Asnaashari v. PNY Technologies, Inc

Filing 25

ORDER by Judge Hamilton granting 8 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 5/31/2013)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MEHDI ASNAASHARI,
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Plaintiff,

No. C 13-1308 PJH

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v.
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ORDER GRANTING MOTION TO
DISMISS

PNY TECHNOLOGIES, INC.,
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For the Northern District of California

United States District Court

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Defendant.
_______________________________/

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Defendant PNY Technology Inc.’s motion to dismiss came on for hearing before this

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court on May 29, 2013. Plaintiff Mehdi Asnaashari (“plaintiff”) appeared through his

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counsel, Jeannette Vaccaro and John McGuinn. Defendant PNY Technologies, Inc.

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(“defendant”) appeared through its counsel, Christopher Mayer and Sarah Wager. Having

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read the papers filed in conjunction with the motion and carefully considered the arguments

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and the relevant legal authority, and good cause appearing, the court hereby GRANTS

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defendant’s motion for the reasons stated at the hearing and as follows.

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Plaintiff’s first cause of action is for breach of contract. Plaintiff concedes that his

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offer letter characterized his employment as “at will,” and specifically stated that his

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employment “may be terminated by PNY at any time, with or without notice,” but argues

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that the letter also stated that his employment was “subject to PNY’s employment policies.”

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Dkt. 10, Ex. B at 2. Plaintiff alleges that defendant violated those policies by terminating his

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employment for performance reasons without following the applicable procedures

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governing performance-related terminations. However, plaintiff has not identified the

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specific policies or procedures that were allegedly breached. Accordingly, plaintiff’s first

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cause of action is DISMISSED with leave to amend, so that plaintiff may identify those

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policies and/or procedures.
Plaintiff’s second cause of action is for breach of the implied duty of good faith and

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fair dealing. Again, plaintiff concedes that his employment was at will, but argues that

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defendant “act[ed] in bad faith when it terminated plaintiff for the specific purpose of

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depriving him of the benefits of the offer letter.” Dkt. 18 at 5. However, the complaint does

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not provide any factual support for this assertion, and plaintiff’s second cause of action is

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thus DISMISSED with leave to amend, so that plaintiff may provide such factual support.

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The court also notes that, as currently pled, plaintiff’s second cause of action is partially

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duplicative of his first cause of action for breach of contract. In his amended complaint,
plaintiff shall differentiate the factual allegations supporting his first cause of action (based

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For the Northern District of California

United States District Court

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on defendant’s alleged failure to follow its employment policies and procedures) from those

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supporting his second cause of action (based on defendant’s alleged bad faith in

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terminating plaintiff’s employment).

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Plaintiff’s third and fourth causes of action are for promissory fraud and negligent

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misrepresentation, respectively. The elements of promissory fraud are: (1) a promise

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made regarding a material fact without any intention of performing it; (2) the existence of

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the intent not to perform at the time the promise was made; (3) intent to deceive or induce

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the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5)

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nonperformance by the party making the promise; and (6) resulting damage to the

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promisee. Behnke v. State Farm General Insurance Co., 196 Cal.App.4th 1443, 1453

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(2011). The elements of negligent misrepresentation are: (1) a misrepresentation of a past

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or existing material fact; (2) without reasonable grounds for believing it to be true; (3) with

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intent to induce another’s reliance on the fact misrepresented; (4) ignorance of the truth

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and justifiable reliance thereon by the party to whom the misrepresentation was directed;

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and (5) damages. Fox v. Pollack, 181 Cal.App.3d 954, 962 (1986).

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Plaintiff’s complaint was originally filed in state court, and as a result, plaintiff’s third
and fourth causes of action do not meet the standard of Federal Rule of Civil Procedure

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9(b), which requires fraud-related claims to be pled with particularity. Plaintiff’s third and

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fourth causes of action do not identify the “who, what, when, and where” of the alleged

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promise or misrepresentation, and do not provide factual support for his allegations that

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defendant made a promise with the intent not to perform when the promise were made, or

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that defendant made a misrepresentation without reasonable grounds for believing it to be

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true. Accordingly, plaintiff’s third and fourth causes of action are DISMISSED with leave to

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amend, so that plaintiff can re-plead these claims in accordance with Rule 9(b)’s

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requirements.

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Plaintiff’s fifth cause of action is brought under Cal. Labor Code § 970, which makes
it unlawful to “influence, persuade, or engage any person to change from one place to

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For the Northern District of California

United States District Court

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another in this State or from any place outside to any place within the State, or from any

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place within the State to any place outside, for the purpose of working in any branch of

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labor, through or by means of knowingly false representations.” Plaintiff admits that he was

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only required to attend work in New Jersey for one week out of each month, but argues that

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the California Supreme Court has held that trips of short duration may trigger liability under

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section 970. Collins v. Rocha, 7 Cal.3d 232 (1972). However, in Collins, the court made

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clear that section 970 covers “temporary as well as permanent relocation of residence, as

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contrasted with a mere change in the site of employment.” Id. at 239 (emphasis added).

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Thus, even if for a short duration, section 970 still requires a relocation of residence, and

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not merely a site visit. Plaintiff has not (and cannot) allege that he was required to relocate

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his residence, and as a result, his fifth cause of action is DISMISSED without leave to

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amend.

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Finally, plaintiff asserts a sixth cause of action for wrongful termination in violation of

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public policy. In order to state such a claim, plaintiff must identify the specific public policy

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implicated by defendant’s actions. Plaintiff argues that his contract-related and fraud-

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related claims form the basis of his wrongful termination claim. Because those claims have

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been dismissed, plaintiff’s sixth cause of action must be DISMISSED with leave to amend

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for the same reasons.

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Plaintiff has until June 26, 2013 to file an amended complaint in accordance with

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this order. No new claims or parties may be added without leave of court or the written

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stipulation of all parties. Defendant has until July 17, 2013 to answer or otherwise respond

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to the complaint.

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IT IS SO ORDERED.
Dated: May 31, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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