Appin v. Mergermarket (U.S.) Ltd.

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICKY L APPIN, Case No. 23-cv-03372-HSG 8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT, GRANTING 10 MERGERMARKET (U.S.) LTD., et al., DEFENDANT ION TRADING INC.’S MOTION TO DISMISS, AND 11 Defendants. DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND 12 Re: Dkt. No. 63, 146, 149 13 14 Pending before the Court are Defendants’ motion for summary judgment, Dkt. No. 149 15 (“Mot.”), 153 (“Opp.”), 160 (“Reply”) and several other motions. See Dkt. Nos. 146 (Plaintiff’s 16 Motion for Leave to File Amended Complaint) and 63 (Defendant Ion Trading Inc.’s Motion to 17 Dismiss). The Court finds these matters appropriate for disposition without oral argument and the 18 matters are deemed submitted. See Civil L.R. 7-1(b). Having carefully considered the parties’ 19 arguments, the Court (1) DENIES Plaintiff’s motion for leave to file an amended complaint, Dkt. 20 No. 146; (2) GRANTS Defendant Ion Trading’s motion to dismiss, Dkt. No. 63; and (3) 21 DENIES in part and GRANTS in part Defendants’ motion for summary judgment, Dkt. No. 149. 22 I. BACKGROUND 23 Plaintiff Ricky L. Appin is a 75-year-old transgender woman who worked as a content 24 editor for Defendant Mergermarket, a financial and data analytics firm, from 2003 until her 25 termination in 2022. That termination is the subject of this litigation. Plaintiff alleges that 26 Mergermarket and other entities in the Ion Trading Group discriminated against her based on her 27 gender, age, and medical history in violation of California’s Fair Employment in Housing Act 1 (“FEHA”) and California’s Family Rights Act (“CFRA”). Mergermarket contends that it 2 terminated Plaintiff Appin’s employment as part of a years-long cost-cutting strategy that replaced 3 all of Mergermarket’s content editors in the United States with lower-paid content editors in India. 4 In March 2024, Plaintiff Appin filed the operative First Amended Complaint, Dkt. No. 51, 5 which asserted eight claims against defendants: (1) age discrimination in violation of FEHA, (2) 6 disability discrimination in violation of FEHA, (3) interference with rights under CFRA, (4) 7 retaliation in violation of CFRA, (5) gender discrimination in violation of FEHA, (6) retaliation in 8 violation of FEHA, (7) wrongful termination in violation of public policy, and (8) breach of 9 contract. Defendants then moved to dismiss Defendant Ion Trading Inc. for lack of personal 10 jurisdiction. Dkt. No. 63. After several months of discovery and while the motion to dismiss 11 remained pending, Plaintiff moved to amend her complaint to add Ion Investment Corporation 12 S.a.r.l as an additional defendant. Dkt. No. 146. Defendants opposed Plaintiff’s motion for leave 13 to amend and then filed this motion for summary judgment. 14 II. DEFENDANT ION TRADING’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION 15 The Court previously granted Defendant Ion Trading’s first motion to dismiss for lack of 16 personal jurisdiction. See Dkt. No. 30. When Plaintiff amended her complaint, she again named 17 Ion Trading as a defendant, alleging that Ion Trading employee Kunal Gullapalli was involved in 18 her termination. See Dkt. No. 51. While the Court did not bar Plaintiff from again naming Ion 19 Trading as a defendant in any amended pleadings, it did warn that to survive a future motion to 20 dismiss, Plaintiff would be required to “present[] new factual allegations that purportedly provide 21 a basis for the Court’s jurisdiction over” Ion Trading. Dkt. No. 49. Plaintiff has not done so. 22 A. Legal Standard 23 “When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears 24 the burden of demonstrating that the court has jurisdiction over the defendant.” Pebble Beach Co. 25 v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). Where, as here, a court decides such a motion 26 without an evidentiary hearing, the plaintiff need only make a prima facie showing of 27 jurisdictional facts to withstand the motion to dismiss. Id.; see also Ballard v. Savage, 65 F.3d 1 1495, 1498 (9th Cir. 1995). The