Lozano v. Pride Industries, et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JOSE LOZANO,
Plaintiff,
v.
PRIDE INDUSTRIES, et al.,
Defendants.
Case No. 26-cv-01466-BAS-SBC
ORDER GRANTING UNION’S
MOTION TO DISMISS (ECF No. 7)
This case centers around labor disputes between Plaintiff Jose Lozano, his former
employer Pride Industries (“Pride”), and his former collective bargaining representative,
International Union of Operating Engineers, Local Union 501 (the “Union”) (together with
Pride, “Defendants”).
Presently before the Court is the Union’s motion to dismiss Plaintiff’s complaint.
(ECF No. 7.) Plaintiff opposes, and the Union replies. (ECF Nos. 11, 13.) The Court finds
the Union’s motion suitable for determination on the papers submitted. See Fed. R. Civ. P.
78(b); Civ. L.R. 7.1(d)(1). Upon review, the Court GRANTS the motion.
I. 	BACKGROUND
Plaintiff served as a Building Engineer on a Judicial Council of California contract
operated by Defendant Pride Industries from April 2020 until his layoff in July 2025. (ECF
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No. 1-2, Complaint (“Compl.”) at 2–3, Ex. 7.)1 Plaintiff’s employment with Pride was
covered by a Collective Bargaining Agreement (“CBA”) between Pride and the Union. (Id.
at 4.) The Union served as Plaintiff’s exclusive collective bargaining representative. (Id. at
2.)
The CBA covered numerous aspects of Plaintiff’s employment with Pride. For
example, Plaintiff quotes from, and asserts claims based on, CBA provisions covering
employee qualifications, seniority rights, and payout of accrued sick leave. (Id. at 3–4, 6.)
Pride terminated Plaintiff’s employment through a layoff on July 14, 2025. (Id. at
6.) Pride provided no written notice or justification of the layoff in a manner consistent
with the CBA. (Id.) At the time of his layoff, Plaintiff was the only Building Engineer laid
off in his district, despite having over seven years of seniority. (Id.) Plaintiff believes his
layoff was in retaliation for raising various compliance and mismanagement concerns at
Pride. (Id. at 5.) The Union allegedly failed to protect him from Pride’s retaliatory
discharge and separately failed to enforce various CBA provisions. (Id. at 7.) Plaintiff also
accuses the Union of failing to act on Pride’s alleged retention of engineers that were
missing “EPA 608 federal certifications” on certain job sites, despite the CBA mandating
these certifications for Building Engineers. (Id. at 3, 8.)
Plaintiff “repeatedly attempted, over a period of months, to resolve his grievances
through both [Pride] and the Union.” (Id. at 5.) Plaintiff submitted “grievances and written
complaints regarding retaliation, seniority violations, unpaid sick leave, and unlawful
conduct.” (Id.) Plaintiff states the Union “failed to meaningfully pursue enforcement of the
CBA.” (Id.)2 On November 24, 2025, four months after his termination, Plaintiff sent the
1 The Court refers to Plaintiff’s allegations in his Complaint by page number, rather than paragraph
number, for clarity because his Complaint renumbers the paragraphs at various points.
2 Plaintiff attaches a number of exhibits to his Complaint, which the Court will consider as part of
the Complaint. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading
is a part of the pleading for all purposes.”). Most of the Complaint’s eight exhibits are not directly related
to Plaintiff’s claims against the Union or otherwise do not involve the Union. (Compl. Ex. 1 (letter
addressed solely to Pride)); (Compl. Ex. 3 (Employee Performance Counseling write-up addressed to
Lozano by Pride)); (Compl. Ex. 4 (letter addressed solely to Pride)); (Compl. Ex. 5 (Internal Pride
Memorandum)); (Compl. Ex. 8 (letter addressed solely to Plaintiff by Pride)).
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Union an “Intent to Sue” letter describing some of the allegations he now raises in federal
court. (Id. Ex. 7.) In the same letter, Plaintiff states that at an unknown time he attempted
to file a grievance “regarding [his] layoff, qualification issues, and federal licensing
violations” but Union representatives “refused to allow [him] to submit a grievance,
contradicting the grievance procedures” in the CBA. (Id.)3
Seeing no satisfactory resolution, Plaintiff filed a pro se Complaint against the Union
in San Diego Superior Court on January 7, 2026. (Id. at 1.) Pride removed the case to
federal court with the Union’s consent on March 6, 2026. (ECF No. 1.) In his Complaint,
Plaintiff asserts three claims against the Union: (A) wrongful termination in violation of
public policy; (B) breach of the duty of fair representation; and (C) a hybrid Section 301
claim under the Labor Management Relations Act (“LMRA”). The Court will analyze each
claim in turn.
