KARL R. LINDEGREN, SBN 125914
pHAUN J. 3, VOIGT, SBN SBN 3 eee
F080. Main Street, Suite To00
Irvine, California 92614
Felephone (9 49) 851-2424
Facsimile (949) 851-0152
Attorneys for Defendant,
WIZARDS OF THE COAST LLC
PAUL YALE, individually and on
behalf of others similarly situated,
Plaintiffs,
vs.
WIZARDS OF THE COAST LLC and
DOES | through 100, inclusive,
Defendant.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Case No. 15-CV-06337-HRL
[Removed from Santa Clara Superio
Court Case No.; 1-15-CV-287452]
MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT OF
DEFENDANT WIZARDS OF THE
COAST LLC’S MOTION TO
DISMISS PURSUANT TO FRCP
RULE 12(b)(6)
(concurrently filed with Notice of Motion and
Motion; and [Proposed] Order)
DATE: February 16, 2016
TIME: 10:00 a.m.
CTRM: 2, 5 Floor
Complaint Filed: October 29, 2015
Trial Date: None
FPDOCS 313476851
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS? MOTION TO DISMISSTABLE OF CONTENTS
I, INTRODUCTION AND SUMMARY OF THE ARGUMENT.
II, LEGAL STANDARD ON A MOTION TO DISMISS... 2
Ill. PLAINTIFF’S ENTIRE COMPLAINT SHOULD BE DISMISSED FOR
FAILURE TO STATE A CLAIM, AS PLAINTIFF HAS NOT PLAUSIBLY
ALLEGED THAT HE AND OTHER JUDGES ARE EMPLOYEES OF
WIZARDS UNDER CALIFORNIA LAW... a4
A. Allegations That Wizards “Employed” Plaintiff and the Putative Class.
Or That Such Individuals Performed “Work” for Wizards, Are Legal
Conclusions That Must Be Disregarded.. e]
B. Plaintiff Has Not. and Cannot, Allege Facts Indicating that Wizards
Controlled Plaintiff's “Wages, Hours, or Working Conditions” Within
the Meaning of the California Labor Code, As Plaintiff Was Never
Employed By Wizards. 6
C. Plaintiff Does Not Even Mention, Let Alone Sufficiently Allege, the
10
“Suffer or Permit” Prong of the Martinez Test. 2
D. Plaintiff Fails to Allege that Wizards “Engaged” Him to Work Within
the Meaning of the California Labor Code.......... sell
TV. CONCLUSION.. wl
FPDOCS 31347686.1TABLE OF AUTHORITIES
Page(s)
Cases:
Ashcroft v. Iqbal,
556 U.S. 662 (2009)...
Bell Atlantic Corp. v. Twombly,
550 U.S. $44 (2007).
Daniels-Hall v. National Educ. Ass'n,
629 F.3d 992 (9th Cir. 2010)
Employers Ins. of Wausau v. Granite State Ins. Co.,
330 F.3d 1214 (9th Cir.2003)..
Futrell v, Payday Cal,, Inc.
190 Cal.App.4th 1419 (2010)...
Groten v. California,
251 F.3d 844 (9th Cir. 2001)...
Guerrero v. Gates,
357 F.3d 911 (9th Cir, 2004)...
Jeung v. Yelp, Inc.,
No. 15-CV-02228-RS, 2015 WL 4776424 (N.D. Cal. Aug. 13,
2015)
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005)..
Martinez v. Combs
49 Cal.4th 35 (2010).....
MeSherry v. Block,
880 F.2d 1049 (9th Cir.1989)..
Moss v. United States Secret Service,
572 F.3d 962 (9th Cir. 2009)...
Neilson v. Union Bank of Cal., N.A.,
290 F.Supp.2d 1101 (C.D. Cal. 2003)...
FPDOCS 21547685.1 :Ochoa v. McDonald's Corp.,
No. 14-CV-02098-JD, 2015 WL, 5654853 (N.D. Cal. Sept. 25,
2015).
Olmstead v, Home Depot U.S. as
No. B248296, 2015 WL 1791440 (Cal. Ct. App. Apr. 17, 2015).
Sprewell v. Golden State Warriors,
266 F.3d 979 (9th Cir. 2001)
Vernon v. State
(2004) 116 Cal.App.4th 114...