plaintiff’s version of the facts is taken as true for purposes of the 2 motion if not directly controverted, and conflicts between the parties’ affidavits must be resolved 3 in the plaintiff’s favor for purposes of deciding whether a prima facie case for personal jurisdiction 4 exists. AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996); Doe v. Unocal 5 Corp., 27 F. Supp. 2d 1174, 1181 (C.D. Cal. 1998), aff’d, 248 F.3d 915 (9th Cir. 2001). If the 6 defendant submits evidence controverting the allegations, however, the plaintiff may not rely on 7 its pleadings, but must “come forward with facts, by affidavit or otherwise, supporting personal 8 jurisdiction.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (quoting Amba Mktg. Servs., 9 Inc. v. Jobar Int’l, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). 10 Generally, “personal jurisdiction over a defendant is proper if it is permitted by a long-arm 11 statute and if the exercise of that jurisdiction does not violate federal due process.” Pebble Beach, 12 453 F.3d at 1154. In California, the long-arm statute extends jurisdiction to the limits of due 13 process, so the jurisdictional analysis under state and federal law is the same. See id. at 1155; Cal. 14 Civ. Proc. Code § 410.10 (providing that California’s long-arm statute is coextensive with the 15 federal due process clause). To comport with due process, a defendant, if not present in the forum, 16 must have sufficient “minimum contacts” with the forum such that the maintenance of jurisdiction 17 “does not offend ‘traditional notions of fair play and substantial justice.’” World-Wide 18 Volkswagen Corp. v. Woodson, 444 U.S. 286, 291–92 (1980) (quoting Int’l Shoe Co. v. 19 Washington, 326 U.S. 310, 316 (1945)). Depending on the nature of the contacts between the 20 defendant and the forum state, personal jurisdiction is characterized as either general or specific. 21 See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). 22 B. Discussion 23 The Court already addressed this issue at length when it granted Ion Trading’s first motion 24 to dismiss. Dkt. No. 30. The question, then, is whether Plaintiff has raised new factual allegations 25 that would alter the Court’s prior analysis. The Court concludes that Plaintiff has not and 26 accordingly grants Defendant Ion Trading’s second motion to dismiss. 27 /// 1 1. The Court Lacks General Jurisdiction Over Ion Trading Inc. 2 A court may exercise general jurisdiction over a defendant only when that defendant’s 3 “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home 4 in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 129 (2014) (quoting Goodyear, 564 5 U.S. at 919). Corporate defendants are “fairly regarded at home” where they are incorporated and 6 principally do business. Id. at 127. Ion Trading is incorporated in Illinois and headquartered in 7 New York. Dkt. No. 63 at 14. Plaintiff broadly asserts that Ion Trading has “sufficient minimum 8 contacts and activities directed at California” to establish general jurisdiction, including employing 9 at least one California resident and maintaining a website accessible to California consumers. Dkt. 10 No. 70 at 7. But only in “exceptional cases” do courts have personal jurisdiction over corporate 11 defendants outside of the corporation’s place of incorporation and principal place of business. See 12 Ranza v. Nike, Inc., 793 F.3d 1059, 1069 (9th Cir. 2015) (“The paradigmatic locations where 13 general jurisdiction is appropriate over a corporation are its place of incorporation and its principal 14 place of business. Only in an ‘exceptional case’ will general jurisdiction be available anywhere 15 else.”). The alleged contacts that Plaintiff cites do not give rise to such an “exceptional” case and 16 are insufficient to establish general jurisdiction. Plaintiff offers no relevant case law to suggest 17 otherwise. 