Opinion
No. C06-03409 MJJ.
September 15, 2006
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE
INTRODUCTION
Before the Court is Defendant Dollar Tree Stores, Inc.'s ("Defendant" or "Dollar Tree") Motion to Dismiss the First, Second, and Third Causes of Action in the Complaint. Plaintiff Deborah Fleming ("Plaintiff" or "Fleming") opposes the motion. For the following reasons, the Court DENIES Defendant's motion to dismiss and DENIES Defendant's motion to strike.
Docket No. 7, Filed June 2, 2006.
FACTUAL BACKGROUND
On March 30, 2006, Plaintiff filed a class action Complaint against Defendant in the Superior Court of California in the County of Alameda. On May 25, 2006, Defendants removed the action to this Court.
Docket No. 1.
Docket No. 1.
The material allegations taken from the Plaintiff's Complaint are as follows.
Plaintiff seeks to represent three classes of plaintiffs all of whom were, or are, employees of Defendant at some time during the four years preceding the filing of the Complaint. (Complaint ("Compl.") at ¶ 4.) The Complaint identifies the first class of Plaintiffs ("Class I Plaintiff") as former employees who received wages from Defendant allegedly in violation of the California Labor Code. (Id.) Defendant's motion to dismiss challenges three causes of action common to the Class I Plaintiffs.
Defendant seeks to dismiss claims for violations of: (1) California Labor Code section 212; (2) Labor Code Private Attorneys General Act of 2000; and (3) California Business and Professions Code section 17200. (See id. at ¶¶ 24-43.) Plaintiff bases each of these claims on Defendant's predicate failure to comply with California Labor Code section 212. (See id.)
Defendant is a chain of retail stores with nearly 3,000 stores in the 48 contiguous states. (See id. at ¶ 3.) The Class I Plaintiffs, including Fleming, received wages from Defendant in the form of paychecks issued by an out-of-state bank with no in-state address for presentation and no provision for negotiating the paycheck within the State of California. (See id. at ¶¶ 4, 8-10.) As a result, Plaintiffs are, or were, required to pay a fee to cash their paycheck and, in some instances, to have a hold placed on their paychecks. (See id.) Plaintiffs seek damages under California Labor Code section 2699, restitution, and injunctive relief for the Class I Plaintiffs. (See id. at ¶¶ 62-64.)
LEGAL STANDARD
I. Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because the focus of a 12(b)(6) motion is on the legal sufficiency, rather than the substantive merits of a claim, the Court ordinarily limits its review to the face of the complaint. See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Generally, dismissal is proper only when the plaintiff has failed to assert a cognizable legal theory or failed to allege sufficient facts under a cognizable legal theory. See SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 782 (9th Cir. 1996); Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Further, dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of a claim. See Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). In considering a 12(b)(6) motion, the Court accepts the plaintiff's material allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).
II. Motion to Strike
Federal Rule of Civil Procedure 12(f) permits the Court to "[strike] from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The Ninth Circuit has held that "[t]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotations, citation omitted). However, Rule 12(f) motions are generally disfavored. See Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). Accordingly, such motions should be denied unless the matter has no logical connection to the controversy at issue and may prejudice one or more of the parties to the suit. See SEC v. Sands, 902 F. Supp. 1149, 1166 (C.D. Cal. 1995). In the absence of such prejudice, courts have denied Rule 12(f) motions "even though the offending matter literally [was] within one or more of the categories set forth in Rule 12(f)." Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1382 (1990) (quoted in Rawson v. Sears Roebuck Co., 585 F. Supp. 1393, 1397 (D. Colo. 1984)). When considering a motion to strike, the court "must view the pleading in a light most favorable to the pleading party." In re 2TheMart.com, Inc. Securities Litig., 114 F. Supp. 955, 965 (C.D. Cal. 2000).
ANALYSIS
I. California Labor Code Section 212
Defendant argues that Plaintiff has failed to allege a violation of Labor Code section 212 and that Labor Code section 212(c) precludes any finding of liability. Specifically, Defendant contends that section 212 does not apply because the statute cannot require California employers to use instate banks. Defendant also claims it has satisfied each element of a complete statutory exception under section 212(c). Plaintiff counters that section 212(c) does not apply, and argues that a plain reading of section 212 precludes Defendant from engaging in the conduct alleged in the Complaint. The Court agrees with Plaintiff.
