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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 1 of 14
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`Rick Bergstrom (State Bar No. 169594)
`rjbergstrom@jonesday.com
`Koree B. Wooley (State Bar No. 294489)
`kbwooley@jonesday.com
`Joshua C. Dutton (State Bar No. 328750)
`jdutton@jonesday.com
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121.3134
`Telephone: +1.858.314.1200
`Facsimile:
`+1.844.345.3178
`
`Attorneys for Defendant
`MICRON TECHNOLOGY, INC.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
`
`ELIOT JOHNSON, individually, and on
`behalf of the general public,
`Plaintiff,
`
`v.
`MICRON TECHNOLOGY, INC. and DOES
`1 through 100, inclusive,
`Defendant.
`
`CASE NO. 5:21-CV-07774-NC
`DEFENDANT MICRON
`TECHNOLOGY, INC.’S NOTICE OF
`MOTION AND MOTION TO DISMISS;
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT
`[FILED CONCURRENTLY WITH
`REQUEST FOR JUDICIAL NOTICE]
`DATE:
`November 10, 2021
`TIME:
`1:00 p.m.
`CTRM:
`5
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`1
`MICRON’S MOTION TO DISMISS
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`CASE NO. 5:21-cv-07774-NC
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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 2 of 14
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on November 10, 2021, at 1:00 p.m., or as soon thereafter
`as the matter may be heard before the Court, located at the San Jose Courthouse, Robert F.
`Peckham Federal Building, 280 S. 1st St, San Jose, CA 95113, Courtroom 5, 4th Floor,
`Defendant Micron Technology, Inc. (“Micron”) will and hereby does move the Court for an order
`dismissing Plaintiff Eliot Johnson’s (“Plaintiff”) First Amended Complaint (“FAC”) in its
`entirety pursuant to Federal Rule of Civil Procedure 12(b)(6).
`Defendant Micron moves the Court to dismiss Plaintiff’s FAC in its entirety because it
`fails to state sufficient facts to constitute a cause of action against Micron under California Labor
`Code Section 2802 (“Section 2802”). Plaintiff claims that Micron is liable for Plaintiff’s home
`internet expenses during the time he was working from home pursuant to government orders
`requiring all non-essential workers to stay home during the COVID-19 pandemic. Plaintiff’s
`claim fails because Section 2802 does not cover expenses incurred to comply with government
`orders. Moreover, even if Section 2802 reached such expenses (it does not), Plaintiff’s claim fails
`because the pandemic—not Micron—was the direct cause of Plaintiff’s expenses. Plaintiff’s
`claims under the California Unfair Competition Law and the Private Attorneys General Act are
`based on the same allegations as his claim under Section 2802 and likewise fail. Because each of
`Plaintiff’s claims fail as a matter of law, the Court should dismiss the FAC with prejudice.
`This Motion is based on this Notice of Motion, the following Memorandum of Points and
`Authorities, the concurrently filed Request for Judicial Notice and exhibit thereto, the pleadings
`and papers on file in this action, and upon such other matters as may be presented to the Court at
`or before the time of the hearing.
`
`Dated: October 6, 2021
`
`
`
`
`
`
`
`
`Jones Day
`By: /s/ Rick Bergstrom
`Rick Bergstrom
`Attorneys for Defendant
`MICRON TECHNOLOGY, INC.
`
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`MICRON’S MOTION TO DISMISS
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`CASE NO. 5:21-cv-07774-NC
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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 3 of 14
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`TABLE OF CONTENTS
`(continued)
`
`Page
`
`NOTICE OF MOTION AND MOTION ........................................................................................ 2
`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 2
`I.
`PRELIMINARY STATEMENT ......................................................................................... 6
`II.
`STATEMENT OF ISSUES TO BE DECIDED (L.R. 7-4(a)(3)) ....................................... 7
`III.
`FACTUAL AND PROCEDURAL BACKGROUND ........................................................ 7
`IV.
`LEGAL STANDARD ......................................................................................................... 7
`V.
`ARGUMENT ...................................................................................................................... 8
`A.
