Order Submitted MatterCal. Super. - 6th Dist.May 14, 2019Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/25/2019 8:27 AM Reviewed By: R. Walker Case #19CV347733 Envelope: 3692126 ll 12 13 14 15 18 19 20 2'] 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA FERDINAND BATIN, Case No.: 19-CV-347733 Plaintiff, ORDER AFTER HEARING 0N VSo NOVEMBER 22, 2019 Demurrer by Defendant McGee Air Services, Inc. to the Third Amended Complaint MCGEE AIR SERVICES, INC., et 3.1., Defendants. The abové-entitled matter came on for hearing on Friday, November 22, 201 9 at 9:00 am. in Department 1 (Complex Civil Litigation), the Honorable Brian C. Walsh presiding. A tentative ruling was issued prior to the hearing. The appearances are as stated in the record. Having reviewed and considered the written submissions 0f all parties, having considered the oral argument of counsel, and being fully advised, the Court orders as follows: This is a putative class and Private Attorneys General (“PAGA”) action alleging wage and hour violations by defendant McGee Air Services, Inc. Before the Court is McGee’s demurrer to the operative Third Amended Complaint (“TAG”), 0n the grounds that the Railway Labor Act (“RLA”) and/or the Airline Deregulation Act (“ADA”) preempt all 0f plaintiffs’ claims (Code Civ. Proc., § 430.10, subd. (a)), and their overtime claim fails to state a cause 0f Batin v. McGee Air Services, 111a, et at, Superior Court ofCaliform'a. County ofSam‘a Clara, Case No. [9-CV-347733 Order After Hearing on November 22, 2019 [Demurrer t0 the ThirdAmended Complaint] I 20 2! 22 23 24 25 26 27 28 action because their employment is exempt from California’s overtime laws under Industrial Welfare Commission Wage Order 9 and Labor Code section 514 (Code Civ. Proo, § 430.10, subd. (6)). Plaintiffs Oppose the demurrer. I. Allegations 0f the Operative Complaint According t0 the TAC, McGee is an airline service provider and a wholly owned subsidiary 0f Alaska Airlines. (TAC, 1] 2.) Plaintiff Ferdinand Batin was employed by defendant in California as a nOII-exempt employee from August t0 November 0f 201 8, while plaintiff Nicolette Macleary has been employed in that capacity since January 0f 2019-in addition, each plaintiff has received non-discretionary incentive wages. (161., W 3-4.) Plaintiffs allege that McGee failed t0 include non-discretionary incentive pay in employees’ “regular rates 0f pay” for purposes 0f calculating overtime and missed meal period premiums. (Id, fl 9-1 1.) In addition, defendant failed to pay plaintiffs and putative class members for time spent travelling between a designated parking lot and their job sites before and after their Shifts. (1d,, 1] 12.) Moreover, plaintiffs and other class members were unable t0 take Off duty meal breaks due t0 their rigorous work schedules and thus forfeited meal breaks without receiving a premium. (Id, 1] 14.) They were also denied proper rest periods. (1d,, 1] 15.) Due t0 these violations, McGee failed to provide employees With compliant itemized wage statements and violated the Unfair Competition Law (“UCL”). (Id, '[fi] 16-17.) Based 0n these allegations, plaintiffs bring this action 0n behalf 0f a putative class 0f all 11011-exe1npt California employees 0f McGee during the class period. They assert claims for (1) unlawful business practices in Violation of the UCL, (2) failure t0 pay minimum wages in Violation 0f Labor Code sections 1194, 1197, and 1197.1, (3) failure t0 pay overtime in Violation 0f Labor Code sections 204,5 10, 1 194, and 1198, (4) failure t0 provide meal period premium pay in Violation 0f Labor Code sections 226.7 and 5 12, (5) failure t0 provide required rest periods in violation 0f Labor Code sections 226.7 and 512, (6) failure t0 provide accurate itemized wage statements in Violation 0f Labor Code section 226, (7) failure t0 pay wages When due in Violation ofLabor Code sections 201-203, and (8) Violations 0fPAGA. Balm v‘ flchee Air Services, Inc” cl (ll, Superior Com? ofCalzform’a, County ofSanm Cfal'a, Case N0, JQ-CV-347733 2 Order/Jflm‘ Hearing 0n November 22, 2019 [Demzm'ei' f0 the Third Amended Complaint] II. Legal Standard The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Tm. OfCapita! Wholesale Elec. Etc. Fund