Hill Motion To Dismiss Brief

Case 2:17-cv-03366-PSG-AS Document 25 Filed 06/23/17 Page 1 of 11 Page ID #:322
1 ELENA R. BACA (SB# 160564)

elenabaca@paulhastings.com
2 RYAN D. DERRY (SB# 244337)
ryanderry@paulhastings.com
3 PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
4 Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
5 Facsimile: (213) 627-0705
6 Attorneys for Defendants
VIACOM INC., BLACK ENTERTAINMENT
7 TELEVISION LLC, and STEPHEN HILL
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
12 ZOLA MASHARIKI, CASE NO. 2:17-cv-03366 PSG (ASx)
13 Plaintiff, DEFENDANT STEPHEN HILLS
MEMORANDUM OF POINTS
14 vs. AND AUTHORITIES IN
SUPPORT OF MOTION TO
15 VIACOM INC.; BLACK DISMISS PURSUANT TO
ENTERTAINMENT TELEVISION, FEDERAL RULE OF CIVIL
16 LLC; Stephen Hill, and DOES 1 through PROCEDURE 12(b)(6)
50, inclusive,
17 Date: August 14, 2017
Defendants. Time: 1:30 p.m.
18 Place: Courtroom 6A
Judge: Hon. Philip S. Gutierrez
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Complaint filed: May 3, 2017
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STEPHEN HILLS POINTS AND
AUTHORITIES ISO MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(6)
LEGAL_US_W # 90269044.7
1 TABLE OF CONTENTS
2
PAGE
3
I. INTRODUCTION AND FACTUAL BACKGROUND ................................ 1
4 II. RULE 8 REQUIRED MASHARIKI TO PLEAD FACTS
5 DEMONSTRATING PLAUSIBLE CLAIMS AGAINST HILL ................... 2
III. MASHARIKIS SECOND CLAIM, ASSERTED UNDER TITLE VII,
6 IS NOT LEGALLY COGNIZABLE AGAINST HILL ................................. 3
7 IV. MASHARIKIS EIGHTH CLAIM FOR DISCRIMINATION UNDER
FEHA IS NOT LEGALLY COGNIZABLE AGAINST HILL ...................... 3
8 V. MASHARIKIS NINTH CLAIM FOR HARASSMENT FAILS TO
MEET MINIMUM PLEADING REQUIREMENTS UNDER
9 TWOMBLY ...................................................................................................... 4
10 VI. ABSENT A VIABLE THEORY OF POTENTIAL LIABILITY FOR
A HARASSMENT CLAIM UNDER FEHA AGAINST HILL, ALL
11 CLAIMS AGAINST HIM SHOULD BE DISMISSED WITH
PREJUDICE .................................................................................................... 6
12 VII. CONCLUSION ............................................................................................... 7
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-i- AUTHORITIES ISO MOTION TO DISMISS
LEGAL_US_W # 90269044.7
1 TABLE OF AUTHORITIES
2
PAGE(S)
3 Cases
4
Ashcroft v. Iqbal,
5 556 U.S. 662 (2009) .............................................................................................. 2
6 Bell Atl. Corp. v. Twombly,
7 550 U.S. 544 (2007) ...................................................................................... 2, 4, 5
8 Fisher v. San Pedro Peninsula Hosp.,
214 Cal. 3d 590 (1989) .......................................................................................... 6
9
10 Foman v. Davis,
371 U.S. 178 (1962) .............................................................................................. 6
11
Guevara v. Marriott Hotel Svcs. Inc.,
12
No. C 110647 SBA, 2011 WL 3419510 (N.D. Cal. Aug. 4, 2011) .................... 3
13
Janken v. GM Hughes Elecs.,
14 46 Cal. App. 4th 55 (1996) ................................................................................ 3, 4
15
Kang v. U. Lim America, Inc.,
16 296 F.3d 810 (9th Cir. 2002) ................................................................................. 3
17 Lacano Investments, LLC v. Balash,
18 765 F.3d 1068 (9th Cir. 2014) ............................................................................... 5
19 Landers v. Quality Comms. Inc.,
20 771 F.3d 638 (9th Cir. 2014) (as amended Jan. 26, 2015) .................................... 5
21 Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57 (1986) ................................................................................................ 5
22
23 Miller v. Maxwell Intl, Inc.,
991 F.2d 583 (9th Cir. 1993) ............................................................................. 1, 3
24
Reno v. Baird,
25 18 Cal. 4th 640 (1998) ................................................................................... 2, 3, 4
26
Sollberger v. Wachovia Securities, LLC,
27 No. SACV 09-0766 AG (ANx), 2010 WL 2674456 (C.D. Cal. Jun.
28 30, 2010) ................................................................................................................ 4
- ii - AUTHORITIES ISO MOTION TO DISMISS
LEGAL_US_W # 90269044.7
1 TABLE OF AUTHORITIES
2 (CONTINUED)
PAGE(S)
3 Statutes
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42 U.S.C. 2000e-2(a) ............................................................................................... 3
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- iii - AUTHORITIES ISO MOTION TO DISMISS
LEGAL_US_W # 90269044.7
1 I. INTRODUCTION AND FACTUAL BACKGROUND