`PLAINTIFF FAILS TO STATE A CLAIM UNDER SECTION 2802 ................. 8
`1.
`Home Internet Expenses Incurred as A Result of Government Stay-
`At-Home Orders Are Not Covered by Labor Code § 2802 ........................ 8
`Micron Was Not the Direct Cause of Plaintiff’s Home Internet
`Expenses .................................................................................................... 10
`Plaintiff’s Derivative UCL Claim Likewise Fails ................................................. 12
`B.
`Plaintiff’s PAGA Claim Fails Because He Is Not An Aggrieved Employee ....... 12
`C.
`The Claims Should be Dismissed With Prejudice ................................................ 13
`D.
`CONCLUSION ................................................................................................................. 14
`
`2.
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`VI.
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`3
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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 4 of 14
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`TABLE OF AUTHORITIES
`
`Page
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`
`
`CASES
`
`DeSoto v. Yellow Freight Sys., Inc.,
`957 F.2d 655 (9th Cir. 1992) .....................................................................................................13
`
`Gattuso v. Harte-Hanks Shoppers, Inc.,
`42 Cal. 4th 554 (2007) ................................................................................................................8
`
`Gen. Tel. Co. of Sw. v. Falcon,
`457 U.S. 147 (1982) ..................................................................................................................13
`
`Godecke v. Kinetic Concepts, Inc.,
`937 F.3d 1201 (9th Cir. 2019) .....................................................................................................8
`
`Gross v. FBL Fin. Servs., Inc.,
`557 U.S. 167 (2009) ..................................................................................................................11
`
`Hess v. United Parcel Serv., Inc.,
`No. 3:21-CV-00093 WHA, 2021 WL 1700162 (N.D. Cal. Apr. 29, 2021) .........................9, 10
`
`In re Acknowledgement Cases,
`239 Cal. App. 4th 1498 (2015) .............................................................................................9, 10
`
`In re Work Unif. Cases,
`133 Cal. App. 4th 328 (2005) ...................................................................................................13
`
`Intri-Plex Techs., Inc. v. Crest Grp., Inc.,
`499 F.3d 1048 (9th Cir. 2007) .....................................................................................................8
`
`Kendall v. Visa U.S.A., Inc.,
`518 F.3d 1042 (9th Cir. 2008) .....................................................................................................8
`
`Krantz v. BT Visual Images, LLC,
`89 Cal. App. 4th 164 (2001) .....................................................................................................12
`
`Kwan v. SanMedica Int’l,
`854 F.3d 1088 (9th Cir. 2017) .....................................................................................................7
`
`Li v. Yellow Cab Co.,
`13 Cal. 3d 804 (1975) ...............................................................................................................11
`
`
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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 5 of 14
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`Perez v. DNC Parks & Resorts at Sequoia,
`No. 119CV00484DADSAB, 2020 WL 4344911 (E.D. Cal. July 29, 2020) ............................13
`
`Price v. Starbucks Corp.,
`192 Cal. App. 4th 1136 (2011) .................................................................................................12
`
`Rae v. Union Bank,
`725 F.2d 478 (9th Cir. 1984) .....................................................................................................13
`
`Rosen v. Imagevenue.com,
`No. CV1301742SJOMANX, 2014 WL 12597124 (C.D. Cal. Jan. 29, 2014) ..........................14
`
`Siminoff v. Jas. H. Goodman & Co. Bank,
`18 Cal. App. 5 (Cal. Ct. App. 1912) .........................................................................................11
`
`Smith v. H.F.D. No. 55, Inc.,
`No. 15-CV-01293 (KJM), 2016 WL 881134 (E.D. Cal. Mar. 8, 2016) .............................12, 13
`
`Turner v. City & Cty. of San Francisco,
`788 F.3d 1206 (9th Cir. 2015) .....................................................................................................7
`
`Warner v. Sims Metal Mgmt.,
`No. C 13-02190 WHA, 2013 WL 4777314 (N.D. Cal. Sept. 6, 2013) .....................................13
`
`STATUTES
`
`28 U.S.C. § 1332. ..............................................................................................................................7
`
`28 U.S.C. § 1441 et seq. ....................................................................................................................7
`
`Cal. Lab. Code § 2699 ......................................................................................................6, 7, 12, 13
`
`Cal. Lab. Code § 2802 ............................................................................................................ passim
`
`Cal. Bus. & Prof. Code § 17200 .............................................................................................6, 7, 12
`
`OTHER AUTHORITIES
`
`1999-2000 Regular Session, Senate Bill 1305 (2000) ....................................................................10
`
`Fed. R. Evid. 201 ..............................................................................................................................8
`
`Fed. R. Civ. Proc. 12 .........................................................................................................................7
`
`L.R. 7-4(a)(3) ....................................................................................................................................7
`
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`MEMORANDUM OF POINTS AND AUTHORITIES
`PRELIMINARY STATEMENT
`The novel coronavirus (COVID-19) has temporarily upended nearly every aspect of daily
`life. Chief among those disruptions were government orders directing all non-essential workers to
`stay at home to prevent the spread of the virus (“Government Stay-At-Home Orders”). Plaintiff
`Eliot Johnson (“Plaintiff”)—who was employed by Defendant Micron Technology, Inc.