18 2. The Court Lacks Specific Jurisdiction Over Ion Trading Inc. 19 In order to exercise specific jurisdiction over Ion Trading, Plaintiff’s “claim must be one 20 which arises out of or relates to [Ion Trading’s] forum-related activities.” Axiom Foods, Inc. v. 21 Acerchem Int’l, Inc., 874 F.3d 1064, 1068 (9th Cir. 2017). Plaintiff identifies only one nexus 22 between her claims and Ion Trading: She alleges that Ion Trading executive Kunal Gullapalli was 23 involved in the decision to end her employment. Dkt. No. 70 at 13.1 Plaintiff does not allege any 24 relationship between Mr. Gullapalli and California or otherwise identify any forum-related 25 activities relevant to her claim that Ion Trading undertook in California. To the extent that 26 27 1 Mr. Gullapalli attested in a sworn declaration that he “was acting solely on behalf of 1 Plaintiff again raises the agency theory that the Court rejected in ruling on Ion Trading’s first 2 motion to dismiss, the Court continues to find that this theory rests on unsupported and conclusory 3 assertions. See Dkt. No. 30 at 6. 4 Since the Court finds that it does not have either general or specific personal jurisdiction 5 over Ion Trading, it grants Ion Trading’s second motion to dismiss. Dkt. No. 63. The case will 6 proceed against the remaining defendants. 7 III. PLAINTIFF’S MOTION FOR LEAVE TO AMEND 8 Plaintiff seeks leave to file a second amended complaint under Federal Rule of Civil 9 Procedure 16 that would add Ion Investment Corporation S.a.r.l. as an additional defendant. Dkt. 10 No. 146. The Court denies Plaintiff’s motion. 11 A. Legal Standard 12 A party seeking to amend a pleading after the expiration of the deadline set in a scheduling 13 order “must satisfy the ‘good cause’ standard of Federal Rule of Civil Procedure 16(b)(4), which 14 provides that ‘[a] schedule may be modified only for good cause and with the judge’s consent,’ 15 rather than the liberal standard of Federal Rule of Civil Procedure 15(a).” In re W. States 16 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013), aff’d sub nom. Oneok, Inc. 17 v. Learjet, Inc., 135 S. Ct. 1591 (2015). The Ninth Circuit has stated that: 18 Rule 16(b)’s “good cause” standard primarily considers the diligence of the party seeking 19 the amendment . . . . Although the existence or degree of prejudice to the party opposing 20 the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking modification. If that party was not diligent, 21 the inquiry should end. 22 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (citation omitted); see 23 also 6A Wright & Miller, et al., Fed. Prac. & Proc. § 1522.2 (3d ed. 2018) (“What constitutes 24 good cause sufficient to justify the modification of a scheduling order necessarily varies with the 25 circumstances of each case.”). 26 B. Discussion 27 Plaintiff filed her operative amended complaint on March 14, 2024, the day before the 1 Court’s scheduled deadline to amend pleadings in this matter. See Dkt. No. 38. Over the next 2 several months, the Court repeatedly extended the parties’ discovery deadlines and modified their 3 case schedule. See Dkt. Nos. 99, 121. At no point did Plaintiff seek to amend the scheduling 4 order to further amend her pleadings. Plaintiff states that she did not learn about Ion Investment 5 Corporation S.a.r.l.’s potential involvement in the case until October 2, 2024, just five days before 6 the parties’ discovery deadline. Dkt. No. 146 at 7; Dkt. No. 121. Almost one month later, she 7 filed this motion for leave to amend. Plaintiff’s request to amend after the close of extended 8 discovery, months after the deadline to amend passed, and nearly one month after she learned 9 about Ion Investment Corporation S.a.r.l.’s purported potential liability does not demonstrate 10 diligence. See Schwerdt v. Int’l Fidelity Ins. Co., 28 F. App’x 715, 719 (9th Cir. 2002) (a one- 11 month delay in filing after learning facts from a witness’s deposition did not constitute diligence 12 under Rule 16); MiCamp Sols. LLC v. Nat’l Processing LLC, No. CV-19-05468-PHX-MTL, 2021 13 WL 289661, at *3 (D. Ariz. Jan. 28, 2021) (“[B]y waiting until the close of discovery, and nearly 14 one year after the amendment deadline, Plaintiff has not demonstrated the diligence required under 15 Rule 16’s good cause standard.”). Nor did Plaintiff demonstrate why she was unable to identify 16 Ion Investment Corporation S.a.r.l as a potential defendant at an earlier stage in the proceedings. 