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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 HAIDEE SANCHEZ, an individual, Case No. 2:23-cv-05906-WLH-AS 11 Plaintiff, ORDER REGARDING MOTION TO 12 DISMISS [15] AND MOTION TO 13 v. REMAND [18]

14 THE ELEVANCE HEALTH COMPANIES, INC., an Indiana

15 corporation; Does 1-50, inclusive,

16 Defendants.

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19 Plaintiff Haidee Sanchez (“Plaintiff”) filed a Motion to Remand to Los Angeles 20 Superior Court. (Docket No. 25). Defendant The Elevance Health Companies, Inc. 21 (“Defendant” or “Elevance”) filed a Motion to Dismiss. (Docket No. 15). For the 22 reasons set forth below, the Court DENIES Plaintiff’s Motion to Remand and 23 GRANTS Defendant’s Motion to Dismiss. 24 I. BACKGROUND 25 A. Procedural History 26 Plaintiff sued Defendant and Does 1-50 in Los Angeles Superior Court alleging 27 the following claims under California’s Fair Employment and Housing Act 28 1 (“FEHA”): disability discrimination, failure to provide reasonable accommodation, 2 failure to provide timely good faith interactive process, failure to prevent 3 discrimination, and wrongful termination. (Pl. Opp’n to Mot. to Dismiss, Docket No. 4 19 at 1). Plaintiff filed a First Amended Complaint (“FAC”) in Superior Court to 5 rectify an inadvertent caption error. (Id.). Defendant then removed the case to this 6 Court. (Notice of Removal. Docket No. 1). 7 Defendant moved to dismiss the case. (Docket No. 15). While the Motion to 8 Dismiss was pending, Plaintiff moved to remand the case to Los Angeles Superior 9 Court. (Docket No. 18). The Court found both motions suitable for decision without 10 oral argument pursuant to Federal Rule of Civil Procedure 78 and took them under 11 submission. (Order, Docket No. 28). 12 B. Factual Background 13 The Court views the facts in the light most favorable to Plaintiff. Plaintiff 14 worked for nearly twenty years at The Anthem Companies, Inc., Defendant’s 15 predecessor, starting in 2000. (First Am. Compl. “FAC,” Docket No. 1-3 ¶ 15). In 16 September 2021, Plaintiff suffered a ruptured brain aneurysm that required surgery 17 and extended hospitalization. (Id. ¶ 19). Thereafter, Plaintiff was “also diagnosed 18 with secondary conditions including anxiety, irritability, and impaired concentration.” 19 (Id.). Plaintiff was out of work for over one year and returned to work on October 16, 20 2022, at which point Anthem Companies, Inc. had become The Elevance Health 21 Companies, Inc.. (Id. ¶¶ 20, 21). 22 Prior to the surgery, Plaintiff “consistently [met] and often exceed[ed] her 23 supervisor’s expectations.” (Id. ¶ 22). Following the procedure, Plaintiff 24 “experienced recuperative symptoms along with a few unforeseen post-surgery 25 complications.” (Id. ¶ 23). Plaintiff also had to face “unforeseen hurdles” associated 26 with the “substantial changes in workflow, processes and procedures of [her 27 employer] post-acquisition.” (Id. ¶ 25). Despite Plaintiff’s efforts, her surgery and 28 1 hospitalization “hindered her ability to perform at the same level as she did prior to 2 her surgery.” (Id. ¶ 27). “In or about January 2023,” Plaintiff submitted a medical 3 leave form, completed by her physician, to the human resources department. 4 (Id. ¶ 28). In response to the form’s question regarding the probable duration of 5 medical condition, Plaintiff’s physician responded, “[U]nable to determine.” 6 (Id. ¶ 29). The request for medical leave was denied. (Id. ¶ 30). 7 Thereafter, Plaintiff asked her physician for a CT scan so that she could 8 establish a return-to-work date. (Id. ¶ 31). While she was waiting for her CT scan, on 9 January 26, 2023, Defendant informed Plaintiff that she was “under performing at her 10 job responsibilities and that she had thirty (30) days to show improvement.” 11 (Id. ¶ 33). Prior to the expiration of the thirty-day period, and before the planned CT 12 scan, an unnamed supervisor terminated Plaintiff. (Id.). 13 II. DISCUSSION 14 A. Motion to Remand1 15 The Court DENIES Plaintiff’s Motion to Remand. (Docket No. 18). Under 28 16 U.S.C. § 1332, federal district courts have jurisdiction over matters where the amount 17 in controversy exceeds $75,000, and there is complete diversity. For diversity 18 purposes, a corporation is deemed to be a citizen of the state(s) in which it was 19 incorporated and in which the corporation has its principal place of business. 28 20 U.S.C. § 1332(c)(1). A corporation’s principal place of business is defined as the 21

