Timothy Jaffe v. Sedgwick Claims Management Services, Inc., No. 2:2017cv03421 - Document 18 (C.D. Cal. 2017)

Court Description: ORDER GRANTING MOTION TO DISMISS AND DENYING AS MOOT MOTION TO STRIKE 12 by Judge Otis D. Wright, II. For the reasons stated above, the Court GRANTS Sedgwick's Motion to Dismiss Plaintiffs' Complaint in its entirety and DENIES AS MOOT Sedgwick's Motion to Strike. The Motion to Dismiss is granted with leave to amend unless otherwise noted. Plaintiff must file an amended complaint within 14 days that cures the deficiencies noted in this order. Defendants response shall be due 14 days thereafter. (lom)
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Timothy Jaffe v. Sedgwick Claims Management Services, Inc. Doc. 18 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TIMOTHY JAFFE, an individual Plaintiff, 12 13 14 15 16 17 Case No. 2:17-cv-03421-ODW (Ex) ORDER GRANTING MOTION TO DISMISS AND DENYING AS MOOT MOTION TO STRIKE [12] v. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., an Illinois corporation; and DOES 1-50; inclusive, Defendants, 18 19 20 21 22 23 24 25 26 27 28 Dockets.Justia.com I. 1 INTRODUCTION 2 Plaintiff Timothy Jaffe asserts eight causes of action against his former 3 employer, Defendant Sedgwick Claims Management Services, Inc. (“Sedgwick”), all 4 arising from events that occurred during Jaffe’s medical leave of absence. (Compl. 5 ¶¶ 2–17, ECF No. 1-2.) Jaffe alleges that Sedgwick failed either to engage in the 6 interactive process or to accommodate his disability, and that a Sedgwick claims 7 examiner falsely informed Jaffe that she had contacted his doctor in connection with 8 the denial of his disability claim. (Id.) Consequently, Jaffe contends that he was left 9 with no other alternative than to resign. (Id.) 10 Sedgwick now moves to dismiss claims one, two, five, six, seven, and eight 11 pursuant to Federal Rule of Civil Procedure 12(b)(6) and moves to strike from the 12 complaint all references to termination and constructive termination. (Mot. 1, 12, 13 ECF No. 12.) For the reasons discussed below, the Court GRANTS Sedgwick’s 14 Motion to Dismiss in its entirety and DENIES AS MOOT Sedgwick’s Motion to 15 Strike.1 II. 16 FACTUAL BACKGROUND 17 Jaffe started working at Sedgwick in 1996. (Compl. ¶ 7.) Due to complications 18 from job-related stress and depression, Jaffe took leave under the Family and Medical 19 Leave Act from January 13, 2015, until approximately March 24, 2015. (Id. ¶¶ 8–11.) 20 During this time, Jaffe alleges that he requested disability benefits from Sedgwick, 21 and that a Sedgwick claims examiner falsely informed him that she had contacted his 22 doctor and found insufficient evidence to support his disability claim. (Id. ¶¶ 12–14.) 23 Consequently, Jaffe was unable to receive full state disability insurance. (Id.) 24 In February 2015, subsequent to the denial of his disability benefits (and while 25 on disability leave), Jaffe alleges that he provided Sedgwick with a note stating that he 26 “was currently unable [to] return to his prior position due to his health.” (Id. ¶ 13.) 27 28 1 After considering the papers filed in connection with the Motions, the Court deemed them appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. 2 1 According to Jaffe, his supervisor responded that Sedgwick did “not have a different 2 position for him after he returned from FMLA leave.” (Id.) 3 Jaffe alleges that Sedgwick failed to engage in a good faith interactive process 4 because Sedgwick never contacted him “to see if there was some reasonable 5 accommodation that could have assisted [Jaffe] to perform the essential functions of 6 his positon.” (Id. ¶¶ 15–16.) Jaffe alleges that the fraudulent statements made by the 7 Sedgwick claims examiner in connection with the denial of his benefits and 8 Sedgwick’s failure to engage in a good faith interactive process left him with no 9 alternative other than to resign. (Id. ¶ 16.) 10 On June 12, 2017, Sedgwick moved to dismiss several claims in Jaffe’s 11 complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 12 12(b)(6). (ECF No. 12.) The motion is now before this Court. 