W. Mining Council v. Watt,
643 F.2d 618 (9th Cir. 1981)
FPDOCS 31947685.1Ren
MEMORANDUM OF POINTS & AUTHORITIES
I INTRODUCTION AND SUMMARY OF THE ARGUMENT
Defendant WIZARDS OF THE COAST LLC (“Wizards” or “Defendant”)
is a worldwide leader in the trading card game category, producing, inter alia, the
highly popular “Magic: The Gathering®” trading card game and trading cards
(“Magic”). Magic is a trading card game for ages 13+ set in a fantasy world of
powerful Wizards who have the ability to teleport between planes of existence.
Though the game is complex, the premise of Magic is simple: build a deck
of 60 Magic cards and defeat your opponent by bringing his life total from 20
points to zero. While enjoyed casually around kitchen tables and hobby stores,
Magic enthusiasts can chose to play in events and tournaments across the U.S. and
internationally held in stores or other public venues. The vast majority of these
events are run by local game stores or independent tournament organizers without
any Wizards direct oversight, or involvement. Such events may feature a rules
arbitrator (a “Judge”), although Magic game rules do not require a Judge. Judges
are highly engaged members of the Magic gaming community and active players
of Magic who understand Magic’s nuanced rules, and elect to participate in the
game not only as players but also as judges (another form of participating in the
game)—and often as borh in the same game or tournament.
This is a putative wage-and-hour class action brought by Plaintiff PAUL
YALE (“Plaintiff”), a Judge for over eighteen years (Complaint, { 8), asserting ten
causes of action against Wizards. Through his Complaint, Plaintiff seeks to turn
his hobby into an employment relationship by asserting wage-hour violations
under the California Labor Code and a derivative claim for unfair competition
pursuant to Business & Professions Code section 17200 et seg. Although Plaintiff)
asserts ten separate claims, the crux of his Complaint is that he and other Judges
in California should be treated as “employees” of Wizards within the meaning of |
the California Labor Code. [See generally, Complaint.] Each of Plaintiff's claims
— 1 — ~
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS.
FPDOCS 31347685.1are alleged individually on his own behalf, as well as a putative geographically
dispersed throughout California, [Complaint, 17.]
By Plaintiff's own admission, he has chosen to be a Judge at Magic events
since April 1997—a period spanning more than 18 years—without receiving any
wages or other remuneration that would form the basis of any employer-employee
relationship. [Complaint, 8, 15.] The only inference that can be drawn from
such a concession is that Plaintiff did not have any expectation or promise of
compensation for neatly two decades before he decided to raise the claims at issue
in this case. Now, Plaintiff attempts to transform his hobby into an employment
relationship simply to seek a windfall from Wizards. As set forth below,
however, Plaintiff has failed to state a plausible claim entitling him to relief under
the California Labor Code or California Business & Professions Code. This is not
surprising, of course, as Plaintiff is not, and has never been, an employee of
Wizards. Accordingly, pursuant to Rule 12(b)(6), this Court should dismiss
Plaintiffs Complaint in its entirety, without leave to amend.
Il. LEGAL STANDARD ON A MOTION TO DISMISS
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
“tests the legal sufficiency of the claims asserted in the complaint.” Neilson v.
Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1111 (C.D. Cal. 2003). To that
end, a complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Where the plaintiff
fails to allege “enough facts to state a claim to relief that is plausible on its face,”
however, the complaint may be dismissed for failure to allege facts sufficient to
state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). Such a dismissal will be
granted when the plaintiff can allege no set of facts supporting relief. Guerrero v.
Gates, 357 F.3d 911, 916 (9th Cir. 2004). This includes circumstances where an
affirmative defense or other bar to relief is apparent from the face of the
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS
FeoOCS 91347685.1Ao
complaint. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001).
In considering a motion to dismiss for failure to state a claim, the court
accepts all material facts alleged in the complaint as true and construes them in
the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072
(9th Cir, 2005). However, the court need not accept conclusory allegations,
unwarranted deductions of fact, or unreasonable inferences. See, e.g., Daniels—
Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); see also Ashcroft
v, Iqbal, 556 U.S. 662, 678 (2009) (“threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements,” are not accepted as true.);
Jeung v. Yelp, Inc., No. 15-CV-02228-RS, 2015 WL 4776424, at *2 (N.D. Cal.
Aug. 13, 2015) (Jeung), at *1-3. Moreover, the factual allegations must be
» Twombly, 550
USS. at 555. “[OJnly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Iqbal, 556 U.S. at 679.
