Case 2:19-cv-10452-AB-MAA Document 14 Filed 01/13/20 Page 1 of 9 Page ID #:245

1 QUINN EMANUEL URQUHART & SULLIVAN LLP

Crystal Nix-Hines (Bar No. 248073)
2 crystalnixhines@quinnemanuel.com
Jeanine Zalduendo (Bar No. 243374)
3 jeaninezalduendo@quinnemanuel.com
Becca Davis (Bar No. 322765)
4 beccadavis@quinnemanuel.com
865 S. Figueroa St., 10th Floor
5 Los Angeles, California 90017
Telephone: (213) 443-3000
6 Facsimile: (213) 443-3100
7 Attorneys for Defendant Netflix, Inc.
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 MONIQUE HICKS, an individual, Case No. 2:19-cv-10452-AB-MAA
12 Plaintiff, NOTICE OF MOTION AND
MOTION TO DISMISS BY
13 v. DEFENDANT NETFLIX, INC.
14 NETFLIX, INC., a Delaware Judge: Hon. André Birotte Jr.
corporation; and DOES 1 through 50,
15 inclusive, Hearing: February 28, 2020
Time: 10:00 a.m.
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Defendants. Place: Courtroom 7B
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Case No. 2:19-cv-10452-AB-MAA
DEFENDANT’S MOTION TO DISMISS
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1 TO THE COURT AND ALL PARTIES AND THEIR RESPECTIVE

2 ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on February 28, 2020, at 10:00 am, or as soon
4 thereafter as the matter may be heard before the Honorable André Birotte in
5 Courtroom 7B of the United States District Court for the Central District of
6 California, 350 W. 1st Street, Los Angeles, California 90012, Defendant Netflix,
7 Inc. will and hereby does move for an order dismissing the following of Plaintiff
8 Monique Hicks’ claims for relief, with prejudice:
9 1. The Fifth claim, for retaliation, in violation of California Government
10 Code section 12940, et seq., California’s Fair Employment & Housing Act
11 (“FEHA”);
12 2. The portion of the Sixth claim that alleges a FEHA violation for failure
13 to prevent that retaliation;
14 3. The Eighth claim, for retaliation under 42 U.S.C. Section 1981
15 (“Section 1981”); and
16 4. The Ninth claim, for violation of California’s Unruh Civil Rights Act.
17 This motion is made pursuant to Fed. R. Civ. P. 12(b)(6), and is based on this
18 Notice of Motion and Motion, the Memorandum of Points and Authorities, all
19 materials incorporated into or on which this Motion relies, and any and all materials
20 the Court deems proper.
21 This motion is made following the conference of counsel pursuant to L.R. 7-3
22 which took place on December 17, 2019.
23 DATED: January 13, 2020 Respectfully submitted,
QUINN EMANUEL URQUHART
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& SULLIVAN LLP
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By /s/ Crystal Nix-Hines
27 Crystal Nix-Hines
Attorney for Defendant Netflix, Inc.
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DEFENDANT’S MOTION TO DISMISS
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1 I. INTRODUCTION
2 Plaintiff Monique Hicks (professionally known as “Mo’Nique”) alleges that,
3 because of her race and gender, Netflix offered her less money to produce and
4 appear in a one-hour comedy special than it has offered other comedians. Plaintiff
5 fails, however, to allege any facts showing that the compensation offered her was
6 the product of discrimination. To the contrary, her Complaint contradicts its core
7 premise by noting that other persons of color, other women, and another African-
8 American woman (like Plaintiff) have been paid substantially more money to create
9 comedy specials for Netflix’s streaming service than what was offered to Plaintiff.
10 And Plaintiff fails to explain why she was entitled to be offered what the stars to
11 whom she compares herself were offered for creating such comedy specials. At
12 most, Plaintiff alleges that Defendant did not share her expectations for how much
13 she should receive, which is not a basis for a discrimination lawsuit.
