Ricardo Flores et al v. Marriott Resorts Hospitality Corporation et al

NOTICE OF MOTION AND MOTION to Dismiss Case First Amended Complaint at ECF Dkt. 28

C.D. Cal.March 20, 2019

MOTION TO DISMISS ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP MARK D. KEMPLE (SBN 145219) RADHA D.S. KULKARNI (SBN 293996) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700 Facsimile: 310-586-7800 Email: kemplem@gtlaw.com kulkarnir@gtlaw.com Attorneys for Defendants Marriott Resorts Hospitality Corporation and Marriott Vacations Worldwide Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA RICARDO FLORES and CESAR TORRES, Plaintiffs, v. MARRIOTT RESORTS HOSPITALITY CORPORATION; MARRIOTT VACATIONS WORLDWIDE CORPORATION; and DOES 1 to 100, inclusive, Defendants. CASE NO. 2:18-cv-08012 JVS (JPRx) DEFENDANT MARRIOTT RESORTS HOSPITALITY CORPORATION AND MARRIOTT VACATIONS WORLDWIDE CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES Date: May 13, 2019 Time: 1:30 p.m. Court Room: 10C Hon. James V. Selna [Filed concurrently with (Proposed) Order] Removal Filed: September 14, 2018 State Action Filed: May 9, 2018 Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 1 of 26 Page ID #:409 1 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on May 13, 2019, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 10C of the United States District Court, Central District of California, located at 411 West 4th Street, Room 1053 Santa Ana, CA 92701-4516, Defendants Marriott Resorts Hospitality Corporation and Marriott Vacations Worldwide Corporation (collectively “Defendants”) will and hereby do move the Court pursuant to Federal Rule of Civil Procedure (“FRCP”) Rule 12 for an order pursuant to FRCP Rule 12(b)(6) dismissing the sole cause of action under the Private Attorney General Act for failure to state a claim and for uncertainty. This Motion is made and based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleadings in this action, and such other written and oral argument as the Court may entertain on this Motion. This Motion is timely filed pursuant to FRCP Rule 81(c)(2) and follows a meet and confer with Plaintiffs’ counsel on March 13, 2019 pursuant to Local Rule 7-3. Dated: March 20, 2019 Respectfully submitted, GREENBERG TRAURIG, LLP By: /s/ Mark D. Kemple Mark D. Kemple Radha D.S. Kulkarni Attorneys for Defendant Marriott Vacations Worldwide Corporation Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 2 of 26 Page ID #:410 i MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................... 1 II. MOTION TO DISMISS PLEADING STANDARDS .............................................. 1 III. PLAINTIFFS FAIL TO ALLEGE THAT EACH OF THEM EXPERIENCED LABOR CODE VIOLATIONS AGAINST EACH DEFENDANT ......................... 2 IV. THE PLEADING ALSO FAILS TO ALLEGE WHAT HAPPENED TO EACH PLAINTIFF, LEAVING ONE TO GUESS WHETHER ONE OR BOTH MAY BE AN AGGRIEVED EMPLOYEE. ........................................................................ 3 V. THE ALLEGATIONS MADE AGAINST “DEFENDANTS” BY “PLAINTIFFS” FAILS TO STATE A LABOR CODE VIOLATION. .............................................. 4 A. The Overtime Claim Fails to Factually Plead a Violation. ............................. 4 B. The Meal Period Claim Fails to Factually Plead a Violation ......................... 7 C. The Wage Statement Claim Fails to Factually Plead a Violation ................. 13 1. No § 226(a)(8) Violation Is Factually Pled ........................................ 13 2. No § 226(a)(9) Violation is Factually Pled ......................................... 16 3. No Injury is Factually Pled On Their Derivative Theory ................... 16 VI. CONCLUSION ........................................................................................................ 19 Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 3 of 26 Page ID #:411 ii MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Apodaca v. Costco Wholesale Corp., 675 Fed. Appx. 663 (9th Cir. 2017) .............................................................................. 17 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 1, 2, 13 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) .......................................................................................... 1 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................... passim Bellinghausen v. Tractor Supply Co., 2013 WL 5090869 (N.D. Cal. Sept. 13, 2013) ............................................................. 10 Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930 (N.D. Cal. Apr. 18, 2013) ............................................ 10 Byrd v. Masonite Corp., 2016 WL 756523 (C.D. Cal. Feb. 25, 2016) .................................................................. 6 Daugherty v. SolarCity Corp., 2017 WL 386253 (N.D. Cal. 2017) ............................................................................ 8, 9 De La Torre v. Am. Red Cross, 2013 WL 5573101 (C.D. Cal. Oct. 9, 2013)........................................................... 17, 18 Delgado v. New Albertson’s, Inc., 2009 WL 10670628 (C.D. Cal. Dec. 15, 2009) ............................................................ 14 Elliot v. Spherion Pac. Work, LLC, 572 F. Supp. 2d 1169 (C.D. Cal. 2008) affirmed, 368 F. App’x 761 (9th Cir. 2010) ......................................................................................................... 13, 14 Franke v. Anderson Merchandisers LLC, No. CV173241DSFAFMX, 2017 WL 3224656 (C.D. Cal. July 28, 2017) ............... 5, 8 Freeman v. Zillow, Inc. 2015 WL 5179511 (C.d. Cal. Mar. 19, 2015) ................................................................ 5 Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 4 of 26 Page ID #:412 iii MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296 (E.D. Cal. 2016) ............................................................................... 8 Haralson v. United Airlines, Inc., 224 F. Supp. 3d 928 (N.D. Cal. 2016) ............................................................................ 6 King v. Great Am. Chicken Corp., No. CV 17-4510-GW(ASX), Dkt. No. 23 (C.D. Cal. 2017) .......................................... 