13 III. LEGAL STANDARD 14 A court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 15 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support 16 an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 17 696, 699 (9th Cir. 1988). To survive a motion to dismiss, a complaint need only 18 satisfy the minimal notice pleading requirements of Rule 8(a)(2)—a short and plain 19 statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The 20 factual allegations “must be enough to raise a right to relief above the speculative 21 level . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the 22 complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 The determination of whether a complaint satisfies the plausibility standard is a 25 “context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.” Id. at 679. A court is generally limited to the 27 pleadings and must construe all “factual allegations set forth in the complaint . . . as 28 true and . . . in the light most favorable” to the plaintiff. Lee v. City of L.A., 250 F.3d 3 1 668, 679 (9th Cir. 2001). But a court need not blindly accept conclusory allegations, 2 unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State 3 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 4 As a general rule, a court should freely give leave to amend a complaint that has 5 been dismissed, even if not requested by the plaintiff. See Fed. R. Civ. P. 15(a); 6 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). However, a court may 7 deny leave to amend when it “determines that the allegation of other facts consistent 8 with the challenged pleading could not possibly cure the deficiency.” Schreiber 9 Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986). IV. 10 DISCUSSION 11 Jaffe’s complaint advances eight causes of action: (1) retaliation in violation of 12 the Fair Employment and Housing Act, Cal. Gov’t Code § 12940 et seq. (“FEHA”); 13 (2) disability discrimination in violation of FEHA; (3) failure to accommodate in 14 violation of FEHA; (4) failure to engage in the interactive process in violation of 15 FEHA; (5) failure to prevent discrimination and harassment; (6) interference with and 16 failure to provide leave in violation of the California Family Rights Act (“CFRA”); 17 (7) wrongful constructive termination in violation of FEHA; and (8) wrongful 18 termination in violation of public policy. (ECF No. 1-2) 19 Sedgwick moves to dismiss claims one, two, five, six, seven, and eight on the 20 grounds that Jaffe fails to allege facts sufficient to state a plausible claim for 21 constructive discharge, a requirement for these causes of action. (Mot. 1.) 22 A. Retaliation 23 Jaffe’s first cause of action alleges retaliation by Sedgwick in violation of 24 Subdivision (h) of FEHA. (Compl. ¶¶ 18–24.) Sedgwick moves to dismiss Jaffe’s 25 retaliation claim on the ground that Jaffe has not alleged facts showing that he was 26 engaged in protected activity or that there was a causal link between any activity, 27 protected or otherwise, and his termination. (Mot. 8–9; Reply 8–9, ECF No. 15.) 28 Jaffe argues that his complaint sufficiently alleges that he was on protected medical 4 1 leave when Sedgwick refused to place him in another position as a form of reasonable 2 accommodation, and that shortly thereafter, Sedgwick “lied about communications” 3 with Jaffe’s doctor in connection with the denial of his benefits. (Opp’n 6, ECF No. 4 14.) Thus, Jaffe contends, he sufficiently pleaded a claim for retaliation. (Id.) 5 Under FEHA, it is unlawful “[f]or any employer . . . or person to discharge, 6 expel, or otherwise discriminate against any person because the person has opposed 7 any practices forbidden under this part or because the person has filed a complaint, 8 testified, or assisted in any proceeding under this part.” Cal. Gov’t Code § 12940(h) 9 (emphasis added). To establish a prima facie case of retaliation under FEHA, a 10 plaintiff must plead and prove that: (1) he engaged in a protected activity; (2) the 11 employer subjected him to an adverse employment action; and (3) a causal link 12 existed between his protected activity and the employer’s action. See Dawson v. 13 Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011). 