Beruflich Dokumente
Kultur Dokumente
it offered other comedians. She further alleges that, after she objected to this
“discriminatory low-ball offer,” Netflix retaliated against her by refusing to
negotiate fair pay with her. (Complaint (“Compl.”), Dkt. No. 1-1 at ¶ 4). The
following facts are taken from the Complaint.
In late 2017, after Netflix executives attended one of Mo’Nique’s live stand-
up shows, they began to recruit her for a Netflix original stand-up program. (Id. ¶¶
61–63). Following a series of conversations between Mo’Nique and her
representatives and Netflix’s representatives, on January 11, 2018, Netflix
extended an offer to Mo’Nique to produce and perform in a one-hour comedy
special, for which she would be paid $500,000. (Id. ¶ 64). Mo’Nique claims that
this pay proposal was discriminatory based on her race and gender, especially in
light of offers Netflix has made to other comedic talent, namely Jerry Seinfeld,
Eddie Murphy, Dave Chapelle, Chris Rock, Ellen DeGeneres, Jeff Dunham, Ricky
Gervais, and Amy Schumer (“Schumer”). (Id. ¶¶ 66–68).
After receiving her offer, Mo’Nique alleges that, both personally and
through her representatives, she objected to its terms, calling out Netflix for
discriminating against Black women. (Id. ¶¶ 69–70). Mo’Nique’s representatives
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initially wrote to Netflix’s executives, pleading that they reconsider the “racially
and gender biased offer” and questioning “what makes Mo’Nique, who has been
labeled a living legend based on her awards from around the world . . . worth
$12,500,000 less than Amy Schumer to [Netflix]?” (Id. ¶ 71). Netflix responded
that it took “very seriously” the concerns raised in the email, and agreed to set up a
call. (Id. ¶ 72).
Also around this time, as Plaintiff alleges, Netflix extended an offer for a
similar comedy special to Wanda Sykes (“Sykes”) (also a Black woman), who at
first publicly rejected Netflix’s offer as “low ball” and stated that she was
“offended” by it. (Id. ¶ 79). However, according to Plaintiff, after her call for a
boycott, Netflix subsequently “reconsidered and eventually offered Sykes a better
and more equitable deal.” (Id.). Mo’Nique alleges that Netflix has failed to do the
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same for her as retaliation for her public statements regarding Netflix’s alleged
“pay inequity practices.” (Id. ¶ 80).
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A court may dismiss a complaint under Rule 12(b)(6) based on the lack of a
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. 1988). When ruling on a Rule 12(b)(6) motion, “a judge must accept as true all
of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.
89, 94 (2007). The court must make all reasonable inferences in the plaintiff’s
favor. Nordstrom v. Ryan, 762 F.3d 903, 906 (9th Cir. 2014). But a court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal,
556 U.S. at 678 (internal quotation marks omitted).
Under Federal Rule of Civil Procedure (“Rule”) 12(f), the Court has
discretion to strike a pleading or portions thereof. Fed. Sav. and Loan v. Gemini
Mgmt., 921 F.2d 241, 243 (9th Cir. 1990); Cal. Dep’t of Toxic Substances Control
v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (“[W]hether to
grant a motion to strike lies within the sound discretion of the district court.”).
The purpose of a Rule 12(f) motion is “to avoid the expenditure of time and
money that must arise from litigating spurious issues by dispensing with those
issues prior to trial.’” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th
Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),
rev’d on other grounds, 510 U.S. 517 (1994)). Thus, a motion to strike may be
appropriate if it “will make trial less complicated or eliminate serious risks of
prejudice to the moving party, delay, or confusion of the issues.” Sliger v. Prospect
Mortg., LLC, 789 F. Supp. 2d 1212, 1216 (E.D. Cal. 2011). Motions to strike are
well-taken when they “have the effect of otherwise streamlining the ultimate
resolution of the action.” Gibson Brands Inc. v. Viacom Int’l Inc., No. 12-cv-
10870, 2016 WL 8931305, at *2 (C.D. Cal. Sept. 29, 2016) (internal quotations
omitted).
Rule 12(f) provides that a court “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). “‘Immateriality’ and ‘impertinence’ under Rule 12(f) both speak to
the relevance of challenged allegations.” Gallegos v. Roman Catholic Archbishop
of San Francisco, Case No. 16-cv-01588-LB, 2016 WL 3162203, at *2 (N.D. Cal.
June 7, 2016). As relevant for the purposes of the instant Motion to Strike,
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“A court must deny the motion to strike if there is any doubt whether the
allegations in the pleadings might be relevant in the action.” Oracle Am., Inc. v.