`(“Micron”) only during the pandemic—seeks to capitalize on these Government Stay-At-Home
`Orders by asserting claims against Micron pursuant to Section 2802 of the California Labor Code
`(“Section 2802”), the California Unfair Competition Law (“UCL”), and the California Labor
`Code Private Attorneys General Act (“PAGA”) for an alleged failure to reimburse him for home
`internet expenses incurred during the pandemic.
`Plaintiff’s claim fails, however, because these expenses were not incurred as “a direct
`consequence of the discharge of his [] duties, or of his [] obedience to the directions of [his]
`employer . . . .” Cal. Lab. Code § 2802. Rather, Plaintiff candidly asserts that he was required to
`work at home, where he alleges he had to “use the Internet,” not because of anything Micron had
`required, but simply “[b]ecause his employment was during the COVID19 pandemic.” First
`Amended Complaint ¶¶ 6-7. Indeed, absent the Government Stay-At-Home Orders requiring Mr.
`Johnson to work from home, this lawsuit would not exist. The California Labor Code does not
`require reimbursement of expenses in this context for two reasons.
`First, California federal and state courts, as well as the California Division of Labor
`Standards Enforcement (DLSE) have made clear—both in the context of COVID-19 and prior to
`it—that individuals, not employers, are responsible for expenses incurred as a result of
`government mandates. Second, Section 2802 requires employers to reimburse employees only for
`expenses incurred as a “direct consequence” of the discharge of employment duties. Expenses
`incurred as a result of an intervening event—such as an unforeseeable global pandemic—are
`beyond the scope of Section 2802.
`In light of the foregoing, Plaintiff’s claim fails as a matter of law, and the Court should
`therefore dismiss Plaintiff’s FAC with prejudice.
`6
` MICRON’S MOTION TO DISMISS
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`Case No. 5:21-cv-07774-NC
`
`I.
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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 7 of 14
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`II.
`
`STATEMENT OF ISSUES TO BE DECIDED (L.R. 7-4(a)(3))
`1.
`Whether Plaintiff’s first claim, which seeks reimbursement for his home internet
`expenses incurred while he was working at home because of the COVID-19 pandemic and
`Government Stay-At-Home Orders, should be dismissed for failure to state a claim.
`2.
`Whether Plaintiff’s second claim under the UCL and third claim under the PAGA,
`which are derivative of the first claim, should also be dismissed for failure to state a claim.
`
`III.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`For purposes of this motion, Micron assumes the allegations of Plaintiff’s FAC are true.
`Plaintiff’s claims, while brought under Section 2802, the UCL, and PAGA, are all based on the
`same contention: that Micron should reimburse him for “use of his Internet” because he was
`“required to work at home.” FAC ¶ 7. But Plaintiff declares that the reason he was required to
`work at home was “[b]ecause [his] employment was during the COVID19 pandemic.” FAC ¶ 6.
