Opinion
24-cv-00319-BAS-JLB
07-31-2024
BERT RIDDICK, et al., Plaintiffs, v. SONY ELECTRONICS, INC., et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (ECF NO. 6.)
Hon. Cynthia Bashant United States District Judge.
Presently before the Court is Defendants Sony Electronics (“Sony”), Michaela Ion, and Matthew Parnell's motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 6.) Plaintiff Bert Riddick opposes. (ECF No. 8.) Having considered the parties' filings and for the reasons herein, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion. (ECF No. 6.)
I. BACKGROUND
This is a case of purported gender discrimination against men. Defendant Sony is an electronics and equipment company. Beginning in 2018, Sony launched its “Alpha Female Creator In Residence” (“Alpha Female”) program for photographers, videographers, and filmmakers. Winning applicants would receive mentorship, a monthly stipend, new equipment, and trips to various exhibitions to display their work. (ECF No. 6-1 at 8.) The 2018-2019 and 2019-2020 programs were restricted to only female applicants. (Compl. at ¶ 33.) When prospective applicants visited the program's website, the terms and conditions required entrants “must be a female” and limited winners to “female creators.” (Id. at ¶ 43.) For the 2020-2021 and 2021-2022 programs, Sony retained the “Alpha Female” name but eliminated the requirement that only females could enter. (Id. at ¶ 55.) Defendants Ion and Parnell are employees of Sony. They created the idea for the “Alpha Female” program and marketed the program on Sony's website, social media pages, and newsletters. (Id. at ¶ 38.)
Plaintiff Bert Riddick allegedly visited Sony's websites for its 2018-2019 and 20192020 “Alpha Female” programs. (Compl. at ¶ 39.) He intended to submit an entry but did not once he encountered Sony's terms restricting participation to only females. (Id.) On May 10, 2021, he filed a class action complaint in the Superior Court of California asserting violations of the Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, and California Civil Code § 51.5 for alleged discrimination on behalf of himself and all similarly situated parties. (Id.) The Superior Court of California consolidated Plaintiff's action with another class action complaint. After a series of motions, Plaintiff filed the operative complaint on February 5, 2024. (ECF No. 6-1 at 12.) On February 20, 2024, Sony filed a notice of removal under the Class Action Fairness Act, 28 U.S.C. § 1332(d), removing the action to this Court. (Id. at 13.)
On February 28, 2024, Defendants filed the instant motion to dismiss asserting the “Alpha Female” program was non-actionable under the Unruh Act as a promotional gift, the alleged discrimination was neither arbitrary nor invidious, the latter programs did not discriminate, and Plaintiff fails to plead sufficient allegations for individual liability against Defendants Ion and Parnell. (ECF No. 6.)
On April 4, 2024, Defendant NSO, Inc. filed a notice of joinder to the aforementioned Defendants' motion to dismiss. (ECF No. 12.) Plaintiff opposes. (ECF No. 22.) The Local Civil Rules for the Southern District of California permit joinder if a motion is pending and the joinder specifically identifies the party and the particular motion to which the joinder applies. L.R. 7.1j. Defendant NSO, Inc. has met these obligations such that joinder is proper here.
II. LEGAL STANDARD
Under Rule 12(b)(6), the Court may dismiss a cause of action for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory' or ‘the absence of sufficient facts alleged under a cognizable legal theory.'” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
A complaint must contain more than “naked assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). A complaint states a plausible claim “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must accept all factual allegations pleaded in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not accept conclusory allegations as true; rather, it must “examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citations omitted).
III. ANALYSIS
A. Unruh Act and Non-Actionable Giveaways
Defendants argue the “Alpha Female” contests are giveaways and are not actionable discrimination under the Unruh Act.(ECF No. 6-1 at 14.) Plaintiff contends there was an exchange of consideration as part of the contest such that these are not gifts outside the reach of the statute. (ECF No. 8 at 18.)
