The opinion of the court was delivered by: RUDI M. BREWSTER
ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND REQUEST FOR FEES AND COSTS AND DENYING DEFENDANTS' MOTION TO DISMISS
On December 16, 1991, the above-captioned matter came on regularly for hearing before the Honorable Rudi M. Brewster. John C. Wynne, Esq., and Mary L. Topliff, Esq., appeared for plaintiff and Scott C. Cummins, Esq., James N. Foster, Jr., Esq., and Thomas A. Vierling, Esq., appeared for defendants.
Upon consideration of plaintiff's motion to remand and request for fees and costs and defendants' motion to dismiss, the papers filed in opposition, and the arguments presented at the hearing, it is hereby ordered:
1. Plaintiff's motion to remand is denied.
Plaintiff's complaint alleges wrongful termination based on age discrimination and other common law claims; it does not mention the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). Based on the complaint, plaintiff argues that the case should be remanded to state court. Defendants urge this court to find, however, that ERISA preempts those state law claims and that this case was thus properly removed.
Plaintiff's amended complaint causes preemption by ERISA. At paragraph 9 of his complaint he alleges "at the time of his discharge, plaintiff was earning health, life and other insurance and retirement benefits and good annual wages . . . ." Then plaintiff alleges in paragraph 15(d) that defendants engaged in discriminatory actions including "providing less favorable treatment, employment terms and benefits to older workers . . . ." In paragraph 19(d) plaintiff alleges defendants' reason for terminating him was defendants' desire "to create generally a younger work, force and to remove older, sometimes higher salaried employees from the work force . . . ."
Plaintiff contends that the loss of ERISA benefits is a non-critical, merely consequential element of his complaint. Reading his complaint as a whole, however, he is alleging that defendants discriminated against him, based on his age, so that defendants could avoid paying him his salary and his ERISA benefits. The underlying allegation in the complaint is that the lost benefits are not merely the consequences of defendants' actions but were part of the motive for firing defendant, based on his age. Such allegations invoke ERISA preemption. Ingersoll-Rand, supra. Removal was, therefore, proper and plaintiff's motion to remand must be denied.
Because plaintiff's motion to remand is denied, his request for fees and costs in bringing this motion are denied.
2. Defendants' motion to dismiss is denied.
A motion to dismiss should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957).
Defendants bring their motion to dismiss claiming (a) plaintiff's common law causes of action are preempted by California's Fair Employment and Housing Act (FEHA), Cal. Gov't Code § 12,901 et seq, (b) plaintiff's common law causes of action are subject to the exclusive remedies provided in California's Worker's Compensation Act, and (c) plaintiff's claims for inducement of breach of contract cannot stand against parties to the contract in dispute.
a. Preemption of common law claims by FEHA
Plaintiff's second through seventh causes of action are for breach of implied covenant; breach of implied covenant not to discriminate; breach of covenant of good faith and fair dealing; tortious inducement of breach of contract; and ...