v. Shear‘son Lehman Bros, (1990) 221 Cal.App.3d 617, 621 .) Consequently, “[a] demurrer reaches only t0 the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice.” {Sour}: Shore Land C0. v. Petersen (1964) 226 Cal.App2d 725, 732, internal citations and quotations omitted; see also Coda CiV. Proc., § 430.30, subd. (3).) “It is not the ordinary function 0f a demurrer to test the truth 0f the plaintiff’s allegations 01' the accuracy with which he describes the defendant’s conduct. Thus, the facts alleged in the pleading are deemed t0 be true, however improbable they may be.” (Align Technology, Inc. v. Tram (2009) 179 Ca1.App.4th 949, 958, internal citations and quotations omitted.) In ruling 011 a demurrer, the allegations 0f the complaint must be liberally construed, with a View t0 substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4t11 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions 0r conclusions 0f law 01‘ fact.” (George v. Automobile Club ofSouthem California (201 1) 201 Cal.App.4th 1112, 1 120.) A demurrer will lie where the allegations and matters subj ect t0 judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (Cardoso) (2002) 101 Cal.App.4th 177, 183.) III. Request for Judicial Notice Defendant’s arguments regarding RLA preemption and Wage Order 9/Lab01‘ Code section 514 are based 0n its assertion that a collective bargaining agreement governs plaintiffs” employment. It asks the (301111 t0 take judicial notice 0f that agreement and an “extension” 0f it, pursuant t0 Evidence Code section 452, subdivision (h) and the incmporation by reference doctrine. Plaintiffs do not dispute that the agreement submitted by defendant governs their employment, but contend it would be improper take judicial notice 0f its truthfulness and proper interpretation. (See Apple Inc, v. Superior Court (Police Retirement System ofSIi Louis) (2017) 18 Ca1.App.5th 222, 24] [stating “the general rule that judicial notice 0f a document does not Bath: v. McGee Afr Services, Ina, er all, Superim- Courl quah’jbrm’a, Coumy QfSanfa Clam, Case N0. 19-CV~347733 3 Order After Hearing m7. November 22, 201 9 [Demurrer lo the Third Amended Complaint] 19 20 21 22 23 24 25 26 27 extend t0 the truthfulness of its contents or the interpretation of statements contained therein, if those matters are reasonably disputable”].) Here, the Court need only take judicial notice 0f the agreement’s existence and contents and 0f the fact that it governs plaintiffs’ employment to resolve most 0f the issues raised by defendant’s demurrer. These circumstances are not in dispute, and defendant’s request is properly GRANTED t0 this extent. (See Evid. Code § 452, subd. (e); Handy v, Losse (1991) 54 Ca1.3d 723, 728, 740 [taking judicial notice 0f employment contract t0 determine whether statutory immunity applied]; Angeles v. US. Airways, Inc. (ND. Cal., Feb. 19, 2013, N0. C 12~ 05860 CRB) 2013 WL 622032, at *3 [takingjudicial notice 0f collective bargaining agreement under incorporation by reference doctrine where “the authenticity of the document is not contested and the complaint necessarily relies 0n the document”].) Still, plaintiff correctly urges that judicial notice does not extend t0 interpreting the agreement 0r relying 0n it t0 resolve disputed facts. (See Fremont Indem. C0. v. Fren'zont Genera! Corp. (2007) 148 Cal.App.4th 97, 114-1 15 [“a court cannot by means ofjudicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the Opposing party is bound by what that evidence appears t0 show”]; Middlebrook-Anderson C0. v. Souflmes! Sav. & Loan Assn. (1971) 18 Ca1.App.3d 1023, 1038 [“given the wide latitude 0f parol evidence admissible in interpreting a contract,” judicial notice 0f the existence 0f a document does not properly extend “t0 an interpretation 0f its meaning”].) IV. The Third Cause 0f Action for Failure t0 Pay Overtime McGee contends that plaintiffs” third cause 0f action for failure t0 pay overtime fails t0 state a claim in light 0f the Railway Labor Act exemption in the applicable wage order and Labor Code section 514, which exempts employees covered by a collective bargaining agreement from overtime requirements under certain circumstances. With regard t0 the first argument, the RLA, 45 U.S.C. § 151 er