In support of their motion to dismiss, Defendants request the Court take judicial notice of the terms and conditions of the “Alpha Female” contest for 2018-2019 and 2019-2020. (ECF No. 7.) Ordinarily, if the trial court considers evidence outside the pleadings, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Fed.R.Civ.P. 12(b). A court may, however, consider external evidence in a Rule 12(b)(6) motion where the document is incorporated by reference in the pleadings because the plaintiff “refers extensively to the document or the document forms the basis of the plaintiff's claim.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). Plaintiff refers to and quotes extensively from the terms and conditions of the “Alpha Female” contest in his Complaint. Accordingly, the Court takes judicial notice of the full sets of terms and conditions for these contests.
Plaintiff requests the Court take judicial notice of three items: (1) Sony's “Giving Guidelines” posted to its website; (2) Sony's advertisement of its “Alpha Female” program; and (3) a 2012 report by the judicial counsel for the state of California on civil jury instructions. (ECF No. 9.) Defendants oppose. (ECF No. 10.) With respect to the first two items, the Court declines to take judicial notice of them. They contain extrinsic evidence not included in the four corners of the Complaint and may be contested. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (noting a court may not take judicial notice of a fact subject to “reasonable dispute,” including those that are publicly available). The Court's analysis, however, would not change if they were considered. With respect to the third item, the Court is cautioned by the Supreme Court of California's admonition that “jury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent.” People v. Morales, 25 Cal.4th 34, 48 n.7 (2001). However, their consideration also does not affect the Court's analysis here. Plaintiff's requests are thus denied.
The Unruh Act provides “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51. The Unruh Act was passed to ferret out intentional discrimination in public accommodations. Brown v. Smith, 55 Cal.App.4th 767, 786-87 (1997). The statute, by its terms, is limited to business establishments and business activity. See Strother v. S. Cal. Permanent Med. Grp., 76 F.3d 859, 874 (9th Cir. 1996) (noting Unruh Act claims are “appropriate where the plaintiff was in a relationship with the offending organization similar to that of the customer in the customer-proprietor relationship”). See generally Brennon B. v. Superior Ct. of Contra Costa Cnty., 57 Cal.App. 5th 367 (2020) (discussing whether schools qualify as business establishments for the purposes of the Act). Defendants assert the “Alpha Female” program was a “promotional giveaway,” and not a business activity, such that it is outside the scope of the Unruh Act.
Defendants cite to Cohn v. Corinthian Colleges, Inc., 169 Cal.App.4th 523 (2008), to support their argument. In Cohn, the Angels professional baseball team held a Mother's Day giveaway where tote bags were given to females aged eighteen years old and older. Id. at 526. Michael Cohn sued alleging the giveaway constituted gender discrimination in violation of the Unruh Act. Id. The California Court of Appeal affirmed the trial court's grant of summary judgment against Cohn for two reasons. First, it found the discrimination was “mothers versus the rest of the population,” rather than males versus females, and the Unruh Act does not identify pregnancy as a protected class. Cohn, 169 Cal.App.4th at 528. Because pregnancy is a secondary sex characteristic, the California court affirmed the discrimination was neither arbitrary nor invidious. Id.
Second, in response to Cohn's claim the tote bags were a discriminatory discount toward the price of admission, the California Court of Appeal found the tote bag constituted a promotional gift, because it did not affect the price of admission, and was therefore non-actionable under the Unruh Act. Id. at 530. The court, however, was explicit that its promotional gift holding was limited. “We are not implying that all promotional gifts are per se exempt from the Unruh Act. This is not a situation where the Angels gave money to all women in attendance, which would be a de facto discount and, therefore, violate the Unruh Act.” Id. Rather, the “crucial differentiating factor is intent. If the intent is for the item to be a gift, rather than an attempt to circumvent the ban on gender based discounts, then such a gift is permissible.” Id. The California court found businesses “are free to give to whomever they like” because “[g]ift giving is not the same as usurping rights.” Cohn, 169 Cal.App.4th at 530.
Cohn does not foreclose Plaintiff's claims. First, Plaintiff alleges discrimination according to sex, which is protected under the Unruh Act. The “Alpha Female” program broadly restricts participation according to gender rather than according to a secondary sex characteristic like the capacity for pregnancy. Cf. Allison v. Love Boutique-Vista, LLC, No. D-078445, 2022 WL 897004, at *7 (Cal.Ct.App. Mar. 28, 2022) (finding a woman only event at a sex store did not violate the Unruh Act because men and women have different genital physiology such that the store did not discriminate based on an irrelevant sex characteristic).
