Case Document 7-1 Filed 01/07/16 Page 1 of 19 KARL R. LINDEGREN, SBN 125914 J. VOIGT, SBN 265721 FISHER PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine California 92614 Telephone 949) 851-2424 Fa081m11e 49) 851?0152 Attorneys for Defendant, WIZARDS OF THE COAST LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PAUL YALE, individually and on behalf of others similarly situated, Plaintiffs, vs. WIZARDS OF THE COAST LLC and DOES 1 through 100, inclusive, Defendant. Case No. [Removed ?rom, Santa Clara Superior Court Case No: MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF DEFENDANT WIZARDS OF THE COAST MOTION TO DISMISS PURSUANT TO FRCP RULE 12(b)(6) (concurrently ?led with Notice of Motion and Motion; and [Proposed] Order) DATE: February 16, 2016 TIME: 10:00 a.m. CTRM: 2, 5th Floor Complaint Filed: October 29, 2015 Trial Date: None POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 Ln w?lxCase Document 7-1 Filed 01/07/16 Page 2 of 19 TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY OF THE ARGUMENT 1 II. LEGAL STANDARD ON A MOTION TO DISMISS 2 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 4 A. Allegations That Wizards ?Emoloved? Plaintiff and the Putative Class. Or That Such Individuals Performed ?Work? for Wizards, Are Legal Conclusions ThatMustBe 5 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 Emoloved Bv Wizards 6 C. Plaintiff Does Not Even Mention. Let Alone Suf?cientlv Allege, the ?Suffer or Permit? Prong of the Martinez Test 10 D. Plaintiff Fails to Allege that Wizards ?Engaged? Him to Work Within A the Meaning of the California Labor Code 11 IV. CONCLUSION 12 FPDOCS 313476851 gum Case Document 7-1 Filed 01/07/16 Page 3 of 19 TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 US. 662 (2009) . 4 5, 6, 7 Bell Atlantic Corp. v. 550 US. 544 (2007) 3, 4, 6, 13 Daniels?Hall v. National Educ. Ass 629 F.3d 992 (9th Cir. 2010) 4 Employers Ins. of Wausau v. Granite State Ins. C0., 330 F.3d 1214 (9th C1r2003) 8 utrell V. Payday Cal, Inc. 190 Cal.Appt.4th 1419 (2010) 12 Groten v. California, . 251 F.3d 844 (9th Cir. 2001) . 4 Guerrero v. Gates, 357 F.3d 911 (9th Cir. 2004) 3 Jeungv Yelp, Inc., No. 15- CV- 02228? RS, 2015 WL 4776424 (N..D Cal Aug. 13, 2015) 4,6,10, 13 Knievel 1). ESPN, 393 F.3d 1068 (9th Cir. 2005) 4 Martinez-v. Combs 49 Cal.4th 35 (2010) passim McSherry v. Block, 880 F.2d 1049 (9th Clrl989) 8 Moss v. United States Secret Service, 572 F.3d 962 (9th Cir. 2009) 7 Neilson v. Union Bank of Cal, NA, 290 F.Supp.2d 1101 (CD. Cal. 2003) 3 FPDOCS 313476851 ii. Case Document 7-1 Filed 01/07/16 Page 4 of 19 Ochoa v. McDonald? 5 Corp. ., N0. 14- CV- 02098- JD, 2015 WL 5654853 (N. D. Cal Sept. 25 2015) 8, 11 Olmstead v. Home Depot U. A., Inc. ., N0. B248296, 2015 WL 1791440 (Cal. Ct. App. Apr. 17, 2015) 8 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) 7 Vernon v. State (2004) 116 Ca1.App.4th 114 12 W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) 7 FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page 5 of 19 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 both 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, 1i 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 seq. 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 Plaintiffs claims 1 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DJSMISS FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page 6 of 19 are alleged individually on his own behalf, as well as a putative geographically dispersed throughout California. [Complaint, ii 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 nearly 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 this Court should dismiss Plaintiff?s Complaint in its entirety, without leave to amend. II. LEGAL A MOTION DISMISS A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ?tests the legal suf?ciency of the claims asserted in the complaint.? Neilson 12. Union Bank of Cal, N.A., 290 F.Supp.2d 1101, 1111 (CD. Cal. 2003). To that end, a complaint must contain ?a short and plain statementof the claim showing that the pleader is entitled to relief.? Fed. R. Civ. P. 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 US. 544, 570 (2007); Fed. R. Civ. P. Such a dismissal will be granted when the plaintiff can allege no set of facts supporting relief. Guerrero 12. Gates, 357 F.3d 911, 916 (9th Cir. 2004). This includes circumstances where an af?rmative defense or other bar to relief is apparent from the face of the 2 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 KCCase Document 7-1 Filed 01/07/16 Page 7 of 19 complaint. Grater: 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 ?12, 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. 2015 WL 4776424, at *2 (ND. Cal. Aug. 13, 2015) (Jeurzg), at Moreover, the factual allegations must be ?enough to raise a right to relief above the speculative level Twombly, 550 US. at 555. ?