In this case, Plaintiff's Complaint does not (and cannot) set forth the
“enough to raise a right to relief above the speculative level
necessary factual allegations to support Plaintiff's conclusory assertion that
Wizards “employed” him or any of the other “Judges” who form the putative
class—a prerequisite to all ten causes of action alleged against Wizards in the
Complaint. Plaintiff has neither alleged that Wizards solicited Plaintiff to be an
employee nor provided any factual allegations that he was promised any form of,
compensation or other employee-related benefit by electing to participate in the
Magic community as a Judge for nearly two decades, nor can he assert such
allegations in good faith. Accordingly, the Court should grant Wizards’ Motion in
its entirety, and dismiss Plaintiffs Complaint for failure to state a plausible claim
for relief pursuant to Rule 12(b)(6), without leave to amend.
dif
Mf
Mt
— a 3 —
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS
FPDOCS 31347885.1II. PLAINTIFF'S ENTIRE COMPLAINT SHOULD BE DISMISSED
FOR FAILURE TO STATE A CLAIM, AS PLAINTIFF HAS NOT
PLAUSIBLY ALLEGED THAT HE AND OTHER JUDGES ARE
EMPLOYEES OF WIZARDS UNDER CALIFORNIA LAW
Each of the causes of action at issue in Plaintiff's Complaint are predicated
on alleged violations of the California Labor Code (including Plaintiffs
derivative claim for unfair competition under Business & Professions Code
section 17200 ef seq.). As such, and as a matter of law, an employer-employee
relationship between Plaintiff and Wizards is required to establish liability.
Martinez v. Combs 49 Cal.4th 35, 50 (2010) (Martinez) (“only an employer can be
liable” for Labor Code violations). Despite this foundational requirement,
Plaintiff's Complaint is devoid of the factual allegations needed to plausibly
support the conclusion that Wizards is or ever was an “employer” of Plaintiff or
any other Judges. Plaintiff's bare conclusion, lacking in factual support, must be
disregarded for purposes of this Motion. See, e.g., Iqbal, 556 U.S. at 679.
While the terms “employer,” “
defined in the Labor Code, the California Supreme Court issued a detailed
employee,” and “employ” are not specifically
decision in Martinez explaining exactly what it means to “employ” an individual
in the wage-hour context. The guidance of the Martinez court makes clear that an
“employer” for wage and hour claims includes only entities that have the power to
hire, fire, set wages, and dictate when and where an individual reports to work.
‘As summarized by the California Supreme Court in Martinez, to “employ” a
worker means “(a) to exercise control over the wages, hours or working
conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a
common law employment relationship.” Martinez, 49 Cal.4th at 64.
As further explained below, Plaintiff's conclusory assertion that he and
other Judges are/were “employed” by Wizards must be disregarded, and it is
therefore irrelevant to the Court’s analysis of this Motion. Moreover, Plaintiff)
= 4 =
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS” MOTION TO DISMISS
FPDOCS 31347685.fails to assert any of the foundational facts necessary to support an alleged
employment relationship under any of the three tests articulated in Martinez.
Plaintiff's failure to allege such facts is telling, and it shows that no employment
relationship existed. Under Twombly and Iqbal, a court must “draw on its judicial
experience and common sense” to evaluate whether a complaint states a plausible
claim for relief. Jeung, 2015 WL 4776424, at *2. Concluding that an
employment relationship may have plausibly existed where Wizards does not
even organize or participate in the majority of Magic events at which Plaintiff’
claims he “worked” goes against “common sense.” For all of the reasons stated
herein, Wizards’ Motion to Dismiss should be granted in its entirety.
A. Allegations That Wizards “Employed” Plaintiff and the Putative
Or That Such Individuals Performed “Work” for
Class.
Wizards, Are Legal Conclusions That Must Be Disregarded
“[A] court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions can provide the
framework of a [complaint], they must be supported by factual allegations.”