seq, “creates a comprehensive framework for resolving labor disputes in the rail and airline industries.” (Alaska Airlines Inc. v. Schurke (9th Cir. 2018) 898 F.3d 904, 916, cert. denied (2019) 139 S.Ct. 1445, Bari)? v. McGee Air Services, 1270., e! (1]., Superior Court ofCan‘orazia, County QfSari/a Clam, Case N0. [9-CV-347733 4 Order After Hearing 0/1 November 22, 2019 [Demun'er to the Third/fmcnded Complainfl 22 23 24 25 26 27 internal citation and quotations omitted.) It provides that disputes concerning representation, such as “the scope 0f the bargaining unit and the identity of the bargaining representative,” must be resolved by the National Mediation Board. (Id. at p. 917.) “Major” disputes concerning rates of pay, rules, 01' working conditions-which arise where there is no collective bargaining agreement 0r parties seek t0 change the terms 0f an existing agreeI‘nent-“must be resolved through an extensive bargaining, mediation, and noncompulsory arbitration process, in which both sides are subject t0 certain duties enforceable in federal court.” (Ibid) “Minor” disputes, discussed below, involve the interpretation 0r application 0f a collective bargaining agreement and “must be addressed through the CBA’S established grievance mechanism, and then, if necessary, arbitrated before the appropriate adj ustment board.” (Ibid) Industrial Welfare Commission Wage Order 9 is the California wage order governing the transportation industry. “IWC Order N0. 9-2001, subdivision 1(E) contains an RLA exemption and provides that overtime wages d0 not have t0 be paid t0 “employees who have entered into a collective bargaining agreement under and in accordance With the [RLA] ....” (Fitz-Gemld v. SkyWeSf, Inc. (2007) 155 Cal.App.4th 41 1, 418-419, disapproved Ofon another ground by People ex rel. Harris v. Pac Anchor Transportation Inc. (2014) 59 CaL4th 772.) Here, McGee submits a collective bargaining agreement stating that it is made in accordance with the RLA, with the International Association 0f Machinists & Aerospace Workers (“1AM”) “as the representative 0f the Company’s employees performing work of ailpofi ground handling agents and/or passenger service agents, including (but not limited t0) employees performing ramp services, gate services, check-in services, aircrafi cabin cleaning, wheelchair services, and janitorial services.” The National Mediation Board certified 1AM “t0 represent for the purposes Ofthe RLA, as amended, the craft 0r class 0f Fleet and Passenger Service Employees, employees 0f McGee Air Services, 1110., its successors and assigns.” (In the [Matter (3/1/16 Representation QfEmployees ochgee Air Services, Inc. Fleet & Passenger Serv. Employees (Aug. 9, 2016) 43 NMB 159, 160.) Plaintiffs d0 not dispute that 1AM represents them pursuant t0 the RLA 01‘ that the collective bargaining agreement presented by McGee governs thsir employment. As explained above, the Court can thus take judicial notice 0f these Barf” v. McGee Air Services, Ina, e! 0],, Superior Court ofCafgfomm, County ofSam'a Clara, Case N0. 19-CV-347733 Order/lficr Hearing 0n. November 22, 2019 [Demun'er 2‘0 the 177W! Amended Compfaml] 5 26 27 28 facts. (See Collins v. Overnite Tramp. C0. (2003) 105 Cal.App.4th 171, 180 [trial court properly sustained demurrer without leave t0 amend Where employees did not contest that their employer “is a motor carrier 0r that its drivers are subject t0” certain regulations, where these circumstances established that the motor carrier exemption 0f Wage Order 9 applied]; see also Apple Inc. v. Superior Court, supra, 18 Cal.App.5th at pp. 241-242 [where composition 0f Apple’s board was not in dispute, judicial notice 0f the board’s composition as reflected in SEC filings was appropriate].) The federal cases cited by plaintiff, where these issues were disputed, are distinguishable. AS discussed below, plaintiffs contend that the RLA itself does not preempt their state law claims. However, they offer no response t0 McGee’s argument that Wage Order 9 independently exempts employees governed by a collective bargaining agreement under the RLA from overtime requirements. McGee’s argument is correct, and the demurrer t0 the third cause of action for failure t0 pay overtime is appropriately