California Labor Code section 212 requires California employers to comply with a series of provisions when issuing wages to employees. In short, the provisions of section 212(a)(1) forbid an employer from issuing payment of wages in an instrument that is not (1) negotiable, (2) payable in cash, (3) on demand, (4) without discount, (5) at an established place of business in the State, (6) the name and address of which appears on the instrument, and (7) which place of business has been prepared, by the deposit of funds, the establishment of credit, or by some arrangement or understanding, to pay the money called for by the instrument. See People v. Turner, 154 Cal. App. 2d F. Supp. 883, 885-86 (1957).
(a) No person, or agent or officer thereof, shall issue in payment of wages due, or to become due, or as an advance on wages to be earned:
(1) Any order, check, draft, note, memorandum, or other acknowledgment of indebtedness, unless it is negotiable and payable in cash, on demand, without discount, at some established place of business in the state, the name and address of which must appear on the instrument, and at the time of its issuance and for a reasonable time thereafter, which must be at least 30 days, the maker or drawer has sufficient funds in, or credit, arrangement, or understanding with the drawee for its payment.
Cal. Lab. Code § 212(a)(1)
Defendant cites no authority where courts have applied section 212 outside the context of an employer/employee relationship. To the contrary, the available authority and legislative history consistently indicates that section 212 applies to regulate the conduct of employers, and not some other class of individuals. See, e.g., Rhodes v. State Bar, 49 Cal.3d 50, 54 (1989) (regarding employer); Wang v. Div. of Labor Standards Enforcement, 219 Cal. App. 3d 1152, 1159 (1990) (stating Labor Code section 212 penalizes an employers.); Enrolled B. Rep. S.B. 496, at 1-2. As a result, the Court finds that section 212 regulates the conduct of employers, like Defendant.
Section 212(c) provides a narrow exception exempting bank employers from the requirement of printing the name and address on employees' paychecks. It allows employers another means of complying with section 212(a)'s requirements. Section 212(c) reads,
Notwithstanding paragraph (1) of subdivision (a), if the drawee is a bank, the bank's address need not appear on the instrument and, in that case, the instrument shall be negotiable and payable in cash, on demand, without discount, at any place of business of the drawee chosen by the person entitled to enforce the instrument.
Cal. Lab. Code § 212(c). Both the plain language and the legislative history indicate this exception applies to bank employers and only exempts them from the requirement of printing the name and address on the paycheck. See Enrolled B. Rep. S.B. 496, at 2 (stating "[u]nder current law, bank employers are required to issue checks to their employees in California indicating a location within the state where the checks may be cashed. This results in additional costs to the bank employers which are unnecessary since their employees can cash their payroll checks at any of their branches within the state.") Defendant provides no persuasive authority to the contrary.
The Court accepts a plaintiff's material allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Shwarz, 234 F.3d at 435. Since Plaintiff has alleged that Defendant failed to issue wages with an instrument that was payable on demand, without discount, within the State of California, containing the name and address of a place of business to pay the employee, Plaintiff has successfully alleged a violation of section 212. Moreover, Defendant's section 212(c) argument fails because there is no allegation in the Complaint indicating that Defendant is an exempted entity under section 212(c). For these reasons, as more fully explained below, Defendants arguments fail.
II. Federal Bank Act Preemption
Defendant argues that the Federal Bank Act ("NBA") preempts California Labor Code section 212 because the section impairs the efficiency of the national banking system. Defendant maintains that section 212 requires out-of-state banks, doing business with California employers, to open California branches. Plaintiff insists there is no preemption under the Federal Bank Act because Dollar Tree is not a bank, national or otherwise. See SPGGC v. Blumenthal, 408 F. Supp. 2d 87, 94 (D. Conn. 2006). The Court finds Defendant's preemption argument unavailing.