9 Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014) ................................................................................. passim Lefevre v. Pac. Bell Directory, 2014 U.S. Dist. LEXIS 158630 (N.D. Cal. 2014) .......................................................... 6 Lopez v. Wendy’s Restaurant Group, 2011 WL 6967932 (C.D. Cal. Sept. 19, 2011) ....................................................... 11, 17 Mark Allchin & David Foster, v. Volume Services, Inc. Dba Centerplate, 2017 WL 3337141 (S.D. Cal. Aug. 4, 2017) ................................................................ 14 Mejia v. Farmland Mut. Ins. Co., No. 217CV00570TLNKJN, 2018 WL 3198006 (E.D. Cal. June 26, 2018) ................ 15 Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) .......................................................................................... 1 Perez v. Performance Food Grp., Inc., No. 15-cv-02390-HSG, 2016 U.S. Dist. LEXIS 38043 (N.D. Cal. Mar. 23, 2016) ............................................................................................... 7 Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184 (N.D. Cal. 2014) ............................................................................ 6 Raphael v. v. Tesoro Ref. & Mktg. Co. LLC, No. 2:15-CV-02862-ODW ............................................................................................. 6 Raphael v. Tesoro Refining & Mktg. Co. LLC, 2015 WL 4127905 (C.D. Cal. 2015) .......................................................................... 6, 8 Rogelio Avina v. Mariott Vacations Worldwide Corp., Case No. SACV 18-00685-JVS(JPRx) (C.D. Cal. October 15, 2018) ................... 5, 6, 9 Sanchez v. Ritz Carlton, 2015 U.S. Dist. LEXIS 119770 (C.D. Cal. 2015) .......................................................... 6 Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 5 of 26 Page ID #:413 iv MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schneider v. Space Sys./Loral, Inc., 2012 WL 1980819 (N.D. Cal. 2012) .............................................................................. 6 In re SFAC Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996) .......................................................................................... 1 Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044 (C.D. Cal. 2016) .......................................................................... 8 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ........................................................................................ 2 W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) ...................................................................................... 1, 5 Weigele v. FedEx Ground Package System, Inc. 2010 U.S. Dist. LEXIS 120475 (S.D. Cal. Nov. 15, 2010) .................................... 10, 12 York v. Starbucks Corp., 2009 WL 8617536 (C.D. Cal. Dec. 3, 2009) ................................................................ 14 California Cases Kim v. Reins Internat. California, Inc., 18 Cal. App. 5th 1052, 1057 (2017) ............................................................................... 3 Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 960 (2016) ............................................................................. 16, 17 Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1336–37 (2018), review denied (Aug. 22, 2018) .................... 18 Oppenheimer v. Moebius, 151 Cal. App. 2d 818 (1957) .......................................................................................... 6 Soto v. Motel 6 Operating, L.P., 4 Cal. App. 5th 385 (2016) ............................................................................................ 18 Vernon v. State of California, 116 Cal. App. 4th 114 (2004) ......................................................................................... 3 Williams v. Superior Court 3 Cal. 5th 531 (2017) ...................................................................................................... 3 Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 6 of 26 Page ID #:414 v MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Statutes Cal. Labor Code § 2699 .............................................................................................................................. 2 § 2699(c) ......................................................................................................................... 3 § 226 ....................................................................................................................... passim § 226(a) ............................................................................................................. 13, 14, 17 § 226(a)(8) .................................................................................................. 13, 14, 15, 16 § 226(a)(9) .................................................................................................................... 16 Federal Rules Rules 8 ....................................................................................................................................... 2 12(b)(6) ........................................................................................................................... 1 Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 7 of 26 Page ID #:415 1 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Despite numerous meet and confer efforts wherein Defendants Marriott Resorts Hospitality Corporation and Marriott Vacations Worldwide Corporation (collectively “Defendants”) have outlined the numerous pleading deficiencies in Plaintiffs Ricardo Flores and Cesar Torres’ (collectively “Plaintiffs”) Complaint and First Amended Complaint (“FAC”), Plaintiffs’ second pleading attempt again fails to state a claim. Plaintiffs fail to plead Labor Code violations that would underlie their Private Attorney General Act (“PAGA”) claim. Specifically, Plaintiffs try but fail to allege underlying overtime, meal break, and wage statement claims because they provide only bare legal conclusions and no requisite facts. II. MOTION TO DISMISS PLEADING STANDARDS A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 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); see also Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“[B]are assertions . . . amounting to nothing more than a ‘formulaic recitation of the elements’” of a claim “are not entitled to an assumption of truth”) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)). In this regard, courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). See also In re SFAC Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (“Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.”). Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 8 of 26 Page ID #:416 2 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but rather, it asks for more than a sheer possibility that a defendant has acted unlawfully” or “facts that are ‘merely consistent with’ a defendant’s liability.” Iqbal, 556 U.S. at 678. It further asks whether the pleading’s “factual content … allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Rather, a plaintiff must state facts sufficient to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis added). III. PLAINTIFFS FAIL TO ALLEGE THAT EACH OF THEM EXPERIENCED LABOR CODE VIOLATIONS AGAINST EACH DEFENDANT Plaintiffs’ claims – brought against two entities (Marriott Resorts Hospitality Corporation and Marriott Vacations Worldwide Corporation) – are premised upon an employment relationship. See Labor Code § 2699. However, and as a starting point, Plaintiffs each fail to allege which defendant, if any, was their actual employer and allegedly committed Labor Code violations, or how the two entities can be deemed joint employers. Through their First Amended Complaint (“FAC”), Plaintiffs simply lump the two distinct named defendants together and refer to them throughout the FAC by the single collective label, “Defendants”. [See e.g., FAC. ¶¶ 12, 13, 15, 17, 18, 19, 22.] From there, Plaintiffs allege (in conclusory form) that “Defendants” did this or “Defendants” did that. Perplexingly, Plaintiffs allege that each of the entities “was Plaintiffs’ employer and suffered and permitted Plaintiffs and other non-exempt employees to work and exercised control over the wages, hours and working conditions of employment of Plaintiff and other non-exempt employees.” [FAC ¶¶ 4, 5.] Thus, Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 9 of 26 Page ID #:417 3 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs are claiming that both entities were liable for the same exact conduct. However, nowhere do Plaintiffs assert any allegations (much less compliant allegations1) to support a joint employer relationship, or specify which, if any, of the defendant entities are responsible for the alleged harm. In fact, although Plaintiffs allege that “Plaintiffs are informed and believe that each of the fictitiously named defendants is in some manner responsible for the events and allegations set forth in this complaint,” they make no such allegations regarding the actual (non-fictitiously) named defendants. [FAC ¶ 8.] Simply, Plaintiffs offer no facts, or even conclusions for that matter, to explain which defendant committed any actions toward them (or even was their employer), let alone how the other (unidentified) defendant is liable for the other’s acts. Accordingly, at this most basic level, each count of this pleading fails. IV. THE PLEADING ALSO FAILS TO ALLEGE WHAT HAPPENED TO EACH PLAINTIFF, LEAVING ONE TO GUESS WHETHER ONE OR BOTH MAY BE AN AGGRIEVED EMPLOYEE. “PAGA imposes a standing requirement; to bring an action, one must have suffered harm.” Kim v. Reins Internat. California, Inc., 18 Cal. App. 5th 1052, 1057 (2017) (quoting Williams v. Superior Court, 3 Cal. 5th 531, 558 (2017)) To recover civil penalties under PAGA, an employee is required to be an “aggrieved” employee, or someone “against whom one or more of the alleged violations is committed.” Id.; Cal. 1 “Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment.” Vernon v. State of California, 116 Cal. App. 4th 114, 124-25 (2004). Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 10 of 26 Page ID #:418 4 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code § 2699(c). Thus, Plaintiffs must allege that each one individually has suffered an underlying violation and is “aggrieved” under the Labor Code to adequately plead a claim under PAGA. Here, Plaintiffs have lumped their allegations into one indistinguishable claim, such that one cannot discern what is alleged to have been done to him. Put another way, much as they do by their use of the moniker “Defendants,” each of the two plaintiffs fails to set forth what happened to him. V. THE ALLEGATIONS MADE AGAINST “DEFENDANTS” BY “PLAINTIFFS” FAILS TO STATE A LABOR CODE VIOLATION. On top of this, the First Amended Complaint fails to factually allege a basis to hold liable anyone to anyone else. A. The Overtime Claim Fails to Factually Plead a Violation. Plaintiffs collectively allege that they are entitled to PAGA penalties because “Defendants” failed to properly calculate overtime wages. However, Plaintiffs fail to plead an underlying overtime claim on behalf of anyone against anyone else under the standards set forth in Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014), as amended (Jan. 26, 2015). Plaintiffs allege only the following with respect to overtime: • Defendants employ non-exempt employees, including the named Plaintiffs and other current and former non-exempt employees, with a compensation structure that includes additional remuneration, including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls.” • At times, Plaintiffs and other current and former non-exempt California employees worked overtime hours under California law during the same pay periods that they earned the additional remuneration including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls.” • Under California law in determining the regular rate of pay for purposes of calculating the proper overtime premium pay; the employer must consider not Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 11 of 26 Page ID #:419 5 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only straight hourly wage compensation but must also include payment of all additional remuneration including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls.” • Defendants entirely excluded certain remuneration, including the aforementioned additional remuneration including, but not limited to, non- discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls,” in calculating the overtime rate of pay for Plaintiffs and other current