sustained 0n this ground. (See Fitz- Gemld v. SkyWeSl, Ina, supra, 155 Cal.App.4th at pp. 41 8-419 [affirming summary judgment 0n this ground]; Collins v. Overm'te Tramp. Ca, supra, 105 Cal.App.4th at p. 180 [affirming order sustaining demurrer based 0n analogous exemption in Wage Order 9].) At the hearing 0n this matter, plaintiffs urged that even if the Wage Order 9 exemption applies, this does not bar their Claim for overtime under the Labor Code. They urged that they can plead around the exemption established by Labor Code section 5 14 and requested that the Court grant them leave t0 amend their complaint for this purpose. In light 0f this argument, the Court Will sustain defendants’ demurrer t0 this claim with leave t0 amend. V. RLA Preemption Beyond its application t0 plaintiffs’ employment through Wage Order 9, defendant argues that the RLA itself preempts all 0f plaintiffs’ claims. As described above, the RLA “sets up a mandatory arbitral mechanism t0 handle disputes ‘growing out 0f grievances 0r Out 0f the interpretation 01' application 0f agreements concerning rates 0f pay, rules, 01' working conditions,” 45 U.S.C. § 153 First (i).” (Hawaiian Airlines, Inc. v, Norris (1994) 512 U.S. 246, Balm v. McGee Afr Services, Ina, e! (M, Superior Court QfCaz'gfomia, County omezta Clara, Case N0, 19~CV~347733 6 Order After Hearing 0n November 22, 20/9 [Demurrer 2‘0 [he Third Amended Complaimj 25 26 27 28 248.) Such disputes are known in labor law as “minor” disputes and “involve controvsrsies over the meaning 0f an existing collactive bargaining agreement in a particular fact situation.” (Id. at pp. 252-253, internal citations and quotations omitted.) They are “preempted” under the RLA not as in typical conflict preemption, which is driven by substantive conflicts in law, but through “a kind 0f ‘forum’ preemption, resembling the reference 0f disputes t0 arbitration under the Federal Arbitration Act.” (AlaskaAirZines Inc. v. Schurkc, supra, 898 F.3d at p. 922.) “[T]he RLA’S mechanism for resolving minor disputes does not pre-empt causes 0f action t0 enforce rights that are independent 0f the CBA.” (Hawaiian Airlines, Inc v. Norris, supra, 512 U.S. at pp. 256-257.) It applies only “where the resolution 0f a state-Iaw claim depends 0n an intelpretation 0f the CBA.” (Id. at p. 261 .) Courts have observed that “[t]he line between preempted claims and those that survive is not one that lends itself t0 analytical precision’ ”; however, the Ninth Circuit has distilled the large body ofcase law 0n this subject “into a two-part inquiry into the nature 0f a plaintiff’s claim.” (Alaska Airlines Ina v, Schurke, 51q2ra, 898 F.3d at p. 920, internal citations and quotations omitted.) First, courts in the Ninth Circuit “evaluate the legal character 0f the claim by asking whether it seeks purely t0 vindicate a right 0r duty created by the CBA itself.” (Alaska Airlines Inc. v. Schurke, supra, 898 F.3d at p. 921, internal citations and quotations omitted.) “If a claim arises entirely from a right 01‘ duty 0f the CBAwfor example, a claim for Violation ofthe labor agreement, whether sounding in contract 01' in t0rt~-it is, in effect, a CBA dispute in state law garb, and is preempted.” (Ibid) “By contrast, claims are not simply CBA disputes by another name, and so are not preempted under this first step, if they just refer t0 a CBA-defined right; rely in part 0n a CBA’S terms 0f employment; run parallel t0 a CBA Violation; 01' invite use 0f the CBA as a defense.” (Ibid) Ifthe first step 0f the analysis does not result in a finding 0f preemption, courts “ask whether litigating the state law claim nonetheless requires interpretation 0f a CBA, such that resolving the entire Claim i1] court threatens the proper role 0f grievance and arbitration.” (Alaska Airlines Inc. v. Sclmrke, supra, 898 F.3d at p. 921.) Interpretation is construed narrowly in this context: “claims are only preempted t0 the extant there is an active dispute over the Bath: v. McGee Air Services, Inc, e? (71, Superior Court ofCaWorm’a, County af‘S‘anm Cfara, Case Na, 19-CV-347733 7 Order After Hearing 0n November 22, 2019 [Demurrer' I0 the Third Amezm’ec/ Complaint] tQ 26 27 28 meaning 0f contract terms.” (Ibid, internal citation and