17 See Wells Fargo Bank, N.A. v. Renz, No. C 08-02561 SBA, 2010 WL 2867615, at *3 (N.D. Cal. 18 July 20, 2010). 19 Moreover, “while the focus of the good cause inquiry rests on the moving party’s 20 diligence, the Court also considers the possibility of prejudice to the nonmoving party.” Ross v. 21 AT&T Mobility, LLC, No. 19-CV-06669-JST, 2020 WL 9848733, at *4 (N.D. Cal. Dec. 18, 2020). 22 Here, the Court agrees with Defendants that granting leave to amend, again, would result in undue 23 prejudice. Adding an additional defendant would necessitate additional time for discovery and 24 new dispositive motions even though both such deadlines already passed. See In re Fritz 25 Companies Securities Litigation, 282 F.Supp.2d 1105, 1109 (N.D. Cal. 2003) (“Indicators of 26 prejudice include a need to reopen discovery or the addition of complaints or parties.”). Litigation 27 in this matter has been ongoing since July 2023, and trial is set for mid-March 2025. Further 1 modify the pre-trial schedule, which would result in prejudice in the form of delay to other 2 parties.” Wells Fargo Bank, 2010 WL 2867615, at *4. Since the Court finds that Plaintiff has not 3 satisfied the good cause standard of Federal Rule of Civil Procedure 16, the Court denies 4 Plaintiff’s motion for leave to amend. 5 IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 6 Defendant Mergermarket moved for summary judgment, arguing that “there is no triable 7 issue as to any material fact for any claim set forth in the FAC against Defendants.” Mot. at 6. 8 The Court concludes that genuine issues of material fact preclude summary judgment on 9 Plaintiff’s discrimination, retaliation, interference, and wrongful termination claims. The Court 10 grants summary judgment as to Plaintiff’s breach of contract claim. 11 A. Legal Standard 12 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 13 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 14 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 15 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence 16 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 17 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from 18 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 19 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and “may not weigh the evidence 20 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), 21 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir. 2008). “If, 22 however, a moving party carries its burden of production, the nonmoving party must produce 23 evidence to support its claim or defense.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 24 1099, 1103 (9th Cir. 2000). In doing so, the nonmoving party “must do more than simply show 25 that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 26 U.S. at 586. A nonmoving party must also “identify with reasonable particularity the evidence 27 that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). If a 1 summary judgment in favor of the movant. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 2 B. Discussion 3 1. Plaintiff’s FEHA Discrimination Claims 4 Plaintiff alleges that Mergermarket discriminated against her on the basis of her age, 5 disability, and gender in violation of FEHA. FEHA prohibits employers from discriminating 6 against employees on several grounds, including gender, age, and disability. Cal. Gov’t Code § 7 12940(a). Under FEHA, a plaintiff may “‘give rise to an inference of unlawful discrimination,’ 8 either through the framework set forth in McDonnell Douglas Corp. v. Green or with direct or 9 circumstantial evidence of discriminatory intent.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 10 640 (9th Cir. 2003), as amended (Jan. 2, 2004). Generally, the plaintiff bears the initial burden to 11 establish a prima facie case of discrimination. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 12 1220 (9th Cir. 1998). However, “[w]hen an employer moves for summary judgment . . . ‘the 13 burden is reversed . . . because the defendant who seeks summary judgment bears the initial 14 burden.” Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 745 (9th Cir. 2011) 15 (quoting Hanson v. Lucky Stores, Inc., 87 Cal. Rptr. 2d 487, 493 (1999)). Therefore, “[t]o prevail 16 on summary judgment, [the employer is] required to show either that (1) plaintiff could not 17 establish one of the elements of [the] FEHA claim or (2) there was a legitimate, nondiscriminatory 18 reason for its decision to terminate plaintiff’s employment.” Id. (quoting Avila v. Cont’l Airlines, 19 Inc., 82 Cal. Rptr. 3d 440, 449 (2008)). Here, Defendant adopts the latter approach, arguing that it 20 terminated Plaintiff Appin’s employment for a legitimate, non-discriminatory reason. Mot. at 20– 21 25. 22 To establish a legitimate, nondiscriminatory reason for its decision to terminate Plaintiff 23 Appin, Mergermarket must demonstrate that “the procedure by which [Appin] was terminated was 24 validly and fairly devised and administered to serve a legitimate business purpose.” Hanson, 87 25 Cal. Rptr. 2d at 492–93 (internal citations omitted). Then, the “burden then shifts to the employee 26 to prove that ‘the proffered justification is mere pretext.’” Id. Here, Mergermarket contends that 27 it terminated Plaintiff Appin’s employment in order to “take advantage of the lower costs 1 gender, or putative disability—it was about Mergermarket’s bottom line.” Mot. at 21. Plaintiff 2 Appin disputes this characterization, instead arguing that Mergermarket terminated her 3 employment because (1) she was an unfavorable “legacy asset” compared to younger co-workers, 4 (2) the company did not want transgender employees, and (3) she had a disability that required 5 surgery. Opp. at 18–23. 6 As the Ninth Circuit has repeatedly instructed, “very little evidence is necessary to raise a 7 genuine issue of fact regarding an employer’s motive; any indication of discriminatory motive 8 may suffice to raise a question that can only be resolved by a fact-finder.” Nicholson v. Hyannis 9 Air Serv., Inc., 580 F.3d 1116, 1127 (9th Cir. 2009). See Chuang v. Univ. of California Davis, Bd. 10 of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Schnidrig v. Columbia Mach., Inc., 80 11 F.3d 1406, 1410 (9th Cir. 1996) (“As a general matter, the plaintiff in an employment 12 discrimination action need produce very little evidence in order to overcome an employer’s 13 motion for summary judgment. This is because ‘the ultimate question is one that can only be 14 resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, 15 upon a full record.’”). 16 Here, Plaintiff has met that low bar. With regard to Plaintiff’s disability, for example, a 17 reasonable factfinder could conclude that comments by Mergermarket Human Resources staff, 18 including “[i]t seems like you get hurt or have some health issue every year,” coupled with the 19 timing of Plaintiff’s termination—just two weeks before her scheduled surgery—indicates a 20 discriminatory motive. Opp. at 29.2 As to Plaintiff’s age, a factfinder must determine whether 21 Mergermarket’s references to Plaintiff as a “legacy asset” and decision to retain younger 22 employees performing similar work constituted age discrimination or simply reflected corporate 23 cost-cutting. Plaintiff’s FEHA gender discrimination claim is similarly fact-intensive. At trial, for 24 instance, the factfinder will be left to determine whether extensive misgendering can give rise to 25 discrimination, or whether Plaintiff’s termination (alongside several cisgender individuals) was 26 unrelated to her gender identity. See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 27 1 1039 (9th Cir. 2005) (“[W]e have repeatedly held that a single discriminatory comment by a 2 plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the 3 employer.”). Drawing all reasonable inferences in favor of Plaintiff, there is at least one genuine 4 dispute of material fact as to the reasons for Plaintiff’s termination that precludes the Court from 5 resolving Plaintiff’s FEHA discrimination claims at the summary judgment stage. See Gonzales v. 6 Organogenesis, Inc., 766 F. App’x 474, 476 (9th Cir. 2019) (“Summary judgment is ‘generally 7 unsuitable’ for employment discrimination cases . . . because of the elusive factual question of 8 intentional discrimination.”). Accordingly, the Court denies summary judgment with respect to 9 those claims. 