14 While the evidence will show that Plaintiff was not discriminated against,
15 Plaintiff’s Complaint makes clear that Plaintiff’s Fifth and Eighth claims that she
16 was “retaliated” against for publicly accusing Netflix of discriminating against her
17 through a “low-ball” offer, see Compl. ¶¶ 133-142 (Fifth) and ¶¶162-170 (Eighth),
18 fail as a matter of law, as does her Sixth claim, which alleges that Netflix failed to
19 prevent that supposed “retaliation.” Id. ¶¶ 143-150. A claim of retaliation arises
20 only when an employer (or, in certain circumstances, a potential employer) takes
21 action in response to the employee’s protected conduct—in this case, Plaintiff’s
22 public complaints about Netflix’s alleged discrimination. The incurable problem
23 with Plaintiff’s retaliation claim is that she fails to plead any facts showing that
24 Netflix engaged in any conduct after she made her complaints. Instead, Plaintiff
25 claims only that Netflix did not unilaterally reach out to her to increase its initial
26 offer after she called for a boycott against Netflix. A decision not to negotiate
27 against oneself after being publicly criticized is not, and cannot be, retaliation. And
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DEFENDANT’S MOTION TO DISMISS
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1 because there was no retaliation, she cannot state a claim for failure to have
2 “prevented” it.
3 Plaintiff’s Ninth claim, for violation of the Unruh Act, also fails as a matter of
4 law because the Unruh Act applies only to the provision of “public
5 accommodations,” not employment relationships.
6 These defects cannot be cured through amendment. Eliminating Plaintiff’s
7 retaliation claims will properly confine the case, and discovery, to events leading up
8 to the purportedly discriminatory offer Plaintiff alleges. Anything beyond that
9 would be improper, prejudicial, and unduly burdensome. The Court should
10 therefore dismiss these four claims.
11 II. ALLEGATIONS OF THE COMPLAINT
12 Netflix is a leading entertainment services provider. Compl. ¶ 11. Netflix’s
13 primary business is its subscription-based streaming service, with more than 158
14 million paid subscribers in over 190 countries. Id. ¶ 41. The service offers film and
15 television programs, including original content. Id. Netflix also commissions
16 comedians to produce and star in standup comedy specials and has emerged “as a
17 dominating force that is disrupting the [standup comedy] industry.” Id. ¶ 44.
18 In December 2017, Netflix invited Plaintiff to produce and appear in a one-
19 hour comedy special, for which Plaintiff would be paid $500,000, plus $310,000 to
20 cover production costs. Id. ¶ 64. Plaintiff expressed public dissatisfaction with the
21 offer, claiming that she was entitled to a multi-million dollar fee on par with such
22 mega-stars as Eddie Murphy, Chris Rock, Amy Schumer, Ellen DeGeneres, and
23 Ricky Gervais. Id. ¶¶ 67-71, 76. Plaintiff claims that the offer was made on a “take
24 it or leave it” basis, id., ¶ 75, although she does not allege that she even attempted to
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27 While Plaintiff names “Netflix, Inc.” as a defendant, that entity would not have
had any business or employment relationship with any party relating to Plaintiff’s
28 potential special. Defendant will provide Plaintiff with the proper entity
information.
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1 propose a counter-offer. Instead, shortly after receiving the offer, she called for a
2 Netflix boycott, claiming a discriminatory pay gap. Id. ¶ 76.
3 Around this time, as Plaintiff alleges in the Complaint, Netflix extended an
4 offer for a similar comedy program to Wanda Sykes, who is also an African-
5 American woman. Id. ¶¶ 79-80. Although Ms. Sykes initially publicly rejected
6 Netflix’s offer as “low-ball,” id. ¶ 79, she subsequently entered into an agreement
7 with Netflix that was, according to Plaintiff, “better and more equitable.” Id.
8 Plaintiff claims that Netflix has failed to do the same for her, as retaliation for her
9 public statements regarding Netflix’s alleged “pay inequity practices.” Id. ¶ 80.
10 Plaintiff filed her lawsuit in Los Angeles Superior Court on November 22,
11 2019. Defendant removed the action to this Court on December 10, 2019.
12 Plaintiff asserts ten claims in her Complaint, three of which—Plaintiff’s Fifth
13 claim for relief for retaliation under California’s Fair Employment and Housing Act
14 (“FEHA”), Eighth claim for relief for retaliation under 42 U.S.C. section 1981, and
15 Ninth claim for relief for violation of the Unruh Act—are the subject of this motion.
16 Defendant also seeks dismissal of the portion of Plaintiff’s Sixth claim for relief, to
17 the extent it alleges that Defendant failed to prevent retaliation, on the ground that
18 Defendant cannot be liable for failing to prevent retaliation that, as a matter of fact
19 and law, never occurred. 2
20 III. THE COURT SHOULD DISMISS PLAINTIFF’S DEFECTIVE
21 CLAIMS
22 A. The legal standard.
23 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed
24 because of a plaintiff’s failure to state a claim upon which relief can be granted.