II. 	LEGAL STANDARD
Rule 8(a)(2) requires “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion tests that
standard by seeking dismissal for failure to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). While legal conclusions may provide the framework
of a complaint, “they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). The plaintiff must plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged”—in other
words, enough to render the claim plausible. Id. at 678 (citing Twombly, 550 U.S. at 570).
3 Plaintiff includes new factual allegations in his opposition to the Union’s motion. (See generally
Opp’n.) The Court declines to consider any factual allegations outside of the Complaint in its analysis.
See Apple Inc. v. Allan & Assocs. Ltd., 445 F. Supp. 3d 42, 59 (N.D. Cal. 2020) (“[I]t is ‘axiomatic that
the complaint may not be amended by the briefs in opposition to a motion to dismiss.’” (quoting Frenzel
v. AliphCom, 76 F. Supp. 3d 999, 1009 (N.D. Cal. 2014))).
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In ruling on a motion to dismiss, the court accepts the complaint’s factual allegations
as true and construes the pleadings in the light most favorable to the nonmoving party. See
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The
court may not look beyond the complaint. See United States v. Ritchie, 342 F.3d 903, 907
(9th Cir. 2003).
If dismissal is warranted, the court considers whether to grant leave to amend. Leave
should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). At the same
time, “a district court may dismiss without leave where a plaintiff’s proposed amendments
would fail to cure the pleading deficiencies and amendment would be futile.” Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).
III. 	ANALYSIS
A. Wrongful Termination in Violation of Public Policy (Count I)
In Tameny, the California Supreme Court held “when an employer’s discharge of an
employee violates fundamental principles of public policy, the discharged employee may
maintain a tort action and recover damages traditionally available in such actions.” Tameny
v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). To state a claim for wrongful termination
in violation of public policy (often referred to as a “Tameny claim”), a plaintiff must
plausibly plead the following elements: “(1) an employer-employee relationship, (2) the
employer terminated the plaintiff’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.”
Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144, 154 (2014) (citation omitted).
“An individual who is not an employer cannot commit the tort of wrongful discharge in
violation of public policy; rather, he or she can only be the agent by which an employer
commits that tort. This conclusion flows logically from our reasoning in Tameny.” Miklosy
v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008) (emphasis in original).
Plaintiff’s claim against the Union fails as a matter of law because the Union is not
Plaintiff’s employer. Plaintiff’s Complaint is bereft of allegations that plausibly support an
inference the Union was his employer. Plaintiff’s primary allegations against the Union
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center around its alleged failure to meet its union-related duties under the CBA and its
alleged breach of the duty of fair representation owed to Plaintiff. (See Compl. at 9–10.)
Plaintiff fails to allege anywhere in his Complaint that the Union was his employer. Rather,
he specifically alleges the Union was his “exclusive bargaining representative.” (Id. at 2.)
That is fatal to a Tameny wrongful termination claim, as the entire cause of action is
premised on an employer-employee relationship that is wholly absent here. See Yau, 229
Cal. App. 4th at 154; Miklosy, 44 Cal. 4th at 900.
Without any factual allegations supporting a reasonable inference the Union was
Plaintiff’s employer, Plaintiff’s Tameny claim cannot stand. The Court therefore GRANTS
the Union’s motion to dismiss Count I.
B. Breach of the Duty of Fair Representation (Count V) and Hybrid Section
301 Labor Management Relations Act Claim (Count VI)
The Court considers Plaintiff’s last two counts together because they both depend
on the sufficiency of Plaintiff’s duty of fair representation claim. “A union’s duty of fair
representation grows from its statutory right to exclusive representation.” Demetris v.
Transp. Workers Union of Am., AFL-CIO, 862 F.3d 799, 804 (9th Cir. 2017). Because a
union has the “exclusive statutory authority to represent its members, it has a corresponding
legal obligation ‘to serve the interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith and honesty, and to avoid
arbitrary conduct.’” Id. (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967)). “A union
breaches its duty of fair representation ‘when its conduct toward a member of the
bargaining unit is arbitrary, discriminatory, or in bad faith.’” Id. at 805 (quoting Marquez
v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998)). “Any substantive examination of a
union’s performance . . . must be highly deferential, recognizing the wide latitude that
negotiators need for the effective performance of their bargaining responsibilities.” Air
Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991) (citations omitted). Ultimately,
the burden of proving a breach of the duty of fair representation is on the plaintiff. Beck v.
