Aaron Feao v. Ufp Riverside, Llc et alNOTICE OF MOTION AND MOTION to Dismiss Case Plaintiff's Class Action Complaint Pursuant to Federal Rule of Civil Procedure 12C.D. Cal.April 28, 2017Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 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 29492607_1.docx LINDA CLAXTON, CA Bar No. 125729 linda.claxton@ogletree.com LAURA D. HECKATHORN, CA Bar No. 228861 laura.heckathorn@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: 213.239.9800 Facsimile: 213.239.9045 Attorneys for Defendant UFP RIVERSIDE, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA AARON FEAO; individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. UFP RIVERSIDE, LLC, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) [Concurrently filed with Memorandum of Points & Authorities in Support of Motion; Declaration of Laura D. Heckathorn; Request for Judicial Notice and [Proposed] Order] Date: July 10, 2017 Time: 1:30 p.m. Place: Courtroom 6A, 6th Floor First Street Courthouse 350 West 1st Street Complaint Filed: February 16, 2017 Trial Date: None Judge: Hon. Philip S. Gutierrez _________ Case 2:17-cv-03080-PSG-JPR Document 8 Filed 04/28/17 Page 1 of 5 Page ID #:114 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 1 Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT29492607_1.docx TO PLAINTIFF AARON FEAO AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on July 10, 2017, at 1:30 p.m., or as soon thereafter as the matter may be heard in Courtroom 6A of the above-entitled Court, Defendant UFP Riverside LLC (“Defendant”) will and hereby do move for an Order, pursuant to Federal Rules of Civil Procedure (“FRCP”) 8(a)(2) and 12(b)(6), dismissing the following claims for relief alleged against Defendant in the Class Action Complaint for Damages filed by plaintiff Aaron Feao (“Plaintiff”). In particular, Plaintiff fails to state a claim upon which relief can be granted for the following reasons: 1. Plaintiff’s Complaint fails to allege specific facts that make his claims plausible, as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009). 2. Plaintiff’s first claim for unpaid overtime wages in violation of Labor Code Sections 510 and 1198 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 3. Plaintiff’s second claim for unpaid meal period premiums in violation of California Labor Code Sections 226.7 and 512(a) fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 4. Plaintiff’s third claim for unpaid rest period premiums in violation of California Labor Code Section 226.7 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 5. Plaintiff’s fourth claim for violation for unpaid minimum wages in violation of California Labor Code Sections 1194, 1197, and 1197.1 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. Case 2:17-cv-03080-PSG-JPR Document 8 Filed 04/28/17 Page 2 of 5 Page ID #:115 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 2 Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT29492607_1.docx 6. Plaintiff’s fifth claim for failure to timely pay final wages in violation of California Labor Code Sections 201 and 202 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 7. Plaintiff’s sixth claim for wages not timely paid during employment in violation of California Labor Code Section 204 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 8. Plaintiff’s sixth claim for wages not timely paid during employment in violation of California Labor Code Section 204 fails because it is time barred. 9. Plaintiff’s sixth claim for wages not timely paid during employment in violation of California Labor Code Section 204 fails because there is no private cause of action to collect penalties under this law. 10. Plaintiff’s seventh claim for non-complaint wage statements in violation of California Labor Code Section 226(a) fails because it is time barred. 11. Plaintiff’s seventh claim for non-complaint wage statements in violation of California Labor Code Section 226(a) fails because it does not allege the wage statements inaccurately reported the wages reported to him. 12. Plaintiff’s seventh claim for non-complaint wage statements in violation of California Labor Code Section 226(a) fails because it fails to allege a cognizable injury. 13. Plaintiff’s eighth claim for failure to keep requisite payroll records in violation of California Labor Code Section 1174(d) fails because it is time barred. 14. Plaintiff’s eighth claim for failure to keep requisite payroll records in violation of California Labor Code Section 1174(d) fails because Plaintiff lacks standing. 15. Plaintiff’s eighth claim for failure to keep requisite payroll records in violation of California Labor Code Section 1174(d) fails because it does not allege Case 2:17-cv-03080-PSG-JPR Document 8 Filed 04/28/17 Page 3 of 5 Page ID #:116 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 3 Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT29492607_1.docx specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 16. Plaintiff’s ninth claim for unreimbursed business expenses in violation of California Labor Code Sections 2800 and 2802 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 17. Plaintiff’s tenth claim for violation of California Business and Professions Code Section 17200 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 18. Plaintiff’s tenth claim for violation of California Business and Professions Code Section 17200 fails because it is based upon his defective claims for labor code violations. 19. Plaintiff’s request for injunctive relief fails because he lacks standing as a former employee of Defendant. Accordingly, Plaintiff’s Complaint should be dismissed in its entirety with prejudice. Plaintiff’s sixth, seventh and eighth claims are dismissed with prejudice. Plaintiff’s request for injunctive relief is dismissed with prejudice. This Motion is and will be based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities in support thereof, Request for Judicial Notice, Declaration of Laura D. Heckathorn and the accompanying [Proposed] Order granting this Motion, the records and pleadings on file herein, and any other evidence and argument as may be presented. This Motion is made following the conference of counsel pursuant to Central District of California Local Rule 7-3, which took place beginning between April 21- 25, 2017. (See Declaration of Laura D. Heckathorn, ¶¶ 2-3, Exs. A and B). /// /// Case 2:17-cv-03080-PSG-JPR Document 8 Filed 04/28/17 Page 4 of 5 Page ID #:117 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 4 Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT29492607_1.docx DATED: April 28, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Laura D. Heckathorn Linda Claxton Laura D. Heckathorn Attorneys for Defendant UFP RIVERSIDE, LLC Case 2:17-cv-03080-PSG-JPR Document 8 Filed 04/28/17 Page 5 of 5 Page ID #:118 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 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 29648074_2.docx LINDA CLAXTON, CA Bar No. 125729 linda.claxton@ogletree.com LAURA D. HECKATHORN, CA Bar No. 228861 laura.heckathorn@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: 213.239.9800 Facsimile: 213.239.9045 Attorneys for Defendant UFP RIVERSIDE, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA AARON FEAO; individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. UFP RIVERSIDE, LLC, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 2:17-CV-03080-PSG-JPR DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) [Concurrently filed with Notice of Motion and Motion; Declaration of Laura D. Heckathorn; Request for Judicial Notice and [Proposed] Order] Date: July 10, 2017 Time: 1:30 p.m. Place: Courtroom 6A, 6th Floor First Street Courthouse 350 West 1st Street Complaint Filed: February 16, 2017 Trial Date: None Judge: Hon. Philip S. Gutierrez Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 1 of 31 Page ID #:119 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 i Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx TABLE OF CONTENTS Page I. INTRODUCTION .................................................................................... 1 II. PROCEDURAL HISTORY ..................................................................... 