. (Ruzicka Decl. Ex. A (Docket
No. 5-2).) When deciding a motion to dismiss, a court may not
ordinarily consider material other than the facts alleged in the
complaint. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir.
1996) (“A motion to dismiss . . . must be treated as a motion for
summary judgment . . . if either party . . . submits materials
outside the pleadings in support or opposition to the motion, and
if the district court relies on those materials.”). “A court may
consider evidence on which the complaint ‘necessarily relies’ if:
(1) the complaint refers to the document; (2) the document is
central to the plaintiff’s claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6) motion.”
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Under the
“incorporation by reference doctrine,” the court may consider
materials necessarily relied upon in the complaint even if the
complaint does not expressly mention them. Coto Settlement v.
Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (citing Intri-Plex
Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir.
2007)). Here, the Complaint does not explicitly refer to the AtWill Acknowledgment, nor is it integral to plaintiff’s claims.
The court further declines to treat defendants’ motion as a
motion for summary judgment in order to consider the document.
15

1

of his employment, or in case of his habitual neglect of his duty

2

or continued incapacity to perform it.”

3

Section 2924, however, does not limit the parties’ ability to

4

define the contract terms creating an employment relationship.

5

See Guz, 24 Cal. 4th at 335-36.

6

Cal. Lab. Code § 2924.

Plaintiff’s only allegation regarding the details of

7

his employment agreement was that he “began his employment . . .

8

under a one-year contract, which was later extended up to and

9

including his last day of employment.”

(Compl. ¶ 16.)

Plaintiff

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does not specify whether his employment agreement was oral or

11

written, whether there was an explicit good cause provision, or

12

what the terms of his contract extension were.

13

a copy of the employment agreement to the complaint, or

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allegations containing specific details regarding its contents,

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plaintiff’s allegations fail to establish that plaintiff

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performed under the contract or that defendants breached the

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contract.

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to dismiss plaintiff’s claim for breach of employment contract.

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Without attaching

Accordingly, the court will grant defendants’ motion

IT IS THEREFORE ORDERED that defendants’ motion to

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dismiss claims one, two, three, four, and six be, and the same

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hereby is, GRANTED.

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Plaintiff has twenty days from the date of this Order

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to file an amended complaint, if he can do so consistent with

24

this Order.1

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1
The only claim remaining at this time is plaintiff’s
fifth claim for wrongful termination in violation of public
policy. Because plaintiff brings his wrongful termination claim
based on violations of both state and federal law, the claim is
insufficient to establish federal jurisdiction. See Long v.
Bando Mfg. of Am., Inc., 201 F.3d 754, 760 (6th Cir. 2000)

16

1

DATED:

August 2, 2012

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(finding no federal jurisdiction over a state wrongful
termination claim based on alleged violations of the public
policy expressed in federal statutes because the complaint also
put forth public policy violations based on state statutes);
Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 818 (4th Cir. 2004)
(finding no federal jurisdiction over a wrongful termination
claim based on alleged violations of the First Amendment of the
United States Constitution and the laws of South Carolina because
the plaintiff also asserted a state law-based theory under which
a wrongful termination claim could supported); Willy v. Coastal
Corp., 855 F.2d 1160, 1171 (5th Cir. 1988) (“[I]n this Texas
common law wrongful discharge case, the role of issues of federal
law is more collateral than in the forefront. Further, other
issues of Texas law are substantially implicated in all theories
of the wrongful discharge claim.”); Drake v. Cheyenne Newspapers,
Inc., 842 F. Supp. 1403, 1412 (D. Wyo. 1994) (“[T]he Court could
completely ignore any reference to the First Amendment without
affecting plaintiffs’ chance of recovery because the plaintiffs
could rely on the Wyoming Constitution . . . as their source of
public policy.”); Gardiner v. St. Croix Dist. Governing Bd. Of
Directors, ––– F. Supp. 2d ––––, No.2012–027, 2012 WL 1153286, *7
(D.V.I. Mar. 30, 2012) (dismissing a wrongful termination claim
that cited both the Virgin Islands Wrongful Discharge Act and the
Fourteenth Amendment); Bonaguide v. Reg’l Sch. Dist. No. 6, 2010
WL 3062137, at *4-5 (D. Conn. July 26, 2012). Unless plaintiff
amends his complaint to state a federal claim, it is the court’s
intention to dismiss under 28 U.S.C. 1367(c)(3).
17