KARL R. LINDEGREN, SBN 125914 pHAUN J. 3, VOIGT, SBN SBN 3 eee F080. Main Street, Suite To00 Irvine, California 92614 Felephone (9 49) 851-2424 Facsimile (949) 851-0152 Attorneys for Defendant, WIZARDS OF THE COAST LLC PAUL YALE, individually and on behalf of others similarly situated, Plaintiffs, vs. WIZARDS OF THE COAST LLC and DOES | through 100, inclusive, Defendant. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 15-CV-06337-HRL [Removed from Santa Clara Superio Court Case No.; 1-15-CV-287452] MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT WIZARDS OF THE COAST LLC’S MOTION TO DISMISS PURSUANT TO FRCP RULE 12(b)(6) (concurrently filed with Notice of Motion and Motion; and [Proposed] Order) DATE: February 16, 2016 TIME: 10:00 a.m. CTRM: 2, 5 Floor Complaint Filed: October 29, 2015 Trial Date: None FPDOCS 313476851 POINTS & AUTHORITIES IN SUPPORT OF WIZARDS? MOTION TO DISMISSTABLE OF CONTENTS I, INTRODUCTION AND SUMMARY OF THE ARGUMENT. II, LEGAL STANDARD ON A MOTION TO DISMISS... 2 Ill. PLAINTIFF’S 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... a4 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.. e] 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. 6 C. Plaintiff Does Not Even Mention, Let Alone Sufficiently Allege, the 10 “Suffer or Permit” Prong of the Martinez Test. 2 D. Plaintiff Fails to Allege that Wizards “Engaged” Him to Work Within the Meaning of the California Labor Code.......... sell TV. CONCLUSION.. wl FPDOCS 31347686.1TABLE OF AUTHORITIES Page(s) Cases: Ashcroft v. Iqbal, 556 U.S. 662 (2009)... Bell Atlantic Corp. v. Twombly, 550 U.S. $44 (2007). Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992 (9th Cir. 2010) Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214 (9th Cir.2003).. Futrell v, Payday Cal,, Inc. 190 Cal.App.4th 1419 (2010)... Groten v. California, 251 F.3d 844 (9th Cir. 2001)... Guerrero v. Gates, 357 F.3d 911 (9th Cir, 2004)... Jeung v. Yelp, Inc., No. 15-CV-02228-RS, 2015 WL 4776424 (N.D. Cal. Aug. 13, 2015) Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005).. Martinez v. Combs 49 Cal.4th 35 (2010)..... MeSherry v. Block, 880 F.2d 1049 (9th Cir.1989).. Moss v. United States Secret Service, 572 F.3d 962 (9th Cir. 2009)... Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101 (C.D. Cal. 2003)... FPDOCS 21547685.1 :Ochoa v. McDonald's Corp., No. 14-CV-02098-JD, 2015 WL, 5654853 (N.D. Cal. Sept. 25, 2015). Olmstead v, Home Depot U.S. as No. B248296, 2015 WL 1791440 (Cal. Ct. App. Apr. 17, 2015). Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) Vernon v. State (2004) 116 Cal.App.4th 114... W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) FPDOCS 31947685.1Ren 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 borh 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, { 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 seg. 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 Plaintiff's claims — 1 — ~ POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS. FPDOCS 31347685.1are alleged individually on his own behalf, as well as a putative geographically dispersed throughout California, [Complaint, 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 neatly 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 12(b)(6), this Court should dismiss Plaintiffs Complaint in its entirety, without leave to amend. Il. LEGAL STANDARD ON A MOTION TO DISMISS A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of the claims asserted in the complaint.” Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1111 (C.D. Cal. 2003). To that end, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 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 U.S. 544, 570 (2007); Fed. R. Civ. P. 12(b)(6). Such a dismissal will be granted when the plaintiff can allege no set of facts supporting relief. Guerrero v. Gates, 357 F.3d 911, 916 (9th Cir. 2004). This includes circumstances where an affirmative defense or other bar to relief is apparent from the face of the POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS FeoOCS 91347685.1Ao complaint. Groten 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'n, 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. 15-CV-02228-RS, 2015 WL 4776424, at *2 (N.D. Cal. Aug. 13, 2015) (Jeung), at *1-3. Moreover, the factual allegations must be » Twombly, 550 USS. at 555. “[OJnly a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. In this case, Plaintiff's Complaint does not (and cannot) set forth the “enough to raise a right to relief above the speculative level necessary factual allegations to support Plaintiff's 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 Plaintiffs Complaint for failure to state a plausible claim for relief pursuant to Rule 12(b)(6), without leave to amend. dif Mf Mt — a 3 — POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS FPDOCS 31347885.1II. PLAINTIFF'S 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 Each of the causes of action at issue in Plaintiff's Complaint are predicated on alleged violations of the California Labor Code (including