and former non-exempt employees during the periods the additional remuneration including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls” were earned. • This practice resulted in Plaintiffs and other current and former non-exempt employees working overtime hours and Defendants paying them less overtime wages then the employees were entitled to under California law. [FAC ¶ ¶ 10-12, 22(a)]. It is well-settled that each of these conclusions are insufficient to state a claim. Twombly, 550 U.S. at 555 (complaint must contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action”); Watt, 643 F.2d at 624 (courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations”). Rather, as is well-settled, at a minimum, a plaintiff must “allege facts showing that there was a given week in which s/he was entitled to but denied minimum wages or overtime wages.” See Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014), as amended (Jan. 26, 2015);2 see also Franke v. 2 Importantly, though Landers considered FLSA overtime allegations, the facts that must be pled in a FLSA overtime claim are “virtually identical” to those that must be pled in an overtime claim brought under California law. See Rogelio Avina v. Mariott Vacations Worldwide Corp., Case No. SACV 18-00685-JVS(JPRx) (C.D. Cal. October 15, 2018) (applying Landers standard to Plaintiff’s overtime claim under the California Labor Code) (quoting Freeman v. Zillow, Inc., 2015 WL 5179511, at *3 (C.D. Cal. Mar. 19, 2015) (“[T]he reasoning in Landers also applies to Plaintiff’s overtime claim asserted under the California Labor Code.”)). Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 12 of 26 Page ID #:420 6 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Anderson Merchandisers LLC, No. CV173241DSFAFMX, 2017 WL 3224656, at *7 (C.D. Cal. July 28, 2017) (“Franke’s unpaid overtime claim fails as she does not provide a single workday or workweek in which she worked more than eight or forty hours, respectively.”); Raphael v. v. Tesoro Ref. & Mktg. Co. LLC, No. 2:15-CV-02862-ODW EX, 2015 WL 4127905, at *3 (C.D. Cal. July 8, 2015) (finding complaint insufficient when it was “barren of facts describing specific periods of time where pay was denied or specific practices engaged in by Tesoro and instead only offers conclusory language”); Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184, 1192 (N.D. Cal. 2014) (overtime claim based on allegations that certain plaintiffs “‘regularly’ or ‘regularly and consistently’ worked more than 40 hours per week” could not survive a motion to dismiss); Byrd v. Masonite Corp., 2016 WL 756523 (C.D. Cal. Feb. 25, 2016) (granting motion to dismiss because plaintiff had not alleged “facts demonstrating that there was at least one workweek in which” the employer failed to pay minimum wages); Schneider v. Space Sys./Loral, Inc., 2012 WL 1980819, at *2 (N.D. Cal. 2012) (pleading sufficient only after amended to allege “facts setting out the uncompensated hours [plaintiff] worked”); see e.g. Haralson v. United Airlines, Inc., 224 F. Supp. 3d 928, 942 (N.D. Cal. 2016) (dismissing plaintiff’s overtime claim because plaintiff’s complaint failed to provide any factual information regarding whether he worked more than forty hours in any given workweek such that he was entitled to overtime wages); Sanchez v. Ritz Carlton, 2015 U.S. Dist. LEXIS 119770 (C.D. Cal. 2015) (granting motion to dismiss overtime claim where there were no allegations about plaintiffs’ schedules to substantiate that they worked overtime shifts that would trigger overtime pay); Lefevre v. Pac. Bell Directory, 2014 U.S. Dist. LEXIS 158630, at *9 (N.D. Cal. 2014) (accord); Rogelio Avina v. Marriott Vacations Worldwide Corp., Case No. SACV 18-00685-JVS(JPRx) (C.D. Cal. October 15, 2018) (granting defendant’s motion to dismiss plaintiff’s overtime claim because plaintiff failed to plead one particular day to which the claims for unpaid overtime wages apply); Oppenheimer v. Moebius, 151 Cal. App. 2d 818, 819-20 (1957) (complaint “for unpaid wages does not state a cause of action against the employer unless Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 13 of 26 Page ID #:421 7 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 it alleges the amount of wages accrued and unpaid at the time the employment relationship terminated”). Despite the wealth of authorities guiding pleading standards for overtime violations, Plaintiffs have not alleged a single factual instance of unpaid overtime as to anyone, much less as to themselves. Though it would be easy to allege such facts if true, Plaintiffs fail to do so and instead offer only impermissible conclusions. Plaintiffs must plead at least one particular day to which the claims for unpaid overtime wages apply. Landers, 771 F.3d at 641-42. Additionally, Plaintiffs merely conclude that “Defendants”: “entirely excluded certain remuneration, including the aforementioned additional remuneration including, but not limited to, non-discretionary bonuses, when calculating the overtime rate of pay.” [FAC ¶¶ 12, 18, 22.] Plaintiffs fail to factually allege what made the additional remuneration “non-discretionary” or even limit the types of “additional remuneration” that they allege should have been included in the regular rate of pay. See e.g. Perez v. Performance Food Grp., Inc., No. 15-cv-02390-HSG, 2016 U.S. Dist. LEXIS 38043, at *7-8 (N.D. Cal. Mar. 23, 2016) (Plaintiffs’ allegations that defendants failed to properly calculate regular rate of pay as a result of not including “all applicable remuneration, including, but not limited to, non-discretionary bonuses and/or shift differentials” was insufficient as a matter of law because the allegations were devoid of any factual allegations showing plaintiff in fact worked overtime). Similarly, here, Plaintiffs offer just bare legal conclusions that the bonuses were non-discretionary and that there was “additional remuneration” not included in the regular rate of pay. This is not enough to state a claim for overtime. For each of these reasons, Plaintiffs’ underlying overtime and dependent PAGA allegations fail as a matter of law. B. The Meal Period Claim Fails to Factually Plead a Violation Plaintiffs also allege they are entitled to PAGA penalties because Defendants failed to properly