2 III. PLAINTIFF’S BOILERPLATE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM.................................................................................................. 3 A. “Labels,” “Conclusions,” and “Formulaic Recitations” Do Not Satisfy Rule 8. ......................................................................... 4 B. Plaintiff’s Boilerplate Complaint Is Devoid of Factual Allegations and Must Be Dismissed. ............................................. 5 C. Plaintiff’s First Claim For Failure To Pay Overtime Wages Is Merely Conclusory And Must Be Dismissed................. 7 D. Plaintiff’s Second Claim For Failure To Provide Meal Periods Is Devoid of Facts.............................................................. 8 E. Plaintiff’s Third Claim For Failure To Provide Rest Periods Fails To Satisfy Federal Pleading Requirements. ........... 10 F. Plaintiff’s Fourth Claim For Failure To Pay Minimum Wages Lacks Factual Support. ..................................................... 12 G. Plaintiff’s Fifth Claim For Failure To Pay All Wages Upon Termination Fails As A Matter of Law.............................. 13 IV. PLAINTIFF’S SIXTH CAUSE OF ACTION FAILS AS A MATTER OF LAW FOR MULTIPLE AND INDEPENDENT REASONS. ............................................................................................. 14 A. Plaintiff’s Section 204 Claim Is Merely Conclusory. .................. 14 B. Plaintiff’s Claim Under Section 204 of the Labor Code Is Time-Barred. ................................................................................ 14 C. No Private Right of Action Exists Under Labor Code Section 204. .................................................................................. 15 V. PLAINTIFF’S SEVENTH CLAIM SHOULD BE DISMISSED WITH PREJUDICE FOR MULTIPLE REASONS............................... 16 A. Plaintiff’s Claim for Penalties Due to Alleged Wage Statement Violations Is Time Barred. .......................................... 16 B. Section 226 Penalties Are Not Available Where, As Here, The Wage Statements Are Accurate As To the Wages Actually Paid. ............................................................................... 17 Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 2 of 31 Page ID #:120 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 ii Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx C. Plaintiff’s Claim for Wage Statement Violations Is Devoid of Factual Support and Also Fails To Identify A Cognizable Injury. ........................................................................ 18 VI. PLAINTIFF’S EIGHTH CLAIM FOR RECORDKEEPING VIOLATIONS IS TIME BARRED, DEVOID OF FACTS AND PLAINTIFF LACKS STANDING......................................................... 19 A. The One Year Statute of Limitations for Penalty Claims Bars Plaintiff’s Purported Eighth Claim. ..................................... 19 B. Plaintiff Has No Standing to Bring a Claim Under Labor Code Section 1174........................................................................ 20 C. Plaintiff’s Labor Code 1174 Claim Is Not Supported By Facts.............................................................................................. 20 VII. PLAINTIFF’S LABOR CODE SECTION 2802 CLAIM FAILS AS A MATTER OF LAW...................................................................... 21 VIII. PLAINTIFF’S CLAIM UNDER SECTION 17200 DOES NOT SAVE HIS TIME BARRED PENALTY BASED CLAIMS, AND REGARDLESS, IT IS MERELY CONCLUSORY AND SHOULD BE DISMISSED.................................................................... 21 A. Plaintiff’s Section 17200 Does Not Extend the Limitations Period for His Sixth, Seventh or Eighth Claims. ......................... 21 B. Plaintiff’s UCL Claim is Merely Conclusory and Must Be Dismissed. .................................................................................... 23 IX. PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF............. 24 X. DEFENDANT’S MOTION SHOULD BE GRANTED IN ITS ENTIRETY............................................................................................. 24 Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 3 of 31 Page ID #:121 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 iii Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx TABLE OF AUTHORITIES Page(s) Federal Cases Angeles v. U.S. Airways, Inc., No. C 12-05860 CRB, 2013 WL 622032 (N.D. Cal. Feb. 19, 2013) ...................................................................................... 18 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ................................................................. 4, 5 Beebe v. Mobility, Inc., No. 07CV1766 BTM (NLS), 2008 WL 474391 (S.D. Cal. Feb. 20, 2008)....................................................................................... 15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) .............................................................4, 5, 6 Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453 (S.D. Cal. 2007) ........................................................................... 16 Byrd v. Masonite Corp., No. EDCD 16-35 JGBm (KKx), 2016 WL 756523 (C.D. Cal. 2016) .................................................................................................... 20 De La Torre v. American Red Cross, No. CV 13-04302 DDP, 2013 WL 5573101 (C.D. Cal. Oct. 9, 2013)......................................................................................... 18 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................. 24 Foman v. Davis, 371 U.S. 178 (1962) ................................................................................................ 4 Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114 (N.D. Cal. 2011)................................................................. 15 Kendall v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) ................................................................................. 6 Montecino v. Spherion Corp., 427 F. Supp. 2d 965 (C.D. Cal. 2006)................................................................... 22 Mouchati v. Bonnie Plants, Inc., No. ED CV 14-00037-VAP, 2014 WL 1661245 (C.D. Cal. Mar. 6, 2014)........................................................................................ 19 Ordonez v. Radio Shack, No. CV 10-7060 CAS MANX, 2011 WL 499279 (C.D. Cal. Feb. 7, 2011) ........................................................................................ 23 Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 4 of 31 Page ID #:122 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 iv Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx Ovieda v. Sodexo Operations, LLC, No. CV 12-1750-GHK SSX, 2012 WL 1627237 (C.D. Cal. May 7, 2012) ........................................................................................ 11 Ramirez v. Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531 (N.D. Cal. Jan. 10, 2014)....................................................................................... 24 Reinhardt v. Gemini Motor Transp., 869 F. Supp. 2d 1158 (E.D. Cal. 2012) ................................................................. 16 Ricaldai v. U.S. Investigations Servs., LLC, 878 F. Supp. 2d 1038 (C.D. Cal. 2012)................................................................. 19 Sarkisov v. StoneMor Partners, L.P., No. C13-04834 WHA, 2014 WL 1340762 (N.D. Cal. Apr. 3, 2014) ........................................................................................ 19 Schneider v. Space Sys./Loral, Inc., No. C 11-2489 MMC, 2012 WL 476495 (N.D. Cal. Feb. 14, 2012) .................................................................................. 7, 10 Sharkey v. O'Neal, 778 F.3d 767 (9th Cir. 2015) ................................................................................... 4 Silva v. U.S. Bancorp, No. 5:10-cv-01854-JHN-PJWx, 2011 WL 7096576 (C.D. Cal. Oct. 6, 2011) (Nguyen, J.).................................................................... 20 Singer v. Becton, Dickinson and Co., No. 08-cv-821 IEG (BLM), 2008 WL 2899825 (S.D. Cal. July 25, 2008) ...........................................................................14, 15, 18 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)............................................................................................. 