Plaintiffs derivative claim for unfair competition under Business & Professions Code section 17200 ef seq.). As such, and as a matter of law, an employer-employee relationship between Plaintiff and Wizards is required to establish liability. Martinez v. Combs 49 Cal.4th 35, 50 (2010) (Martinez) (“only an employer can be liable” for Labor Code violations). Despite this foundational requirement, Plaintiff's 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's bare conclusion, lacking in factual support, must be disregarded for purposes of this Motion. See, e.g., Iqbal, 556 U.S. at 679. While the terms “employer,” “ defined in the Labor Code, the California Supreme Court issued a detailed employee,” and “employ” are not specifically 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 “(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” Martinez, 49 Cal.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 = POINTS & AUTHORITIES IN SUPPORT OF WIZARDS” MOTION TO DISMISS FPDOCS 31347685.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 Twombly 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 *2. 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 Or That Such Individuals Performed “Work” for Class. Wizards, Are Legal Conclusions That Must Be Disregarded “[A] 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.” Igbal, 556 U.S. 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 Judge...” [Complaint, § 3 (emphasis added)]; “Plaintiff is informed and believes that Defendant was his employer” (Complaint, { 6 (emphasis added)]; “[Plaintiff] 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 Defendant...” (Complaint, § 8 (emphasis added)]; “The work performed by Judges for the benefit of Defendant and under its close supervision and control created an employer and employee relationship...” (Complaint, {16 (emphasis added)]; and “Plaintiff and similarly situated Judges performed work on — 5 ~ POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS FPDOCS 31347685.1we ene (Sh et tore a oy behalf of Defendant without monetary compensation, during the course of their employment...” (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 /egal 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 U.S. at 679; Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[FJor 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”); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); W. Mining Council v. 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 sufficient 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 first 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, eg, IWC Wage Order No. 4-2001 § 2(G). “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 WIZARDS’ MOTION TO DISMISS. FPDOCS 31347685.1aan se 9 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-ID, 2015 WL 5654853, at *3 (N.D. 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).!As summarized by the district court in Ochoa: In [Olmstead], the plaintiff worked for Cover-All, a company that contracted with Home Depot to install flooring bought by its customers. /d, at *1. The plaintiff sued Cover-All and Home Depot as joint employers for labor code claims. The court affirmed 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, be 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 *6. The fact that Home Depot could issue a charge-back to Cover-All—which resulted in Cover-All docking its employee's pay—was also not enough to make Home Depot an employer. See id. at *7, 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 *7. Rather, the fact that “Home Depot had no authority to hire, terminate, or supervise Cover- All's employees” was dispositive. Id. at *6. Ochoa, 2015 WL 5654853, at *3 citing Olmstead, 2015 WL 1791440, at *5. ' Federal courts may consider depublished California state court decisions. See Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n, 8 (9th Cir.2003); McSherry v. Block, 880 F.2d 1049, 1052 n. 2 (9th Cir.1989). _7 POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS FPDOCS 31347885110 WW 12 3 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 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 sufficient to establish that Wizards had the authority to hire, terminate, or supervise him in an employment setting,” Moreover, with respect to control over hours 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 work[.]” 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 “[bJecoming a Judge requires registering with Defendant, going through training and testing, 2 Plaintiff's 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 Asia-Pacific). 