Second, the procedural posture of this case differs. In Cohn, the California Court of Appeal affirmed the trial court's grant of summary judgment; in this matter, Defendants present their request in a motion to dismiss. The California Court of Appeal noted the “crucial differentiating factor is intent.” Cohn, 169 Cal.App.4th at 530, However, ascertaining Defendants' intent involves factual questions that are generally inappropriate for a motion to dismiss. See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1054 (9th Cir. 2008) (noting questions of knowledge and intent are factual questions). See, e.g., Solid Host, NL v. Namecheap, Inc., 652 F.Supp.2d 1092, 1119 (C.D. Cal. 2009) (discussing questions of intent being inappropriate for resolution via a motion to dismiss). Defendants' argument is therefore procedurally immature.
Third, Plaintiffs sufficiently allege the “Alpha Female” program was not a promotional gift. Under California law, gifts are made without consideration from the recipient party. See Cal. Civ. Code § 1146 (noting for personal property a gift is “made voluntarily, and without consideration”). See also Jaffe v. Carroll, 35 Cal.App.3d 53, 59 (1973) (describing the elements of a gift as including “lack of consideration”). Plaintiffs contend Sony received consideration from the contest winners. For example, as part of the contract for the 2018 to 2019 “Alpha Female” contest, Sony received from the winner: “Up to five photos and/or video examples of what “Be Alpha” means to winning bidder/contractor . . . to not be returned to the winning bidder/contractor;” “Full participation in the Female Creator in Residence Program during the entire Female Creator in Residence Program or Sony's consideration will be deemed forfeited;” and “Consent to Sony's use of the winning bidders/contractor's name, biographical information, photograph, and/or likeness for Sony's advertising and publicity purposes as Sony determines or Sony's designees without further compensation.” (Compl. at ¶ 42.) Sony received similar benefits from the 2019 to 2020 contest winners. (Compl. at ¶ 49.) Making all inferences favorable to the non-movant, these allegations are sufficient to allege the “Alpha Female” program was not a promotional gift.
Accordingly, the Court denies Defendants' motion to dismiss on this basis.
B. Reasonableness, Arbitrariness, or Invidiousness
Defendants contend the “Alpha Female” contests do not violate the Unruh Act because the alleged disparate treatment is not arbitrary, invidious, or unreasonable. (ECF No. 6-1 at 18-20.) Defendants argue its alleged discrimination is legal because they seek to correct a gender disparity in the photography industry such that a strong public policy exists in favor of their purported disparate treatment. Plaintiff contends there is no such gender disparity in the photography industry and that Defendants' rationale is pretextual because they initiated the “Alpha Female” program in the pursuit of profit, not equity.(ECF No. 8 at 11-15.)
Plaintiff filed a notice of supplemental authority to support his argument. (ECF No. 24.) Because the Court does not rely on this authority, his notice is noted and denied as moot.
The Unruh Act aims to eradicate “arbitrary, invidious discrimination” from California businesses. Angelucci v. Century Supper Club, 41 Cal.4th 160, 167 (2007). “Although the Unruh Act proscribes ‘any form of arbitrary discrimination,' certain types of discrimination have been denominated ‘reasonable' and, therefore, not arbitrary.” Hankins v. El Torito Rests., Inc., 63 Cal.App.4th 510, 520 (1998) (citations omitted.) For example, “it is permissible to exclude children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute ‘harmful matter' to minors.” Koire v. Metro Car Wash, 40 Cal.3d 24, 31 (1985). To be exempt from the Unruh Act, a “compelling societal interest” must be relied on to justify differential treatment. See Correll v. Amazon.com, Inc., No. 21-CV-01833-BTM, 2022 WL 5264496, at *5 (citing Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721, 743 (1982)). Mere business profit is not a sufficient justification for disparate treatment under the Unruh Act. Koire, 40 Cal.3d at 32.