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United Food and Com. Workers Union, Loc. 99, 506 F.3d 874, 879 (9th Cir. 2007) (citing
Vaca, 386 U.S. at 193).
A claim under Section 301 of the LMRA formally comprises two causes of action:
“(1) a cause of action against the employer for breach of the collective bargaining
agreement, and (2) a suit against the union for breach of the union’s duty of fair
representation.” Rollins v. Cmty. Hosp. of San Bernardino, 839 F.3d 1181, 1185 (9th Cir.
2016) (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 (1983)). Section
301 claims may be brought “against the union, the employer, or both.” Bliesner v.
Commc’n Workers of Am., 464 F.3d 910, 913 (9th Cir. 2006). Regardless of whom a
plaintiff elects to sue, “the required proof is the same: [t]he plaintiff must show that there
has been both a breach of the duty of fair representation and a breach of the CBA.” Id.
(citing DelCostello, 462 U.S. at 164–65). The two claims inherent in a hybrid Section 301
cause of action are “inextricably interdependent” and therefore rise or fall together. See
DelCostello, 462 U.S. at 164 (citations omitted).
As Plaintiff pleads a violation of the duty of fair representation under all three of its
prongs, the Court analyzes each in turn. See Simo v. Union of Needletrades, Indus. &
Textile Emps., Sw. Dist. Council, 322 F.3d 602, 617 (9th Cir. 2003) (“Whether a union
acted arbitrarily, discriminatorily or in bad faith requires a separate analysis, because each
of these requirements represents a distinct and separate obligation.” (citation omitted)).
1. Arbitrary
“Conduct can be classified as arbitrary ‘only when it is irrational, when it is without
a rational basis or explanation.’” Beck, 506 F.3d at 879 (quoting Marquez, 525 U.S. at 46).
The standard for arbitrary conduct is necessarily deferential and “gives the union room to
make discretionary decisions and choices, even if those judgments are ultimately wrong.”
Id. (citation omitted). “Under Supreme Court precedents, so long as a union exercises its
judgment, no matter how mistakenly, it will not be deemed to be wholly irrational.” Id.
(citing Marquez, 525 U.S. at 46); see also O’Neill, 499 U.S. at 78. Courts “may decline to
give a union the deference owed to an exercise of judgment only where union actions or
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inactions are ‘so far outside a wide range of reasonableness that [they are] wholly irrational
or arbitrary.’” Beck, 506 F.3d at 879 (quoting O’Neill, 499 U.S. at 78).
Plaintiff has not plausibly alleged the Union’s actions or inactions were “wholly
irrational or arbitrary.” Plaintiff’s allegations against the Union in the Complaint are sparse,
most containing threadbare legal conclusions unmoored from specific, factual allegations
required to cross the line “between possibility and plausibility of entitlement to relief.” See
Iqbal, 556 U.S. at 678. For example, Plaintiff states he notified the Union “in writing that
multiple engineers were not legally qualified under EPA 608 requirements,” but provides
no additional factual allegations. (Compl. at 3.) This bare allegation contains no further
detail on what occurred, and no explanation of how failure to act on these requirements
constituted arbitrary conduct. Plaintiff’s allegation that his promotion to Building Engineer
in late 2021 “plac[ed] . . . the Union on notice of ongoing federal and contractual
violations” (id.) is disconnected from any factual allegations stating what those violations
were, and how exactly his promotion placed the Union on notice of these violations.
Plaintiff later asserts that he “repeatedly attempted, over a period of months, to resolve his
grievances through both [Pride] and the Union.” (Id. at 5.) Plaintiff then flatly states that
the Union “failed to meaningfully pursue enforcement of the CBA.” (Id.)4 None of these
allegations contain sufficient factual support to overcome Rule 12(b)(6) scrutiny.