22 1 Defendant argues that the Court should not consider Plaintiff’s Motion to Remand 23 because Plaintiff did not comply with this Court’s Standing Order, which requires that parties “meet and confer either by videoconference or in person,” rather than via email 24 as occurred here. (Standing Order, Docket No. 13 at 10). Though the Court admonishes the parties that failure to comply with applicable rules may result in the 25 Court striking future motions, the Court considers the Motion to Remand on the merits because Plaintiff’s meet and confer efforts complied with Local Rule 7-3 and 26 Plaintiff’s counsel noted that his failure to comply with the Court’s Standing Order 27 was inadvertent. (Pl. Reply re: Motion to Remand, Docket No. 25 at 3 (“Mr. Parsa missed the Court’s implicit preference against email…” and “extends his apologies to 28 the Court.”). | | place “where a corporation’s officers direct, control, and coordinate the corporation’s 2 activities,” 1.e. “the corporation’s ‘nerve center.” Hertz Corp. v. Friend, 559 U.S. 77, 3 | 92-93 (2010); see also Harris v. Rand, 682 F.3d 846, 851 (9th Cir. 2012) (“[A] 4 principal place of business ‘should normally be the place where the corporation 5 | maintains its headquarters—provided that the headquarters is the actual center of 6 | direction, control, and coordination... .”) (quoting Hertz, 559 U.S. at 92). In Hertz 7 Corporation v. Friend, the Supreme Court rejected a test that looked to the amount of 8 | the corporation’s business activities in any particular state, favoring the nerve center ? approach as more administrable and less likely to “lead to strange results.” Hertz, 559 10 | U.S. at 93-94 (“[I]f a ‘corporation may be deemed a citizen of California on th[e] 11 | basis’ of ‘activities [that] roughly reflect California's larger population...nearly every 12 | national retailer—no matter how far flung its operations—will be deemed a citizen of 13 | California for diversity purposes.’”’) (quoting Davis v. HSBC Bank Nev., N.A., 557 14 | p3d 1026, 1029-30 (9th Cir. 2009)). “The burden of persuasion for establishing 15 diversity jurisdiction...remains on the party asserting it.” Hertz, 559 U.S. at 96 (citing 16 | Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). The Supreme | Court has cautioned that “if the record reveals attempts at manipulation—for example, 18 | that the alleged ‘nerve center’ is nothing more than a mail drop box, a bare office with ID) 4 computer, or the location of an annual executive retreat—the courts should instead 20 take as the ‘nerve center’ the place of actual direction, control, and coordination...” ia, at 97. 22 Here, Plaintiff concedes that the amount in controversy requirement for 23 diversity jurisdiction is met, (Pl. Mot. to Remand, Docket No. 18 at 4), but argues that 24 Defendant—the party asserting diversity jurisdiction—has not met its burden to 25 establish complete diversity of citizenship. (/d.). Plaintiff resides in California. 26 (Notice of Removal, Docket No. 1 § 13). Defendant, in its Notice of Removal, asserts 27 that it is a citizen of Indiana, as it was “incorporated in Indiana, and its principal place 28

1 | of business is in Indianapolis, Indiana as it performs most of its executive and 2 | administrative functions at its corporate headquarters in that location.” (/d. □ 14(a)). 3 | Plaintiff argues, however, that the evidence that Defendant submitted to substantiate 4 | its claim of Indiana citizenship is insufficient. (Pl. Mot. to Remand, Docket No. 18 at S| 7 (“The Statement of Information filed with the State of California and the McCoy 6 | Declaration are analogous to the ‘Security and Exchange Commission’s Form 10-K’ 7 | which the U.S. Supreme Court explicitly rejected as ‘without more, being sufficient 8 proof to establish a corporation’s nerve center.’”’) (quoting Hertz, 559 U.S. at 96)). ? According to Plaintiff, because of Defendant’s “extensive California operations, 10 | California functions as one of the autonomous ‘nerve centers’ for Elevance.” (PI. 11 | Mot. to Remand, Docket No. 18 at 7 (“Considering the vast number of its employees 12 | in the state, the complexities of navigating California’s rigorous regulatory 13 | framework...and the vast pool of insured individuals, California emerges as a distinct 14 operational hub.”). Id Plaintiff's argument, however, sounds in the business activities test that the 16 | Hertz Court rejected. Hertz, 559 U.S. at 93-94 (“[I]fa ‘corporation may be deemed a 17 | citizen of California on th[e] basis’ of ‘activities [that] roughly reflect California's 18 larger population...nearly every national retailer—no matter how far flung its 19 operations—will be deemed a citizen of California for diversity purposes.’”) (quoting 20 Davis, 557 F.3d at 1029-30). Defendant has met its burden” of showing that 21 Defendant’s nerve center is in Indiana; that is so even though it has sizeable 22 operations in California like “nearly every national retailer” in the United States. /d. 23 24 ——_—___ The Court GRANTS Defendant’s Request for Judicial Notice (Docket No. 24). 25 | Federal Rule of Evidence 201(b) permits judicial notice of public records and 6 | information available on public websites, like the documents Defendant seeks to judicially notice here. See, e.g., Abdullah v. United States Sec. Assocs., Inc., 731 F.3d 27 | 952, 959 n.10 (9th Cir. 2013) (taking judicial notice of California Division of Labor 38 ee Enforcement letters); (Request for Judicial Not., Docket No. 24 at Exhs.