Igbal, 556 U.S. at 679. Here, Plaintiff's Complaint is replete with bare legal
conclusions that should be disregarded. By way of example, Plaintiff alleges that:
“Plaintiff worked for Defendant on a near-weekly basis (and sometimes more than
once per week) as a Judge...” [Complaint, § 3 (emphasis added)]; “Plaintiff is
informed and believes that Defendant was his employer” (Complaint, { 6
(emphasis added)]; “[Plaintiff] has worked ... for Defendant in California from
approximately April 1997 through the present, At all times during Mr. Yale’s
work as a Judge for Defendant...” (Complaint, § 8 (emphasis added)]; “The work
performed by Judges for the benefit of Defendant and under its close supervision
and control created an employer and employee relationship...” (Complaint, {16
(emphasis added)]; and “Plaintiff and similarly situated Judges performed work on
— 5 ~
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS
FPDOCS 31347685.1we ene
(Sh et tore a oy
behalf of Defendant without monetary compensation, during the course of their
employment...” (Complaint, | 33 (emphasis added)].
As a plain reading of the Complaint makes clear, the above allegations are
not factual allegations. Rather, they are unsupported cursory /egal conclusions
that go to the ultimate issue in this case—whether Plaintiff and the Judges he
seeks to represent are/were “employed” by Wizards within the meaning of the
California Labor Code. Such conclusory allegations devoid of factual support
can, and indeed must, be disregarded by the Court in ruling on Wizards’ Motion.
Iqbal, 556 U.S. at 679; Moss v. United States Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (“[FJor a complaint to survive a motion to dismiss, the non-
conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief”); Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); W. Mining Council v.
Watt, 643 F.2d 618, 624 (9th Cir. 1981). After each of these conclusory assertions
are disregarded (as they must), it becomes abundantly clear that the Complaint
fails to allege facts sufficient to plausibly state a claim entitling Plaintiff to relief|
under the California Labor Code. Accordingly, Wizards’ Motion should be
granted in its entirety, without leave to amend.
B. Plaintiff_Has Not, and Cannot, Allege Facts Indicating that
Wizards Controlled _Plaintiff’s_“Wages, Hours, or Working
Conditions” Within the Meaning of the California Labor Code,
As Plaintiff Was Never Employed By Wizards
Under the first prong of Martinez, an entity employs an individual if it
“directly or indirectly, or through an agent or any other person, employs or
exercises control” over that individual’s wages, hours, or working conditions. See,
eg, IWC Wage Order No. 4-2001 § 2(G). “While this language is potentially
quite broad in scope, California courts have circumscribed it by denying employer
liability for entities that may be able to influence the treatment of employees but
= — 6 =
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS.
FPDOCS 31347685.1aan se
9
lack the authority to directly control their wages, hours or conditions” of the
individual’s employment. Ochoa v. McDonald's Corp., No. 14-CV-02098-ID,
2015 WL 5654853, at *3 (N.D. Cal. Sept. 25, 2015).
This first prong of the Martinez test was discussed in detail by the
California Court of Appeal in the recent case of Olmstead v. Home Depot U.S.A.,
Inc., No. B248296, 2015 WL 1791440, at *5 (Cal. Ct. App. Apr. 17, 2015)
(depublished).!As summarized by the district court in Ochoa:
In [Olmstead], the plaintiff worked for Cover-All, a company that
contracted with Home Depot to install flooring bought by its
customers. /d, at *1. The plaintiff sued Cover-All and Home Depot as
joint employers for labor code claims. The court affirmed summary
judgment for Home Depot on the issue. It held that “Home Depot's
rights to compel a Cover-All employee to pass a background check,
wear a proper badge evidencing that he did, be groomed, and be on
time, and to have that employee not assigned to or be removed from a
Home Depot job site are not indicia of a joint employer relationship”
and that “{t]he retention of some supervision and control does not
transform Home Depot into a joint employer,” even though Cover-All
agreed that “its employees had to pass a background check by a Home
Depot agent” and “agreed to comply with Home Depot's rules and
regulations and policies of customer service and customer relations.”
Id. at *6. The fact that Home Depot could issue a charge-back to
Cover-All—which resulted in Cover-All docking its employee's
pay—was also not enough to make Home Depot an employer. See id.
at *7, The court found “that the power of a business owner to
supervise and control the work results in furtherance of its entitlement
to quality assurance does not transform an independent contractor's
employee into an employee of the owner and thus render that owner a
joint employer of the employee.” Id. at *7. Rather, the fact that
“Home Depot had no authority to hire, terminate, or supervise Cover-
All's employees” was dispositive. Id. at *6.
Ochoa, 2015 WL 5654853, at *3 citing Olmstead, 2015 WL 1791440, at *5.