Plaintiff’s 	exhibits 	fare 	no 	better. 	Exhibits 	1, 	3, 	4–5, 	and 	8 	appear 	to 	be
communications exclusively between Plaintiff and Pride and do not reference the Union at
4 Most of Plaintiff’s allegations are reminiscent of the “formulaic recitation of the elements of a
cause of action” and “naked assertions devoid of further factual enhancement” that simply do not suffice
under federal pleading standards. See Iqbal, 556 U.S. at 678 (citation modified). For instance, Plaintiff
asserts that “[t]he Union breached its duty of fair representation by acting arbitrarily, discriminatorily, and
in bad faith, including but not limited to: a. refusing to process or pursue Plaintiff’s grievances; b. ignoring
clear and unambiguous CBA language; c. failing to enforce qualification, seniority, and wage provisions;
d. acquiescing in PRIDE’s unlawful conduct; [and] e. failing to protect Plaintiff from retaliation.” (Compl.
at 7.) Plaintiff’s other allegations are simply bare legal conclusions, for example: (1) summarily stating
that the Union’s “actions constitute a breach of the duty of fair representation” (id. at 8); and (2) stating
without further factual enhancement that the “Union acted arbitrarily, discriminatorily, and in bad faith.”
(Id. at 10.) Conclusory allegations like these are not entitled to the presumption of truth. See Pac. Gulf
Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 896 (9th Cir. 2021) (citations omitted).
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all. Exhibits 2 and 6 are excerpts from the CBA. The only exhibit directly referencing the
Union is Exhibit 7, which includes a formal grievance filed by Plaintiff over his layoff and
an “Intent to Sue” letter addressed to the Union. (Compl. Ex. 7.) Exhibit 7, like the
Complaint, is largely conclusory and devoid of concrete factual allegations.
There are two specific points worth addressing in Exhibit 7. The first is the allegation
that Plaintiff spoke with two Union representatives (“Benjamin and Diego”) on November
12, 2025, regarding Pride’s alleged retention of employees that lacked certain required
EPA certifications. (Id.) Plaintiff claims the Union refused to pursue his report because the
Union “will not go against union members.” (Id.) However, unions have wide latitude to
“make discretionary decisions and choices, even if those judgments are ultimately wrong.”
Marquez, 525 U.S. at 45–46. The Union’s decision not to pursue Plaintiff’s grievance is
not, by the Complaint’s own allegations, “so far outside a ‘wide range of reasonableness’
as to be irrational.” See Conkle v. Jeong, 73 F.3d 909, 915 (9th Cir. 1995) (quoting O’Neill,
499 U.S. at 67). In any event, this allegation does not provide sufficient detail to draw a
reasonable inference that the Union’s actions were arbitrary.
The second point is Plaintiff’s allegation that Union representatives refused to allow
him to submit a grievance in contravention of the grievance procedures in the CBA.
(Compl. Ex. 7.) It is longstanding precedent that a union breaches the duty of fair
representation where it “ignores a meritorious grievance or processes the grievance in a
perfunctory fashion. However, a union does not breach its duty of fair representation when
it does not process a meritless grievance or engages in mere negligent conduct.” Zuniga v.
United Can Co., 812 F.2d 443, 451 (9th Cir. 1987) (citation omitted). Plaintiff does not
provide any factual enhancement for the bare allegation that the Union refused to allow
him to submit a grievance sufficient to allow the Court to draw the reasonable inference
that the Union’s conduct was arbitrary or irrational, as opposed to merely negligent.
Confusingly, Plaintiff alleges that he did in fact “submit[] grievances and written
complaints regarding retaliation, seniority violations, unpaid sick leave, and unlawful
conduct.” (Compl. at 5.) Plaintiff should clear up these and other inconsistencies if he
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would like to file an amended complaint in accordance with the Court’s leave to amend,
see infra Section III(C). While the Court applies a more generous construction of a pro se
litigant’s filings, it cannot act as a pro se litigant’s advocate and supply missing facts or
legal arguments.5 The Court cannot conclude that the Complaint, as pleaded, supports a
plausible cause of action for a breach of the duty of fair representation based on the
arbitrary prong.
2. Discriminatory and Bad Faith
The Court addresses the remaining prongs together because they suffer from the
same pleading deficiency. “A union’s decision to discriminate against its members on an
impermissible basis will violate the duty of fair representation only where the aggrieved
members set forth ‘substantial evidence of discrimination that is intentional, severe, and
unrelated 	to 	legitimate 	union 	objectives.’” 	Demetris, 	862 	F.3d 	at 	806 	(quoting
Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S.
274, 301 (1971)). To state a plausible claim that a union breached its duty of fair
representation through bad faith conduct, a plaintiff “must plead facts that, if true, show
‘substantial evidence of fraud, deceitful action or dishonest conduct.’” Id. at 808 (quoting
Beck, 506 F.3d at 880). “[M]ere negligence and erroneous judgment calls cannot, by
themselves, support an inference of bad faith.” Id. (citing Stevens v. Moore Bus. Forms,
Inc., 18 F.3d 1443, 1447–48 (9th Cir. 1994) (“[A]n error in judgment by the union does
not constitute bad faith.”)).