8 In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609 (N.D. Cal. 2007)................................................................... 23 Walsh v. Nev. Dep’t Human Res., 471 F.3d 1033 (9th Cir. 2006) ............................................................................... 24 White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal. 2007)...........................................................13, 23 California Cases Aleksick v. 7-Eleven, Inc., 205 Cal. App. 4th 1176 (2012).............................................................................. 23 Brinker Restaurant Corp. v. Super. Ct., 53 Cal. 4th 1004 (2012).............................................................................7, 8, 9, 11 Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 5 of 31 Page ID #:123 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 v Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx CashCall, Inc. v. Superior Court, 159 Cal. App. 4th 273 (2008)................................................................................ 17 Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163 (2000)........................................................................................... 22 IMO Development Corp. v. Dow Corning Corp., 135 Cal. App. 3d 451 (1982) ................................................................................. 20 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003)......................................................................................... 22 In re Moffett, 19 Cal. App. 2d 7 (1937) ....................................................................................... 15 Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094 (2007)......................................................................................... 16 Payne v. United Cal. Bank, 23 Cal. App. 3d 850 (1972) ................................................................................... 17 Pineda v. Bank of Am., N.A., 50 Cal. 4th 1389 (2010)......................................................................................... 23 See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal. App. 4th 889 (2012)................................................................................ 15 Shapell Indus., Inc. v. Super. Ct., 132 Cal. App. 4th 1101 (2005).............................................................................. 17 Smith v. L’Oreal, USA, Inc., No. BC284690, 2008 WL 6014565 (Cal. Super. Ct., L.A. Nov. 12, 2008).................................................................... 22 Federal Statutes 28 U.S.C. § 1332(d).................................................................................................................. 2 California Statutes Cal. Lab. Code § 203(a).................................................................................................................. 13 § 204(a)............................................................................................................14, 15 § 1174 (d)............................................................................................................... 19 Cal. Labor Code § 210 ...................................................................................................................... 14 § 210(b).................................................................................................................. 15 § 226(e)(2)(B)(i)-(ii).............................................................................................. 17 Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 6 of 31 Page ID #:124 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 1 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx I. INTRODUCTION Plaintiff Aaron Feao (“Plaintiff”) seeks to bring a host of claims under the California Labor Code (“Cal. Lab. Code”) against Defendant UFP Riverside, LLC (“Defendant”). Plaintiff has not set forth any facts supporting his claims, instead relying on a boilerplate Complaint that consists solely of conclusory allegations and formulaic recitations of legal claims. Indeed, aside from his dates of employment and state of residency, Plaintiff has not provided a single factual allegation that supports his claims for minimum wage, overtime, and final wages, meal period and rest break premiums, inaccurate wage statements, unreimbursed business expenses, and unfair competition. As a result, Plaintiff’s Complaint should be dismissed in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). Plaintiff’s reluctance to set forth facts supporting his claims is not surprising, given that the limited facts that are before the Court compel the dismissal with prejudice of several of his claims. Because Plaintiff’s employment ended in August 2014 (more than a year prior to the filing of the Complaint), his sixth, seventh and eighth claims are time barred because they are penalty based claims subject to the one year statute of limitation in California Civil Code of Procedure Section 340(a). Furthermore, Plaintiff’s sixth claim fails because there is no private right of action under Labor Code Section 204. In addition, Plaintiff’s seventh claim seeking statutory penalties for an alleged violation of the itemized wages statement requirements of Cal. Lab. Code §226(a) fails for the additional reasons that he cannot recover penalties when he does not allege his wage statements were inaccurate as to the wages paid; moreover, he fails to allege a cognizable injury. Finally, Plaintiff lacks standing to pursue a claim under Cal. Lab. Code Section 1174 and as a former employee, cannot seek injunctive relief against Defendant. For the following reasons, Defendant respectfully requests that the Court grant this motion to dismiss in its entirety with prejudice, or at a minimum, dismiss Plaintiff’s sixth, seventh and eighth claims with prejudice. Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 7 of 31 Page ID #:125 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 2 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx II. PROCEDURAL HISTORY On February 16, 2017, Plaintiff commenced this action against Defendant by filing an unverified Complaint in the Superior Court of the State of California, County of Los Angeles, Case No. BC650850, captioned Aaron Feao, individually, and on behalf of other members of the general public similarly situated vs. UFP Riverside, LLC, an unknown business entity; and DOES 1 through 100, inclusive (the “Complaint”). Plaintiff’s Complaint alleges ten claims against Defendant: (1) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime; (2) Violation of California Labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premiums); (3) Violation of California Labor Code § 226.7 (Unpaid Rest Period Premiums); (4) Violation of California Labor Code §§ 1194, 1197, and 11997.1 (Unpaid Minimum Wages); (5) Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (6) Violation of California Labor Code § 204 (Wages Not Timely Paid during Employment; (7) Violation of California Labor Code § 226(a) (Non-Compliant Wage Statements); (8) Violation of California Labor Code § 1174(d) (Failure to Keep Requisite Payroll Records); (9) Violation of California Labor Code §§ 2800 and 2802 (Unreimbursed Business Expenses); (10) Violation of California Business & Professions Code §§ 17200, et seq. (ECF No. 1; Notice of Removal, Ex. A). On April 24, 2017, Defendant timely removed this action to federal court on the grounds that this Court has original jurisdiction over this case under the Class Action Fairness Act (“CAFA”) in that it is a civil action filed as a class action wherein the matter in controversy exceeds the sum of $5 million, exclusive of interest and costs, and at least one member (if not all) of the class of plaintiffs is a citizen of a state different than Defendant. (See 28 U.S.C. § 1332(d)). Just prior to removal, Defendant attempted to meet and confer with Plaintiff as required by Central District of California Local Rule 7-3, informing Plaintiff that it Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 8 of 31 Page ID #:126 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 3 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx intended to move to dismiss: (1) all of Plaintiff’s allegations because they do not satisfy the federal pleading standard and (2) and that Plaintiff’s