' Federal courts may consider depublished California state court decisions. See
Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n, 8
(9th Cir.2003); McSherry v. Block, 880 F.2d 1049, 1052 n. 2 (9th Cir.1989).
_7
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS
FPDOCS 31347885110
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In this case, and based on the above authority, it is abundantly clear that
Plaintiff has failed to plausibly allege that Wizards exercised control over “wages,
hours or working conditions” within the meaning of the California Labor Code.
Plaintiff fails to allege similar facts sufficient to establish that Wizards had the
authority to hire, terminate, or supervise him in an employment setting,”
Moreover, with respect to control over hours or working conditions, the
California Supreme Court instructs courts applying California law to consider
whether the putative employer “hired and fired plaintiffs, trained and supervised
them, ... and set their hours, telling them when and where to report to work[.]”
Martinez, supra, 49 Cal.4th at 72. In this case, Plaintiff fails to allege any facts
that show that Wizards “hired,” “terminated,” or “trained” Plaintiff or other
putative class members, dictated where or when they reported, or otherwise
controlled hours or working conditions within the meaning of the Labor Code.
First, the Complaint is devoid of factual allegations regarding an application
or hiring process, an employment contract, or any other information indicating an
actual employment relationship with Wizards, let alone that Wizards “hired”
Plaintiff. Plaintiff does not even allege who “hired” him, or otherwise explain
how this unnamed mystery individual had the power or capacity to do so on
behalf of Wizards, or that there was any understanding, agreement, or even
contemplation of an employee-employer relationship. In fact, the word “hire” is
not contained in Plaintiff's Complaint. Rather, Plaintiff alleges that “[bJecoming
a Judge requires registering with Defendant, going through training and testing,
2 Plaintiff's failure to allege such facts is not surprising, as the vast majority of
Magic events are operated by local game stores with no involvement from
Wizards, Wizards runs only a handful of Magic events a year, which take place
around the world (generally two in the United States, two in the European Union
and one in Asia-Pacific). As such, Plaintiff has not and cannot credibly allege
that Wizards sets Magic event schedules for independent game store or
tournament organizers in California, or otherwise controls the purported working
conditions or hours of Plaintiff or any other Judges he seeks to represent.
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS
FPDOCS 313476851aa u Rene
and documenting participation in tournaments.” [Complaint, § 14 (emphasis
added).] However, merely “registering” on a company website does not, and
cannot, plausibly establish that Plaintiff or other Judges were “hired” by Wizards,
even if they were “required” to demonstrate familiarity with Magic and participate
in tournaments to remain Judges as Plaintiff alleges. Jeung, 2015 WL 4776424, at
*2 (rejecting an argument from plaintiffs, who were Yelp contributors, that
signing up for an account on the Yelp website was equivalent to being “hired” as
an employee). This Court must draw reasonable inferences—not ones that go
against common sense. Jd.
Similarly, Plaintiff does not and cannot plausibly allege that Wizards had
the power to “fire” him or other Judges, and yet again, the word “fire” is entirely
absent from Plaintiff's Complaint. Simply because an individual who chooses to
become a Judge for Magic events may not remain so indefinitely, for any variety
of reasons, is certainly not unequivocally the same as establishing that Wizards
had the ability to “fire” Judges — a term with a legal meaning in the context of a
wage-hour claim under the Labor Code. See, e.g., Jeung, 2015 WL 4776424, at
+2 (alleging that Yelp involuntarily closed plaintiffs accounts was insufficient to
plausibly state that they were “fired” for purposes of the FLSA).
Next, there are no allegations, let alone plausible ones, that Wizards
controlled Plaintiff's Judge schedule or “work” conditions, directed him where or
when to report, or any other allegation revealing any semblance of a legitimate
employment relationship. Plaintiff simply alleges that “[tJournaments are
overseen by Judges.” The utter lack of other factual allegations to establish
Wizards’ purported control of “working conditions” is a glaring omission.
Specifically, Plaintiff does not allege that Wizards required Plaintiff or any Judge
to attend a particular tournament, or any tournament at all. Plaintiff can cease all
Judge-related activities at any time should he chose to do so. [See generally,
Complaint.] Plaintiff's allegation that an individual may not remain a “Judge”
— 9 a =
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS.
FPDOOS 313476851indefinitely (for example, if he or she elects not to participate in tournaments) is a
far cry from controlling a work schedule, work conditions, or directing an
individual as to where and when to report. With respect to training, Plaintiff|
himself alleges that other judges—notably not Wizards—“train” fellow Judges.