`As these allegations make clear, Plaintiff seeks reimbursement for home internet expenses
`incurred during the pendency of the State of California’s Government Stay-At-Home Orders,
`which required non-essential workers like Plaintiff to “stay home or at their place of residence.”
`Micron’s Request for Judicial Notice (“RJN”) Ex. A at 1. In fact, Plaintiff worked for Micron
`only after the onset of the pandemic and was terminated before the Government Stay-At-Home
`Orders were lifted in June, 2021. FAC ¶ 6; RJN Ex. B at 2.
`Plaintiff filed his FAC in Santa Clara Superior Court on August 9, 2021. Doc. No. 1-1.
`Micron properly removed this action on October 5, 2021 in accordance with 28 U.S.C. §§ 1332(a)
`and (d), 1441 et seq. Doc. No. 1.
`
`LEGAL STANDARD
`“To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege enough facts to state
`a claim to relief that is plausible on its face.” Turner v. City & Cty. of San Francisco, 788 F.3d
`1206, 1210 (9th Cir. 2015) (citation omitted). The court “must take all allegations of material
`facts as true and construe them in the light most favorable to the nonmoving party.” Kwan v.
`SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017) (citation omitted). A court may take
`“judicial notice of matters of public record without converting a motion to dismiss into a motion
`7
`MICRON’S MOTION TO DISMISS
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`CASE NO. 5:21-cv-07774-NC
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`IV.
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`for summary judgment, as long as the facts noticed are not subject to reasonable dispute.” Intri-
`Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (internal quotation
`marks omitted). Federal Rule of Evidence 201 specifies that a court can take judicial notice of an
`adjudicative fact if that fact “is not subject to reasonable dispute” because it either “(1) is
`generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily
`determined from sources whose accuracy cannot reasonably be questioned.”
`Dismissal “can be based on the lack of a cognizable legal theory or the absence of
`sufficient facts alleged under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937
`F.3d 1201, 1208 (9th Cir. 2019) (citation omitted). Where a complaint fails to meet these
`standards, “[d]ismissal without leave to amend is proper if it is clear that the complaint could not
`be saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008).
`Applying these familiar standards here, Plaintiff’s FAC is facially deficient and should be
`dismissed in full. And because the core deficiencies of Plaintiff’s allegations are incurable, this
`Court should deny Plaintiff leave to amend.
`
`V.
`
`ARGUMENT
`A.
`PLAINTIFF FAILS TO STATE A CLAIM UNDER SECTION 2802
`Each of Plaintiff’s claims is predicated on an alleged violation of Section 2802. Section
`2802 requires employers to indemnify employees “for all necessary expenditures or losses
`incurred by the employee in direct consequence of the discharge of his or her duties, or of his or
`her obedience to the directions of the employer . . . .” Cal. Labor Code § 2802(a). “The purpose
`of [§ 2802] is to prevent employers from passing their operating expenses on to their employees.”
`Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 562 (2007) (quoting legislative history)
`(internal quotation marks omitted).
`
`Home Internet Expenses Incurred as A Result of Government Stay-At-
`Home Orders Are Not Covered by Labor Code § 2802
`Plaintiff’s claim is rooted in the fact that he was working from home “during the
`COVID19 pandemic.” FAC ¶ 6. The pleadings therefore establish that Plaintiff has no claim,
`because expenses incurred to comply with the Government Stay-At-Home Orders are not covered
`8
`MICRON’S MOTION TO DISMISS
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`CASE NO. 5:21-cv-07774-NC
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`1.
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`by Section 2802, even if the employer requires the employee to comply with that government
`mandate.
`For example, in a decision that issued shortly before Plaintiff filed his original Complaint,
`Judge Alsup of the Northern District of California had no trouble dismissing the plaintiffs’ claims
`for reimbursement of COVID-related expenses, including face coverings and masks. See Hess v.
`United Parcel Serv., Inc., No. 3:21-CV-00093 WHA, 2021 WL 1700162, at *1 (N.D. Cal. Apr.