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Stephen Hill (Hill) is a well-respected and successful television executive
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who, over the course of fifteen years, held various roles at Black Entertainment
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Television LLC (BET). In December 2014, Debra Lee, CEO of BET, selected
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Hill to perform an entirely new role within BET: President of Programming.
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As President of Programming, Hill, knowing full well that she is a woman,
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set out to recruit and hire Plaintiff Zola Mashariki (Mashariki) as his direct report
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(EVP Head of Original Programming). Now, frustrated by her failure in that role,
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Mashariki has filed this lawsuit claiming she was mistreated because of her gender
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and blaming everyone and everything, except herself, for her failure to successfully
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lead her team. Mashariki not only takes aim at her former employer, BET, as well
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as its parent company, Viacom, but also Hill, who hired and supported her, and
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tried to coach her development. Indeed, in her Complaint, Mashariki twists many
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of the things Hill did to assist her and recasts them as harassment. Nonsense. If
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Masharikis claim survives the pleading stage, these inflammatory and false
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harassment allegations will be disposed of in Hills favor.
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What is relevant, at this juncture, is that Masharikis three claims against Hill
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must be dismissed as follows:
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Masharikis second claim (Violation of Title VII, Hostile Environment) is
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not legally cognizable as to Hill. It is well settled that a Title VII claim
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may not be asserted against a supervisor. See Miller v. Maxwell Intl,
22
Inc., 991 F.2d 583, 587 (9th Cir. 1993) (holding no individual liability
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under Title VII).
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Masharikis eighth claim (Disparate TreatmentGender Discrimination,
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California Fair Employment & Housing Act (FEHA)) is not legally
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cognizable as to Hill. Here, too, it is well settled that an individual
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supervisor cannot be held liable for alleged discrimination under FEHA.
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-1- AUTHORITIES ISO MOTION TO DISMISS
LEGAL_US_W # 90269044.7 PURSUANT TO FED. R. CIV. P. 12(b)(6)
1 See Reno v. Baird, 18 Cal. 4th 640, 645-46 (1998) (holding a plaintiff
2 cannot assert a gender discrimination claim under FEHA against an
3 individual supervisor).
4 Finally, while, as a general matter, a supervisor may be held individually
5 liable for harassment under FEHA, Masharikis ninth claim (Hostile Work
6 Environment, FEHA) fails to identify which factsof the 30-plus pages
7 incorporated by referenceshe contends would state a plausible claim
8 against Hill as required by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
9 Accordingly, Hill moves to dismiss all claims asserted against him.
10 II. RULE 8 REQUIRED MASHARIKI TO PLEAD FACTS
11 DEMONSTRATING PLAUSIBLE CLAIMS AGAINST HILL
12 Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case
13 where the complaint fails to state a claim upon which relief can be granted. In
14 reviewing a motion to dismiss under Rule 12(b)(6), a court must accept the
15 allegations in the complaint as true and draw all reasonable inferences in favor of
16 the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
17 However, to survive a challenge to the legal sufficiency of the claims under
18 Rule 12(b)(6), a plaintiff must allege more than labels and conclusions. Id. at 555.
19 Courts are not bound to accept as true a legal conclusion couched as a factual
20 allegation. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555) (internal
21 quotation marks omitted). Naked assertions devoid of further factual enhancement
22 or [t]hreadbare recitals of the elements of a [claim for relief], supported by mere
23 conclusory statements, are insufficient to survive a motion to dismiss. Id. at 678.
24 Instead, factual allegations must state a claim to relief that is plausible on its face.
25 Twombly, 550 U.S. 570.
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1 III. MASHARIKIS SECOND CLAIM, ASSERTED UNDER TITLE VII, IS

