The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE SECOND CAUSE OF ACTION AND TO STRIKE REQUEST FOR PUNITIVE DAMAGES [doc. #10]
Defendant Protection One Alarm Monitoring, Inc. moves to dismiss the second cause of action and to strike the request for punitive damages found in the first amended complaint ("FAC"). Plaintiff filed a response to the motion but it was stricken for failure to comply with the Civil Local Rules and the Electronic Case Filing Administrative Policies and Procedures Manual. Since plaintiff's response was stricken, plaintiff neither filed a response to the motion nor sought additional time in which to respond to the motion to dismiss.
Under Civil Local Rule 7.1.f.3, "[i]f an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court." Notwithstanding the Local Rule, the Court will review defendant's motions on the merits.
1. MOTION TO DISMISS STANDARD
"The focus of any Rule 12(b)(6) dismissal... is the complaint." Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).
A motion to dismiss should be granted "if plaintiffs have not pleaded 'enough facts to state a claim to relief that is plausible on its face.'" Williams ex rel. Tabiu v. Gerber Products, 523 F.3d 934, 938 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombley, 127 S.Ct. 1955, 1974 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombley, 127 S.Ct. at 1964-1965. The court does not have to accept as true any legal conclusions within a complaint, although conclusions can help frame a complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
2. Second Cause of Action
Plaintiff's second cause of action alleges unlawful retaliation against a whistleblower in violation of California Labor Code § 1102.5. (FAC at 7.) The unlawful retaliation claim is based on plaintiff's objection to defendant's "practice of substituting an inferior product in the place of the one that had initially been presented to the consumer," (Id., ¶ 32.) and plaintiff "rais[ing] and support[ing] the concern of a co-worker regarding alleged sexual harassment."
Labor Code § 1102.5 sets forth in relevant part:
(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
Labor Code § 1102.5(a) & (b).
To invoke Labor Code § 1102.5, a plaintiff must disclose conduct which he ...