14 Jaffe alleges that his request for an accommodation from Sedgwick was a 15 protected activity. (Compl. ¶ 20.) However, a request for accommodation does not 16 constitute protected activity and is insufficient to state a claim for retaliation. Nealy v. 17 City of Santa Monica, 234 Cal. App. 4th 359, 381 (2015) (holding that “protected 18 activity does not include a mere request for reasonable accommodation . . . . Without 19 more, exercising one’s rights under FEHA to request reasonable accommodation or 20 engage in the interactive process does not demonstrate some degree of opposition to 21 or protest of unlawful conduct by the employer”); Rope v. Auto-Chlor Sys. of Wash., 22 Inc., 220 Cal. App. 4th 635, 652–53 (2013) (holding that there is “no support in the 23 regulations or case law for the proposition that a mere request—or even repeated 24 requests—for an accommodation, without more, constitutes a protected activity 25 sufficient to support a claim for retaliation in violation of FEHA”). 26 The Court recognizes that effective January 1, 2016, AB 987 modified FEHA 27 such that requests for accommodation can constitute protected activity. However, this 28 amendment does not apply retroactively to Jaffe’s claim because “California courts 5 1 comply with the legal principle that unless there is an ‘express retroactivity provision, 2 a statute will not be applied retroactively unless it is very clear from extrinsic sources 3 that the Legislature . . . must have intended a retroactive application.’” Myers v. 4 Philip Morris Cos., Inc., 28 Cal. 4th 828, 841 (2002) (citations omitted). The 2016 5 amendment to FEHA does not state that it is retroactive, and Jaffe does not point to 6 any sources indicating that the Court should apply it retroactively. Jaffe’s request for 7 accommodation is therefore not a basis on which to state a claim for retaliation. 8 Further, the Court is unpersuaded by Jaffe’s argument that his disability leave, 9 the alleged misrepresentation in connection with the denial of his disability benefits, 10 and his alleged request for disability benefits are protected activities pursuant to 11 Subdivision (h). Under FEHA, “protected activity” for purposes of Subdivision (h) 12 requires some level of express opposition to the employer’s actions based on the 13 employee’s reasonable belief that some act, policy, or practice of the employer is 14 unlawful. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028 (2005); Miller v. 15 Dep’t of Corr., 36 Cal. 4th 446 (2005); Fiat v. N. Am. Watch Corp., 2 Cal. App. 4th 16 467 (1992); Monge v. Superior Court, 176 Cal. App. 3d 503 (1986). Jaffe does not 17 allege that he expressly opposed any unlawful act, policy, or practice of Sedgwick. 18 Jaffe merely alleges that he requested an accommodation and took a medical leave of 19 absence, and cites the denial of his disability benefits as the basis for his retaliation 20 claim. (Compl. ¶ 20; Opp’n 6.) Were this sufficient, Jaffe’s definition of protected 21 activity would conflate retaliation with the failure to accommodate or engage in the 22 interactive process. See Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1144 23 (E.D. Cal. 2010) (holding that failing to restrict adverse employment actions to those 24 in response to employee opposition “would significantly blur and perhaps obliterate 25 the distinction between an action for failure to accommodate or engage in the 26 interactive process and retaliation”). Thus, the Court holds that Jaffe failed to plead 27 facts sufficient to establish a protected activity. 28 Therefore, the Court GRANTS Sedgwick’s Motion to Dismiss as to Jaffe’s first 6 1 cause of action with leave to amend. 2 B. Constructive Termination in Violation of Public Policy and FEHA 3 Jaffe’s seventh and eight causes of action allege constructive wrongful 4 termination in violation of public policy and FEHA pursuant to California 5 Government Code section 12940(h). Jaffe bases his constructive discharge allegation 6 on: (1) the intentional misrepresentations about communications with Jaffe’s doctor 7 by a Sedgwick claims examiner in connection with the denial of Jaffe’s application for 8 disability benefits; and (2) Sedgwick’s failure to engage in a good faith interactive 9 process after Jaffe informed his supervisor the he was “unable [to] return to his prior 10 position due to his health.” (Compl. ¶¶ 12–14, 16.) Jaffe contends that these two 11 issues left him with no reasonable alternative but to resign from his employment. (Id. 12 ¶ 16.) 