Micron Tech., Inc., 817 F. Supp. 2d 1128, 1132 (N.D. Cal. 2011). Put differently,
“[m]atter will not be stricken from a pleading unless it is clear that it can have no
possible bearing upon the subject matter of the litigation[.]” Clark v. State Farm
Mut. Auto. Ins. Co., 231 F.R.D. 405, 406 (C.D. Cal. 2005) (alteration in original)
(quoting Alco Pac., Inc., 217 F. Supp. 2d at 1033).
However, “[a]s a rule, motions to strike are regarded with disfavor because
striking is such a drastic remedy; as a result, such motions are infrequently
granted.” Amini Innovations Corp. v. McFerran Home Furnishings, Inc., 301
F.R.D. 487, 489-90 (C.D. Cal. 2014) (citations omitted)); see also Sliger, 789 F.
Supp. 2d at 1216 (“Motions to strike are generally viewed with disfavor, and will
usually be denied unless the allegations in the pleading have no possible relation to
the controversy, and may cause prejudice to one of the parties.”). “[W]hen ruling
on a motion to strike,” the court accepts the challenged allegations as true and
“must liberally construe” those allegations “in the light most favorable” to the non-
moving pleader. Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128,
1140 (N.D. Cal. 2010); see also RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp.
2d 556, 561 (C.D. Cal. 2005). “[C]ourts often require a showing of prejudice by
the moving party before granting” a motion to strike. Alco Pac., Inc., 217 F. Supp.
2d at 1033 (internal quotation marks and citations omitted). Grounds for a motion
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to strike must be readily apparent from the face of the pleadings or from materials
that may be judicially noticed. Fantasy, Inc., 984 F.2d at 1528.
III. DISCUSSION
Plaintiff’s Fifth Claim and portion of the Sixth claim rest on Section
12940(a) of the California Government Code (or FEHA) which provides that “[i]t
is an unlawful employment practice,” except in situations not applicable here,
“[f]or an employer, because of the race, . . . color, . . . , or sex of any person, to
refuse to hire or employ the person . . . or to discriminate against the person in
1
Defendant only seeks dismissal of the portion of Plaintiff’s Sixth Claim to the
extent that it alleges that Defendant failed to prevent retaliation, not
discrimination.
2
Initially, Defendant moved to dismiss Plaintiff’s Ninth Claim alleging violation
of the Unruh Act, but now withdraws that motion based on Plaintiff’s
representation that she pled the Unruh Act claim in the alternative to her
employment claims. (MTD Reply at 5).
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Insofar as it is the first element recognized in the federal court decisions, and
that breach of duty and causation are required under the state court decisions, this
claim fails if the Court ultimately concludes that there was no actionable
workplace discrimination. See Trujillo v. N. Cty. Transit Dist., 63 Cal.App.4th 280,
288-89 (1998); Pinder, 227 F.Supp.3d at 1151. Further, to the extent that
Plaintiff’s Sixth claim arises from Defendant’s alleged failure to prevent
retaliation, that claim fails if Plaintiff cannot plead sufficient facts to show that she
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[a]ll persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue . . . and to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, [and] penalties . . . , and
to no other.
42 U.S.C. § 1981(a). The rights protected by Section 1981 “are protected against
impairment by nongovernmental discrimination and impairment under color of
State law.” Id. § 1981(c). Employment discrimination claims under Section 1981
are guided by the Title VII analysis which, like Plaintiff’s FEHA-based
discrimination claims, are governed by the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Weil v.
Citizens Telecom Servs. Co., LLC, 922 F.3d 993, 1002 (9th Cir. 2019); Surrell v.
Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008); Manatt v. Bank of Am.,
NA, 339 F.3d 792, 797 (9th Cir. 2003).
As with Plaintiff’s FEHA retaliation claim, her Eighth Claim for retaliation
under Section 1981 must allege facts that she engaged in an activity protected by
statute, and that she suffered an adverse employment action because she engaged
in that activity. See Brown v. Contra Costa County, No. C 12–1923 PJH, 2014 WL
1347680, at *6 (N.D. Cal. Apr. 3, 2014) (dismissing Section 1981 retaliation claim
because plaintiff alleged no facts showing that the alleged adverse action “was in
retaliation for [plaintiff’s] exercise of a contractual right protected under § 1981.”).
The analysis of retaliation claims under FEHA is the same as the analysis required
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for evaluation of her Section 1981 claims. See Sims v City & County of San
Francisco, 2015 WL 1351143, at *5 (N.D. Cal. Mar. 25, 2015).