Defendants assert the photography industry is dominated by men. They contend they had a prosocial motivation behind the “Alpha Female” program because they sought to correct this gender disparity. Defendants identify numerous statutes that promote diversity in small businesses like photographers in support of its argument that there is a strong public policy in favor of correcting gender disparities. See, e.g., Cal. Gov. Code § 8245 (promoting gender equity in media and education of women); Cal. Revenue & Tax Code § 23698(g) (promoting representation of women in the film industry). The Court is sympathetic to attempts to rectify historic or present imbalances in an industry's gender composition. The reasonableness or arbitrariness of alleged discrimination to address a disparity, however, asks more questions than can be answered at a motion to dismiss. For example, Plaintiffs allege there is not a sex disparity in the photography industry whereas Defendants contend far fewer women are employed than men. (Compl. at ¶ 37; ECF No. 6-1 at 7.) Whether there is a gender disparity requires fact finding that is not appropriate for a motion to dismiss. As another example, Plaintiffs allege Sony created the “Alpha Female” program to enhance its profits whereas Defendants urge the motivation for the program was to correct the gender imbalance in the photography industry. (Compl. at ¶ 37; ECF No. 6-1 at 8.) The question of whether Defendants' stated motivation is pretextual requires fact finding that is not appropriate for a motion to dismiss.
Other courts have similarly found arguments about the arbitrariness of a discriminatory program are appropriate for summary judgment rather than a motion to dismiss. See, e.g., Kotev v. First Colony Life Ins. Co., 927 F.Supp. 1316, 1320 (C.D. Cal. 1996) (noting whether the defendant “will be able to show it denied Kotev's application for a legitimate, rather than a discriminatory, reason is immaterial to the issue of whether or not Kotev has stated a claim under the Unruh Act”); Correll, 2022 WL 5264496, at *5 (noting the arbitrariness of a minority business program, which turns on how the program functions, is appropriate for a motion for summary judgment); Ross v. United States, 195 F.Supp.3d 180, 192 (D.D.C. 2016) (refusing to convert a motion to dismiss to a motion for summary judgment, although Defendant offered a “legitimate reason” for allegedly discriminatory conduct).
Accordingly, the Court denies Defendants' motion to dismiss on this basis.
C. Contests Following Changes to Eligibility Terms
Defendants contend Plaintiff's allegations with respect to its 2020-2021 and 20212022 “Alpha Female” contests should be dismissed because these later contests were not limited to only female applicants. (ECF No. 6-1 at 16-17.) Plaintiff admits Sony “removed the ‘female-only' requirement from the terms and conditions” but insists these contests are still actionable under the Unruh Act because the prior restrictions led people to believe the subsequent contests were also limited to only females. (Compl. at ¶ 55.) The Court disagrees.
The Supreme Court of California has held an injury due to discrimination “occurs when the discriminatory is applied to the plaintiff-that is, at the time the plaintiff patronizes the business establishment.” Angelucci, 41 Cal.4th at 175 (citing Koire, 40 Cal.3d at 38). And “a plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.” Id. The Unruh Act was “intended to provide recourse for those individuals actually denied full and equal treatment by a business establishment.” Midpeninsula Citizens for Fair Housing v. Westwood Investors, 221 Cal.App.3d 1377, 1383 (1990).
Men who did not apply to the 2020-2021 and 2021-2022 “Alpha Female” contests lack an injury under the Unruh Act. They did not suffer any discriminatory exclusion because the contest rules did not formally exclude them. Their subjective beliefs about their eligibility based on prior contests' rules is not sufficient. See Arya v. CalPERS, 943 F.Supp.2d 1062, 1070 (E.D. Cal. 2013) (collecting cases). If that were the case, the specter of prior discrimination would grant any future parties an actionable injury out of their subjective beliefs the discrimination would continue or restart.
Because the 2020-2021 and 2021-2022 “Alpha Female” contests do not exclude entries according to gender, Plaintiff's claims with respect to these contests are dismissed. Further, because Plaintiff's pleading could not “possibly be cured by the allegation of other facts” with respect to these contests, his claims with respect to the 2020-2021 and 20212022 contests are dismissed with prejudice. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (internal quotation marks omitted).