13 To state a claim for wrongful termination in violation of public policy, a 14 plaintiff must demonstrate that: (1) he was terminated; and (2) his dismissal violated a 15 policy that is fundamental, beneficial for the public, and embodied in a statute or 16 constitutional provision. 17 (1994). A constructive discharge may provide the basis for a wrongful termination 18 claim in violation of public policy “when the employer’s conduct effectively forces an 19 employee to resign.” Id. at 1244. Similarly, a constructive discharge can form the 20 basis of a wrongful termination claim under FEHA. See Steele v. Youthful Offender 21 Parole Bd., 162 Cal. App. 4th 1241, 1253 (2008). Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1256 22 “[T]o establish a constructive discharge, an employee must plead and prove . . . 23 that the employer either intentionally created or knowingly permitted working 24 conditions that were so intolerable or aggravated at the time of the employee’s 25 resignation that a reasonable employer would realize that a reasonable person in the 26 employee’s position would be compelled to resign.” Turner, 7 Cal. 4th at 1251. “To 27 be ‘intolerable’ or ‘aggravated,’ the employee’s working conditions must be 28 ‘sufficiently extraordinary and egregious to overcome the normal motivation of a 7 1 competent, diligent, and reasonable employee to remain on the job to earn a livelihood 2 and to serve his or her employer.”’ Steele, 162 Cal. App. 4th at 1253 (citations 3 omitted). Further, the “adverse working conditions must amount to a ‘continuous 4 pattern’ before the situation will be deemed intolerable.” Turner, 7 Cal. 4th at 1247. 5 1. Denial of Disability Benefits 6 A single misrepresentation does not establish a continuous pattern of 7 misconduct, nor is it so intolerable or aggravated that a reasonable employee in Jaffe’s 8 position would feel compelled to resign from his means of earning a livelihood. To 9 the contrary, a reasonable and diligent employee of normal motivation would respond 10 with another viable alternative, such as appealing the denial immediately, rather than 11 feeling compelled to resign months later without contest. The facts also do not 12 indicate that Sedgwick intentionally created or knowingly permitted working 13 conditions so intolerable that it was foreseeable that a reasonable person would feel 14 compelled to resign. 15 Courts have held far worse conditions insufficient to establish a constructive 16 discharge claim. See Rodriguez v. Wells Fargo Bank, Inc., No. 2:15–cv–01303– 17 KJM–CMK, 2016 WL 4595064, at *8 (E.D. Cal. Sept. 2, 2016) (holding that a 18 reasonable juror would not be able to find five racially charged jokes spanning a six- 19 month period as “sufficiently extraordinary and egregious”); Gibson v. Aro Corp., 32 20 Cal. App. 4th 1628, 1636 (1995) (holding that the “demotion of an employee or 21 criticism of his job performance—even if alleged to be unfair or outrageous— . . . 22 does not create the intolerable working conditions necessary to support a claim of 23 constructive discharge” (emphasis omitted)); Turner, 7 Cal. 4th at 1254 (holding that 24 “the mere existence of illegal conduct in the workplace does not, without more, render 25 employment conditions intolerable to a reasonable employee”). 26 Further, a misrepresentation in connection with the denial of Jaffe’s application 27 for disability benefits has little to no impact on his actual working conditions at 28 Sedgwick. At the time of the denial, Jaffe was on disability leave, not performing 8 1 work duties, and was not at his place of employment at any point between the 2 occurrence of the alleged misrepresentation and his resignation. (Compl. ¶¶ 12–14, 3 16.) Thus, the denial of benefits came when Jaffe was off work and therefore could 4 not have substantially affected his working conditions. Moreover, a one-time denial 5 of disability benefits in no way establishes a continuous pattern of employer 6 misconduct required to find the working conditions so intolerable as to support a 7 claim of constructive discharge. Therefore, the Court holds that the facts as they pertain to the denial of Jaffe’s 8 9 disability benefits are insufficient to establish constructive termination. 