                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 9 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DEMETRIO MEJIA; CHRISTIAN                       No.    18-55085
RODRIGUEZ,
                                                D.C. No.
                Plaintiffs-Appellants,          2:16-cv-07083-R-JEM

 v.
                                                MEMORANDUM*
CHIPOTLE MEXICAN GRILL, INC.; et
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                          Submitted November 8, 2019**
                              Pasadena, California

Before: MURGUIA and HURWITZ, Circuit Judges, and ZOUHARY,*** District
Judge.

      Plaintiffs Demetrio Mejia and Christian Rodriguez worked as food preparers


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
for Defendant Chipotle Mexican Grill, Inc (“Chipotle”). Their complaint alleges

that Chipotle and its supervisor, Defendant Belinda Cueva, reduced the hours of

undocumented, Spanish-speaking employees in order to give those hours to

documented, English-speaking employees. Plaintiffs also allege that Chipotle and

Cueva required them to create false time entries reflecting that they took meal and

rest breaks. In June 2014, Plaintiffs refused Cueva’s request to train new

employees after regular hours. Plaintiffs allege they were fired as a result.

      Plaintiffs sued in California Superior Court, raising six state-law

employment claims against Cueva, and ten against Chipotle. Chipotle removed the

case to federal district court. The district court granted Cueva’s motion to set aside

entry of default, and dismissed all claims against her. It also denied Plaintiffs’ ex

parte motion to strike Chipotle’s supplemental initial disclosures and

accompanying documents, and granted summary judgment to Chipotle on all

claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      1.     The district court did not abuse its discretion in granting Cueva’s

motion to set aside entry of default. Plaintiffs offered no evidence that (1) she

engaged in culpable conduct that led to the default, (2) she did not have a

meritorious defense, or (3) reopening default would prejudice them. See United

States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th

Cir. 2010) (quoting Franchise Holding II v. Huntington Rests. Grp., Inc., 375 F.3d


                                          2
922, 925–26 (9th Cir. 2004)).

      2.     The district court correctly dismissed Plaintiffs’ claims against Cueva.

First, Plaintiffs’ claims under Article 1, Section 8 of the California Constitution

and the California Fair Employment and Housing Act (“FEHA”) can only be

asserted against an employer, not a supervisor. See Miklosy v. Regents of Univ. of

Cal., 188 P.3d 629, 644 (Cal. 2008); Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d

741, 747–54 (Cal. Ct. App. 1996). Moreover, there is no independent right to sue

under the “unlawful” prong of California’s Unfair Competition Law (“UCL”).

Because Plaintiffs failed to state underlying discrimination claims under FEHA or

the California Constitution against Cueva, their UCL claim also fails as a matter of

law. See Aleksick v. 7-Eleven, Inc., 140 Cal. Rptr.3d 796, 801 (Cal. Ct. App.

2012).

      Furthermore, none of the allegations against Cueva amount to the

“outrageous conduct” of the severity required, under California law, to sustain a

claim of intentional infliction of emotional distress (“IIED”). See Hughes v. Pair,

209 P.3d 963, 976 (Cal. 2009).

      Finally, Plaintiffs’ fraud claims were properly dismissed because they were

not pleaded with requisite particularity under Federal Rule of Civil Procedure 9(b).

See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“It is true that Rule 9(b) requires

particularity when pleading ‘fraud or mistake[.]’”).


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      Plaintiffs failed to explain how amendment would cure the significant

deficiencies in each of their claims against Cueva. Accordingly, the district court

did not abuse its discretion in denying them leave to amend their complaint. See

Missouri ex rel. Koster v. Harris, 847 F.3d 646, 655–56 (9th Cir. 2017).

      3.     The district court did not abuse its discretion when it refused to

exclude Chipotle’s supplemental initial disclosures and accompanying documents.

Even assuming the untimeliness of these filings, Plaintiffs made no showing of

prejudice that resulted from the refusal to exclude these documents. See FED. R.

CIV. P. 37(c)(1) (“If a party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.”).

      4.     Finally, the district court properly granted Chipotle summary

judgment. The district court applied the correct legal standard for summary

judgment and properly excluded Plaintiffs’ “sham” post-deposition declarations.

See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991) (“[B]efore

applying the Radobenko sanction, the district court must make a factual

determination that the contradiction was actually a ‘sham.’” (citing Rabobenko v.

Automated Equip. Corp., 520 F.2d 540 (9th Cir. 1975))). Other challenges raised

by the Plaintiffs to the summary-judgment evidence lack merit.