25 Dismissal is warranted when there is a lack of a cognizable theory or there is an
26 absence of sufficient facts alleged under such a theory. Mollett v. Netflix, Inc., 795
27 2
That Defendant does not seek dismissal of Plaintiff’s remaining claims for relief is
28 not, and should not be construed as, a concession that those claims are viable, let
alone that they have any merit.
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1 F.3d 1062, 1065 (9th Cir. 2015). “To survive a motion to dismiss, a complaint must
2 contain sufficient factual matter, accepted as true, to state a claim for relief that is
3 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint
4 must contain more than “labels and conclusions, and a formulaic recitation of the
5 elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
6 544, 555 (2007). Plaintiff must plead “[f]actual allegations” that would “raise a
7 right to relief above the speculative level.” Id. “A claim has facial plausibility
8 when the plaintiff pleads factual content that allows the court to draw the reasonable
9 inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556
10 U.S. at 678. Pleading facts that are “merely consistent with a defendant’s liability
11 [however] stops short of the line between possibility and plausibility of entitlement
12 to relief.” Id.
13 B. Plaintiff cannot state a claim for retaliation.
14 Plaintiff’s Fifth claim rests on section 12940, et seq. of the California
15 Government Code, known as “FEHA,” which makes it unlawful “[f]or an employer,
16 because of the race, religious creed, color, national origin, ancestry, physical
17 disability, mental disability, medical condition, marital status, or sex of any person,
18 to refuse to hire or employ the person ...” Cal. Gov. Code, § 12940(a).3 To plead a
19 claim for retaliation under FEHA, Plaintiff must plead that: (1) she engaged in a
20 “protected activity,” (2) the employer subjected her to an adverse employment
21 action, and—key to this motion—(3) a causal link existed between the protected
22 activity and the employer’s action. Yanowitz v. L’Oréal USA, Inc., 36 Cal. 4th
23 1028, 1042 (2005). As with her FEHA retaliation claim, Plaintiff’s Eighth claim for
24 retaliation under 42 U.S.C. section 1981 requires Plaintiff to plead that she engaged
25 in an activity protected by the statute, and that she suffered an adverse employment
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Defendant assumes, but only for purposes of this motion, that Plaintiff was an
27 employee or perspective employee entitled to FEHA’s protections. and that her act
of publicly complaining about the offer and calling for a boycott of Netflix are a
28 “protected activities.”

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1 action because she engaged in that activity. See Brown v. Contra Costa Cty., 2014
2 WL 1347680, at *6 (N.D. Cal. Apr. 3, 2014) (dismissing Section 1981 retaliation
3 claim because plaintiff failed to show that the alleged adverse action “was in
4 retaliation for [plaintiff’s] exercise of a contractual right protected under §1981.”).
5 The analysis of Plaintiff's retaliation claims under FEHA is the same as the analysis
6 required for evaluation of her Section 1981 claims. See Sims v. City & Cty. of San
7 Francisco, 2015 WL 1351143, at *5 (N.D. Cal. Mar. 25, 2015).
8 Plaintiff’s retaliation claims fail as a matter of law because she alleges no
9 conduct by Netflix that occurred after she complained about her initial offer. “By
10 definition, ‘retaliation’ occurs only after the applicant has complained about not
11 getting the job or after she has begun to participate” in a protected activity. Sada v.
12 Robert F. Kennedy Med. Ctr., 56 Cal. App. 4th 138, 161(1997), as modified on
13 denial of reh'g (July 18, 1997) (emphasis added); see also Kennedy v. UMC Univ.
14 Med. Ctr., 203 F. Supp. 3d 1100, 1108 (D. Nev. 2016) (observing that retaliation
15 requires “adverse treatment that is based on a retaliatory motive and is reasonably
16 likely to deter the [plaintiff] or others from engaging in protected activity”). 4 As the
17 Complaint makes clear, Netflix made Plaintiff an offer that she believed was
18 discriminatory and in response to which she did not make a counteroffer, but instead
19 called for a boycott of Netflix. Compl. ¶¶ 69-76. Plaintiff does not allege that she
20 at any time sought to reopen negotiations with Netflix, or that Netflix took any
21 action at all. Netflix’s singular act of making a “low-ball offer” cannot serve as
22 both evidence of discrimination and evidence of retaliation for criticizing the alleged
23 discrimination. See Phongsavane v. Potter, 2005 WL 1514091, at *4 (W.D. Tex.