quotations omitted.) It is insufficient “that resolving the state law claim requires a court t0 refer t0 the CBA and apply its plain 0r undisputed language-for example, t0 discern that none 0f its terms is reasonably in dispute; t0 identify bargained-for wage rates in computing a penalty; 0r t0 determine Whether the CBA contains a clear and unmistakable waiver 0f state law rights.” (Id. at pp. 921-922, internal citations and quotations omitted.) Moreover, “the result 0f preemption at the second step is generally nor the extinguishment 0f the state law claim,” but only a partial preemption: “for example, if addressing a state law claim first requires resolving a dispute over CBA interpretation, resolving that dispute-through grievance, through labor arbitration, 01‘ through settlement-should allow the state law claim t0 proceed.” (Id. at p. 922, fn. 14.) Here, plaintiffs’ claims are not preempted under the first step 0f the Ninth Circuit’s framework. The minimum wage, meal, and rest period requirements at issue d0 not derive from plaintiffs’ collective bargaining agreement but from California law, and the other violations alleged are derivative 0f those claims. With regard to the second step 0f the analysis, McGee contends that ruling 0n plaintiffs’ claims will require determining plaintiffs’ “regular rate 0f pay,” which in tum requires applying multiplc provisions 0f the collective bargaining agreement. However, at this juncture, there is no indication that the interpretation 0f any 0f those provisions is disputed 0r necessarily will be. In this regard, the Court follows Lzy'an v. Southern California Gas C0. (2002) 96 Cal.App.4th 1200, which held that even where compensation “is computed according t0 a complex mathematical formula” under a collective bargaining agreement, there is 110 preemption where “the parties d0 not dispute how” [hat calculation is performed. (At p. 1211 [addressing Labor Management Relations Act preemption under the same standard that applies t0 RLA preemption].)l Defendant cites Blackwell v. SkyWeslAirlines, Inc. (SD. CaL, Dec. 3, 2008, N0. 06CVO307DMSAJB) 2008 WL 5 103 1 95, which determined 0n summary adjudication that RLA preemption applied where an airline service provider’s collective bargaining agreement ' “Because the RLA and LMRA § 301 preemption standards are ‘virtually identical’ in purpose and function, they ara, for the most part, analyzed under a single test and a Single, cohesive body ofcase law.” (Alaska Airlines Inc. v. Sclmrke, supra, 898 F.3d at p. 914, fill.) Baffin v, McGee Afr Seiv'w'ces, Ina, er (1]., Superior Court ofCalifomia, County ofScmm Clara, Case No. lQ-CV-347733 8 OrderAfler'Hem‘ing 0n November 22, 20i9 [Demw‘l‘er t0 the Third Amended Complaint] 20 21 22 23 24 25 27 28 established “varying pay scales for straight time, overtime, supervisor override pay, and shift trades” that would have t0 be interpreted by the court t0 determine the “regular rate 0f pay” for pulposes 0f assessing penalties. It also cites FiIz-Gemld v. SkyWesz, Ina, supra, 155 Cal.App.4th 41 1, 421w0n which Blackwell relied-which similarly reasoned 0n summary judgment that the regular rate 0fpay could not be calculated Without determining whether an employee “was receiving flight play 0r block time play when [a meal 0r rest break] Violation occurred” under the applicable collective bargaining agreement. These cases have been distinguished by subsequent opinions, and are distinguishable from this one. (See Angela; v. US. Aimzays, Ina, supra, 2013 WL 622032, at *7 [distinguishing Blackwell and Fz’tz-Gerald because “the CBAs in this case contain a simple compensation scheme that does not require interpretation, unlike the multi-category scheme in Blackwell, and the cases cited therein”]; Anguiano v. Mann Packing C0,, Inc. (ND. CELL, July 8, 2019, N0. 