NOT LEGALLY COGNIZABLE AGAINST HILL
2
3 Title VII is explicit: it applies only to an employer. See 42 U.S.C.
4 2000e-2(a) (setting forth that an employer is prohibited from certain unlawful
5 employment practice[s].) (emphasis added). The Ninth Circuit has long held that,
6 pursuant to that limiting language, an individual supervisor cannot be held liable for
7 any claim under Title VII. See, e.g., Miller v. Maxwell Intl, Inc., 991 F.2d 583,
8 587 (9th Cir. 1993) (holding no individual liability under Title VII; [I]t is
9 inconceivable that Congress intended to allow civil liability to run against
10 individual employees [under Title VII].); Kang v. U. Lim America, Inc., 296 F.3d
11 810, 822 n.4 (9th Cir. 2002) ([I]ndividual defendants are not liable under Title
12 VII.); Guevara v. Marriott Hotel Svcs. Inc., No. C 110647 SBA, 2011 WL
13 3419510, at *9 (N.D. Cal. Aug. 4, 2011) (Defendant is correct when it asserts that
14 the Individual Defendants must be dismissed because they may not be held liable
15 under Title VII.). Accordingly, Masharikis second claim for relief for hostile
16 work environment in violation of Title VII cannot be asserted against Hill, her
17 former supervisor, and must be dismissed as a matter of law.
18 IV. MASHARIKIS EIGHTH CLAIM FOR DISCRIMINATION UNDER
19 FEHA IS NOT LEGALLY COGNIZABLE AGAINST HILL
20 Similarly well-established is the rule that individuals who do not themselves

21 qualify as employers may not be sued under the FEHA for alleged discriminatory
22 acts. Reno v. Baird, 18 Cal. 4th 640, 663 (1998).
23 The California Supreme Court in Reno reasoned that to find individual
24 supervisors could be held personally liable would put supervisors under an ever-
25 present threat of a lawsuit each time they make a personnel decision. Id. at 663;
26 see also Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 72 (1996) ([I]mposing
27 liability on individual supervisory employees would do little to enhance the ability
28 of victims of discrimination to recover monetary damages, while it can reasonably
1 be expected to severely impair the exercise of supervisory judgment.). The court

2 found that the language of FEHA demonstrates the legislatures intent not to do so.
3 See Reno, 18 Cal. 4th at 662-63 (discussing the courts understanding of the
4 legislatures intent regarding exempting small employers from FEHA and
5 individual supervisors). Accordingly, like her Title VII claim, Masharikis eighth
6 claim for relief for gender discrimination under FEHA is not legally cognizable as
7 asserted against Hill, her former individual supervisor, and it must be dismissed.
8 V. MASHARIKIS NINTH CLAIM FOR HARASSMENT FAILS TO
9 MEET MINIMUM PLEADING REQUIREMENTS UNDER
TWOMBLY
10
11 As set forth in BETs currently pending Rule 12(b)(6) motion, a pleading is
12 unacceptable when plaintiff recites a collection of general allegations toward the
13 beginning of the Complaint, and then each count incorporates every antecedent
14 allegation by reference[,] because of the uncertainty that results. Sollberger v.
15 Wachovia Securities, LLC, No. SACV 09-0766 AG (ANx), 2010 WL 2674456, at
16 *4 (C.D. Cal. Jun. 30, 2010) (citations omitted).
17 Here, Masharikis ninth claim for relief for harassment under FEHA does
18 precisely that.1 The first 19 pages of the Complaint (75 paragraphs, to be precise)
19 purport to provide the factual support of each of Masharikis eighteen claims. See
20 generally Dkt. No. 1. Then, in her ninth claim, the introductory paragraph states:
21 Ms. Mashariki re-alleges and incorporates each and every allegation in this
22 Complaint as if fully set forth herein. See, e.g., Dkt. No. 1, at 76, 85, 94. What
23 then follows is little more than the legal elements of each claim. See, e.g., Dkt.
24
1
25 In contrast to her gender discrimination claim under FEHA, a claim for
harassment in violation of FEHA is legally cognizable against an individual
26 defendant. See Janken, 46 Cal. App. 4th at 62-65 (holding that because (i) FEHA
27 prohibits harassment by any person; and (ii) [h]arassment is not conduct of a
type necessary for management of the employers business or performance of the
28 supervisory employees job[,] individuals can be held personally liable for
harassment under FEHA). However, minimum pleading standards still apply.
1 No. 1, at 77-78, 86-89, 95-103. Listing the legal elements of a claim, without
2 more, is simply not enough. See Landers v. Quality Comms. Inc., 771 F.3d 638,
3 641 (9th Cir. 2014) ([A] complaint that offers labels and conclusions, . . . a
4 formulaic recitation of the elements of a cause of action[,] or naked assertion[s]
5 devoid of further factual enhancement will not suffice.) (as amended Jan. 26,
6 2015) (citing Twombly, 550 U.S. at 555, 557).
7 While Mashariki may argue the 138 paragraphs that precede her harassment
8 claim, or the 65 paragraphs that follow, should provide Hill notice of her claim,
9 they do not. If anything, generally referring to some 200 other paragraphsa you
10 go figure it out approachseems designed to prejudice Hill by failing to provide
11 required clarity as to his alleged harassing acts and mask factual deficiencies of
12 Masharikis claims. Indeed, many of the paragraphs incorporated by reference do
13 not relate to Hill, are mere conclusion and argument, or demonstrate personnel
14 management decisions which do not support a viable claim for harassment.2
15 Absent Mashariki identifying which facts from her litany of allegations she
16 contends frames a harassment claim against Hill, neither the Court nor Hill can
17 evaluate whether she has stated a plausible claim. See, e.g., Lacano Investments,
18 LLC v. Balash, 765 F.3d 1068, 1071-1072 (9th Cir. 2014) (on a motion to dismiss,
19 the court do[es] not accept legal conclusions in the complaint as true, even if cast
20 in the form of factual allegations.) (emphasis in original) (internal quotation marks
21 omitted); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (holding that
22 the gender-based harassment must be [so] severe or pervasive [as] to alter the
23
2
24 See, e.g., Dkt. 1 at 29 (This misogynistic culture, which marginalizes, demeans
and undervalues women, begins at the top . . . . Defendant Hill was a well-known
25 member of the Companys good old boys club.); Dkt. 1 at 30 (Defendant Hill
took advantage of and credit for overqualified female executives
26 contributions . . .); Dkt. 1 at 32 (Defendant Hill excluded and/or discouraged
27 [Mashariki] from attending senior-level meetings about content she was
developing, upfront meetings, budget meetings, and discussions surrounding BETs
28 new office design.); Dkt. 1 at 49 ([HR] den[ied] her adequate staffing . . . while
simultaneously reinforcing the impossible goals Defendant Hill imposed on her.).
1 conditions of [the victims] employment and create an abusive working