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. POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS FPDOCS 313476851aa u Rene and documenting participation in tournaments.” [Complaint, § 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. Jd. Similarly, Plaintiff does not and cannot plausibly allege that Wizards had the power to “fire” 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 indefinitely, for any variety of reasons, is certainly not unequivocally the same as establishing that Wizards had the ability to “fire” Judges — 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 insufficient to plausibly state that they were “fired” for purposes of the FLSA). Next, there are no allegations, let alone plausible ones, that Wizards controlled Plaintiff's Judge schedule or “work” conditions, directed him where or when to report, or any other allegation revealing any semblance of a legitimate employment relationship. Plaintiff simply alleges that “[tJournaments are overseen by Judges.” The utter lack of other factual allegations to establish Wizards’ purported control of “working conditions” is a glaring omission. Specifically, 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.] Plaintiff's allegation that an individual may not remain a “Judge” — 9 a = POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS. FPDOOS 313476851indefinitely (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 Wizards—“train” fellow Judges. [Complaint, § 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, Plaintiff's allegation suggests that parties separate from Wizards (¢.g., 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 (i.e., 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 file 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 first prong of the Martinez test. C. Plaintiff Does Not Even Mention, Let Alone Sufficiently 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 (finding that the putative employers did not “suffer or permit” the plaintiffs to work because Munoz—their admitted employer—had 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 WIZARDS? MOTION TO DISMISS FPDOCS 31347685.1prevent the work from occurring.””). The California Court of Appeals reached the same conclusion as the Martinez court in Futrell v. Payday Cal., Inc. 190 Cal.App.4th 1419 (2010), holding in that case that there “is no evidence... 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.” Jd. at 1434. 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 sufficient 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 Cal.4th at 64. “The essence of the common law test of employment is in the control of the details.” Futrell, supra, 190 Cal.App.4th at 1434. While a number of factors may be relevant in evaluating the right to control, “[a] finding of the right to control employment requires . . . a comprehensive and immediate level of ‘day-to-day’ authority over employment decisions.” Vernon v, State (2004) 116 Cal.App.4th 114, 127-128. Here, Plaintiff alleges baldy that Judges “are highly regulated by [Wizards}” (Complaint, § 13), and perform “work ... under [Wizards’] close pee — lu = POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS FPOOCS 313476851supervision and control” (Complaint, J 16). Yet again, the Complaint lacks facts to support these conclusory allegations in any meaningful way in the context of a wage-hour case. “A plaintiff's 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.” Twombly, 550 U.S. at 555. “[FJactual allegations must be enough to raise a right to relief above the speculative level.” Jd.; 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, find 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 sufficient 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 WIZARDS? MOTION TO DISMISS FPDOCS 31347685.1should grant Wizards’ Motion to Dismiss pursuant to Rule 12(b)(6), and should do so without leave to amend. DATE: January 7, 2016 FISHER & PHILLIPS LLP By: /s/ Shaun J. Voigt KARL R. LINDEGREN SHAUN J. VOIGT Attorneys for Defendant, WIZARDS OF THE COAST, LLC eee 13 a = POINTS & AUTHORITIES IN SUPPORT OF WIZARDS’ MOTION TO DISMISS. FPDOCS 31347685.1PROOF OF SERVICE (CCP § 1013(a) and 2015.5) I, 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 document entitled MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT WIZARDS OF THE COAST LLC’S MOTION TO DISMISS PURSUANT TO FRCP RULE 12(b)(6), on all the appearing and/or interested parties in this action by placing [_] the original [XJ a true copy thereof enclosed in sealed envelope(s) addressed as follows: SEE ATTACHED MAILING LIST [by MAIL] 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 U.S. 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 affidavit. [by ELECTRONIC SUBMISSION] - 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 CM/ECF system on the Court’s website. The Court’s CM/ECF system will generate a Notice of Electronic Filing (NEF) to the filing party, the assigned judge, and any registered users in the case. The NEF will constitute service of the document(s). Registration as a CM/ECF user constitutes consent to electronic service through the court’s transmission facilities. FEDERAL - | 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 —opy,_Ki ota ncund ‘Print Name ~ ‘Signature FPOOCS 31947685.1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: dborgen@gbdhlegal.com ‘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) 499-5210 Email: mm@malklawfirm.com ‘Attorneys for Plaintiff, PAUL YALE PROOF OF SERVICE FPDOCS 31347685.1