sixth, seventh and eighth claims on the grounds that these penalty claims are all barred by the applicable statute of limitations and are otherwise defective. (Declaration of Laura D. Heckathorn, ¶¶ 2-3, Exhs. A and B). To date, Plaintiff has refused to stipulate to file an amended complaint. (Id.) III. PLAINTIFF’S BOILERPLATE COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM. As a threshold matter, Plaintiff’s Complaint should be dismissed with prejudice because this Court previously granted an employer’s motion to dismiss a virtually identical complaint1 filed by Plaintiff’s counsel for failure to allege sufficient facts, holding that such a formulaic complaint does not pass muster under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).2 Just as in Dawson v. Hitco Carbon Composites, Inc. (Case No. 2:16-cv-07337-PSG-FFMx, Plaintiff has failed to allege his own job title, which particular location at which he was employed, whether the purported “uniform policy and systematic scheme of wage abuse” (Complaint, ¶25) was written, or any other facts describing the circumstances and context of Defendant’s purported “uniform policy and systematic scheme of wage abuse.” Indeed, as related below, Plaintiff’s allegations are nothing more than the same formulaic recitation of elements recently rejected by this Court in Dawson. For all these reasons, neither the allegations in support of Plaintiff’s individual 1 The only difference between this Complaint and the one filed in Dawson v. Hitco Carbon Composites, Inc. (Case No. 2:16-cv-07337-PSG-FFMx) is that Plaintiff did not assert a PAGA claim in this action. 2 See Dawson, in which the same Plaintiff’s counsel, Lawyers for Justice, filed a nearly identical complaint to the one in this action (see Req. for Judicial Notice, Exh. A). Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 9 of 31 Page ID #:127 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 4 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx claims nor the allegations in support of Plaintiff’s class claims cross any threshold of plausibility. Accordingly, they are groundless and should be dismissed. Further, they should be dismissed with prejudice. The Supreme Court has held that when considering whether to dismiss an action with prejudice in response to a motion to dismiss brought pursuant to FRCP Rule 12(b)(6) it should consider the following factors: . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Sharkey v. O'Neal, 778 F.3d 767, 774 (9th Cir. 2015). In the instant action, Plaintiff’s counsel brought a form complaint that this Court had already held was legally insufficient. Yet, when asked to amend it to comply with the Federal Rules of Civil Procedure - as he had previously been ordered to do in Dawson, Plaintiff’s counsel inexplicably refused. (Req. for Judicial Notice, Exh. B). While Defendant recognizes that leave to amend is often given when the original complaint is deficient, Foman recognizes that this general rule does not apply when there is evidence of bad faith. The fact that Plaintiff submitted a virtual duplicate of a form complaint previously rejected by this Court, and then refused to amend the complaint when offered the opportunity to do so, is precisely the type of bad faith the warrants dismissal with prejudice. A. “Labels,” “Conclusions,” and “Formulaic Recitations” Do Not Satisfy Rule 8. Plaintiff’s burden at the pleading stage is to state sufficient factual allegations to demonstrate that he is plausibly entitled to the relief sought. (See, e.g., Twombly, 550 U.S. 544, 555, 559, 127 S. Ct. 1955, 1964-65, 1967 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)). As the U.S. Supreme Court explained in Twombly and Iqbal, a complaint should be dismissed if it contains only conclusory allegations without the necessary Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 10 of 31 Page ID #:128 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 5 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx facts to support those claims. (See, e.g., Iqbal, 129 S. Ct. at 1940-41.) Indeed, to survive a motion to dismiss, the plaintiff must have alleged specific facts that enable the court to draw the plausible and reasonable inference that a defendant is liable for the misconduct alleged. A complaint that does nothing more than offer “a sheer possibility that a defendant has acted unlawfully” is properly dismissed pursuant to FRCP 12(b)(6). (Id. at 1949). While the complaint in Twombly contained legal allegations, it did not allege the specific conduct by the defendants required to show the existence of a necessary element of the claim for relief. (Id. at 1971 n.10). The Court held that dismissal pursuant to FRCP 12(b)(6) was appropriate due to the absence of specific allegations, and particularly so given the high costs imposed by litigation, including the type of class action actions alleged in Twombly. Thus, “[s]ome threshold of plausibility must be crossed at the outset before a . . . case should be permitted to go into its inevitably costly and protracted discovery phase.’” Id. (citing Asahi Glass Co. LTD., v. Pentech Pharm, Inc., 289 F. Supp. 2d 986, 995 (N.D. Ill. 2003)). Consequently: [A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level… (Twombly, 127 S. Ct. at 1964-65 (alterations omitted); see also Iqbal, 129 S. Ct. at 1951-52). B. Plaintiff’s Boilerplate Complaint Is Devoid of Factual Allegations and Must Be Dismissed. While the Complaint that Plaintiff filed may contain legal conclusions and simplistic and mechanical recitations of the elements of his claims, it does not satisfy the requirements of FRCP 8(a)(2). Notably (and consistent with Plaintiff’s counsel’s practice), Plaintiff has not offered a single factual allegation specific to Defendant, his employment with Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 11 of 31 Page ID #:129 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 6 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx Defendant, or Defendant’s policies and practices to substantiate the conclusory allegations set forth in the Complaint. Instead, and as demonstrated by the “General Allegations” that are found at Paragraphs 17 through 46 of the Complaint, Plaintiff relies solely on “a formulaic recitation of the elements” of his causes of action. Plaintiff does not allege specific facts regarding any of the possible bases for his claims, such as facts regarding his working conditions, work schedule, job duties, experiences with timekeeping and payroll, meal periods and rest breaks, or business expenses, let alone facts related to Defendant’s alleged policies and practices as they pertain to his many claims. In such cases, where “the complaint does not answer the basic questions: who, did what, to whom (or with whom), where, and when,” the pleading fails to state any plausible grounds upon which plaintiff’s claim can proceed. (Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir. 2008)). Moreover, Plaintiff’s failure to plead necessary facts raises the specter that there is no case or controversy, since Plaintiff’s refusal to include factual allegations appear calculated to conceal his lack of standing. For example, Plaintiff has not even pled his job title, hours worked, compensation rate or precise dates of employment (only pleading the month and year of his hire and termination dates). Accordingly, Plaintiff should be required to plead sufficient facts, if he even can, so Defendant and the Court can determine whether this lawsuit should be permitted to proceed. Finally, there is a heightened need for factual allegations in this case because Plaintiff purports to bring his claims not only on an individual basis but also as a proposed class action on behalf of a supposedly “numerous” group. (Complaint, ¶15(a)). Addressing this exact situation, the Twombly Court warned that “a plaintiff with a largely groundless claim,” should not “be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.” (Id., 127 S. Ct. at 1966 (citing Dura Pharm, Inc. v. Broudo, 544 U.S. 336, 347 (2005) (internal quotation marks omitted)). Here, neither the allegations in support of Plaintiff’s individual claims nor the allegations in support of Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 12 of 31 Page ID #:130 