The purpose of the NBA is to regulate national banks. Weiner v. Bank of King of Prussia, 358 F. Supp. 684, 687 (E.D. Pa. 1973) (confirming that the purpose of the NBA is to regulate national banks and only national banks); Wiley v. Federal Land Bank of Louisville, 657 F. Supp. 964, 965 (S.D. Ind. 1987); Criswell v. Production Credit Assoc., 660 F. Supp. 14, 16 (S.D. Ohio 1985) ("[i]t is well settled that the National Bank Act regulates only the conduct of national banks"); Carson v. H R Block, Inc., 250 F. Supp.2d 669, 674-75 (S.D. Miss. 2003) (holding that the NBA did not preempt state claims against tax preparation service). An entity that is neither a national bank, nor a wholly-owned subsidiary of a national bank may not claim preemption under the NBA. See Colorado ex rel. Salazar v. ACE Cash Express, Inc., 188 F. Supp. 2d 1282 (D. Colo. 2002).
Defendant argues that courts have applied the NBA to preempt claims against non-bank department stores and cites Krispin v. May Dept. Stores, Co., 218 F. Supp. 919 (8th Cir. 2000). However, in Krispin the court noted the defendant department store had entered into an assignment agreement with its wholly-owned subsidiary bank, making the bank responsible for levying service charges. See id. at 921-922. The court found that the NBA preempted plaintiff's claims because the suit was amounted to an action against the bank. See id. at 923.
The court in Salazar addressed a similar issue. In Salazar, the court noted that the defendant and the national bank were separate entities. See Salazar, 188 F. Supp. at 1285-84. In declining to find preemption, the court distinguished Krispin noting that Krispin involved an action against a national bank because the store and the national bank were "related based on an assignment shifting contractual rights and duties to another." Id. The court found that the defendant and the national bank were separate entities and that their relationship did not give rise to preemption under the NBA. See id. at 1285.
This case is similar to Salazar. Like Salazar, this case is about a non-bank's violations of state law and there are no allegations against a national bank. Dollar Tree and its payroll bank are separate entities. Neither party contends that Dollar Tree is a national bank or a wholly owned subsidiary of a national bank. Dollar Tree's act of allowing an out-of-state bank to oversee its payroll does not implicate or conflict with any of the policies animating the bank's ability to charge interest free from state interference. Since Dollar Tree is a corporation that operates a chain of retail stores, and not a bank, it cannot claim preemption under the NBA. For these reasons, the Court rejects Defendant's preemption argument.
III. Constitutional Claims
1. Commerce Clause
Defendant argues that California Labor Code section 212 violates the Commerce Clause. Defendant contends that section 212 is both facially discriminatory and has a discriminatory effect on out-of-state employers and financial institutions. Plaintiff argues that section 212 is not facially discriminatory because the statute does not have different requirement for in-state versus out-of-state entities. Plaintiff also maintains that the statute has no discriminatory effect because all employers have an equal number of available options to comply with section 212. Again, the Court does not find Defendant's argument persuasive.
A state law may violate the unwritten rules described as the "dormant Commerce Clause" either by imposing an undue burden on both out-of-state and in-state business engaged in interstate activities, or by treating out-of-state businesses less favorably than their in-state competitors. See Haynes v. National R.R. Passenger Corp., 423 F. Supp. 2d 1073, 1083 (C.D. Cal. 2006) (citing Granholm v. Heald, 544 U.S. 460 (2005)). A state law violates the dormant Commerce Clause if the law clearly discriminates, either on its face or by its practical effects, against out-of-state interests. See Air Transp. Ass'n of Am. v. City County of San Francisco, 992 F. Supp. 1149, 1164 (N.D. Cal. 1998).
In determining whether a State has overstepped its role in regulating interstate commerce, the Supreme Court has distinguished "between state statutes that burden interstate transactions only incidentally, and those that affirmatively discriminate against such transactions." Maine v. Taylor, 477 U.S. 131, 138 (1986). A statute that discriminates against interstate commerce on its face or in practical effect is invalid unless the State can demonstrate "both that the statute 'serves a legitimate local purpose,' and that this purpose could not be served as well by available nondiscriminatory means." Air Transp. Ass'n of Am., 992 F. Supp. at 1164 (quoting Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)). On the other hand, if a statute "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Id. (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
California Labor Code section 212 does not violate the Commerce Clause. First, section 212 on its face does not discriminate between in-state and out-of-state commerce. The statute requires every employer with employees working in the State of California to abide by the same provisions when issuing wages. Second, section 212 does not have an incidental discriminatory or practical effect on out-of-state employers or banks. All employers with California employees must comply, and all employers have an equally available number of choices as to how to do so. As Plaintiff points out a number of options: Defendant could offer to cash its employee's checks at one its business locations; Defendant could retain a check cashing service for its California employees; Defendant could make arrangements with in-state banks to pay any check cashing fees that would otherwise be charged to Dollar Tree employees. Section 212 does not have the practical effect of forcing any entity or individual to do business with in-state banks.