10 2. Failure to Engage in the Interactive Process 11 The second allegation Jaffe makes to support his claim for constructive 12 termination is that Sedgwick failed to engage in the interactive process and provide 13 him with reasonable accommodations. (Id. ¶¶ 13, 15.)2 Jaffe’s interactive process 14 claim is confined to two isolated incidents: (1) when he allegedly provided a note to 15 Sedgwick stating that he “was currently unable [to] return to his prior position due to 16 his health,” and (2) the alleged reply from Jaffe’s supervisor that Sedgwick did not 17 “have a different position for him after he returns from his FMLA leave.” (Compl. ¶ 18 13.) 19 Jaffe has not alleged any extraordinary or egregious working conditions that 20 would compel a reasonable person to resign. Nor has Jaffe alleged any unusually 21 aggravating factor or reasonable inference that the two isolated incidents were 22 motivated by Sedgwick’s desire for Jaffe to resign. Jaffe could have remained on 23 leave while appealing the denial of his disability benefits and continuing a 24 conversation with Sedgwick regarding reasonable accommodations to sustain his 25 employment. See Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 950 26 (1997) (“Reasonable accommodation . . . envisions an exchange between employer 27 28 2 Jaffe also separately pleaded a substantive claim for failure to engage in the interactive process. (Id. ¶ 15.) 9 1 and employee where each seeks and shares information to achieve the best match 2 between the employee’s capabilities and available positions.”). Instead, Jaffe decided 3 to resign. (Compl. ¶ 16.) Accordingly, the Court holds that Sedgwick’s failure to 4 engage in the interactive process and denial of disability benefits as alleged in the 5 complaint—whether considered individually or together—are not sufficient to 6 establish intolerable work conditions as a matter of law. Thus, Jaffe has not pleaded 7 facts sufficient to support a claim for constructive termination. Therefore, the Court GRANTS Sedgwick’s Motion to Dismiss as to Jaffe’s 8 9 10 seventh and eighth causes of action with leave to amend. C. Disability Discrimination and Failure to Prevent Disability Discrimination 11 Jaffe’s second cause of action alleges disability discrimination, and his fifth 12 cause of action alleges failure to prevent disability discrimination, both in violation of 13 FEHA. (Compl. ¶¶ 5, 10.) Jaffe bases both claims on the allegation that Sedgwick 14 violated FEHA “by terminating [him] from his position on the basis of his disability, 15 failing to engage in the interactive process . . . and failing to provide [him] with a 16 reasonable accommodation.” (Id. ¶ 28.) The Court finds this insufficient. 17 Under FEHA, it is unlawful for an employer “to discriminate against [a] person 18 in compensation or in terms, conditions, or privileges of employment” because of 19 race, gender, or physical disability. Cal. Gov’t. Code § 12940(a). A prima facie 20 disability discrimination case requires the plaintiff to show that he: (1) suffered from a 21 disability, or was regarded as suffering from a disability; (2) could perform the 22 essential duties of the job with or without reasonable accommodations; and (3) was 23 subjected to an adverse employment action because of the disability or perceived 24 disability. Wills v. Superior Court, 195 Cal. App. 4th 143, 159–60 (2011). 25 An “adverse employment action” must be both substantial and detrimental; 26 conduct that is only minor or trivial is insufficient. See Horsford v. Bd. of Tr. of Cal. 27 State Univ., 132 Cal. App. 4th 359, 374 (2005). An “adverse employment action is 28 one that ‘materially affect[s] the compensation, terms, conditions, or privileges of . . . 10 1 employment.’” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). 2 Moreover, the plaintiff’s disability must have been a “substantial motivating factor” in 3 the particular employment decision. Harris v. City of Santa Monica, 56 Cal. 4th 203, 4 232 (2013). 