`29, 2021). The plaintiffs there urged that these costs were covered by Section 2802 because they
`were required by UPS. Id. at *5. The court disagreed, explaining that businesses like UPS were
`“required . . . to require” employees to wear face masks and other coverings. Id. Thus, the
`expense of procuring masks or other face coverings “was not an expense UPS required its
`employees to incur for its benefit, but instead an obligation imposed on it” by COVID-related
`public health orders. Id. at *5. (emphasis added).
`Even prior to COVID-19, courts and the DLSE recognized that employers are not
`obligated to reimburse expenses incurred due to a government mandate, even if the employer
`requires its employees to comply with that mandate. As far back as 1994, the DLSE opined that
`an employer need not reimburse expenses incurred in obtaining a state-mandated license. RJN Ex.
`C (DLSE Op. Ltr. (Nov. 17, 1994) at p. 1). Even though the employer required the license as a
`“condition of employment,” the “most important aspect” of licensure was that it was “required by
`the state or locality as a result of public policy.” Id. As a result, “the cost of licensing must be
`borne by the employee.” Id.
`The California Court of Appeal reached a similar result with respect to training courses
`for police officers. In re Acknowledgement Cases, 239 Cal. App. 4th 1498, 1501 (2015). The
`police officers argued that because the city required its employees to complete the training, the
`training costs were “a necessary expenditure incurred as a direct consequence of the discharge of
`[their] duties” for which they were owed reimbursement under Section 2802. Id. at 1505. The
`court disagreed with respect to the training that was required by state law. Id. at 1506–07. Like
`the DLSE and Judge Alsup in Hess, the Court of Appeal reasoned that the training expenses were
`incurred pursuant to a government mandate, and therefore were “not an expense of discharging
`9
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`the duties of employment, within the meaning of Labor Code section 2802.” Id. at 1507.
`Plaintiff’s claim for reimbursement of internet expenses incurred due to the Government
`Stay-At-Home Orders fares no better. According to its legislative history, Section 2802 “is
`designed to prevent employers from passing their operating expenses on to their employees.”
`RJN, Ex. D at 1. (California Bill Analysis, Assembly Committee, 1999-2000 Regular Session,
`Senate Bill 1305 (2000)). More specifically, the “broad purpose of Labor Code section 2802 is to
`require an employer to bear all of the costs inherent in conducting its business and to indemnify
`employees from costs incurred in the discharge of their duties for the employer’s benefit.” In re
`Acknowledgment Cases, 239 Cal. App. 4th at 1506 (emphasis added). Here, Plaintiff merely
`alleges that he has not been reimbursed for the “use of his Internet” to perform work. FAC ¶ 7.
`He does not assert that his personal internet expenses are “inherent to” Micron’s business or were
`incurred for Micron’s “benefit.” Nor can he, as Micron had no choice in the matter, but was
`merely “required to require” that employees comply with the Government Stay-At-Home Orders.
`See Hess, 2021 WL 1700162, at *5. Personal costs resulting from that compliance are neither
`“inherent” to Micron nor incurred for its “benefit.” In re Acknowledgment Cases, 239 Cal. App.
`4th at 1506.
`Put simply, Government Stay-At-Home Orders required Plaintiff to work from home for
`the benefit of public health, not Micron. See Hess, 2021 WL 1700162, at *5. Accordingly, any
`costs incurred as a result of working from home are “not an expense of discharging the duties of
`employment.” In re Acknowledgement Cases, 239 Cal. App. 4th at 1506. And because such
`expenses fall outside the scope of Section 2802, Plaintiff’s claim must be dismissed.
`
`2.
`
`Micron Was Not the Direct Cause of Plaintiff’s Home Internet
`Expenses
`Plaintiff’s claim fails for the separate reason that Micron did not directly cause Plaintiff to
`incur the alleged expenses; any work from home expenses incurred while working from home
`during the pandemic were incurred as a result of the pandemic. See FAC ¶ 6 (“Because Plaintiff’s
`employment was during the COVID19 pandemic, he telecommuted and worked out of his home
`in California.”).