10 2. Retaliation Claims in Violation of CFRA and FEHA 11 Plaintiff alleges that Mergermarket retaliated against her for “exercising her right to take 12 medical leave” in violation of CFRA and for not “treat[ing] [her] fairly after the ION Group 13 acquisition” of Mergermarket in violation of FEHA. Dkt. No. 51 at 12, 15. “[T]he elements of a 14 cause of action for retaliation in violation of CFRA . . . are as follows: (1) the defendant was an 15 employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) 16 the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff 17 suffered an adverse employment action, such as termination . . . because of her exercise of her 18 right to CFRA leave.” Cross v. United Airlines, 317 F. App’x 615, 618 (9th Cir. 2008) (quoting 19 Avila, 165 Cal. App. 4th at 1254). The elements of a claim for retaliation in violation of FEHA 20 are similar: “(1) the employee’s engagement in a protected activity, i.e., “oppos[ing] any practices 21 forbidden under this part”; (2) retaliatory animus on the part of the employer; (3) an adverse action 22 by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) 23 damages; and (6) causation.” Mamou v. Trendwest Resorts, Inc., 165 Cal. App. 4th 686, 713 24 (2008). Here, both retaliation claims essentially turn on the relationship between Plaintiff’s 25 allegedly unfair treatment (FEHA) / decision to take medical leave (CFRA) and the termination of 26 her employment. 27 As with the discrimination claims above, Plaintiff’s retaliation claims raise factual disputes 1 even aware that Plaintiff would (1) undergo surgery in September 2022 and (2) take leave 2 following her surgeries. Mot. at 25; Opp. at 153. The parties similarly dispute whether decisions 3 regarding Plaintiff’s bonus were tied to her corporate value or her email requests following 4 Mergermarket’s acquisition. Mot. at 26; Dkt. No. 51 at 15. And underlying both retaliation 5 claims is the parties’ fundamental and highly factual disagreement as to the actual reason for 6 Plaintiff’s termination—legitimate business reasons, as Defendants claim, or the retaliatory 7 reasons that Plaintiff alleges. That fact-bound determination, however, is not appropriate for the 8 Court to make at the summary judgment stage. Accordingly, the Court denies summary judgment 9 as to Plaintiff’s retaliation claims. 10 3. CFRA Interference Claim 11 Plaintiff alleges that Mergermarket prevented her from “exercising her right to take 12 medical leave” and from “taking future leave” in violation of CFRA when it terminated her 13 employment just twelve days before her scheduled surgery. Dkt. No. 51 at 10; Opp. at 30. 14 Mergermarket argues that Appin is unable to “establish that she asked for and was denied leave.” 15 Mot. at 27.3 16 Under the CFRA, employers may not “interfere with, restrain, or deny the exercise of, or 17 the attempt to exercise, any right” provided by the CFRA. Cal. Gov’t Code § 12945.2(q). In 18 order to prevail on a CFRA claim, “[p]laintiff must show that: ‘(1) the defendant was an employer 19 covered by the CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the 20 plaintiff exercised [his] right to take leave for a qualifying CFRA purpose; and (4) the plaintiff 21 suffered an adverse employment action, such as termination, fine, or suspension, because of [his] 22 exercise of [his] right to CFRA leave.’” Alejandro v. ST Micro Elecs., Inc, 178 F. Supp. 3d 850, 23 24 3 Defendants’ summary judgment arguments seemingly focus on Plaintiff’s January 2022 injury. Mot. at 27. However, Plaintiff’s complaint addresses both “her past and future medical leave,” 25 including her scheduled September 2022 surgery. Dkt. No. 51 at 10. That said, the complaint seemingly pleads an interference argument only with regard to the September 2022 surgery. See 26 Dkt. No. 51 at 10 (“Defendant interfered with Plaintiff’s CFRA rights because they knew she was going to be needing surgery and they anticipated she would take leave. They terminated her 27 employment twelve (12) days before said surgery was scheduled.”). 