calculate Plaintiffs’ meal period premium wages: Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 14 of 26 Page ID #:422 8 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants entirely excluded certain additional remuneration including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls” when calculating the meal period premium wages paid to Plaintiffs and other employees during the periods the additional remuneration including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls” were earned and meal period premium wages were paid. This practice resulted in Plaintiffs and other current and former non-exempt employees earning additional remuneration including, but not limited to, non-discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls” and meal period premium wages during the same pay period and Defendants paying them less meal period premium wages during those pay periods than Plaintiffs and other current and former employees were entitled to under California law. [FAC ¶ 15; see also ¶ 22b.] However, this is the entirety of Plaintiffs’ underlying meal period allegations in support of their PAGA cause of action. Plaintiffs have provided no allegation, factual or conclusory, that Plaintiff ever actually earned a meal period premium or worked a shift long enough to have been entitled to a meal break such that Defendants failed to properly calculate their regular rate of pay for a meal break premium. First, district courts have concluded that the requirements set forth in Landers requiring that a plaintiff plead there is a given week in which a violation occurred are equally applicable to meal break claims. See e.g. Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044, 1048 (C.D. Cal. 2016); Franke v. Anderson Merchandisers LLC, 2017 WL 3224656, *7 (C.D. Cal 2017); Daugherty v. SolarCity Corp., 2017 WL 386253, *6-7 (N.D. Cal. 2017); Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296, *6 (E.D. Cal. 2016) (“Courts applying Landers to meal period violation allegations read Landers as requiring that a plaintiff plead at least one specific instance where he or she personally experienced a missed meal or rest period.”); Raphael v. Tesoro Refining & Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 15 of 26 Page ID #:423 9 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mktg. Co. LLC, 2015 WL 4127905, *3 (C.D. Cal. 2015) (same); King v. Great Am. Chicken Corp., No. CV 17-4510-GW(ASX), Dkt. No. 23 at p. 4-5 (C.D. Cal. 2017) (same); see also Rogelio Avina v. Mariott Vacations Worldwide Corp., Case No. SACV 18-00685-JVS(JPRx) (C.D. Cal. October 15, 2018) (applying Landers standard to Plaintiff’s rest break claims). Accordingly, because the FAC fails to “allege facts showing that there was a given week” in which a meal break violation occurred, and a meal period premium was owed, the meal break allegations fail in the first instance, as does the dependent PAGA cause of action. Landers, 771 F.3d 638, 644-45 (9th Cir. 2014), as amended (Jan. 26, 2015). Second, even if Plaintiffs’ FAC did allege a meal break violation occurred on an identified date (it does not), these Counts would still fail to state a claim because Plaintiffs have failed to allege any: (i) facts showing that on a given day they worked a continuous period of more than five hours, such that they were entitled to a meal break in the first instance; or (ii) facts showing that on a given day that they took a meal period, but after the fifth hour, they were denied the opportunity to take the meal period sooner by their manager or other representative of his employer. As a result, there is simply no basis for the conclusion that Plaintiffs were not properly paid for meal period premiums. Numerous cases addressing and rejecting far more detailed allegations than those offered by Plaintiffs here, and doing so based on California substantive law, are in accord. See e.g.: • Daugherty v. SolarCity Corp., 2017 WL 386253, at *7 (N.D. Cal. Jan. 26, 2017) (considering meal/rest break claims under California substantive law; allegations that plaintiff worked over ten hours a day insufficient to demonstrate duty to provide meal break as plaintiff never alleges that the ten hours comprised work periods of four or five continuous hours and, even assuming plaintiff “had worked a five-hour continuous period, she failed to allege that she ever actually missed a meal period for the first five-hour period of a workday—only that [defendant’s] policy and practice was not to provide Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 16 of 26 Page ID #:424 10 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 one”; “[O]n these allegations, we can only guess at whether [plaintiff] ever worked a continuous period that would entitle her to a meal period or a rest break, whether she ever received the required breaks, or whether she received proper overtime payments.”); • Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930 (N.D. Cal. Apr. 18, 2013) (considering meal/rest break claims under California substantive law; allegations “that Wal-Mart ‘pressured, incentivized, and discouraged’ the Drivers from taking lunch breaks … [and] that Wal-Mart’s scheduling policy made it ‘difficult’ for Drivers to take breaks because Wal-Mart had control over the Drivers’ start and stop times and did not schedule meal periods or provide them an activity code for meal periods” were insufficient to state a claim, because plaintiff “did not provide any facts surrounding these alleged tactics [and further failed to] provide any facts describing instances of this ‘difficulty’ as to any Driver); • Bellinghausen v. Tractor Supply Co., 2013 WL 5090869 , *3-4 (N.D. Cal. Sept. 13, 2013) (considering meal/rest break claims under California substantive law; allegations that Defendants “failed to provide Plaintiff with an uninterrupted meal period of at least thirty (30) minutes on each day that he worked five (5) hours or more … [and] maintained a policy or practice of not providing members of the Meal Break Class with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hour work period,” paired with the allegation that “Defendants fail[ed] to appropriately advise Plaintiff and the class of meal break rights … does not state a claim”); • Weigele v. FedEx Ground Package System, Inc. 2010 