19-CV-02133-VKD) 2019 WL 2929789, at *5 [“Blackwell is distinguishable ..., as Mann Packing has not demonstrated that any terms 0f the CBA will require interpretation in order t0 resolve the dispute about calculation 0f Ms. Anguiano’s overtime pay”].) Here, there is no indication that applying the pay differentials defendant identifiesmsuoh as the one applicable t0 “Lead Agents”--will require the Court t0 interpret the agreement as opposed t0 simply applying it. As reasoned by Angeles v. US. Airways, Ina, supra, 20] 3 WL 622032, at *6, “whether a Lead Agent premium is applicable depends not 0n interpreting any part ofthe agreement, but 0n determining whether [employees] were classified as Lead Agents at the time 0f the hours worked. There is n0 dispute over the meaning 0f the term Lead Agent and application Ofthis provision amounts t0 calculating wages,” which does not support a finding 0f preemption. (See also Alvarez v. Transimmerica Services, Inc. (ND. Ca1., Jan. 9, 2019, No. 5:18-CV-O3106~EJD) 2019 WL 144592, at *6 [“At the pleading stage, Defendants” argument is unpersuasive because Defendants have not identified any particular term within the CBAS that Will require application 0r intemretation t0 decide Whether Plaintiff was required t0 work 0ff-the~clook. Instead, Defendants cite t0 provisions in the CBAS that may affect calculation 0f damagss in the event Plaintiff _ Ban?) v, McGee Air Services, Ina, e! (7]., Superior COW! ofCalzfirm'n, County ofSanm Clara, Case N0. 19-CV-347733 9 Order After Hearing 0n November 22, 201'9 [Demurrer lo the Thr‘rdAmemz’ed Compfairzf] 20 2| 22 23 24 25 26 27 28 prevails 0n the merits 0f the off-the-clock claim. The potential need t0 consult the CBAS for damages computation, however, does not mean the claim is preempted.”].)2 McGee’s demurrer based 0n RLA preemption accordingly lacks merit. VI. ADA Preemption Finally, McGee contends that several 0f plaintiffs” claims are preempted by the Airline Deregulation Act. The ADA was enacted following Congress’s determination “ that ‘maximum reliance 0n competitive market forces’ would best filrther “efficiency, innovation, and 10w 399pricss’ as well as “variety [and] quality 0f air transportation services. (Morales v. Trans WorldAirZines, Inc. (1992) 504 US. 374, 378, quoting ). 49 U.S.C.App. §§ 1302(a)(4), 1302(a)(9).) “T0 ensure that the States would not undo federal deregulation With regulation 0f their own, the ADA included a pre-emption provision, prohibiting the States from enforcing any law ‘relating t0 rates, routes, 01‘ services’ 0f any air carrier. § 1305(a)(1).” (Id. at pp. 378-379.) This provision broadly preempts “[s]tate enforcement actions having a connection with 0r reference t0 airline ‘1‘ates, routes, 0r services.’ ” (Id. at p. 384.) It is not limited t0 direct regulation 0f rates, routes, 0r services 01‘ t0 laws specifically addressed t0 the airline industry, but may apply where laws indirectly impact the industry. (1d. at pp. 385-386 [holding airline advertising regulations were preempted“ In this regard, preemption occurs “where state laws have a ‘significant impact’ related t0 Congress’ deregulatory and pre-emption-related obj ectives,” but not where they affect rates, routes, 0r services “in only a ‘tenuous, remote, 01‘ peripheral manner.’ ” (Rowe v. New Hampshire Motor Transport Ass ’n (2008) 552 US. 364, 371 [delivery verification requirement was preempted because it would require carriers t0 offer ssrvices not provided by the market], quoting Morales.) 2 Similarfy, McGee’s argument that it will require interpretation t0 determine whether bonuses are discretionary and whether employees satisfied the conditions t0 earn them must fail at this juncture, as the terms governing performance bonuses are not before the Court. (See Defendant’s Request for Judicial Notice, Ex. A, Collective Bargaining Agreement, scction 3(8) [indicating that these terms will be set forth in “contracts with customers at each 0f[McGee’s] stations,” t0 be negotiated separately by McGee].) 13mm v. McGee Air Serw'ces', Ina, e! a/., Superior Court ofCa/ifbmr'a, County ofSama Clara, Case N0. lQ-CV-347733 I Order Afier Hearing 0n November 22, 20/9 [Demurrer r0 the Third Amel'zded Complaint] 20 2| 22 23 As urged by plaintiffs, opinions by the Ninth Circuit have held that the parallel preemption provision in the Federal Aviation Administration Authorization Act (“FAAAA”) (which, despite its name, applies t0 motor carriers) does not preempt California wage and hour laws.3 As explained by Diffs v. Penske Logistics, LLC (9th Cir. 2014) 769 F.3d 637, 642-643, there is a presumption against preemption 0f state police power regulations, including