1 Furthermore, the evidence does not reflect that this is the sort of sham jurisdictional 2 manipulation case warned of in Hertz. Cf. Hertz, 559 U.S. at 97 (citing Kokkonen, 3 511 U.S. at 377) (“[I]f the record reveals attempts at manipulation—for example, that 4 the alleged ‘nerve center’ is nothing more than a mail drop box, a bare office with a 5 computer, or the location of an annual executive retreat—the courts should instead 6 take as the ‘nerve center’ the place of actual direction, control, and coordination.”); 7 (see, e.g., McCoy Decl., Docket No. 22 ¶ 5 (Elevance human resources professional 8 averring that Defendant’s directors “direct, control, and coordinate the company’s 9 functions from its corporate headquarters in Indianapolis”). As a result, Plaintiff’s 10 Motion to Remand is DENIED. 11 B. Motion to Dismiss 12 As set forth below, the Court GRANTS Defendant’s Motion to Dismiss 13 (Docket No. 15) with leave to amend. 14 i. Motion to Dismiss Standard 15 To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient 16 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 18 U.S. 544, 570 (2007)). The complaint need not include detailed factual allegations but 19 must provide more than a “formulaic recitation of the elements of a cause of action.” 20 Id. “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a 21 cognizable legal theory or sufficient facts to support a cognizable legal theory.” 22 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (citing 23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 24 The court must construe the complaint in the light most favorable to the 25 plaintiff and take its non-conclusory allegations as true. Boquist v. Courtney, 32 F.4th 26 764, 773 (9th Cir. 2022). The court is not required, however, to accept as true legal 27 conclusions couched as factual allegations. Twombly, 550 U.S. at 555 (“[A] plaintiff’s 28 1 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than 2 labels and conclusions…”). Pursuant to Federal Rule of Civil Procedure 15(a)(2), 3 when a motion to dismiss is granted, courts should “freely give leave [to amend] when 4 justice so requires.” 5 ii. FEHA 6 The Fair Employment and Housing Act is “California’s analog for the Federal 7 Americans with Disabilities Act.” Davis v. Blazin Wings, Inc., No. EDCV 16-2167- 8 JGB(KKx), 2016 WL 10966411, at *4 (C.D. Cal. Dec. 1, 2016). It prohibits 9 discrimination on several grounds, including based on “physical disability.” Cal. Gov. 10 Code § 12940(a). FEHA does not, however, “subject an employer to any legal 11 liability resulting from the refusal to employ or the discharge of an employee with a 12 physical…disability” if the employee is unqualified under FEHA, i.e. “unable to 13 perform the employee’s essential duties even with reasonable accommodations, or 14 cannot perform those duties in a manner that would not endanger” health or safety 15 “even with reasonable accommodations.” Id. § 12940(a)(1); see also Green v. State of 16 Cal., 42 Cal. 4th 254, 258 (2007) (“FEHA requires employees to prove that they are 17 qualified individuals under the statute just as the federal ADA requires.”). Where an 18 employee is a qualified individual under the statute, FEHA requires employers to 19 provide “reasonable accommodations,” Cal. Gov. Code § 12940(m), and to “engage in 20 the interactive process” with the employee once the employer is on notice of the need 21 for an accommodation. Id. § 12940(n). FEHA also requires employers to “take all 22 reasonable steps to prevent discrimination…from occurring.” Id. § 12940(k). Beyond 23 FEHA, California common law prohibits wrongful termination in violation of public 24 policy. See, e.g., Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008) (“If 25 the employer terminates an employment relationship for a reason that contravenes 26 some fundamental public policy, then the employer breaches a general duty imposed 27 by law upon all employers…”). 28 1 iii. Analysis 2 Defendant argues that Plaintiff’s claims should be dismissed for failure to state 3 a claim because, according to Defendant, the FAC does not plead facts showing that 4 Plaintiff is “a qualified individual eligible for FEHA’s protections;” that the requested 5 accommodation—indefinite leave—was reasonable; that Defendant had notice of 6 Plaintiff’s disability; that Plaintiff’s dismissal was because of her disability and not 7 due to other “performance issues;” that there was a “causal link between [Plaintiff’s] 8 termination” and her disability; or that Defendant or its agents acted with malice, 9 oppression or fraud. (Mot. to Dismiss, Docket No. 15-1 at 1). As set forth below, the 10 Motion to Dismiss is GRANTED as to all claims in the FAC—disability 11 discrimination, failure to provide reasonable accommodation, failure to provide timely 12 good faith interactive process, failure to prevent discrimination, and wrongful 13 termination. 