`
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`Section 2802 covers only those expenses incurred “in direct consequence of the discharge
`of the [employee’s] duties.” Direct is defined as: “marked by absence of an intervening agency,
`instrumentality, or influence.” Direct, MERRIAMWEBSTER.COM, https://www.merriam-
`webster.com/dictionary/direct (last viewed October 3, 2021). Consequence, in turn, is defined as:
`“something produced by a cause or necessarily following from a set of conditions.” Consequence,
`MERRIAMWEBSTER.COM, https://www.merriam-webster.com/dictionary/consequence (last viewed
`October 3, 2021). Consistent with these plain dictionary definitions, the common law defines a
`direct consequence as something that “occurred reasonably close time and place and without any
`unforeseeable intervening causes.” See Direct-Consequences Test, Black’s Law Dictionary (11th
`ed. 2019). And under common law principles of causation, “where there is an independent
`intervening act that is not reasonably foreseeable, the defendant’s conduct is not deemed the
`‘legal’ or proximate cause. Rules of legal cause, therefore, operate to relieve the defendant whose
`conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her
`legally responsible.” Proximate Cause - In General, 6 Witkin, Summary 11th Torts § 1335
`(2021).1 Section 2802 therefore requires reimbursement only when the cause of the expense can
`be traced directly—without any intervening causes or influences—to the employee’s job duties or
`employer’s directions.
`Consistent with these principles, the California Court of Appeal has concluded that
`intervening causes operate to relieve an employer of liability under 2802. In Earll v. McCoy, the
`plaintiffs sought to recover for the value of personal tools used during the course of employment
`that were destroyed by a fire on the employer’s premises. 116 Cal. App. 2d 44, 45 (1953). The
`court concluded that “the fire … directly caused the losses” and held that Section 2802 did not
`apply to losses that are “incidental to employment” where there was “no direct, unbroken
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`1 Common law principles inform the interpretation of Section 2802 because statutes
`enacted as part of the 1872 Civil Code, like Section 2802, “[were] not designed to make any
`general alterations in the established doctrines and rules of the common law.” Siminoff v. Jas. H.
`Goodman & Co. Bank, 18 Cal. App. 5, 11 (Cal. Ct. App. 1912); Li v. Yellow Cab Co., 13 Cal. 3d
`804, 814–16 (1975) (adopting common law contributory negligence standards); Est. of Duke, 61
`Cal. 4th 871, 880 (2015) (invoking common law principles to interpret Probate Code); see also
`Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (applying tort principles to interpret term
`“because of” in the ADEA).
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`MICRON’S MOTION TO DISMISS
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`CASE NO. 5:21-cv-07774-NC
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`Case 5:21-cv-07774-NC Document 9 Filed 10/06/21 Page 12 of 14
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`connection between the losses and the discharge of the duties of the plaintiffs.” Id. at 46.
`Here, the facts pled in the FAC conclusively establish that Micron was not the direct cause
`of Plaintiff incurring home internet expenses. Rather, Plaintiff admits that the Government Stay-
`At-Home Orders required him to work from home—not Micron. FAC, ¶¶ 6, 7. There is no
`allegation that Micron did not provide and would not have continued to provide internet
`connectivity and all other necessary equipment free of charge at a Micron office. Indeed, any such
`allegation would be false. In this context, there is no “direct, unbroken connection between” home
`office expenses allegedly incurred by plaintiff, and the discharge of his job duties. Rather, the
`pandemic and resulting Government Stay-At-Home Orders—like the fire in Earll—were an
`independent, unforeseeable cause of the alleged expenses. Accordingly, there is no direct line of
`causation from Plaintiff’s alleged expenses to Micron and Plaintiff’s effort to recover those
`expenses from Micron is thus foreclosed by the plain language of the statute. To conclude
`otherwise would contravene established principles of law, given that Micron would be ordered to
`pay employees for expenses that it did not cause them to incur. Proximate Cause - In General, 6
`Witkin, Summary 11th Torts § 1335 (2021) (intervening unforeseeable conduct will bar a finding
`of legal causation where it result in an “unjust” outcome).
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`B.