The Court notes, that even if section 212 had an incidental effect on interstate commerce, the Court finds that the burdens imposed are not clearly excessive in relation to the State of California's legitimate local interests in protecting in-state employees.
The Court notes that California Labor Code section 212(c) similarly does not violate the Commerce Clause. On its face, section 212(c) does not discriminate between in-state and out-of-state commerce. Section 212(c) also does not have an incidental discriminatory or practical effect on out-of-state bank employers. Section 212(c) merely allows, where the drawee is a bank, for the omission of the address information required by section 212(a). Section 212(c)'s exception does not depend on the residency of the employer because it requires compliance by both in-state and out-of-state employers alike. Section 212(c) does not read in terms of any in-state or out-of-state distinctions. Thus, Defendant's citation to Lett v. Paymentech, Inc., 81 F. Supp. 2d 992 (N.D. Cal. 1999) is not persuasive. Defendant argues, in effect, that section 212(c) burdens interstate commerce because it requires a bank entity to have a place of business in-state so that the employee can negotiate at any place of business of the drawee chosen by the employee. However, the statute does not expressly require such action. The employer, as opposed to the banking entity, has a number of choices, if it wants to avail itself of the non-address exemption set forth in section 212(c). Ultimately, the state has a legitimate interest in regulating the manner in which employers pay their employees within the state, and therefore the statute is constitutional.
Since section 212 and 212(c) apply even-handedly on their face to all employers and have no legally discriminatory effect on commerce, they do not violate the Commerce Clause, and Defendant's argument fails.
2. Equal Protection
Lastly, Defendant argues that California Labor Code section 212 violates the Equal Protection Clause. Defendant essentially duplicates the argument made under the Commerce Clause. Defendants argue the statute treats differently those employers paying wages with checks drawn from in-state banks versus those employers paying wages with checks drawn from out-of-state banks. Plaintiffs insist there is a rational relationship between the statute and the State's interest in protecting in-state employees. The Court rejects the Defendant's Equal Protection argument.
Under Equal Protection analysis, state legislation ordinarily is entitled to broad deference from the federal courts and will be sustained so long as it is rationally related to a legitimate state interest. See, e.g., Exxon Corp. v. Eagerton, 462 U.S. 176, 195-96 (1983). In weighing the validity of the classification a court need not ascertain the actual reason for the classification but may consider any facts from which the state reasonably could have concluded that the challenged classification would promote a legitimate state purpose. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981); New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam); McGowan v. Maryland, 366 U.S. 420, 426 (1961).
The Court finds there is a rational basis for the State of California to protect its in-state employees. The State of California has a legitimate interest in ensuring its in-state employees do not face delay or additional costs in receiving their earned wages. For these reasons, the Court rejects Defendant's Equal Protection argument.
II. Motion to Strike
Defendants request the Court strike five portions of the Complaint. Defendants seek to strike (1) allegations seeking relief under California Labor Code section 212 for periods beyond one year; (2) allegations seeking restitution under the California Business and Professions Code under section 17200; (3) Plaintiff's prayer for penalties under California Labor Code section 2699(f); (4) Plaintiff's request for attorneys' fees and costs; and (5) Plaintiff's request for relief on behalf of the "general public." Plaintiff avers that each of the allegations are relevant to the claims before this Court.
A. Statute of Limitations — Periods Beyond One Year
Defendant seeks to strike all references to "four years" from the Complaint. Defendant argues that the applicable limitations period for a violation of California Labor Code section 212 is one year, thereby precluding recovery for any earlier wrongful conduct. Plaintiff maintains that the references are proper because the California Business and Professions Code section 17200 is subject to a four-year limitations period under section 17208.