14 The first, second, and third claims—for disability discrimination (Cal. Gov. 15 Code § 12940(a)), failure to provide reasonable accommodation (Cal. Gov. Code 16 § 12940(m)), and failure to provide timely good faith interactive process (Cal. Gov. 17 Code § 12940(n))—fail to state a claim for relief because the FAC does not plead 18 facts showing that Plaintiff is a qualified individual under FEHA. As the California 19 Supreme Court has held, plaintiffs seeking to recover under FEHA have the burden to 20 prove that they are able to perform “the employee’s essential duties” with or without 21 reasonable accommodations. Green, 42 Cal. 4th at 258. The complaint, as pled, does 22 not include facts showing that Plaintiff was able to perform her duties, with or without 23 accommodations. The FAC contains a barebones allegation that “[w]ith adequate 24 accommodations in place, [Plaintiff’s] post-surgical [symptoms] would not have 25 significantly hindered” Plaintiff’s capacity to perform her essential duties,” (Id. ¶ 23), 26 but the FAC contains “no information at all as to what Plaintiff can do or what the 27 essential elements of Plaintiff’s job is or might be with or without reasonable 28 1 accommodations.” See Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1139 2 (E.D. Cal. 2010) (dismissing a FEHA claim for failing to plead facts as to whether 3 Plaintiff is qualified for relief under the statute). Furthermore, there are allegations in 4 the complaint that seem to undermine the notion that Plaintiff was able to perform her 5 essential duties—whatever they may be—even with accommodations. (See FAC, 6 Docket No. 1-3 ¶¶ 25, 33) (explaining that, after her surgery and nearly year-long 7 medical leave, Plaintiff “had to navigate substantial changes in workflow, processes, 8 and procedures of the company post-acquisition,” which “presented unforeseen 9 hurdles” that Plaintiff had to overcome, and that Plaintiff received a warning that she 10 was “under performing at her job”). Courts in this circuit have dismissed FEHA 11 claims in similar circumstances. Davis, 2016 WL 10966411, at *8 (“While Plaintiff’s 12 pleading burden at this stage is light, [she] must provide at least some minimal factual 13 basis to support the conclusion that [she] can perform the essential functions of the job 14 with or without accommodation for the Court to determine whether [her] entitled to 15 relief is plausible.”). Thus, Plaintiff’s first, second, and third causes of action are 16 DISMISSED with leave to amend. 17 The fourth and fifth causes of action—failure to prevent discrimination, (Cal. 18 Gov. Code § 12940(k)), and wrongful termination in violation of public policy, (see, 19 e.g., Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008) (describing the 20 tort of wrongful termination)), also fail to state a claim. These causes of action are 21 both derivative of a FEHA violation. See, e.g., Davis, 2016 WL 10966411, at *6 22 (explaining that pleading a claim for failure to prevent discrimination under Cal. Gov. 23 Code § 12940(k) “relies on adequately alleging a claim for discrimination”); Vizcaino 24 v. Areas USA, Inc., No. CV 15-417-JFW (PJWx), 2015 WL 13573816, at *7 (C.D. 25 Cal. Apr. 17, 2015) (dismissing the plaintiff’s wrongful termination in violation of 26 FEHA because he failed to allege any FEHA violation in his complaint). Because of 27 28 ! | the Court’s reasoning that the FAC fails to state a FEHA claim, the derivative fourth 2 | and fifth causes of action are also DISMISSED with leave to amend.? 3 | 11. CONCLUSION 4 As set forth above, the Court DENIES Plaintiff’s Motion to Remand and 5 | GRANTS Defendant’s Motion to Dismiss the First Amended Complaint. 6 7 | Dated: November 27, 2023 we □ — g HON. WESLEY L. HSU 9 UNITED STATES DISTRICT JUDGE

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 | 3 In dismissing all five causes of action in the FAC, the Court also DISMISSES with leave to amend the punitive damages claims. Not only are the punitive damages 25 | claims associated with the dismissed causes of action, Plaintiff also did not address 76 | Defendant’s arguments as to punitive damages in Plaintiff's opposition brief, so the issue is deemed conceded. See, e.g., Ortiz v. Mayorkas, No. 22-CV-557 JLS (SBC), 27 | 2023 WL 5183022 (S.D. Cal. Aug. 11, 2023) (holding that the failure to address 38 argument in an opening brief constitutes waiver of the “uncontested issue”) (cleaned up). 10