`Plaintiff’s Derivative UCL Claim Likewise Fails
`Plaintiff’s second claim California Business and Professions Code section 17200 is
`entirely derivative of the prior causes of action. Accordingly, this Court should grant the motion
`to dismiss the UCL claim based on the arguments set forth in Section V.A. See, e.g., Krantz v. BT
`Visual Images, LLC, 89 Cal. App. 4th 164, 178 (2001) (dismissing unfair competition claim
`because the claim “stand[s] or fall[s] depending on the fate of the antecedent substantive causes
`of action”); Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1147 (2011) (“Because the
`underlying causes of action fail, the derivative UCL . . . claim[ ] also fail[s]”).
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`C.
`Plaintiff’s PAGA Claim Fails Because He Is Not An Aggrieved Employee
`A PAGA claim may only be brought by an “aggrieved employee.” Cal. Lab. Code §
`2699(c); Smith v. H.F.D. No. 55, Inc., No. 15-CV-01293 (KJM), 2016 WL 881134, at *8 (E.D.
`Cal. Mar. 8, 2016). An “aggrieved employee” is a person “against whom one or more of the
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`MICRON’S MOTION TO DISMISS
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`alleged violations was committed.” Id. As set forth above in Section V.A, Plaintiff cannot
`maintain a claim for reimbursement of business expenses on his own behalf. Accordingly, he
`cannot maintain a PAGA claim predicated on the same allegations.2
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`D.
`The Claims Should be Dismissed With Prejudice
`The Court need not grant Plaintiff leave to amend because doing so would be futile.
`DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 659 (9th Cir. 1992) (concluding that dismissal
`of action without leave to amend was proper where there was no legal basis for the plaintiff’s
`claim). Courts regularly dismiss claims brought under 2802 without leave to amend where the
`pleadings fail to raise a valid claim under the statute. E.g., Warner v. Sims Metal Mgmt., No. C
`13-02190 WHA, 2013 WL 4777314, at *2 (N.D. Cal. Sept. 6, 2013) (granting motion to dismiss
`without leave to amend because 2802 does not provide employee with indemnification for the
`costs of defending himself against a lawsuit brought against the employee by his employer); In re
`Work Unif. Cases, 133 Cal. App. 4th 328, 332 (2005) (concluding that section 2802 does not
`require public entities to pay for work-related uniform costs and affirming trial court’s decision to
`sustain demurrer without leave to amend); Perez v. DNC Parks & Resorts at Sequoia, No.
`119CV00484DADSAB, 2020 WL 4344911, at *10 (E.D. Cal. July 29, 2020) (dismissing claim
`without leave to amend because the allegations revealed that the expenses plaintiffs claimed for
`reimbursement were not in the nature of uniforms but rather consisted of “basic wardrobe items”
`and therefore fell outside of the statute). Given that Plaintiff cannot rewrite his claim to avoid the
`fact that section 2802 does not reach the circumstances presented in his allegations, this Court
`should likewise decline to grant Plaintiff leave to amend.3
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`2 Plaintiff alleges that Micron failed to reimburse “other exempt and nonexempt
`employees for cell phone usage.” FAC ¶7. Plaintiff does not allege that he was not reimbursed
`for cell phone expenses. Plaintiff therefore cannot pursue a class claim on behalf of other
`employees for reimbursement of cell phone expenses. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
`147, 156 (1982) (“We have repeatedly held that a class representative must be part of the class
`and possess the same interest and suffer the same injury as the class members.”) (internal
`citations and quotations omitted). And because he is not an aggrieved employee, he likewise
`cannot pursue a claim under PAGA based on this allegation. Cal. Lab. Code § 2699(c); Smith,
`2016 WL 881134, at *8.
`3 Plaintiff cannot simply write out or contradict the allegations of the First Amended
`Complaint, which squarely attribute the work from home expenses he has incurred to the to the
`pandemic, not to Micron, to cure the fundamental defects in his claim. Rae v. Union Bank, 725
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`MICRON’S MOTION TO DISMISS
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`CASE NO. 5:21-cv-07774-NC
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