U.S. Dist. LEXIS 120475, *9-14 (S.D. Cal. Nov. 15, 2010) (considering meal/rest break claims under California substantive law; allegations that “Defendant required Plaintiffs to work … without being given a 30-minute meal period for shifts of at least five hours and second 30-minute meal periods for shifts of at least ten hours Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 17 of 26 Page ID #:425 11 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 during which Plaintiffs [sic] were relieved of all duties and free to leave premises, nor did Defendant pay any Plaintiffs one hour’s pay at the employee’s regular rate of pay as premium pay compensation for failure to provide .... meal periods” amounted to only “‘naked assertions’ of defendant’s liability devoid of ‘further factual enhancement’”); • Lopez v. Wendy’s Restaurant Group, 2011 WL 6967932, at *3 (C.D. Cal. Sept. 19, 2011) (“Lopez alleges that Wendy’s ‘failed to provide [its] employees with required ten minute rest periods’ and that she missed multiple meal periods each week. As respects meal breaks, Lopez asserts that Wendy’s failed to provide uninterrupted 30–minute meal breaks to employees, and that she was ‘unable to take a single meal period during her shift’ several times a week. [¶] In dismissing Lopez’s first amended complaint, the court noted that her allegation that Wendy’s ‘failed to provide [its] employees with required ten minute rest periods,’ did not distinguish between actively discouraging employees from taking breaks and failing to ensure that they took breaks. Wendy’s argues that this deficiency has not been cured in the second amended complaint. Lopez has added an allegation, however, that meal breaks and rest periods were missed ‘because the store[s] [were] too busy and/or understaffed.’ She also alleges for the first time that she was ‘forced, through necessity of completing her assigned tasks, as ordered by DEFENDANT’s management,’ to work through all or portions of her meal breaks and rest periods. Neither addition renders the allegations adequate, however, as there is a difference between being ordered to [skip] breaks and being ordered to complete one’s assigned tasks, which results in one skipping breaks. Specifically, the allegation that Lopez was ‘ordered by management’ to complete her assigned tasks is not equivalent, standing alone, to an allegation that management ordered her to complete assigned tasks knowing that this would necessarily result in her skipping meal breaks and rest periods. Lopez’s allegations, therefore, do not Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 18 of 26 Page ID #:426 12 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 delineate the manner in which Wendy’s ‘failed to provide’ the breaks.”; granting motion to dismiss meal and rest period claims); and To be clear, none of the allegations set forth in the cases above – themselves found deficient – are attempted by Plaintiffs here. Plaintiffs have offered egregiously less than the allegations found to be deficient in these actions. Finally, Plaintiffs merely conclude that: Defendants entirely excluded additional remuneration… in calculating the meal period premium wages paid to Plaintiffs and other current and former non-exempt employees during the periods the additional remuneration… were earned and meal period premium wages were paid. [FAC, ¶¶ 15, 22.] However, such a “naked assertion” without facts regarding any possible dates or instances of such a violation is insufficient to state a cause of action. See Weigele, supra,. 2010 U.S. Dist. LEXIS 120475, *9-14 (S.D. Cal. 2010) (allegations that “Defendant required Plaintiffs to work … without being given a 30-minute meal period for shifts of at least five hours and second 30-minute meal periods for shifts of at least ten hours during which Plaintiffs [sic] were relieved of all duties and free to leave premises, nor did Defendant pay any Plaintiffs one hour’s pay at the employee’s regular rate of pay as premium pay compensation for failure to provide .... meal periods” amounted to only “‘naked assertions’ of defendant’s liability devoid of ‘further factual enhancement’”). If Plaintiffs had in fact been underpaid meal period premiums during the entirety of their employment with Defendants, they would be able to name at least one instance of being owed a higher premium. However, they do not, and thus each of these Counts fails to state a cause of action. Simply, Plaintiffs pleading is a common instance of “a formulaic recitation of the elements” of a claim, and does not state a claim. Twombly, 550 U.S. at 555. Plaintiffs have not pled an underlying meal period premium violation such that they are “aggrieved” employees under PAGA. Not only do their factually vacuous allegations fail to articulate a basis for liability as to themselves, they provide no foundation whatsoever Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 19 of 26 Page ID #:427 13 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for unlocking discovery as to the putative “aggrieved” employees they seek to represent. Avoiding the time, expense, and burden inherent in class-like, representative action litigation is one of the key principles underlying the Supreme Court’s pronouncements on pleading standards. Simply put, and as required by Twombly and its progeny, because Plaintiffs’ vague allegations are conclusory and – to the extent factual at all – permit multiple “alternative explanations,” they do not state a claim that could “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). C. The Wage Statement Claim Fails to Factually Plead a Violation 1. No § 226(a)(8) Violation Is Factually Pled Plaintiffs have also failed to allege a violation of § 226 such that they are “aggrieved” employees with PAGA standing. Plaintiffs pursue three theories for violation of Labor Code § 226(a), but none of them state a cause of action. First, Plaintiffs allege that “Defendants” wage statements failed to reflect the name and address of the legal entity that is the employer. [FAC ¶ 17.] Regarding the allegation that Defendants failed to include the address of the legal entity that is the employer, Plaintiffs provide not a single fact (or even conclusion) to allow Defendants or this Court to discern what their claim is. Notably, who