wage and hour laws. “[I]n borderline cases in Which a law does not refer directly t0 rates, routes, 0r services, the proper inquiry is whether the provision, directly 01‘ indirectly, binds the carrier t0 a particular price, route 0r service and thereby interferes with the competitive market forces within the industry.” (Id. at p. 646, internal citation and quotations omitted; see also Air Transport A55 ’rz ofAmerica v. City and County ofSan Francisco (9th Cir. 2001) 266 F.3d 1064, 1072 [applying this standard in ADA easel) “Laws are more likely t0 be preempted when they operate at the point where carriers provide services t0 customers at specific prices,” such as restrictions 0n an airline’s frequent flyer program; “[o]n the other hand, generally applicable background regulations that are several steps removed from prices, routes, 01‘ services, such as prevailing wage laws 0r safety regulations, are not preempted, even if employers must factor those provisions into their decisions about the prices that they set, the routes that they use, 0r the services that they provide,” and “even if they raise the overall cost 0f doing business 01‘ require a carrier t0 re-direct 01' reroute some equipment.” (Ibid) Applying these principles, Dilts held that the FAAAA does not preempt California’s meal and rest break laws. McGee cites two unpublished district court opinions-both 0f which predate DiIIS-for the proposition that wage and hour laws are preempted when applied t0 airline ground handling work. (See Blaclarvelz’ v. SlqueSIAirlineS, Inc. (SD. Cal., Dec. 3, 2008, N0. 06CVO307DMSAJB) 2008 WL 5103195, at * 15-18 [addressing the issue 0n summary judgment]; Angeles v. US. Airways, Inc. (ND. Ca1., Feb. 19, 2013, N0. C 12-05860 CRB) 2013 WL 622032, at *8-9 [addressing the issue 0n a motion t0 dismiss, citing Blackwell].) The Court finds these cases unpersuasive. Moreover, they conflict with published California authorities, 3 The United States Supreme Court applies the same interpretations 0f the ADA and FAAAA. (See People ex rel. Harris v, Pac Anchor Trampormtion, Inc. (2014) 59 Cal.4th 772, 781 .) Batm v, McGee Afr Services, Inc, er (21., Superior Com? ofCaz’ifomia, County ufSanta C(am, Case N0, lQ-CV-347733 1 1 OrderAfler Hearing on November 22, 2019 [Denzzu'rar 1'0 the Third Amended Complaint] IQ 20 21 22 24 25 26 27 28 which have followed the Ninth Circuit in holding that “generally applicable employment laws that affect prices, routes, and services” are not preempted under the FAAAA/ADA. (People ex ref, Harris v, Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 783 [FAAAA did not preempt UCL action based 0n Violations 0f California employment laws]; Valencia v. SCIS Air Security Corp. (2015) 241 Ca1.App.4th 377, 385 [“Requiring SCIS t0 comply with California meal and rest break laws does not ‘relate to’ any airline’s ‘price, route, 0r service,’ and therefore Valencia’s meal and rest break claims are not preempted by the FADA.”]; see also Fz'IZ-Gerald v, SkyWesA Inc. (2007) 155 Ca1.App.4th 41 1, 423, fn. 7 [ADA does not preempt “actions t0 enforce state minimum wage laws 0r state laws governing meal/rest breaks”].)4 The Court follows the California and Ninth Circuit authorities that hold California wage and hour claims are not preempted by the ADA. McGee’s demurrer based 0n ADA preemption thus fails. VII. Conclusion and Order McGee’s demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND as t0 the third cause 0f action for failure t0 pay overtime. The demurrer is otherwise OVERRULED. The stays imposed by the Court’s order deeming this matter complex are lifted. The parties Shall meet and confer regarding a discovery plan. A case management conference is scheduled for February 21, 2020 at 10:00 a.m. in Depafiment 1. IT IS SO ORDERED. Dated: //W r3" W W f r} @AA’M; (’4 .A é ‘fikzfimmz%w Honorable Brian C. Walsh Judge Ofthe Superior Court 4 Harris disapproved 0f Fitz-Gerald t0 the extent the latter case held that a UCL claim derived From wage and hour Violations was preempted under the ADA. Harm v. McGee Air Services, IMO, er ai‘, Superior Com? ofCaJiform'a, County ofSanfa Clam, Case N0. 19-CV-347733 l2 Order After Hearing 0n November 22, 2019 [Demmmr t0 fhe Third Amended Complaimj