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      Because Plaintiffs failed to provide evidence that Chipotle and Cueva

terminated them because of their national origin, summary judgment was proper.

      a. Plaintiffs’ breach of contract and covenant of good faith and fair dealing

claims fail because the district court correctly determined that “Chipotle is an at-

will employer.” See CAL. LAB. CODE. § 2922 (2019) (“An employment, having no

specified term, may be terminated at the will of either party on notice to the

other.”); see also Foley v. Interactive Data Corp., 765 P.2d 373, 376 (Cal. 1988)

(finding that an “employee can be fired with or without good cause” when the

employment is at will). Plaintiffs presented no evidence to the contrary, nor did

hey offer evidence of the “oral contract” alleged in their complaint. Relatedly,

Chipotle’s policies and procedures did not create a binding contract whereby

Chipotle agreed not to treat them arbitrarily. See Haggard v. Kimberly Quality

Care, Inc., 46 Cal. Rptr. 2d 16, 24–26 (Cal. Ct. App. 1995).

      b. Plaintiffs’ claim for wrongful termination in violation of public policy

also fails because they did not establish the required “nexus between [their]

reporting of alleged statutory violations and [Chipotle’s] allegedly adverse

treatment.” Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1034 (Cal. 1994).

      c. The district court properly held that Plaintiffs failed to establish a prima

facie national-origin discrimination claim under FEHA because they offered no

evidence that Chipotle or Cueva took actions “from which one can infer, if such


                                          5
actions remain unexplained, that it is more likely than not that such actions were

based on a prohibited discriminatory criterion.” Guz v. Bechtel Nat’l. Inc., 8 P.3d

1089, 1113 (Cal. 2000). Similarly, Plaintiffs failed to establish a prima facie

retaliation claim under FEHA because they never complained to Chipotle or Cueva

about national-origin discrimination. Yanowitz v. L’Oreal USA, Inc., 116 P.3d

1123, 1147 (Cal. 2005) (holding that to establish a “protected activity,” an

“employee’s communications to the employer [must] sufficiently convey the

employee’s reasonable concerns that the employer has acted or is acting in an

unlawful discriminatory manner.”). Plaintiffs also failed to establish a prima facie

harassment claim under FEHA because there is no evidence in the record that

Cueva used racial epithets or that she viewed her national origin as superior to

Plaintiffs’. See Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (“[A]

plaintiff alleging racial or national origin harassment would present facts showing

that he was subjected to racial epithets in the workplace . . . [or] that he and other

[workers sharing the same national origin] were subjected to physical and verbal

abuse because their supervisor viewed their national origin as superior.”).

      d. Plaintiffs’ discrimination claim under Section 51 of the California Civil

Code fails because Section 51 does not apply to employment discrimination.

Alcorn v. Anbro Eng’g, Inc., 468 P.2d 216, 220 (Cal. 1970).

      e. As noted above, Plaintiffs’ UCL claim fails because their underlying


                                           6
discrimination claims also fail. Gardner v. Fed. Express Corp., 114 F. Supp. 3d

889, 905 (N.D. Cal. 2015) (“To state a claim for unlawful or unfair business

practices based upon a discrimination claim, a plaintiff is required to establish a

viable discrimination claim.”)

      f. Plaintiffs offered insufficient evidence to support their claim that they

were denied proper meal breaks pursuant to Section 512(a) of the California Labor

Code. Plaintiffs testified that Cueva knew they were clocking out for “meal

breaks” without stopping work, and that they felt pressured to work through their

breaks so that they could finish before the end of the day and avoid overtime. But

under Section 512, “an employer must relieve the employee of all duty for the

designated period, but need not ensure that the employee does no work.” Brinker

Rest. Corp. v. Superior Ct, 273 P.3d 513, 532 (Cal. 2012). Plaintiffs’ Section 512

claims fail because there is no evidence that Chipotle or Cueva denied Rodriguez

and Mejia their thirty-minute meal breaks, or prevented them from taking their

breaks.

      g. Finally, Plaintiffs’ claims for IIED, intentional misrepresentation,

discrimination under Article I, Section 8 of the California Constitution, Section

1198.5 of the California Labor Code, and California Wage Order 2-2001 fail

because Plaintiffs provided no evidence to support the allegations in their

complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (holding that


                                          7
summary judgment is appropriate “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial”).

      5.     Plaintiffs argue that complete diversity of citizenship is lacking in this

case because both Plaintiffs and Cueva reside in California. But Plaintiffs pleaded

that they are Mexican nationals and undocumented residents of the United States,

and thus are citizens or subjects of a foreign state for purposes of diversity. See 28

U.S.C. § 1332(a) (providing that “citizens of a State and citizens or subjects of a

foreign state” are diverse unless the foreign citizens are “lawfully admitted for

permanent residence in the United States”); see also Chu v. Tribal Techs., Inc., 576

F. App’x 668, 669 (9th Cir. 2014) (allowing for diversity if foreign plaintiffs

“allege that they are not lawfully admitted permanent residents”). Therefore,

because Plaintiffs were citizens of Mexico, and Defendants were citizens of

California and Colorado, there was complete diversity from the outset.

      AFFIRMED.




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