the employer is, and what named should have been used, is not alleged. Further, regarding Plaintiffs’ implication that Defendants failed to include the precise “legal name” and address of the employer (and Defendants are speculating in this regard given the deficient pleading), Labor Code section 226(a) only requires the name and the address of the employer, which need not include the correct and precise legal name of the employer. See Labor Code section 226(a)(8). As every court to address the issue has held, a recognizable variant of the employer name satisfies the requirements of Section 226(a)(8). See e.g.: • Elliot v. Spherion Pac. Work, LLC, 572 F. Supp. 2d 1169, 1179-80 (C.D. Cal. 2008) affirmed, 368 F. App’x 761 (9th Cir. 2010) (emph. added) (considering “whether, by referring to itself on the wage statements with the truncated Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 20 of 26 Page ID #:428 14 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 names ‘Spherion Pacific Work, LLC,’ rather than with its complete name ‘Spherion Pacific Workforce, LLC,’ Defendant violated section 226(a)(8)”; holding that “instead of requiring an employer to state its ‘complete’ or ‘registered’ name, section 226(a)(8) only requires the employer to state its ‘name and address.’”; “If the legislature had intended to require an employer to show its complete name on wage statements, it would have stated so in this section... [T]he specificity required in the remainder of section 226(a) … demonstrates that, when the legislature drafted this statute, it well knew how to require highly detailed information on wage statements”; noting that “an employer using a shortened name or abbreviation that renders the name confusing or unintelligible may be violating section 226(a)(8)”, but finding confusion did not result from an employer using the “slightly truncated name” Spherion Pacific Work, LLC rather than the complete name Spherion Pacific Workforce, LLC); • York v. Starbucks Corp., 2009 WL 8617536, at *8 (C.D. Cal. Dec. 3, 2009) (holding that use of a fictitious business name sufficient; “The Court is not persuaded that Defendants’ use of ‘Starbucks Coffee Company,’ rather than their official corporate name or some close variant, constitutes a statutory violation.”); • Delgado v. New Albertson's, Inc., 2009 WL 10670628, at *4 (C.D. Cal. Dec. 15, 2009) (“following the reasoning of Elliot [and finding] Defendants sufficiently listed the ‘legal entity’ of [Plaintiff’s] employer” by listing the doing business as name of Defendant and “a slightly truncated version” of Defendant’s parent company.); • Mark Allchin & David Foster, v. Volume Services, Inc. Dba Centerplate, 2017 WL 3337141, at *9 (S.D. Cal. Aug. 4, 2017) (quotations omitted) (holding that defendant’s use of its doing-business-as (‘dba’) name of Centerplate Inc., rather than the name Volume Service, Inc. was not a violation of Section Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 21 of 26 Page ID #:429 15 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 226(a)(8) because “§ 226 does not require an employer to state its complete or registered name but only requires the employer state its name and address”; noting that “courts addressing the question have refused to find a per se violation [of Section 226(a)(8)] when companies deviate from using their full legal name.”). • Mejia v. Farmland Mut. Ins. Co., No. 217CV00570TLNKJN, 2018 WL 3198006, at *6 (E.D. Cal. June 26, 2018) (Defendants’ failure to list “Farmland Mutual Insurance Company,” the name registered with the Secretary of State, instead of “Farmland Mutual Insurance Co.,” on plaintiff’s pay stub did not constitute a violation of Section 226(a)(8) because truncating the employer name is not a violation of § 226 and “the name on the wage statement need not match the name listed with the California Secretary of State”). Given this, to state a claim under Section 226(a)(8), Plaintiffs needs to factually and specifically allege: (1) what name appeared on the wage statement or statement(s) in question; (2) the name of the actual employer at the time the wage statement was issued; (3) that these are different and not a “recognizable variant” of each other, and (4) that this somehow caused confusion. (To allege confusion, Plaintiffs would need to allege that (i) multiple entities employed similar names at the same time, (ii) that any such overlap occurred during the time that the wage statement was issued, and (iii) that this caused confusion despite the wage statement’s inclusion of the employer’s address. Here, Plaintiffs allege that the “wage statements provided by Defendants failed to accurately state the name and address of the legal entity that is the employer” because the wage statements “included both ‘Marriott Vacations Worldwide’ and ‘Marriott Resorts’ as the identify [sic] of the employer.” [FAC ¶¶ 17, 22(c).] But puzzlingly, Plaintiffs elsewhere allege that both defendant entities, Marriott Resorts Hospitality Corporation and Marriott Vacations Worldwide were the employers of Defendants. [FAC ¶¶ 4, 5.] If Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 22 of 26 Page ID #:430 16 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that is the case, then by Plaintiffs’ own admission, there is no violation of Labor Code § 226(a)(8) because the names of both employers were seemingly on the wage statements. Further, if Plaintiffs are attempting to argue that what was listed on the wage statements is not a recognizable variant of the employer names, they must so allege (but have not). Quite plainly, Plaintiffs have failed to allege a violation of Labor Code § 226(a)(8). Plaintiffs’ allegations are wholly conclusory and contradictory such that Defendants cannot even be sure of how they allegedly failed to state the name and address of the legal entity that is the employer. Plaintiffs simply do not provide facts beyond legal conclusions in support of this claim and it must be dismissed. 