Section 17208 of the California Business and Professions Code reads, "[a]ny action to enforce any cause of action pursuant to [section 17200] shall be commenced within four years after the cause of action accrued." Cal. Bus. Prof. Code § 17208. The four-year limitations period controls, without exception, even if the actual statute being sued upon provides a shorter limitations period. Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 178-79 (2000). Moreover, any business act or practice that violates the Labor Code through failure to pay wages is, by definition, an unfair business practice under section 17200. Id. Thus, while an action might be time-barred under the Labor Code, it may still be pursued as an action seeking restitution under section 17200 as an unfair business practice. Id. at 179.
In the present case, Plaintiff bases the section 17200 claim on the alleged violation of the Labor Code. As a result, the four-year limitations period applies. The Court therefore rejects Defendant's argument to strike all references to conduct occurring during the "four years" preceding the filing of the Complaint. The Court denies Defendant's motion to strike these portions of the Complaint.
B. Restitutionary Recovery
Defendant argues that Plaintiff's prayer seeking recovery of "costs incurred" is not a proper form of restitution under California Business and Professions Code section 17200. Specifically, Defendant contends that because Defendant was not the actual recipient of the lost wages and costs incurred by Plaintiffs, Plaintiffs are thereby precluded from seeking restitution from Defendant. Plaintiff insists that restoration of the lost wages and costs incurred by Plaintiffs constitutes proper restitution because Defendant profited by unfairly passing costs to the Plaintiffs.
Restitution, including restitutionary disgorgement of profits, is a proper relief under section 17200. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1148 (2003). Section 17203 authorizes the court to make orders necessary to restore real or personal property and money "to any person in interest." Kraus v. Trinity Mangement Serv., Inc., 23 Cal. 4th 116, 127 (2000) (holding that while restitution is an available remedy under section 17200, disgorgement of money obtained through an unfair business practice is an available remedy in a representative action to the extent that it constitutes restitution); see also Cortez, 23 Cal. 4th at 176 (allowing restitutionary form of disgorgement.)
Here Plaintiff has alleged that Defendant benefitted by violating Labor Code section 212. Plaintiff attributes the out-of-pocket losses of the Class I Plaintiffs directly to Defendant's unfair business practice of issuing illegal paychecks. (See Compl. at ¶¶ 41-42.) As a result, Plaintiff's claim purports to seek a restitutionary disgorgement of Defendant's ill-gotten profits to restore Plaintiff's out-of-pocket loss. When considering a motion to strike, the court "must view the pleading in a light most favorable to the pleading party." In re 2TheMart.com, Inc. Securities Litig., 114 F. Supp. 955, 965 (C.D. Cal. 2000). Thus, the Court denies Defendant's motion to strike this portion of the Complaint.
C. Penalties Under California Labor Code Section 2699
Defendant argues that California Labor Code section 225.5 precludes Plaintiff from seeking penalties under California Labor Code section 2699 and seeks to strike the references to penalties under section 2699 from the Complaint. Plaintiff counters that section 2699 expressly provides for penalties for violations of section 212. In examining the relevant statutory provisions, the Court agrees with Plaintiff. Neither party has cited any authority on this issue and the Court has found none.
California Labor Code section 2699 et seq. is known as the California Labor Code Private Attorney General's Act. Cal. Lab. Code 2698. The relevant statutory provisions of the Act are as follows:
Section 2699(a) provides that, [n]otwithstanding and other provision of law any provision" in the Labor Code that provides for civil penalties to be assessed and collected by the Labor and Workforce Development Agency, may alternatively be recovered through a civil action by an aggrieved employee on behalf of the employee and other current or former employees. Cal. Lab. Code § 2699(a). The section requires the aggrieved employee to follow the procedures specified in section 2699.3. Id.
Section 2699.3 sets forth the procedural requirements for an aggrieved employee to commence a civil action and provides, "[a] civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: [lists administrative prerequisites]." Cal. Lab. Code § 2699(a). Section 2699.5 describes the application of section 2699.3(a) and provides, that section 2699.3(a)'s administrative prerequisites apply to certain alleged violations of the Labor Code, including alleged violations of section 212. Cal. Lab. Code § 2699.5.
Section 2699(f) provides, "[f]or all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows: [lists penalties]." Cal. Lab. Code § 2699(f).