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 7 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx Plaintiff’s class claims cross any threshold of plausibility. Consequently, they are groundless and should be dismissed as set forth in greater detail below. C. Plaintiff’s First Claim For Failure To Pay Overtime Wages Is Merely Conclusory And Must Be Dismissed. To support his first claim, Plaintiff merely alleges that he and “the other class members worked in excess of eight (8) hours in a day, and/or in excess of forty (40) hours in a week.” (Complaint, ¶52). In addition, Plaintiff alleges without (factual support) that Defendant “intentionally and willfully failed to pay overtime wages owed to Plaintiff and the other class members, including failing to properly calculating [sic] the overtime rate.” (Complaint, ¶53). Each of these clearly conclusory statements is, on its face, unsupported by any specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief for the alleged but undefined overtime wages. These statements are precisely the type of impermissible, conclusory, and ambiguous allegations that fail to state a claim capable of relief, that are subject to demurrer, and that courts are not obligated to accept as true for the purpose of ruling on a Rule 12(b)(6) motion. Significantly, Plaintiff has not pled any specific factual allegations that indicate how he was allegedly not paid overtime for all hours worked, as is necessary to state a plausible cause of action for failure to pay overtime wages. In particular, following the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), a plaintiff must allege systematic policies and practices of his employer that required employees to work without being paid in order to present a viable class-wide unpaid overtime claim. (Brinker, 53 Cal. 4th at 1052 (2012); cf. also Schneider v. Space Sys./Loral, Inc., No. C 11-2489 MMC, 2012 WL 476495, at *2 (N.D. Cal. Feb. 14, 2012) (granting motion to dismiss as to the plaintiff’s unpaid overtime claim where he “include[d] no facts setting out the uncompensated hours [the plaintiff] worked, or any facts otherwise demonstrating he actually worked overtime,” and finding that “an Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 13 of 31 Page ID #:131 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 8 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx allegation that a ‘10% casual overtime policy’ existed, without further detail as to the terms of the policy, the particular employees to which it applied, or how the policy was enforced, is both ambiguous and conclusory”)). Plaintiff’s Complaint has wholly failed to include allegations that demonstrate a viable basis for proceeding on a class-wide basis. (See Brinker, 53 Cal. 4th at 1052 (“[W]here no substantial evidence points to a uniform, companywide policy, proof of off-the-clock liability would have had to continue in an employee-by-employee fashion, demonstrating who worked off the clock, how long they worked, and whether [the employer] knew or should have known of their work.”)). In fact, the Complaint is devoid of any factual allegations related to his unpaid overtime claim. As a result, Plaintiff’s Complaint fails to include allegations demonstrating that he will plausibly be capable of satisfying the U.S. Supreme Court’s directive that class actions must be capable of class-wide resolution and must ask common questions to which common answers are possible. (See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (holding that, for class claims to be viable, they must “depend upon a common contention,” which, in turn, must “be of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”)). It is apparent, even at this early stage of the litigation, that Plaintiff has insufficient facts to establish the community of interest necessary to sustain his class-wide unpaid overtime claim at the pleading stage; therefore, Plaintiff’s purported class-wide unpaid overtime claim, in addition to his individual claim, must be dismissed. D. Plaintiff’s Second Claim For Failure To Provide Meal Periods Is Devoid of Facts. In support of his second claim for failure to provide meal periods, Plaintiff states only that he and “the other class members who were scheduled to work for a period of time longer than six (6) hours, and who did not waive their legally- Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 14 of 31 Page ID #:132 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 9 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx mandated meal periods by mutual consent, were required to work for periods longer than five (5) hours without an uninterrupted meal period of not less than thirty (3) minutes and/or rest period” and those who were “scheduled to work for a period of time in excess of six (6) hours were required to work for periods long than five (5) hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period. (Complaint, ¶¶61-62). In addition, Plaintiff alleges that Defendant “intentionally and willfully required Plaintiff and the other class members to work during meal periods and failed to compensate Plaintiff and the other class members the full meal period premium for work performed during meal periods” and failed to pay Plaintiff and the other class members meal period premiums pursuant to Cal. Lab. Code Section 226.7. (Complaint, ¶¶63-64). Like his unpaid overtime claim, Plaintiff’s meal period claim is clearly based only on conclusory statements unsupported by any specific factual allegations. Plaintiff provides a recitation of the requirements of Cal. Lab. Code sections 226.7 and 512(a), but sets forth no specific factual allegations to support his claim. (Complaint, ¶¶56-66). Plaintiff’s Complaint does not detail what Plaintiff does in his job, how he was paid, or what facts indicate that he or any other employee was not provided meal periods. Nor does Plaintiff provide any facts regarding other putative class members to demonstrate a plausible basis for his allegation that he is sufficiently similarly situated to them to act as a class representative. (See Complaint, ¶15(b) (“Plaintiff’s claims are typical of all other class members’ as demonstrated herein. Plaintiff will fairly and adequately protect the interests of the other class members with whom he has a well-defined community of interest.”)). In short, the Complaint simply does not allege enough facts specifically indicating that a class-wide theory of recovery can show that Defendant failed to provide the Plaintiff and putative class members with meal periods. In 2012, Brinker made it clear that, in California, an employer is required only to make meal periods available to employees, not to make sure that employees take Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 15 of 31 Page ID #:133 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 10 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx their meal periods. (Brinker, 53 Cal. 4th at 1038-40). Yet Plaintiff does not include a single allegation containing a fact regarding how Defendant failed to make meal periods available to him and members of the putative class. Without such allegations, Plaintiff has omitted from his pleading the essential facts required to assert a meal period claim. Moreover, as with Plaintiff’s unpaid wages and unpaid overtime allegations, Plaintiff’s meal period allegations do not even suggest how Plaintiff might formulate common questions to which there may be common answers. This failure is particularly glaring in light of the suggestion made by Brinker and other relevant authorities that, unless certain factual circumstances exist, assessing liability for meal period violations may require individualized inquiries. (Cf., e.g., Schneider, 2012 WL 476495 at *3 (granting motion to dismiss as to the plaintiff’s meal period claim where he “provided no facts demonstrating he actually missed a meal period for which he was not compensated” and further “provide[d] no factual detail as to the alleged ‘policy,’ the particular employees to which the ‘policy’ applied, or how the ‘policy’ actually resulted in missed meal periods”)). As a result of Plaintiff’s failure to sufficiently support either his individual or class-wide meal period claims with non-ambiguous, non-conclusory factual