1 864 (N.D. Cal. 2016) (quoting Dudley v. Dep’t of Transp., 108 Cal. Rptr. 2d 739 (2001)); see 2 Moore v. Regents of Univ. of California, 206 Cal. Rptr. 3d 841, 869 (2016) (“A CFRA 3 interference claim ‘consists of the following elements: 1) the employee’s entitlement to CFRA 4 leave rights; and (2) the employer’s interference with or denial of those rights.”). 5 Mergermarket moves for summary judgment on Plaintiff’s CFRA interference claim on the 6 ground that “Appin cannot meet a basic element of her claims because she did not exercise her 7 right to take or otherwise request qualifying leave.” Reply at 16. Specifically, Mergermarket 8 contends that “[t]o raise a triable issue of fact as to her CFRA interference claim, Appin must 9 establish that she ‘asked for and was denied leave.’” Mot. at 27 (quoting Choochagi v. Barracuda 10 Networks, Inc., 60 Cal. App. 5th 444, 455 (2020)). “Both the CFRA and the FMLA require the 11 employee to provide notice to the employer of the employee’s intent to take leave . . . . under the 12 CFRA, ‘[t]he employee need not expressly assert rights under CFRA or FMLA, or even mention 13 CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the 14 leave is needed.’” Alejandro, 178 F. Supp. 3d at 865 (quoting Avila, 82 Cal. Rptr. 3d at 446). 15 Plaintiff contends that her manager, Yana Morris, was aware that she would undergo surgery in 16 September 2022 such that the company was “on notice” of her forthcoming need for leave. Opp. 17 at 30. The record is muddy on this point. Mergermarket acknowledges that “Plaintiff did inform 18 her content editing team that she scheduled a surgery for August 29, 2022, and she referred to 19 having a revision surgery in a September 7, 2022 communication with Yana Morris,” Dkt. No. 20 153-1. However, Ms. Morris stated that “Ms. Appin [did] not inform[] me that her leg injury 21 required any additional surgery at the time Mergermarket made the decision to terminate her 22 employment or during our meeting on September 14, 2022.” Dkt. No. 149-4. Since there is at 23 least one material dispute as to whether Plaintiff Appin sufficiently provided notice as required 24 under the CFRA, the Court denies summary judgment on Plaintiff’s CFRA interference claim. 25 4. Wrongful Termination 26 Mergermarket argues that Plaintiff’s wrongful termination claim is premised on and 27 derivative of Plaintiff’s discrimination and retaliation claims. Mot. at 27–28. Mergermarket 1 wrongful termination claim. Since the Court denied summary judgment as to Plaintiff’s 2 discrimination and retaliation claims and since Mergermarket offers no alternative arguments in 3 favor of summary judgment on this claim, the Court denies Mergermarket’s motion for summary 4 judgment as to it. 5 5. Breach of Contract 6 Plaintiff’s breach of contract claim is based on a comment from Mergermarket’s CEO in 7 2018 that Defendants would “take care of” Plaintiff when she retired. Dkt. No. 51 at 17; Opp. at 8 10. Mergermarket argues that this claim fails as a matter of law because (1) the statement is not an 9 enforceable contract and (2) a company can both “take care” of an employee in retirement and 10 terminate the employee’s employment. Mot. at 28. California law supports Mergermarket’s 11 position. See Barton v. Elexsys Int’l, Inc., 73 Cal. Rptr. 2d 212, 218 (1998) (holding that a 12 company’s “only representation” made “in general terms” that executives “be taken care of” was 13 “simply too vague and uncertain to constitute an enforceable contract.”). See also Shorter v. 14 Peaches Uniforms, Inc., No. 2:10-CV-02232-MCE, 2013 WL 268708, at *5 (E.D. Cal. Jan. 23, 15 2013). Given the factual similarities between this matter and Barton, the Court finds that 16 Mergermarket’s vague promise to “take care of” Plaintiff is not an enforceable contract. Since 17 Plaintiff’s breach of contract claim fails as a matter of law, the Court grants Mergermarket’s 18 motion for summary judgment on this claim. 