[Complaint, § 14.] This underscores the fact that individual Judges are not treated
as, nor do they contemplate becoming, employees of Wizards when they choose
to become and remain Judges for Magic events. If anything, Plaintiff's allegation
suggests that parties separate from Wizards (¢.g., other Judges) offer assistance to
other Judges as a way to contribute to their local Magic community.
Finally, Plaintiff's Complaint is devoid of factual allegations indicating that
Wizards controlled or had the ability to control the wages of Plaintiff or the
putative class (i.e., the ability to negotiate or set their respective rates of pay).
Wizards never determined rates or methods of payments with respect to Plaintiff
because as Plaintiff concedes, no payments were ever made. Moreover, Plaintiff's
18+ year tenure as a Judge without compensation is indicative of the fact that such
payments were never contemplated by anyone prior to his decision to file this
lawsuit. Simply put, the factual allegations that are set forth in the Complaint,
even when accepted as true for purposes of this Motion, utterly fail to plausibly
state a claim for relief under the first prong of the Martinez test.
C. Plaintiff Does Not Even Mention, Let Alone Sufficiently Allege,
the “Suffer or Permit” Prong of the Martinez Test
‘The “suffered or permit” prong under Martinez is applicable only where the
alleged employer knew about but failed to prevent violations of the Labor Code,
while having the power to do so. Martinez, supra, 49 Cal.4th at 69-70 (finding
that the putative employers did not “suffer or permit” the plaintiffs to work
because Munoz—their admitted employer—had the sole power and ability to
“prevent” plaintiffs from working); Ochoa, 2015 WL 5654853, at *4 (“Put less
opaquely, the ‘basis of liability is the defendant's knowledge of and failure to
— 10 ~ —
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS? MOTION TO DISMISS
FPDOCS 31347685.1prevent the work from occurring.””). The California Court of Appeals reached the
same conclusion as the Martinez court in Futrell v. Payday Cal., Inc. 190
Cal.App.4th 1419 (2010), holding in that case that there “is no evidence... Payday
allowed [the plaintiff] to suffer work, or permitted him to work, because there is
no evidence showing Payday had the power to either cause him to work or prevent
him from working.” Jd. at 1434.
Here, Plaintiff does not allege any facts that show that he performed “work”
for Wizards within the meaning of the California Labor Code, let alone that
Wizards somehow had the authority to either cause Plaintiff to work or prevent
him from working at any particular tournament or event. Again, his allegation
that Plaintiff could only retain his status as a Judge by attending tournaments,
reading materials, or engaging in other voluntary activities, falls far short of|
showing that Wizards “suffered or permitted” him to work, as there is and never
has been any requirement for Plaintiff to become or remain a Judge. That decision
is Plaintiff's and Plaintiff's alone. He has not, and cannot, allege facts sufficient
to satisfy the second prong of the Martinez test.
D. Plaintiff Fails to Allege that Wizards “Engaged” Him to Work
Within the Meaning of the California Labor Code
Plaintiff's Complaint also fails to allege plausibly that Wizards “engaged”
Plaintiff and other Judges as common-law employees—the third prong of the
Martinez test. Martinez, supra, 49 Cal.4th at 64. “The essence of the common
law test of employment is in the control of the details.” Futrell, supra, 190
Cal.App.4th at 1434. While a number of factors may be relevant in evaluating the
right to control, “[a] finding of the right to control employment requires . . . a
comprehensive and immediate level of ‘day-to-day’ authority over employment
decisions.” Vernon v, State (2004) 116 Cal.App.4th 114, 127-128.
Here, Plaintiff alleges baldy that Judges “are highly regulated by
[Wizards}” (Complaint, § 13), and perform “work ... under [Wizards’] close
pee — lu =
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS
FPOOCS 313476851supervision and control” (Complaint, J 16). Yet again, the Complaint lacks facts
to support these conclusory allegations in any meaningful way in the context of a
wage-hour case. “A plaintiff's obligation to provide the ‘grounds’ of his
‘entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. “[FJactual allegations must be enough to raise a right to relief above the
speculative level.” Jd.; see also Jeung, 2015 WL 4776424, at *2 (a court must
“draw on its judicial experience and common sense” to evaluate whether a
complaint states a plausible claim for relief) (emphasis in original).