allegations, his second claim should be dismissed. E. Plaintiff’s Third Claim For Failure To Provide Rest Periods Fails To Satisfy Federal Pleading Requirements. In support of his third claim for failure to provide rest periods, Plaintiff states only that “[d]uring the relevant time period, Defendants required Plaintiff and other class members to work four (4) or more hours without authorizing or permitting a ten (10) minute rest period per each four (4) hour period worked” and Defendant “willfully required Plaintiff and the other class members to work during rest periods and failed to pay Plaintiff and the other class members the full rest period premium for work performed during rest periods” in violation of Cal. Lab. Code Section Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 16 of 31 Page ID #:134 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 11 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx 226.7. (Complaint, ¶¶71-72). Following precisely the same pattern as his prior two claims, Plaintiff’s rest period allegations are clearly no more than conclusory statements unsupported by any specific factual allegations. Plaintiff provides a recitation of California Labor Code section 226.7, but no specific factual allegations to support the claim. As with his previous claims, Plaintiff’s Complaint does not describe the nature of Plaintiff’s job, how he was paid, or any facts that would indicate that he or any other employee was not provided rest periods. Nor does Plaintiff provide any facts regarding other putative class members to demonstrate a plausible basis for his allegation that he is sufficiently similarly situated to them to act as a class representative as to his rest period claim. (See Complaint, ¶15(d)). In short, the Complaint simply does not allege enough facts specifically indicating that a class-wide theory of recovery can show that Defendant failed to provide the Plaintiff and putative class members with rest periods. As discussed above with respect to meal breaks, in light of Brinker, California employers are required only to make rest periods available to employees, not to make sure that employees take their rest periods. (See Brinker, 53 Cal. 4th at 1033 (“An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry.”)). Yet Plaintiff does not include a single specific factual allegation regarding how Defendant failed to make rest periods available to him and members of the putative class. Without such allegations, Plaintiff has omitted from his pleading the essential facts required to assert a rest period claim - exactly the type of failure that is impermissible in California. Moreover, as with Plaintiff’s unpaid overtime and meal period allegations, Plaintiff’s rest period allegations do not even suggest how Plaintiff might formulate common questions to which there may be common answers, as there are no specific factual allegations about any alleged uniform policy or practice. (Cf., e.g., Ovieda v. Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 17 of 31 Page ID #:135 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 12 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx Sodexo Operations, LLC, No. CV 12-1750-GHK SSX, 2012 WL 1627237, at *2 (C.D. Cal. May 7, 2012) (dismissing the plaintiff’s rest break claim, finding that the plaintiff had “fail[ed] to allege that she even once worked a shift long enough to obligate Defendant to provide her with a rest period, let alone that she worked such shifts consistently,” and, more generally, that the operative complaint “never once allege[d] the length of any shift worked by Plaintiff to show that Defendants’ various obligations under the Cal. Lab. Code were triggered”)). As a result of Plaintiff’s failure to sufficiently support either his individual or class-wide rest period claims with non-ambiguous, non-conclusory factual allegations, his third claim should be dismissed. F. Plaintiff’s Fourth Claim For Failure To Pay Minimum Wages Lacks Factual Support. In Paragraph 78 of the Complaint, in support of his fourth claim for failure to pay minimum wages, Plaintiff states only that “[d]uring the relevant time period, Defendants [s]ic] failed to pay minimum wage to Plaintiff and the other class members as required, pursuant to Cal. Lab. Code §§ 1194, 1197, and 1197.1” In addition, Plaintiff alleges that Defendant’s “failure to pay Plaintiff and the other class members the minimum wage as required violates Cal. Lab. Code §§ 1194, 1197, and 1197.1” and therefore they are “entitled to recover the unpaid balance of their minimum wage compensation as well as interest, costs, and attorney’s fees, and liquidated damages in an amount equal to the wages unlawfully paid and interest thereon.” (Complaint, ¶¶79-80). Significantly, Plaintiff has not pled any specific factual allegations that indicate how he was allegedly not paid minimum wages for all hours worked, as is necessary to establish the elements of a cause of action. After denuding the Complaint of Plaintiff’s generic and conclusory allegations, Plaintiff’s bare allegation is that Defendant “failed to pay minimum wage to Plaintiff and the other class members as required.” (Complaint, ¶78). Plaintiff offers no facts describing Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 18 of 31 Page ID #:136 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 13 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx how Defendant’s conduct caused him to be paid less than minimum wage. It is therefore apparent that Plaintiff has not alleged sufficient facts to satisfy the prerequisites for his purported class claims, in addition to his individual claims, and therefore they must be dismissed. G. Plaintiff’s Fifth Claim For Failure To Pay All Wages Upon Termination Fails As A Matter of Law. In support of Plaintiff’s fifth claim for relief seeking waiting time penalties for violation of California Labor Code section 203, Plaintiff alleges - without any factual support - that Defendant “intentionally and willfully failed to pay Plaintiff and the other class members who are no longer employed by Defendants [sic] their wages, earned and unpaid, within seventy-two (72) hours of their leaving Defendants’ [sic] employ.” (Complaint, ¶84.) Plaintiff concludes that this alleged failure to timely pay wages upon termination constitutes a willful violation of California Labor Code Section 203. (Complaint, ¶85). These allegations are simply conclusory statements unsupported by any specific factual allegations regarding the basis for Plaintiff’s claim. Plaintiff’s choice of language here is particularly deficient because it does not even allege facts in support of the statutorily prescribed legal basis required to seek waiting time penalties pursuant to California law - in particular, there are no alleged facts regarding how Defendant failed to pay employees all wages due upon termination, or how such alleged failure was willful, as required in order to establish the elements of Plaintiff’s cause of action. (See Cal. Lab. Code § 203(a) (authorizing penalties only where an employer “willfully” fails to pay wages in accordance with the statute)). In addition, Plaintiff’s fifth claim for relief for waiting time penalties fails because it is a claim that is predicated upon the (nonexistent) allegations in support of his first four claims for failure to pay overtime and minimum wages and failure to provide meal and rest periods or compensation in lieu thereof. Because Plaintiff’s first four causes of action are deficiently pled as a matter of law (see, supra, Sections Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 19 of 31 Page ID #:137 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 14 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx III.C through III.F), so is Plaintiff’s derivative fifth cause of action. (Cf., e.g., White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1089-90 (N.D. Cal. 2007) (dismissing the plaintiff’s wage statement and unfair competition claims on the grounds that they were derivative of his off-the-clock and meal and rest break claims, which had already been dismissed)). Thus, Plaintiff’s fifth cause of action fails for the same reasons the underlying first through fourth claims fail, as the allegations in support of the claims are merely vague