This case was on calendar on April 27, 2012 for a hearing on defendants' motion to strike and for other relief. The court ordered the matter submitted on the moving papers. L.R. 230(g). After considering the parties' papers, the court DENIES in part and GRANTS in part the motion to strike and GRANTS plaintiffs leave to file a third amended complaint.
On June 1, 2011, plaintiffs filed a complaint in Sacramento County Superior Court, alleging causes of action for wrongful termination in retaliation for union activity, wrongful termination as the result of age discrimination, breach of contract and loss of consortium against defendants KCRA-TV, Hearst-Argyle Stations, Inc., The Hearst Corporation, Hearst Television, Inc., and Does 1-200. ECF No. 12, Motion To Strike, Ex. 1. Plaintiffs filed a first amended complaint in the superior court on November 30, 2011, alleging three causes of action: breach of contract, wrongful termination in retaliation for union activities, and loss of consortium. ECF No. 1, Notice of Removal, Ex. 1. Defendants removed the action to this court on January 12, 2012 and filed a motion to dismiss on January 19, 2012. Id. & ECF No. 6. This motion was denied as moot when plaintiffs filed what they characterized as a first amended complaint (FAC) on February 9, 2012. ECF Nos. 7 & 9. This complaint contains five causes of action: breach of contract, intentional misrepresentation, wrongful termination as the result of age discrimination, wrongful termination based on disability discrimination, and loss of consortium. ECF No. 7.
On March 22, 2012, defendants filed the pending motion to strike, arguing that what was called the FAC in this court is actually the second amended complaint (SAC) and so requires leave of the court. They also argue that if the court construes the SAC as a motion to amend, the motion should be denied as futile, as the SAC fails to state a claim. ECF No. 12. Plaintiffs concede that the SAC was improperly filed because they had not received permission to file it but argue that the amendment should be allowed.
II. Standard For Amending A Complaint
Federal Rule of Civil Procedure 15(a)(2) states "[t]he court should freely give leave [to amend its pleading] when justice so requires" and the Ninth Circuit has "stressed Rule 15's policy of favoring amendments." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). "In exercising its discretion [regarding granting or denying leave to amend] 'a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). However, "the liberality in granting leave to amend is subject to several limitations. Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay." Ascon Properties,866 F.2d at 1160 (internal citations omitted). "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). However, a "proposed amendment is futile only if no set of facts can be proven under the amendment that would constitute a valid and sufficient claim," Miller v. Rykoff--Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), or when the proposed amended claims would inevitably be defeated on summary judgment. California ex rel. California Dept. of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661, 674-75 (9th Cir. 2004).
Defendants argue that the motion to amend should be denied because the new complaint fails to state a claim, rendering amendment futile.
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), to state a claim, it "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). This evaluation is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation.'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555).
In the proposed SAC, plaintiffs allege that on June 5, 2009, defendants told plaintiff Ronald Middlekauff (Ronald) that his employment at KCRA-TV would be terminated effective July 3, 2009; that he would be offered a comparable position if one came open; and that a position came open but it was not offered to him. ECF No. 7 ¶¶14-15. Ronald further alleges that "valuable consideration was exchanged for all promises." Id. ¶ 14.
In California, a cause of action for breach of contract has four elements: (1) the contract, (2) plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff. Hamilton v. Greenwich Investors XXVI, LLC., 195 Cal.App.4th 1602, 1613 (2011); Alberts v. Razor Audio, Inc., Civ. No. 10-1215 KJM DAD, 2012 WL 530427, at *8 (E.D. Cal. Feb. 17, 2012). Defendants argue that plaintiffs have not sufficiently alleged the existence of a contract; plaintiffs counter that the letter outlining the conditions was attached to the SAC and that they can supply the missing elements. They concede, however, that the claim "will probably not survive a motion for summary judgment." ECF No. 14 ...