Plaintiff’s complaint is devoid of plausible, factual allegations sufficient to give rise
to Union liability under either the “discriminatory” or “bad faith” prongs of a duty of fair
representation claim. As stated in detail above, see supra Section III(B)(1), Plaintiff’s
5 See Sanchez v. Ryan, No. CV-12-08195-PCT-NVW, 2013 WL 6076155, at *8 (D. Ariz. Nov. 19,
2013) (“A federal judge may not . . . be a pro se litigant’s advocate, nor should such a judge ‘supply
additional factual allegations to round out [the pro se litigant’s] complaint or construct a legal theory on
[his] behalf.’” (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997))). Federal courts
have “no obligation to act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231
(2004).
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Complaint is largely filled with legal conclusions and bare assertions unadorned by
sufficient factual allegations that can cross the line from mere possibility to plausibility.
Iqbal, 556 U.S. at 678. The scant allegations against the Union in the Complaint do not
plausibly plead “intentional, severe” discrimination, nor do they show “substantial
evidence of fraud, deceitful action or dishonest conduct” by the Union. See Demetris, 862
F.3d at 806, 808 (citations omitted). Without detailed factual allegations plausibly alleging
discrimination or bad faith, the Court cannot permit Plaintiff’s Complaint to proceed as
stated.
Accordingly, the Complaint fails to state a claim for breach of the duty of fair
representation against the Union. It follows that the hybrid Section 301 claim also falls
apart, as a breach of the duty of fair representation is one of its mandatory requirements.
See DelCostello, 462 U.S. at 164–65. The Court therefore GRANTS the Union’s motion
to dismiss Counts V and VI.
C. Leave to Amend
Having granted the motion, the Court next determines whether leave to amend is
appropriate. While leave to amend should be freely given where justice so requires, “a
district court may dismiss without leave where a plaintiff’s proposed amendments would
fail to cure the pleading deficiencies and amendment would be futile.” Cervantes, 656 F.3d
at 1041.
With regard to Count I, it does not appear that Plaintiff will be able to plead any set
of facts that would constitute a valid Tameny claim against the Union, rendering any
amendment futile. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)
(amendments are “futile only if no set of facts can be proved under the amendment to the
pleadings that would constitute a valid and sufficient claim or defense”). Plaintiff does not
engage with the Union’s argument that it is not Plaintiff’s employer. (See generally Opp’n.)
By Plaintiff’s own admission, the Union acted as his collective bargaining representative,
not his employer. It follows that any amendment of Count I would be futile. Accordingly,
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the Court denies Plaintiff leave to amend Count I as futile and DISMISSES WITH
PREJUDICE Count I against the Union.
With regard to Plaintiff’s remaining causes of action (Counts V and VI), the Union
argues that they are just as futile as Count I. (See Mot. at 14.) The Union contends that
Plaintiff’s “Intent to Sue” letter in Exhibit 7 “reveals that the Union’s alleged culpability
consisted entirely of its refusal to take action against co-workers Plaintiff believed lacked
EPA 608 certifications[.]” (Id.) It claims this “admission is fatal” in two ways: it negates
the plausible inference that the Union acted arbitrarily, discriminatorily, or in bad faith
toward Plaintiff during his employment; and it “severs” any causal connection between the
Union’s purported inaction and Plaintiff’s layoff. (Id.) The Court is not willing to make
such an inferential leap at this juncture. It is not immediately clear to the Court that there
is “no set of facts . . . that would constitute a valid and sufficient claim or defense.” Miller,
845 F.2d at 214. Accordingly, the Court grants Plaintiff leave to amend his Complaint with
respect to Counts V and VI only.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss. (ECF
No. 7.) Count I is dismissed against the Union WITH PREJUDICE and without leave to
amend. Counts V and VI are dismissed WITHOUT PREJUDICE and with leave to
amend.
If Plaintiff wishes to file a First Amended Complaint consistent with the Court’s
leave to amend, he must file it no later than October 29, 2026. Plaintiff is warned that if
he does not allege sufficient factual detail regarding his claims, the Court may not provide
leave to amend again. Plaintiff may not add any new parties or claims without leave of
Court. If Plaintiff does not file an amended complaint by the deadline provided, the Court
will dismiss the claims against the Union without further leave to amend and without
further notice.
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IT IS SO ORDERED.
DATED: October 8, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
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