5 through direct evidence or by offering “circumstantial evidence of discrimination that 6 tends to show that the employer’s proffered motives were not the actual motives 7 because they are inconsistent or otherwise not believable.” Achal v. Gate Gourmet, 8 Inc., 114 F. Supp. 3d 781, 801 (N.D. Cal. 2015). The plaintiff can demonstrate an employer’s discriminatory motive 9 As previously discussed, Jaffe fails to allege facts sufficient to support a claim 10 for constructive termination. Thus, Jaffe’s alleged constructive termination also does 11 not constitute an adverse employment action for the purposes of a disability 12 discrimination claim. 13 Further, contrary to Jaffe’s arguments, Jaffe did not allege in the Complaint that 14 he requested a transfer to another position or any accommodations. (See Opp’n 7; 15 Compl. ¶¶ 13–15.) 16 Sedgwick stating that he “was currently unable [to] return to his prior position due to 17 his health” and that Jaffe’s supervisor replied that Sedgwick did not “have a different 18 position for him after he returns from his FMLA leave.” 19 added).) To construe Jaffe’s single informative statement of his temporary inability to 20 return to his prior position as an explicit transfer request requiring action on the part of 21 Sedgwick is to flip the goals of each type of communication on their head—one 22 imparts information, the other requests action. Jaffe merely informed Sedgwick of the 23 temporary nature of his current situation; he was not requesting that Sedgwick take 24 any action. To make the inference that there is a request embedded in a merely 25 informational statement is thus nonsensical. In every case the Court examined, the 26 plaintiff’s transfer request for the purpose of establishing an adverse employment 27 action under FEHA involved an explicit request. See, e.g., Kortan v. State of Cal., 5 28 F. Supp. 2d 843 (1998); Akers v. Co. of San Diego, 95 Cal. App. 4th 14441 (2002). The complaint clearly alleges that Jaffe provided a note to 11 (Compl. ¶ 13 (emphases 1 Therefore, Jaffe has not adequately pleaded facts to show that he requested a transfer 2 from Sedgwick. 3 Moreover, Jaffe has alleged no facts showing any connection between 4 Sedgwick’s conduct and his disability. To state a claim, Jaffe must sufficiently plead 5 that the adverse employment actions taken against him were substantially motivated 6 by disability discrimination. Harris, 56 Cal. 4th at 232. 7 Without alleging additional facts supporting an adverse employment action or 8 the existence of direct or circumstantial evidence of discriminatory motive, Jaffe 9 cannot adequately plead his disability discrimination claim. Id. Further, failure to 10 prevent discrimination is a derivative claim predicated solely on Jaffe’s allegation of 11 disability discrimination. See Trujillo v. North Cnty. Transit Dist., 63 Cal. App. 4th 12 280, 289 (1998) (holding that “[t]here’s no logic that say an employee who has not 13 been discriminated against can sue an employer for not preventing discrimination that 14 didn’t happen, [or] for not having a policy to prevent discrimination when no 15 discrimination occurred”). Thus, Jaffe has not adequately pleaded his fifth cause of 16 action for failure to prevent disability discrimination. Therefore, the Court GRANTS Sedgwick’s Motion to Dismiss as to Jaffe’s 17 18 second and fifth causes of action with leave to amend. 19 D. Violation of CFRA 20 Jaffe’s sixth cause of action alleges that Sedgwick interfered with and failed to 21 provide leave in violation of CFRA when (1) Sedgwick terminated Jaffe in retaliation 22 for exercising his right to protected medical leave; and (2) he was denied benefits in 23 connection with Sedgwick’s alleged misrepresentation. (Compl. ¶¶ 59–60; Opp’n 7– 24 8.) Jaffe contends that both these actions were discriminatory and retaliatory in nature 25 and that Sedgwick “effectively terminated his employment when [Sedgwick] denied 26 [Jaffe] the right to return to work with accommodation.” (Opp’n 8.) 27 “[C]ourts have distinguished between two theories of recovery under the CFRA 28 and the FMLA. ‘Interference’ claims prevent employers from wrongly interfering 12 1 with employees’ approved leaves of absence, and ‘retaliation’ or ‘discrimination’ 2 claims prevent employers from terminating or otherwise taking action against 3 employees because they exercise those rights.” Richey v. AutoNation, Inc., 60 Cal. 4 4th 909, 920 (2015). 