Dauth v. Convenience Retaukers, LLC
3:13-cv-00047
N.D. Cal.Sep 24, 2013Background
- Dauth filed a Second Amended Complaint with 13 claims against Convenience Retailers, Pacific Convenience & Fuels, LLC, and Sam Hirbod.
- The twelfth claim seeks relief under California Labor Code § 1102.5 (whistleblower protection).
- The thirteenth claim alleges wrongful termination in violation of California public policy (Tameny claim) against all defendants.
- Defendants moved to dismiss these two claims under Rule 12(b)(6) on August 19, 2013.
- The court granted the motion to dismiss the twelfth and thirteenth claims without prejudice and vacated the September 26, 2013 hearing.
- Amendment deadline for a third amended complaint was set for October 8, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1102.5(c) is adequately pleaded as to protected activity | Dauth alleged engaging in protected activity by opposing or reporting falsified financial statements and relying on GAAP. | GAAP does not constitute a federal or state statute/regulation; no protected activity identified. | Plaintiff failed to identify a statute/regulation; §1102.5(c) claim dismissed without prejudice. |
| Whether Hirbod can be liable under §1102.5(c) as an employer | Plaintiff alleges Hirbod was an employer under an alter-ego theory. | §1102.5(c) liability lies with employers, not individuals; no adequate alter-ego support is shown. | Liability against Hirbod unresolved; need adequate alter-ego allegations if reasserted. |
| Whether the wrongful termination in public policy claim is viable | Discharge violated public policy, anchored in §1102.5. | Claim rests on §1102.5; failure of prima facie §1102.5(c) defeats the Tameny claim; otherwise, must cite a different policy. | Tameny claim dismissed without prejudice, either due to §1102.5 deficiencies or need for a different policy basis. |
Key Cases Cited
- Foley v. Interactive Data Corp., 47 Cal.3d 654 (Cal. 1988) (establishes public policy/wrongful termination framework (Tameny))
- Green v. Ralee Eng’g Co., 19 Cal.4th 66 (Cal. 1998) (requires fundamental public policy for Tameny claims)
- Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (Cal. 1980) (foundation of wrongful termination in violation of public policy)
- Mokler v. County of Orange, 157 Cal.App.4th 121 (Cal. Ct. App. 2007) (elements for prima facie §1102.5 claim)
- Edgerly v. City of Oakland, 211 Cal.App.4th 1199 (Cal. Ct. App. 2012) (§1102.5 requires protected activity to involve violation of law, rule, or regulation)