Lastly, section 225.5 sets forth the civil penalty recoverable by the Labor Commissioner and provides, "[i]n addition to, and entirely independent and apart from, any other penalty provided in this article, every person who unlawfully withholds wages due any employee in violation of Section 212, 216, 221, 222, or 223 shall be subject to a civil penalty [recovered the Labor Commissioner] as follows: [lists penalties]." Cal. Lab. Code § 225.5.
Against this statutory backdrop, the issue before the Court is whether section 225.5 precludes Plaintiff from seeking damages under section 2699(f). "As in any case involving statutory interpretation, [the Court's] fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose." People v. Cole, 38 Cal. 4th 964, 974-75 (citing People v. Murphy, 25 Cal. 4th 136, 142 (2001). The rules for performing this task are well established. See Cole, 38 Cal. 4th at 975. The Court begins by examining the statutory language, giving it a plain and commonsense meaning. Id. The Court does not, however, consider the statutory language in isolation and instead looks to the entire substance of the statutes in order to determine their scope and purposes. Id. The Court construes the words in question in context, keeping in mind the statutes' nature and obvious purposes. Id. The Court must harmonize the various parts of the enactments by considering them in the context of the statutory framework as a whole. Id. If the statutory language is unambiguous, then its plain meaning controls. Id. If, however, the language supports more than one reasonable construction, then the Court may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history. Id. (citing In re Young, 32 Cal.4th 900, 906 2004).
The Court finds that section 225.5 does not preclude Plaintiff from seeking damages under section 2699(f). Section 225.5 specifically states, "[ i]n addition to, and entirely independent and apart from," any other civil penalty provision, a private party may seek damages under section 225.5 as long as the party has complied with the administrative prerequisites set forth in section 2699.3. Section 2699(f) is an "other civil penalty provision." Thus, section 225.5 does not intend to foreclose a plaintiff's use of section 2699(f) in seeking damages. Admittedly, section 2699(f)'s penalty provision applies only to those provisions that do not specifically provide a penalty, and section 225.5 does provide a penalty. However, section 225.5 explicitly states that its penalties may be "in addition to, and entirely independent and apart from" any other civil penalty provision. For these reasons the Court declines to strike Plaintiff's prayer for damages under section 2699(f). D. Erroneous Citation of California Labor Code Section 1197.1
The Court notes that Plaintiff incorrectly argues that Section 2699.5 expressly states that section 2699(f)'s damages provisions are available for violation of section 212. Section 2699.5 does nothing more than guidance on the application of the administrative prerequisites under section 2699.3(a). Together these sections require that all alleged violations of section 212, among others, follow the procedural administrative requirements set forth under section 2699.3(a).
Defendant seeks to strike Plaintiff's reference to language purported to be taken from California Labor Code section 1197.1. Plaintiff concedes that the reference to section 1197.1 was a typographical error. Nevertheless, Plaintiff argues that the Court construe the Complaint as if the proper citation was noted, particularly given Plaintiff's repeated citations to the intended provision, section 2699. The Court denies Defendant's motion to strike and orders Plaintiff to file a notice of errata correcting the typographical error.
E. Relief on Behalf of the General Public
Defendant argues that Plaintiff may not seek relief on behalf of the "general public. Plaintiff does not specifically address this argument, other than to note that Plaintiff seeks claims under California Business and Professions Code section 17200. The Court finds Defendant's argument unavailing and declines to strike the references to the "general public.".
Prior to Proposition 64, a private plaintiff (affected or unaffected) could obtain relief not only on his or her own behalf but also on behalf of "the general public." See William L. Stern, Business Professions Code § 17200 Practice, § 7:4 (Rutter Group 2006). Proposition 64 eliminated "representative" actions by adding additional language to section 17203 requiring any suit brought on behalf of others must now comply with class action procedure. Id. Here, Plaintiff seeks to represent a class and alleges to be an "affected" Plaintiff. Defendant fails to offer evidence or authority to challenge Plaintiff's standing. Therefore, the Court denies Defendant's motion to strike these portions of the Complaint.
"Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure, but these limitations do not apply to claims brought under this chapter by the Attorney General, or any district attorney, county counsel, city attorney or city prosecutor in this state." Id. (citing Prop. 64, § 2).
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant's motion to dismiss and DENIES Defendant's motion to strike.