2. No § 226(a)(9) Violation is Factually Pled Second, Plaintiffs allege Defendants violated Labor Code § 226(a)(9) because “the wage statements provided by Defendants did not reflect… all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each rate.” [FAC ¶ 17, 22(c).] The only allegation in support of this is that the wage statements “failed to accurately reflect Plaintiffs’ and other current and former nonexempt employees’ overtime rate of pay because the rate reflected on their paystubs was only one half of their base rate of pay rather than one and one half their base rate of pay.” [FAC ¶ 17.] However, as explained above, Plaintiffs have failed to plead an overtime claim or provide any such instance of working overtime and being paid overtime. Since this theory is derivative of his prior overtime allegations and those allegations fail to state a claim, this alleged violation also fails to state a claim. See e.g., Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 960 (2016) (recognizing that inaccurate wage statement claims are derivative of meal and rest period claims). 3. No Injury is Factually Pled On Their Derivative Theory Third, Plaintiffs allege that Defendants violated Labor Code § 226 because: As a derivate of Plaintiffs’ allegations above, because Defendants failed to include additional remuneration including, but not limited to, non- discretionary bonuses such as “AW1 Award” and/or “Aeknoncashdls” Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 23 of 26 Page ID #:431 17 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 during pay periods the non- discretionary bonuses were earned and overtime and/or meal period premiums earned, Defendants failed properly calculated overtime wages due and meal period premiums due during these pay periods rendering the wage statements Defendants provided to Plaintiffs and other current and former non-exempt employees inaccurately reflecting: gross wages earned, net wages earned, and applicable hourly rates and corresponding number of hours worked. [FAC ¶¶ 18, 22(c).] As a preliminary matter, by Plaintiffs’ own admission, this claim is derivative of Plaintiffs’ prior wage Counts. Because those wage Counts fail to state a claim, this Count also fails to state a claim. See e.g., Lopez, supra, 2011 WL 6967932, at *7 (because the underlying wage claims fail to state a claim, the derivative waiting time penalty claim fails); Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 960 (2016) (recognizing that inaccurate wage statement claims are derivative of meal and rest period claims). Further, Plaintiffs fail to allege injury. “To establish a section 226 claim, the plaintiff must demonstrate both a violation of subsection 226(a) and an injury under subsection 226(e).” Apodaca v. Costco Wholesale Corp., 675 Fed. Appx. 663, 665 (9th Cir. 2017). It is not enough for Plaintiffs to allege that their wage statements were inaccurate to show injury. See De La Torre v. Am. Red Cross, 2013 WL 5573101, at *6 (C.D. Cal. Oct. 9, 2013) (“While Plaintiff does allege that the failure to include her bonus payments on her paycheck constitutes an inaccuracy, Plaintiff does not properly allege that her paycheck was such that she could not ‘promptly and easily determine’ from the wage statement the amount of gross wages or net wages actually paid to her during the pay periods at issue.”) Here, Plaintiffs have failed to plead facts that indicate they could not promptly and easily determine what wages they were already paid, that the wage statements otherwise failed to comply with § 226(a)’s requirements, or any facts in support of any alleged Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 24 of 26 Page ID #:432 18 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury. This is not permissible pleading. Id. As recently held by the California Court of Appeal, the purpose of a wage statement law is to penalize the employer if the wage statement fails to show the employer’s calculation of the hours and rates used in making the payment – distinct from showing what hours or rates should have been used. As held in Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1336–37 (2018), review denied (Aug. 22, 2018), the purpose of § 226 is to document the amount of the wages paid, to ensure the employee is fully informed regarding the calculation of those wages, not to ensure that all amounts owed are paid – the latter being the purpose of other Labor Code sections. As the Court held: “the purpose of section 226 is to ‘document the paid wages to ensure the employee is fully informed regarding the calculation of those wages.’” Id. at 1337 (quoting Soto v. Motel 6 Operating, L.P., 4 Cal. App. 5th 385, 392 (2016) (italic in original)). Its purpose is to “insure that employees are adequately informed of the compensation received” such that they can then evaluate whether they were “shortchanged by their employers.” Maldonado, 22 Cal. App. 5th at 1337 (quoting Assem. Com. On Labor and Employment, Analysis of Sen. Bill No. 1255, 2011-2012 Reg. Sess.) (italic in original). Accordingly, to impose the penalty of Section 226 merely because the rates stated in the wage statement were wrong as a matter of fact, but were in fact the figures used by the employer in calculating pay, would permit an impermissible “double recovery.” Id. at 1336. Put another way, “the absence of accurate wages earned will be remedied by the violated wage and hour law itself,” not by Section 226. Maldonado, 22 Cal. App. 5th at 1337 (emphasis in original). Yet that impermissible “double recovery” is precisely how Plaintiffs seek to use their Section 226 claim in support of their PAGA action. They make no allegation that the numbers used by the employer on the wage statement were not the numbers on which the employer’s payment of wages were based. Accordingly, and for this reason too, Plaintiffs’ Section 226 claim fails. For each of these independent reasons, this Count fails to state a claim and should be dismissed with prejudice. Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 25 of 26 Page ID #:433 19 MOTION TO DISMISS FIRST AMENDED COMPLAINT ACTIVE 12304410v4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. CONCLUSION For each and every one of the foregoing reasons, Defendants respectfully request that the Court dismiss Plaintiffs’ PAGA claim. Dated: March 20, 2019 GREENBERG TRAURIG, LLP By: /s/ Mark D. Kemple Mark D. Kemple Radha D.S. Kulkarni Attorneys for Defendants Marriott Resorts Hospitality Corporation and Marriott Vacations Worldwide Corporation Case 2:18-cv-08012-JVS-JPR Document 29 Filed 03/20/19 Page 26 of 26 Page ID #:434