Mo’Nique counters that she sets forth a viable theory of retaliation. She
argues that, after she objected to Netflix’s allegedly “low ball” offer to her and
spoke out against this offer, Netflix retaliated against her by “depart[ing] from its
regular practice and treat[ing] [her] worse than others” by denying her “continued
3
The Court notes that, for the purposes of this motion only, Defendant assumes
that Plaintiff was an employee or prospective employee entitled to FEHA’s
protections and that her act of publicly complaining about the offer and calling for
a boycott of Netflix are “protected activities.” (MTD at 4, n.3).
4
“By definition, ‘retaliation’ occurs only after the applicant has complained about
not getting the job or after she has begun to participate” in a protected activity.
Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138, 161 (1997), as modified
on denial of reh’g (July 1, 1997) (emphasis added).
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in, or affect to, the terms of her offer after her protected activity, and thus, no
adverse action. See Akers, 95 Cal.4th at 1455; Yanowitz, 36 Cal.4th at 1052.
The Court notes that Plaintiff raises a novel theory here, namely that failure
to negotiate constitutes an “adverse employment action” for purposes of a
retaliation claim.6 At oral argument on February 28, 2020, Plaintiff conceded that
she did not adequately brief this issue, and asserted that she could allege additional
facts—including Defendant’s purported post-litigation public statement that “[its]
opening offer to Mo’Nique was fair”—to support her retaliation theory. Also at
oral argument, Plaintiff explained that the “adverse employment action” here was
Defendant’s failure to give equal consideration in her employment terms and
conditions, specifically her offered compensation, under California law. See Cal.
Code Regs. § 11021(a) (stating that “[i]t is unlawful for an employer . . . to . . . fail
to give equal consideration in making employment decisions . . . , adversely affect
working conditions or otherwise deny any employment benefit to an individual
because that individual has opposed practices prohibited by the Act[.]”). In light of
the arguments that Plaintiff raised orally before the Court, the Court allows
Plaintiff leave to amend her retaliation claims and to file a First Amended
Complaint adding facts in support thereof.
Ultimately, the Court finds that Plaintiff has failed to allege that any adverse
employment action occurred after she engaged in protected activity to make out a
retaliation claim under FEHA or Section 1981. Accordingly, Plaintiff’s Fifth and
5
Plaintiff merely cites to a footnote from Kotla v. Regents of University of
California, a wrongful termination case, for the proposition that “[e]vidence
showing . . . that . . . the employer significantly deviated from its ordinary
personnel procedures in the aggrieved employee’s case, might well be relevant to
support . . . an inference of retaliation.” 115 Cal.283, 294 fn. 6 (2004).
6
The Court has not located any case squarely addressing this issue.
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Eighth Claims are DISMISSED, but without prejudice, as the court finds that
amendment here may not be futile. Ketab Corp. v. Mesriani & Assocs., P.C., 734
F. App’x 401, 405 (9th Cir. 2018) (“[L]eave to amend is usually freely given
unless it is clear that the complaint could not be saved by amendment.”). Further,
the retaliation portion of Plaintiff’s Sixth Claim is also DISMISSED, again
without prejudice, as Plaintiff has failed to plead sufficient facts to show that there
was an act of retaliation in the first instance. Trujillo, 63 Cal. App. 4th at 289.
Plaintiff claims that she makes these allegations regarding conduct at Netflix
involving individuals other than herself to support her core claim of discrimination.
Specifically, she pleads these allegations “to establish that the corporate culture
and or workplace atmosphere within Netflix has encouraged, tolerated and
condoned discriminatory treatment based on race and gender[.]” (MTS Opp’n at
5). As such, before turning to the specific paragraphs that Defendant seeks to
strike, the Court begins its analysis of the elements Plaintiff would have to prove
and the stages of the three-prong burden-shifting test she would have to pass under
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973) to prevail on
her discrimination claims.
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To establish this prima facie case, Plaintiff must offer proof that: (1) she
belongs to a class of protected individuals; (2) she was qualified for her position or
performed it satisfactorily; (3) she suffered an adverse employment action; and (4)
she was treated differently than a similarly situated employee who does not belong
to the same protected class or that other circumstances surrounding the adverse
employment action give rise to an inference of discrimination. See McDonnell
Douglas, 411 U.S. at 802; Guz, 24 Cal.4th at 355; Zeinali, 636 F.3d at 552. At the
first step of the McDonnell Douglas test, the burden on Plaintiff is slight. See Wills
v. Superior Court, 195 Cal.App.4th 143, 159 (2011) (“The burden in this [first]
stage is not onerous and the evidence necessary to satisfy it is minimal.”) (omitting
internal quotation marks); Arteaga v. Brink’s, Inc., 163 Cal.App.4th 327, 353
(2008) (describing plaintiff’s prima facie case burden under McDonnell Douglas as
“fairly minimal”). At this stage, Plaintiff may seek to introduce circumstantial
evidence of incidents at Netflix not involving her to support her in proving an
inference of discrimination at the fourth prong.