2 environment) (third alternation in original); Fisher v. San Pedro Peninsula Hosp.,
3 214 Cal. 3d 590, 608 (1989) (adopting federal case law for hostile environment
4 sexual harassment claims under California law). Accordingly, the ninth claim for
5 relief as asserted against Hill should be dismissed for failure to state a plausible
6 claim.
7 VI. ABSENT A VIABLE THEORY OF POTENTIAL LIABILITY FOR A
8 HARASSMENT CLAIM UNDER FEHA AGAINST HILL, ALL
CLAIMS AGAINST HIM SHOULD BE DISMISSED WITH
9 PREJUDICE
10 Leave to amend is unnecessary where any potential amendment to the
11 complaint would be futile, in that a viable claim cannot be stated as a matter of
12 law. See Foman v. Davis, 371 U.S. 178, 183 (1962) (leave to amend is unnecessary
13 where any such amendment would be futile.).
14 Here, Masharikis second and eighth claims against Hill fail as a matter of
15 law. There is no way that Mashariki can assert a claim against Hill, an individual,
16 for a hostile work environment in violation of Title VII (second claim for relief) or
17 a claim for gender discrimination in violation of FEHA (eighth claim for relief).
18 Thus, both claims should be dismissed without leave to amend.
19 As to Masharikis ninth claim for relief for harassment under FEHA, as
20 discussed above, it is unclear and deficient as pleaded. Accordingly, Mashariki
21 needs to provide a legitimate offer of proof as to how she could possibly cure the
22 defects in that claim to state a claim against Hill based on facts. If she cannot, that
23 claim, too, should be dismissed with prejudice. See id. Any lesser result would
24 unfairly require Hill to expend resources defending against claims that, ultimately,
25 are not legally cognizable.
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1 VII. CONCLUSION
2 For the foregoing reasons, Hill respectfully requests that the Court dismiss
3 the second, eighth and ninth claims for relief, as asserted against him.
4
5 DATED: June 23, 2017 PAUL HASTINGS LLP
ELENA R. BACA
6 RYAN D. DERRY
7
8 By: /s/ Elena R. Baca
ELENA R. BACA
9
Attorneys for Defendants
10 VIACOM INC., BLACK ENTERTAINMENT
TELEVISION LLC and STEPHEN HILL
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Case 2:17-cv-03366-PSG-AS Document 25 Filed 06/23/17 Page 1 of 11 Page ID #:322

1 ELENA R. BACA (SB# 160564)

21 Meritor Sav. Bank, FSB v. Vinson,

1 I. INTRODUCTION AND FACTUAL BACKGROUND

1 III. MASHARIKIS SECOND CLAIM, ASSERTED UNDER TITLE VII, IS

20 Similarly well-established is the rule that individuals who do not themselves

1 be expected to severely impair the exercise of supervisory judgment.). The court

1 conditions of [the victims] employment and create an abusive working

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