5 To plead a cause of action for interference under CFRA, a plaintiff must plead 6 facts establishing that: (1) he was entitled to CFRA leave, and (2) the employer 7 interfered with or denied those rights. Id. at 250. To establish a cause of action for 8 retaliation under CRFA, a plaintiff must plead facts establishing that: (1) the 9 defendant was an employer covered by CFRA; (2) the plaintiff was an employee 10 eligible to take CFRA leave; (3) the plaintiff exercised his right to take leave for a 11 qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment 12 action, such as a termination, fine, or suspension, because of his exercise of his right 13 to CFRA leave. Moore v. Regents of the Univ. of Cal., 248 Cal. App. 4th 216, 248 14 (2016). 15 First, there is insufficient factual support for the allegation that Sedgwick 16 retaliated against Jaffe for exercising his right to protected medical leave. As 17 discussed, the Court has determined that Jaffe has not pleaded facts sufficient to 18 support a claim of constructive termination, discrimination, or retaliation. Thus, the 19 Court holds that Jaffe’s allegation of constructive termination cannot be used to 20 support his CFRA claim. 21 Second, there is insufficient factual support for the allegation that Sedgwick 22 interfered with Jaffe’s right to CFRA leave. The Court is not persuaded that a partial 23 denial of state disability insurance benefits interfered with or resulted in the denial of 24 Jaffe taking CFRA leave. The provisions for obtaining disability benefits and for 25 obtaining CFRA leave are separate and distinct. Cal. Code Regs., tit. 2, § 11092(b). 26 While paid disability leave may be taken concurrently with CFRA leave, CFRA leave 27 does not automatically entitle the employee to benefits. Id. Thus, although the 28 employee would likely prefer to take CFRA leave and disability leave concurrently, a 13 1 denial of disability benefits in no way interferes with an employee’s right to CFRA 2 leave. Accordingly, the Court holds that the denial of Jaffe’s disability benefits is not 3 sufficient to support a claim of interference with CFRA leave. 4 Thus, Jaffe has not pleaded facts sufficient to support his claim that Sedgwick 5 interfered with and failed to provide leave in violation of CFRA. Therefore, the Court 6 GRANTS Sedgwick’s Motion to Dismiss as to Jaffe’s sixth cause of action. 7 E. Motion to Strike 8 Sedgwick moves to strike all references to termination and constructive 9 termination in paragraphs 16, 28, 29, 37, 45, 60, 68, 74, and 75 of the Complaint 10 because Jaffe has failed to state a claim for constructive termination. (Mot. 12–13.) 11 A motion to strike must involve “an insufficient defense or any redundant, immaterial, 12 impertinent, or scandalous matter.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 13 970, 973 (9th Cir. 2010); see Fed. R. Civ. P. 12(f). Immaterial matter “has no 14 essential or important relationship to the claim for relief or the defenses being 15 pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on 16 other grounds, 510 U.S. 517 (1994). Impertinent matter is defined as “statements that 17 do not pertain, and are not necessary, to the issues in question.” Id. “With a motion to 18 strike, just as with a motion to dismiss, the court should view the pleading in the light 19 most favorable to the nonmoving party.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. 20 Supp. 2d 1048, 1057 (N.D. Cal. 2004). 21 Sedgwick’s motion to strike all references to termination and constructive 22 termination is essentially moot in light of the Court’s ruling on the motion to dismiss. 23 Therefore, the Court DENIES AS MOOT Sedgwick’s motion to strike. 24 V. CONCLUSION 25 For the reasons stated above, the Court GRANTS Sedgwick’s Motion to 26 Dismiss Plaintiffs’ Complaint in its entirety and DENIES AS MOOT Sedgwick’s 27 Motion to Strike. The Motion to Dismiss is granted with leave to amend unless 28 otherwise noted. Plaintiff must file an amended complaint within 14 days that cures 14 1 the deficiencies noted in this order. Defendant’s response shall be due 14 days 2 thereafter. 3 4 IT IS SO ORDERED. 5 6 July 24, 2017 7 8 9 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15