Applying common sense to Plaintiff's theory of liability in this case and the
allegations in the Complaint, this Court can, and should, find that Plaintiff has
failed to state a plausible claim entitling him to relief under the California Labor
Code. Plaintiff is not, and has never been, an employee of Wizards over the 18
years that he has voluntarily chosen to participate as a Judge at Magic events.
Common sense dictates that spending time on a hobby does not entitle individuals
to wages in the absence of an employment relationship. This key defect cannot be
cured by an amended pleading. Accordingly, Wizards’ Motion should be granted
in its entirety, without leave to amend.
IV. CONCLUSION
As set forth herein, Plaintiff's Complaint largely rests on bald conclusory
statements, which are not presumed to be true for purposes of a motion to dismiss.
Moreover, the sparse factual allegations in the Complaint fail to plausibly give
rise to an entitlement to relief for any of Plaintiff's ten causes of action, because
he fails to allege facts sufficient to establish the required employer-employee
relationship under the California Labor Code. Plaintiff's attempt to capitalize on
his purely voluntary decision to become and remain a Magic Judge for over 18
years, without any employment agreement, compensation, or anything indicative
of an employer-employee relationship, must be rejected. Accordingly, this Court
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POINTS & AUTHORITIES IN SUPPORT OF WIZARDS? MOTION TO DISMISS
FPDOCS 31347685.1should grant Wizards’ Motion to Dismiss pursuant to Rule 12(b)(6), and should
do so without leave to amend.
DATE: January 7, 2016 FISHER & PHILLIPS LLP
By: /s/ Shaun J. Voigt
KARL R. LINDEGREN
SHAUN J. VOIGT
Attorneys for Defendant,
WIZARDS OF THE COAST, LLC
eee 13 a =
POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS.
FPDOCS 31347685.1PROOF OF SERVICE
(CCP § 1013(a) and 2015.5)
I, the undersigned, am employed in the County of Orange, State of
California. I am over the age of 18 and not a party to the within action; am
employed with the law offices of FISHER & PHILLIPS LLP and my business
address is 2050 Main Street, Suite 1000, Irvine, California, 92614.
On January 7, 2016, I served the foregoing document entitled
MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
DEFENDANT WIZARDS OF THE COAST LLC’S MOTION TO DISMISS
PURSUANT TO FRCP RULE 12(b)(6), on all the appearing and/or interested
parties in this action by placing [_] the original [XJ a true copy thereof enclosed in
sealed envelope(s) addressed as follows:
SEE ATTACHED MAILING LIST
[by MAIL] I am readily familiar with the firm's practice of collection and
processing correspondence for mailing, Under that practice it would be
deposited with the U.S. Postal Service on that same day with postage
thereon fully prepaid at Irvine, California in the ordinary course of
business, I am aware that on motion of the party served, service is
presumed invalid if postage cancellation date or postage meter date is more
than one day after date of deposit for mailing this affidavit.
[by ELECTRONIC SUBMISSION] - I served the above listed
document(s) described via the United States District Court's Electronic
Filing Program on the designated recipients via electronic transmission
through the CM/ECF system on the Court’s website. The Court’s CM/ECF
system will generate a Notice of Electronic Filing (NEF) to the filing party,
the assigned judge, and any registered users in the case. The NEF will
constitute service of the document(s). Registration as a CM/ECF user
constitutes consent to electronic service through the court’s transmission
facilities.
FEDERAL - | declare that I am employed in the office of a member of
the bar of this Court at whose direction the service was made.
Executed on January 7, 2016 at Irvine, California.
Katie Costantino —opy,_Ki ota ncund
‘Print Name ~ ‘Signature
FPOOCS 31947685.1MAILING LIST
David Borgen, Esq.
GOLDSTEIN, BORGEN, DARDARIAN & HO
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Telephone: (510) 763-9800
Facsimile: (510) 835-1417
Email: dborgen@gbdhlegal.com
‘Attorneys for Plaintiff,
PAUL YALE
Michael Malk, Esq.
MICHAEL MALK, ESQ, APC
1180 S. Beverly Drive, Suite 302
Los Angeles, CA 90035
Telephone: (310) 203-0016
Facsimile: (310) 499-5210
Email: mm@malklawfirm.com
‘Attorneys for Plaintiff,
PAUL YALE
PROOF OF SERVICE
FPDOCS 31347685.1