[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.? Iqbal, 556 US. at 679. In this case, Plaintiff?s Complaint does not (and cannot) set forth the necessary factual allegations to support Plaintiff 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 Plaintiff?s Complaint for failure to state a plausible claim for relief pursuant to Rule without leave to amend. POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 4: \o'ooxioxm Case Document 7-1 Filed 01/07/16 Page 8 of 19 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 4 Each of the causes of aetion at isSue in Plaintiff?s Complaint are predicated on alleged violations of the, California Labor Code (including Plaintiff?s derivative claim for unfair competition under Business Professions Code section 17200 let sea). As such, and as a matter of law, an employer-employee relationship between Plaintiff and Wizards is required to establish liability. Martinez 12. Combs 49 Cal.4th 35, 50 (2010) (Martinez) (?only an employer can be liable? for Labor Code violations). Despite this foundational requirement, Plaintiffs 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? bare conclusion, lacking in factual support, must be disregarded for purposes of this Motion. See, e. g, Iqbal, 556 US. at 679. While the terms ?employer,? ?employee,? and ?employ? are not speci?cally defined in the Labor Code, the California Supreme Court issued a detailed 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 to exercise control over the wages, hours or working . conditions, or to suffer or permit to work, or to engage, thereby creating a common law employment relationship.? Martinez, 49 Ca1.4th 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 . 7 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS 313476851 Case Document 7-1 Filed 01/07/161 Page 9 of 19 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 wombly 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 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 Class, Or That Such Individuals Performed ?Work? for Wizards, Are Legal Conclusions That Must Be Disregarded 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.? Iqbal, 556 US. 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 [Complaint, 11 3 (emphasis added)l; ?Plaintiff is informed and believes that Defendant was his employer? [Complaint, ll 6 (emphasis added)]; ?[Plaintif? 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 [Complaint, 11 8 (emphasis added)]; ?The work performed by Judges for the bene?t of Defendant and under its close supervision and control created an employer and employee [Complaint, ll 16 (emphasis added)]; and ?Plaintiff and similarly situated Judges performed work on 5 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page 10 of 19 behalf of Defendant without monetary compensation, during the course of their [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 legal 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 US. at 679; Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) 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?); Spr?well v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); W.) Mining Council 12. 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 suf?cient 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 ?rst 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, e. g, IWC Wage Order No. 4-2001 ?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 MOTION TO DISMISS FPDOCS 313476851 \Jom 10 11 12 13 14 ,15_ "Case Document 7-1 Filed 01/07/16 Page 11 of 19 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-JD, 2015 WL 5654853, at *3 (ND. 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).1 As summarized by the district court in Ochoa: In [Olmstead], the plaintiff worked for Cover-A11, a company that contracted with Home Depot to install ?ooring bought by its customers. Id. at The plaintiff sued Cover-A11 and Home Depot as joint employers for labor code claims. The court af?rmed 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, he 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 The fact that Home Depot could issue a charge- -back to resulted in Cover-A11 docking its employee's pay?was also not enough to make Home Depot an employer. See id. at 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 Rather, the fact that ?Home Depot had no authority to hire, terminate, or supervise Cover- All's employees? was dispositive. Id. at Ochoa, 2015 WL 5654853, at *3 citing Olmstead, 2015 WL 1791440, at 1 Federal courts may consider depublished California state court decisions. Employers Ins. of Wausau v. Granite State Ins. Co., 330? F.3d 1214, 1220 (9th Cir.2003); McSherry v. Block, 880 F.2d 1049, 1052 n. 2 (9th Cir.l989). 7 POINTS AUTHORITIES IN SUPPORT OF WIZARDS MOTION TO DISMISS FPDOCS 3134763851 See n. 8 hiCase Document 7-1 Filed 01/07/16 Page 12 of 19 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 suf?cient to establish that Wizards had the authority to hire, terminate, or supervise him 1n an employment setting.2 Moreover, with respect to control over Lows 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 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 ?[b]ecoming a Judge requires registering with Defendant, going through training and testing, 2 Plaintiffs 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 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. 