24 June 24, 2005) (a plaintiff “is not permitted to rely on the same conduct to support
25 both her claim for discrimination and for retaliation”).
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27 While Kennedy was decided under Title VII, the Ninth Circuit has made clear that
“legal principles guiding a court in a Title VII dispute apply with equal force in a
28 section 1981 action.” Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th Cir.
2003).
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1 Plaintiff’s retaliation theory is, indeed, nonsensical. Plaintiff appears to claim

2 that after she made a public call for a boycott based upon an opening offer that
3 Netflix believed was fair, Netflix had an affirmative obligation to increase its offer,
4 without a counteroffer from Plaintiff, and apparently without any limit on the
5 amount of the offer Plaintiff could demand. Plaintiff’s assertion is wholly
6 unsupported by any law, and in fact runs against established law rejecting attempts
7 by plaintiffs to overrule legitimate exercises of business judgment. See, e.g., Akers
8 v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002) (“[r]equiring an
9 employee to prove a substantial adverse job effect guards against both ‘judicial
10 micromanagement of business practices,’ [citation] [sic] and frivolous suits over
11 insignificant slights.”); Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1148 (9th
12 Cir. 2017) (in assessing defendant’s actions to reduce its workforce in a FEHA age
13 discrimination case, the court noted: “[t]he wisdom of that [business] judgment [to
14 maintain some client-facing positions and not others] is not subject to review by this
15 Court”).
16 C. Plaintiff’s Sixth claim, for failure to prevent retaliation, fails.
17 To the extent Plaintiff’s Sixth claim arises from Defendant’s alleged failure to
18 “prevent” retaliation, that claim also fails because, as set forth above, Plaintiff
19 cannot plead facts sufficient to show that she was subjected to retaliation in the first
20 instance. See Trujillo v. North Cty Trans. Dist., 63 Cal. App. 4th 280, 289 (1998)
21 (holding that underlying “retaliation” is a prima facie element of a claim for alleged
22 failure to prevent that retaliation).
23 D. Plaintiff’s claim under the Unruh Civil Rights Act fails.
24 Finally, Plaintiff’s Ninth claim, in which she alleges a violation of
25 California’s Unruh Civil Rights Act (“Unruh Act”), fails as a matter of law because
26 the California Supreme Court has long held that the Unruh Act does not apply to
27 alleged employment-based discrimination. See Rojo v. Kliger, 52 Cal. 3d 65, 77
28 (1990) (“the Unruh Civil Rights Act has no application to employment

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1 discrimination”); Alcorn v. Anbro Eng’g, Inc., 2 Cal. 3d 493, 500 (1970) (“there is
2 no indication that the Legislature intended to broaden the scope of section 51 to
3 include discriminations other than those made by a ‘business establishment’ in the
4 course of furnishing goods, services or facilities to its clients, patrons or
5 customers”); see also Clay v. Pac. Bell Tel. Co., 639 F. App’x 420, 421 (9th Cir.
6 2016) (upholding dismissal without leave to amend employee’s Unruh Act claim
7 because the Act does not apply to employment discrimination).
8 IV. CONCLUSION
9 For the foregoing reasons, the Court should dismiss Plaintiff’s Fifth, Sixth (as
10 to failure to prevent retaliation), Eighth, and Ninth claims for relief. Moreover,
11 because no amendment could salvage any of these claims, the dismissal should be
12 with prejudice, and without leave to amend. See Wood v. City of San Diego, 678
13 F.3d 1075, 1082 (9th Cir. 2012) (affirming district court’s dismissal without
14 granting leave to amend because “[a]ny attempt to amend [plaintiff’s] claim will be
15 futile.”).
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17 DATED: January 13, 2020 Respectfully submitted,
18 QUINN EMANUEL
URQUHART & SULLIVAN LLP
19
20 By /s/ Crystal Nix-Hines
Crystal Nix-Hines
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Attorneys for Defendant Netflix, Inc.
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