This case was on calendar on September 14, 2012 for a hearing on defendants' motion to dismiss. 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 dismiss.
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 contained 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 a motion to strike, arguing that what was called the FAC in this court was actually the second amended complaint (SAC) and so required leave of the court.
On May 30, 2012, the court granted the motion to strike in part and denied it in part and dismissed the second amended complaint, though giving plaintiffs leave to file an amended complaint. ECF No. 19.
On June 13, 2012, plaintiffs filed their third amended complaint, which contains four causes of action: intentional misrepresentation; wrongful discharge based on age discrimination; wrongful discharge based on failure to accommodate; and loss of consortium. ECF No. 20.
Defendants have now filed a motion to dismiss, alleging that the wrongful discharge claims are barred by the statute of limitations; the intentional misrepresentation claim is insufficiently pleaded; and the loss of consortium claim fails as the underlying claims may not proceed. ECF Nos. 30-32. Plaintiffs have opposed the motion and defendants have filed a reply.
II. Standards For A Motion To Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
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), in order to survive a motion to dismiss this short and plain statement "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). Determining whether a complaint will survive a motion to dismiss for failure to state a claim 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), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or as a matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion). In this case, the court takes judicial notice of the original complaint filed in Sacramento County Superior Court in order to evaluate defendants' claims based on the statute of limitations. United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (proper to take judicial notice "'of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue.'") (internal citation omitted).
A court may dismiss a claim under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when "the running of the statute is apparent on the face of the complaint. [A] complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Von Saher v. Norton Simon Museum Of Art, 592 F.3d 954, 969 (9th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 3055 (2011) (internal citations and quotation marks omitted).
A. The Statute Of Limitations And The Tameny Claims
Ronald's*fn1 two claims of wrongful discharge are based on Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980). In Tameny, the California Supreme Court held that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id. at 170. Tameny has been construed to apply to employment discrimination prohibited by FEHA, including age and disability discrimination. City of Moorpark v. Superior Court, ...