8 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page 13 of 19 and documenting participation in tournaments.? [Complaint, 1] 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. Id. Similarly, Plaintiff does not-and cannot. plausibly allege that Wizards had the power to 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 inde?nitely, for any variety of reasons, is certainly not unequivocally the same as establishing that Wizards had the ability to Judges 4 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 insuf?cient to plausibly state that they were ??red? for purposes of the FLSA). Next, there are no allegations, let alone plausible ones, that Wizards controlled Plaintiffs Judge schedule or ?work? conditions, directed him. where or When to report, orlany other allegation revealing any semblance of a legitimate employment relationship. I Plaintiff simply alleges that ?[t]ournaments are overseen by Judges.? The utter lack of other factual allegations to establish Wizards? purported control of ?working conditions? is a glaring omission. Speci?cally, 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] Plaintiffs allegation that an individual may not remain a ?Judge? 9 . POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 wax) Case Document 7-1 Filed 01/07/16 Page 14 of 19 inde?nitely (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 fellow Judges. [Complaint, 1] 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, Plaintiffs allegation suggests that parties separate from Wizards 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 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 ?le 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 ?rst prong of the Martinez test. C. Plaintiff Does Not Even Mention, Let Alone ?Sufficientlv 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 (?nding that the putative employers did not ?suffer or permit? the plaintiffs to work because Munoz?their admitted employer?whad 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 MOTION TO DISMISS FPDOCS 31347685.? Case Document 7-1 Filed 01/07/16 Page 15 of 19 prevent the work from The California Court of Appeals reached the same conclusion as the Martinez court in Farrell v. Payday Cal., Inc. 190 Cal.App.4th 1419 (2010), holding in that case that there ?is no 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.? Id. at 1434. 0 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 suf?cient 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 Ca1.4th at 64. ?The essence of the common law test of employment is in the control of the details.? Farrell, supra, 190 Cal.App.4th at 1434. While a number of factors may be relevant in evaluating the right to control, ?nding of the right to control employment requires . . . a comprehensive and immediate level of ?day?to-day? authority over employment decisions.? Vernon 12. State (2004) 116 Cal.App.4th 114, 127?128. - Here, Plaintiff alleges baldy that Judges ?are highly regulated by [Wizards]? (Complaint, 1] 13), and perform ?work under [Wizards?] close 1 1 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page 16 of 19 supervision and control? (Complaint, 11 16). Yet again, the Complaint lacks facts to support these conclusory allegations in any meaningful way in the context of a wage?hour case. plaintiffs 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.? wombly, 550 US. at 555. ?[F]actual allegations must be enough to raise a right to relief above the speculative level.? Id; 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, ?nd 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 suf?cient 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 12 POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page 17 of 19 should grant Wizards? Motion to Dismiss pursuant to Rule and should do so without leave to amend. DATE: January 7, 2016 13 FISHER PHILLIPS LLP Shaun J. Voigt KARL R. LINDEGREN SHAUN J. VOIGT Attorneys for Defendant, WIZARDS OF THE COAST, LLC POINTS AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FPDOCS 313476851 Case Document 7-1 Filed 01/07/16 Page '18 of 19 PROOF OF SERVICE 1013(a) and 2015.5) 1, 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 decument entitled MEMORANDUM OF POINTS AUTHORITIES IN SUPPORT OF DEFENDANT WIZARDS OF THE COAST MOTION DISMISS PURSUANT TO FRCP RULE on all the appearing and/or interested parties in this action by placing the original a true copy thereof enclosed 1n sealed envelope(s) addressed as follows: SEE ATTACHED MAILING LIST [by 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 US. 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 af?davit. 1221 [by ELECTRONIC - 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 system on the Court?s website. The Court?s system will generate a Notice of Electronic Filing (NEF) to the ?ling party, the assigned judge, and any registered users in the case. The NEF will constitute service of the document(s). Registration as user constitutes consent to electronic service through the court?s transmission facilities. DE FEDERAL - I 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 By:, jr/lk/?l Print Name Signature - PROOF OF FPDOCS 313476851 Case 5:15-lcv-06337-EJD Document 7-1 Filed 01/07/16 Page 19 of 19 MAILING 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: 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) 499-6210 Email: Attorneys for Plaintiff, PAUL YALE PROOF OF SERVICE FPDOCS 313476851