D. Individual Defendants
Defendants move to dismiss the claims against Defendants Ion and Parnell asserting Plaintiff fails to sufficiently allege individual liability under the Unruh Act. (ECF No. 6-1 at 20-22.) Plaintiff alleges Defendants Ion and Parnell created the idea for the “Alpha Female” program, promoted and marketed the Alpha Female program on Sony's social media accounts and newsletters, and created documents demonstrating their knowledge of and assistance in the “Alpha Female” program. (Compl. at ¶¶ 26-27, 38.) Defendants contend these allegations are insufficient to plead Defendants Ion and Parnell “aided” and “assisted” in the alleged discrimination. (ECF No. 6-1 at 20-22.) The Court disagrees.
The Unruh Act portends liability to “[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to [the Act].” Cal. Civ. Code § 52. This includes businesses, but the Supreme Court of California has held, by the statute's language, liability “extends beyond the business establishment itself to the business establishment's employees responsible for the discriminatory conduct.” N. Coast Women's Care Med. Grp., Inc. v. Superior Court, 44 Cal.4th 1145, 1154 (2008). California courts have not specifically outlined when a party “aids” discrimination; however, by its plain language, the Unruh Act's grant of liability is broad. Cf. Perrin v. United States, 444 U.S. 37, 42 (1979) (citing Burns v. Alcala, 420 U.S. 575, 580-81 (1975)) (“[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”). The Oxford English Dictionary defines “aid” as “to give help, support, or assistance.” Oxford English Dictionary, Aid, https://www.oed.com/dictionary/aidv?tab=meaninganduse#8101737. Merriam-Webster defines “aid” as “to provide with what is useful or necessary in achieving an end.” Merriam-Webster Online Dictionary, Aid, https://www.merriam-webster.com/dictionary/aid. By this plain meaning, any party that gave support or provided something useful to the discrimination would potentially be liable.
While the Supreme Court of California has not addressed what constitutes “aid” in this context, that term has been interpreted broadly in other statutory contexts. See, e.g., People v. Partee, 8 Cal. 5th 860, 869 (2020) (citations omitted) (describing the multitude of cases that define “aid” as “to assist” or “to supplement the efforts of another” in the criminal context); Doctors' Co. v. Superior Court, 49 Cal.3d 39, 47 (1989) (describing an attorney as civilly liable for “aiding” in a beneficiary's noncompliance by preventing the closing of escrow).
Plaintiff alleges Defendants Ion and Parnell helped devise the “Alpha Female” program and promoted and marketed the program. (Compl. at ¶¶ 26-27, 38.) According to the statutory text's plain meaning and interpretations by the Supreme Court of California in other contexts, this is sufficient to allege Defendants Ion and Parnell “aided” in the purported discrimination.
This finding comports with other courts' assessments of what constitutes conduct sufficient to incur liability under the Unruh Act. See, e.g., Dep't of Fair Emp. & Hous. v. M&N Fin. Corp., 69 Cal.App. 5th 434, 444 (2021) (holding individual employees who implemented but did not devise employer's discriminatory algorithm for calculating car prices were liable under the Unruh Act); Pfeister v. Rogers, No. A165508, 2024 WL 1614969, at *12 (Cal.Ct.App. Apr. 15, 2024) (finding plaintiff made a prima facie showing of intentional discrimination against a member of a homeowners association board where the member allegedly said he “did not want transgender people like [her] on the Board”); Paul v. Hyatt Hotels Corp., No. LA-CV-17-06849-JAK-MRWx, 2018 WL 2284174, at *6 (C.D. Cal. May 18, 2018) (finding allegations that a hotel employee told hotel guests “we don't want Blacks in this hotel” was sufficient to state a claim against the employee).
Accordingly, the Court denies Defendants' motion to dismiss Plaintiff's claims with respect to Defendants Ion and Parnell.
IV. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART. (ECF No. 6.) Plaintiff's claims with respect to the 2020-2021 and 2021-2022 “Alpha Female” contests are dismissed without leave to amend. Defendants must file their answer to Plaintiff's complaint in due course.
IT IS SO ORDERED.