Overall, the “McDonnell Douglas test reflects the principle that direct
evidence of intentional discrimination is rare, and that such claims must usually be
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Paragraphs 1 and 13–18 allege historical facts and statistics (largely from the
National Women’s Law Center) regarding the race- and gender-based pay gap
nationwide, focusing specifically on the pay disparity suffered by black women.
(See, e.g., Compl. ¶ 1 (“Black women earn only sixty-one cents ($.61) for every
one dollar ($1.00) that a white male earns.”); id. ¶ 13(“[B]ased on today’s wage
gap, a Black woman working a forty (40) year career stands to earn one million
dollars ($1,000,000.00) less than a White, non-Hispanic man.”)).
//
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Defendant’s interpretation of relevance here is far too narrow, and the Court
finds that the Friedman allegations are relevant in Plaintiff’s action, as several of
her claims require her to prove pretext by way of discriminatory intent or animus.
(MTS Opp’n at 4). Courts have declined to strike matter from employment
discrimination complaints with only thin relevance on a claim, and at least in one
instance, even on a claim that was dismissed. For example, in Anderson v. Davis
Polk & Wardwell LLP, 850 F. Supp. 2d 392, 414, 418 (S.D. N.Y. 2012), the Court
found that even “allegations regarding a purported article” from years ago “about
16
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Because “[a] court must deny the motion to strike if there is any doubt
whether the allegations in the pleadings might be relevant in the action,” the Court
declines to strike paragraphs 26–29, which are not immaterial or impertinent.
Oracle Am., Inc., 817 F. Supp. 1132.
17
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including using the n-word to describe them, and refusing to acknowledge, shake
hands with, or speak with them. (Id. ¶ 32). Plaintiff further alleges that Blue
reported raising concerns about Spacey’s conduct, but the set managers responded
that “That’s just the way he is; we’ve got to keep him happy” and referring to him
as “the Powers that be.” (Id.¶ 33). After that, VIP’s contract was purportedly not
renewed, although the show’s producers said they were pleased with the
company’s work. (Id.).
Here, the Court finds that the Spacey allegations are irrelevant and
impertinent. As Defendant points out, “Plaintiff does not allege that Mr. Spacey’s
alleged conduct in 2012 had anything to do with negotiations more than 5 years
later” for her to produce a comedy special for Netflix. (MTS at 4) (emphasis in
original). Defendant essentially conceded as much at oral argument on February
28, 2020. Finding no legal relevance of Spacey’s allegation to Plaintiff’s
underlying dispute, and “to avoid the expenditure of time and money that must
arise from litigating spurious issues” posed by the Spacey allegations, the Court
STRIKES paragraphs 30–33. Whittlestone, 618 F.3d at 973.
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involvement of the CEO and a high-level executive. As these allegations may bear
on discriminatory intent on the basis of gender, and it is too early to tell for sure at
this point, the Court declines to strike paragraphs 34–36.
Here, the Court finds that The Crown Allegations are plainly relevant to
Plaintiff’s claims of gender-based discrimination. The results of Netflix’s internal
investigation of salaries across its productions may be probative of a
discriminatory corporate culture, if found to show that Netflix generally pays
women (and/or Black women) less for same or similar roles. Netflix disagrees,
asserting that The Crown allegations show that “Netflix condemned any real or
perceived inequity or discrimination,” and thus demonstrate that the company
adjusted salaries retroactively and proactively reviewed and adjusted salaries
across its productions. (MTS Reply at 7–8). Given this argument, the Court finds
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that Netflix is not prejudiced by The Crown Allegations, as they may lead to
evidence of Netflix’s good-faith efforts to rectify a purported problem.
Again, “[m]atter will not be stricken from a pleading unless it is clear that it
can have no possible bearing upon the subject matter of the litigation[.]” Clark,
231 F.R.D. at 406. Finding that The Crown Allegations may bear on Plaintiff’s
claims here, the Court declines to strike paragraphs 37–40.
IV. CONCLUSION
IT IS SO ORDERED.
20