19 6. Punitive Damages 20 Plaintiff alleges that Defendants’ actions “amount[ed] to ‘oppression, fraud, or malice’ 21 under Government Code § 3294 so as to warrant an award of punitive . . . damages.” Dkt. No. 51 22 at 8. Plaintiff cites Cal. Civ. Code § 3294, which allows for punitive damages only when “it is 23 proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, 24 or malice” and limits corporate employer liability to instances where an officer, director, or 25 managing agent has advance knowledge and consciously disregards, authorizes, or ratifies the 26 wrongful conduct. “‘Malice’ means conduct which is intended by the defendant to cause injury to 27 the plaintiff or despicable conduct which is carried on by the defendant with a willful and 1 despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of 2 that person's rights.” Civ. § 3294(c)(2). Finally, “[i]n the usual case, the question of whether the 3 defendant’s conduct will support an award of punitive damages is for the trier of fact, ‘since the 4 degree of punishment depends on the peculiar circumstances of each case.’” Spinks v. Equity 5 Residential Briarwood Apartments, 171 Cal. App. 4th 1004, 1053 (2009). 6 Here, Mergermarket moves for summary judgment on the ground that Plaintiff Appin 7 cannot establish that Mergermarket engaged in any such fraudulent, oppressive, or malicious 8 conduct. Mot. at 29. Having reviewed the evidence in the record, the Court cannot conclude as a 9 matter of law at this stage that no reasonable jury could find clear and convincing evidence that 10 Mergermarket acted with “willful and conscious disregard” of Plaintiff’s rights (malice) or 11 inflicted “cruel and unjust hardship” upon her “in conscious disregard” of her rights (oppression). 12 See Cal. Civ. Code § 3294(c)(1)-(2). Instead, this is the “usual case” in which an assessment of 13 whether Plaintiff’s evidence can clear the high bar necessary to recover punitive damages must 14 await the presentation of a full factual record at trial. See Spinks, 171 Cal. App. at 1053. 15 V. CONCLUSION 16 The Court DENIES Mergermarket’s motion for summary judgment, Dkt. No. 149, as to 17 Plaintiff’s discrimination, retaliation, interference, and wrongful termination claims. The Court 18 GRANTS summary judgment on Plaintiff’s breach of contract claim.4 The Court’s summary 19 judgment holdings here are based on the stringent standards for obtaining summary judgment in 20 employment cases, and the Court expresses no view as to whether a jury ultimately will find 21 Plaintiff’s case persuasive. See Yartzoff v. Thomas, 809 F.2d 1371, 1377–78 (9th Cir. 1987). 22 The Court further DENIES Plaintiff’s motion for leave to amend, Dkt. No. 146, and 23 GRANTS Defendant Ion Trading’s second motion to dismiss, Dkt. No. 63. Finally, the Court 24 4 The Court denies Plaintiff’s request, under Federal Rule of Civil Procedure 56(d), for additional 25 time for discovery. See Opp. at 33. Plaintiff has not met the plain requirements of a Rule 56(d) request. Specifically, Plaintiff has not demonstrated “by affidavit or declaration that for specified 26 reasons, [she] cannot present facts essential to justify [her] opposition.” Fed. R. Civ. P. 56(d). Rather, Plaintiff broadly alleges that “Defendants have actively blocked Plaintiff’s ability to 27 prosecute her case.” Opp. at 33. In light of this conclusory request and the ample discovery that 1 SETS a case management conference on February 11, 2025. The hearing will be held by Public 2 Zoom Webinar at 2:00 p.m. All counsel, members of the public, and media may access the 3 webinar information at https://www.cand.uscourts.gov/hsg. All attorneys and pro se litigants 4 appearing for the case management conference are required to join at least 15 minutes before the 5 hearing to check in with the courtroom deputy and test internet, video, and audio capabilities. 6 7 IT IS SO ORDERED. 8 Dated: 2/4/2025 9 . S. GILLIAM, JR. □□ 10 United States District Judge 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28