statements based on pure conclusion and speculation. IV. PLAINTIFF’S SIXTH CAUSE OF ACTION FAILS AS A MATTER OF LAW FOR MULTIPLE AND INDEPENDENT REASONS. A. Plaintiff’s Section 204 Claim Is Merely Conclusory. Section 204 of the Cal. Lab. Code provides that wages earned must be paid twice during each calendar month. Cal. Lab. Code § 204(a). As with his other claims, Plaintiff fails to allege a single fact in support of his claim under Cal. Lab. Code §204(a) that he was not timely paid his wages. All that Plaintiff alleges is that Defendant “intentionally and willfully failed to pay Plaintiff and the other class members all wages due to them, within any time period permissible under California Labor Code Section 204.” (Complaint, ¶92). Accordingly, this claim should be dismissed for the same reasons asserted in Sections III.C. through III.G, supra. B. Plaintiff’s Claim Under Section 204 of the Labor Code Is Time- Barred. Section 204 does not create any substantive right to wages; instead, it creates only an obligation on the part of an employer with respect to the timing for when wages must be paid. (See Singer v. Becton, Dickinson and Co., No. 08-cv-821 IEG (BLM), 2008 WL 2899825, at *3 (S.D. Cal. July 25, 2008)). Cal. Labor Code § 210, in turn, provides the exclusive remedy for a breach of the timing requirements set forth in Section 204. Specifically, Section 210 states that “every person who fails to pay the wages of each employee as provided in Sections ... 204 ... shall be subject to a civil penalty....” (Cal. Labor Code § 210 (emphasis Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 20 of 31 Page ID #:138 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 15 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx added)). Civil penalties are governed by the one-year statute of limitations set forth in California Code of Civil Procedure Section 340(a).3 Because Plaintiff did not file this action until February 2017 - more than two (2) years after his employment with Defendant ended - his Section 204 claim is time-barred on its face. C. No Private Right of Action Exists Under Labor Code Section 204. Plaintiff’s Section 204 claim is equally defective because it is predicated solely on the nonpayment of wages. Section 204 regulates the timing of wage payments. It does not provide any substantive rights to wages. (See Singer, 2008 WL 2899825 at *3 (“Despite section 204’s use of the word ‘wages,’ section 204 does not provide for the payment of any wages nor recite any substantive right to wages. The only right furthered by the section is the timely payment of wages.”)).4 Indeed, the only remedy for a violation of Section 204 is the civil penalty set forth in Cal. Labor Code § 210, which is only recoverable by the California Labor Commissioner. That section provides that the action to collect the penalty must be brought “in the name of the people of the State of California.” Cal. Labor Code §210(b). Therefore, there is no private right of action to collect the penalty in this matter and Plaintiff is barred, as a matter of law, from seeking such recovery here. For all of these reasons, Plaintiff’s claim under Section 204 of the Cal. Labor Code must be dismissed under Rule 12(b)(6). Moreover, Plaintiff should not be allowed to re-plead this claim if provided the opportunity to amend his Complaint, because to do so would be futile.5 3 “Because section 210 is explicitly an award of a penalty, the applicable statute of limitations is the one year limit set forth in CCP § 340(a).” (Singer, 2008 WL 2899825 at *3; see also Beebe v. Mobility, Inc., No. 07CV1766 BTM (NLS), 2008 WL 474391, at *4 (S.D. Cal. Feb. 20, 2008)). 4 See also Labor Code Section 204(a); Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114, 1136 (N.D. Cal. 2011) (“Section 204 requires the payment of wages in a timely manner; it does not provide a right to wages.”); See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal. App. 4th 889, 905 (2012) (same); In re Moffett, 19 Cal. App. 2d 7, 13 (1937) (“[S]ole purpose of [Section 204]…is to require an employer of labor who comes within its terms to maintain two regular pay days each month…”). 5 Plaintiff has not alleged (because he cannot) a violation of California’s Private Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 21 of 31 Page ID #:139 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 16 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx V. PLAINTIFF’S SEVENTH CLAIM SHOULD BE DISMISSED WITH PREJUDICE FOR MULTIPLE REASONS. A. Plaintiff’s Claim for Penalties Due to Alleged Wage Statement Violations Is Time Barred. In Plaintiff’s seventh cause of action, Plaintiff alleges Defendant failed to furnish accurate itemized statements pursuant to Labor Code section 226(a). Specifically, he asserts that Defendant “[has] intentionally and willfully failed to provide Plaintiff . . . with complete and accurate wage statements.” (Complaint, ¶96). Further, Plaintiff alleges that he was employed by Defendant “from approximately June 2013 to approximately August 2014.” (Complaint, ¶18). Plaintiff is statutorily barred from alleging wage statement penalties under Labor Code Section 226 because the Complaint was filed more than one year after Plaintiff’s employment with Defendant ended. Pursuant to California Code of Civil Procedure section 340, there is a one-year statute of limitations for statutory penalties provided by Labor Code section 226. (See Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1118 n.16 (2007) (wage statement violations are “indisputably governed by a one-year statute of limitations”); Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453, 462 (S.D. Cal. 2007) (plaintiff required to prove that inaccurate itemized wage statement was given within one year prior to filing of complaint); Reinhardt v. Gemini Motor Transp., 869 F. Supp. 2d 1158, 1169-1170 (E.D. Cal. 2012)). Here, Plaintiff’s Complaint was filed on February 16, 2017. Plaintiff’s claims for statutory penalties could, therefore, only apply to alleged violations and wage statements he received from Defendant on or after February 16, 2016. However, Plaintiff alleges he has not been employed by Defendant since August 2014; thus, he Attorneys General Act, Labor Code Section 2698 et seq. (“PAGA”). He is time barred from doing so now, as PAGA claims must be brought within one year of the alleged violation (which could be not have occurred after August 2014, when Plaintiff’s employment ended). Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 22 of 31 Page ID #:140 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 17 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx lacks standing to bring claims for penalties under Labor Code Section 226 against Defendant - on either an individual or representative basis - as he is time-barred from pursuing these claims against it. (See, e.g., Shapell Indus., Inc. v. Super. Ct., 132 Cal. App. 4th 1101, 1105, 1107 (2005) (a plaintiff cannot establish standing to prosecute an action on behalf of a putative class by filing an untimely claim); Payne v. United Cal. Bank, 23 Cal. App. 3d 850, 859 (1972) (plaintiffs “cannot give themselves standing to sue by purporting to represent a class of which they are not a member.”); CashCall, Inc. v. Superior Court, 159 Cal. App. 4th 273, 285 (2008) (“[a]bsent a named plaintiff with standing, the class action is subject to demurrer and dismissal”)). This claim accordingly fails.6 B. Section 226 Penalties Are Not Available Where, As Here, The Wage Statements Are Accurate As To the Wages Actually Paid. Plaintiff’s inaccurate wage statement claim also fails for the separate and independent reason that, under Cal. Labor Code § 226, employers are only required to accurately report wages that the employee is actually being paid. Indeed, as the recent amendments to Cal. Labor Code § 226 now confirm, penalties under Cal. Labor Code § 226(e) are not available unless the employee cannot determine from the wage statement alone the amount of gross and net wages actually “paid during the applicable pay period” and the amount of deductions actually “made during the applicable pay period.” (See Cal. Labor Code § 226(e)(2)(B)(i)-(ii) (emph. added)). Here, Plaintiff does not allege that the wage statements he received from Defendant 6 Plaintiff will predictably assert the same argument his counsel made in Dawson to save his seventh claim - i.e., that because Plaintiff seeks actual damages, the applicable statute of limitations is three years under California Civil Code of Procedure Section 338. (Complaint, ¶99). Yet this Court instructed Plaintiff’s counsel in January that when making this claim outside of the one year limitations period, he could only seek recovery of Plaintiff’s alleged actual damages. (see Req. for Judicial Notice, Exh. B at p. 11). Despite being given the opportunity to amend this defective claim, Plaintiff’s counsel still refused, knowing full well it was deficiently plead. Such egregious conduct is evidence of Plaintiff’s flagrant disregard for the Court, and a complete waste of judicial time and resources. Dismissal with prejudice is therefore more than appropriate. Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 23 of 31 Page ID #:141 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 18 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx were inaccurate in reporting the wages actually paid to him during the applicable pay periods (alleging the statements failed to include the total number of hours worked). (See Complaint, ¶96). Accordingly, Plaintiff’s Labor Code Section 226 claim fails as a matter of law. C. Plaintiff’s Claim for Wage Statement Violations Is Devoid of Factual Support and Also Fails To Identify A Cognizable Injury. Even assuming, arguendo, that Plaintiff properly alleged a failure to comply with Section 226(a) and his claim was not time barred, he still fails to allege a cognizable injury. In order to sustain a cause of action under Labor Code Section 226, he must allege “actual damages.” (See Singer v. Becton, Dickinson & Co., 2008 WL 2899825 at *5). Specifically, Plaintiff must allege he was unable to “promptly and easily determine” from his wage statement(s) “the amount of gross wages or net wages actually paid to [him] during the pay periods at issue.” (De La Torre v. American Red Cross, No. CV 13-04302 DDP (JEMx), 2013 WL 5573101, at *6 (C.D. Cal. Oct. 9, 2013)). In other words, Plaintiff must allege facts to demonstrate that the injury amounted to more than not receiving a complaint wage statement. (See Angeles v. U.S. Airways, Inc., No. C 12-05860 CRB, 2013 WL 622032, at *10 (N.D. Cal. Feb. 19, 2013) (“A plaintiff must adequately plead an injury arising from an employer’s failure to provide full and accurate wage statements, and the omission of the required information alone is not sufficient.”)). Here, Plaintiff merely alleges that he and the putative class have “been injured…because they were denied both their legal right to receive, and their protected interest in receiving, accurate and itemized wage statements pursuant to California Labor Code Section 226(a).” (Complaint, ¶98). This allegation is nothing more than a regurgitation of the statute and a restatement of an employee’s undisputed right to receive accurate wage statements under this law. It does not describe an injury. Yet it is Plaintiff’s burden to allege that the inaccurate wage statement(s) violations caused him to suffer actual damages. Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 24 of 31 Page ID #:142 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 19 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx When courts have allowed Labor Code 226(a) claims to proceed, they have found an injury based on the inaccurate pay statement. (See, e.g.,Mouchati v. Bonnie Plants, Inc., No. ED CV 14-00037-VAP (SPx), 2014 WL 1661245, at *9 (C.D. Cal. Mar. 6, 2014) (paystubs “deprived Plaintiffs of the information necessary to identify discrepancies in Defendant’s reported data”); Sarkisov v. StoneMor Partners, L.P., No. C13-04834 WHA, 2014 WL 1340762, at *2 (N.D. Cal. Apr. 3, 2014) (inaccurate paystubs made under-reporting of wages more difficult to detect) and Ricaldai v. U.S. Investigations Servs., LLC, 878 F. Supp. 2d 1038, 1046 (C.D. Cal. 2012) (paystubs caused “confusion” and required “mathematical computations”)). Inaccurate pay statements do not, on their own, translate into lost wages or overtime premiums for the affected employee(s). Plaintiff’s claim here rests entirely on a recitation of the Labor Code provisions regarding wage statements, combined with the unsupported conclusion that Defendant failed to adhere to those provisions. That is not enough as a matter of law and this claim must be dismissed. VI. PLAINTIFF’S EIGHTH CLAIM FOR RECORDKEEPING VIOLATIONS IS TIME BARRED, DEVOID OF FACTS AND PLAINTIFF LACKS STANDING. A. The One Year Statute of Limitations for Penalty Claims Bars Plaintiff’s Purported Eighth Claim. Under Labor Code § 1174(d), employers are required to “keep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by the wages paid to….” Cal. Lab. Code §1174 (d). These records need to be kept for at least two years. An employer who fails to keep records as required by the California Labor Code (e.g. payroll records showing hours worked daily and wages paid to employees, and record of names and addresses of all employees) is subject to a civil penalty of $500. (Id.). Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 25 of 31 Page ID #:143 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 20 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx Plaintiff alleges in his Complaint that Defendant failed to comply with the Code requirement by failing to keep accurate and complete payroll records reflecting the number of hours worked daily by Plaintiff and the wages paid to Plaintiff and putative class members. Plaintiff’s employment ended more than a year before he filed this Complaint, so his claim for penalties under Section 1174(d) is time barred. B. Plaintiff Has No Standing to Bring a Claim Under Labor Code Section 1174. Cal. Labor Code § 1174 does not “offer a remedy directly recoverable by a Plaintiff, either by way of actual damages or a statutory penalty,” and therefore it does “not offer Plaintiff a private right of action.” (Byrd v. Masonite Corp., No. EDCD 16-35 JGBm (KKx), 2016 WL 756523, at *7 (C.D. Cal. 2016)). A party seeking a non-existent remedy fails to state a claim under that cause of action. (IMO Development Corp. v. Dow Corning Corp., 135 Cal. App. 3d 451, 458 (1982)). As such, even if his claim was not time barred (it is), Plaintiff has no standing to bring his recordkeeping violations claim under Labor Code section 1174. Accordingly, Plaintiff’s eighth claim must be dismissed with prejudice. (See Silva v. U.S. Bancorp, No. 5:10-cv-01854-JHN-PJWx, 2011 WL 7096576, at *3 (C.D. Cal. Oct. 6, 2011) (Nguyen, J.) (dismissing Section 1174 claim because there is no private right of action to assert it)). C. Plaintiff’s Labor Code 1174 Claim Is Not Supported By Facts. Even if this claim was not time barred and Plaintiff had standing to bring it, it would still fail because Plaintiff only alleges that Defendant “intentionally and willfully failed to keep accurate and complete payroll records showing the hours worked daily and the wages paid, to Plaintiff and the other class members.” (Complaint, ¶103). Plaintiff does not allege what records were inaccurate, how they were inaccurate or how Defendant’s conduct was intentional. This claim must therefore be dismissed and for the same reasons set forth in Sections III.C through III.G, supra, because Plaintiff’s bare allegation is insufficient Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 26 of 31 Page ID #:144 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 21 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx to meet the federal pleading standards articulated in FRCP 8. As a result, there is no plausible basis for Plaintiff’s eighth claim on either an individual or class-wide scale. VII. PLAINTIFF’S LABOR CODE SECTION 2802 CLAIM FAILS AS A MATTER OF LAW. In Paragraphs 107 and 108, Plaintiff allege that he and other class members “incurred necessary business-related expenses and costs that were not fully reimbursed by Defendants” and that Defendant “intentionally and willfully failed to reimburse Plaintiff and the other class members” for these expenses. (Complaint, ¶¶108-109). Plaintiff also alleges in a conclusory fashion that “Defendant knew or should have known that Plaintiff and the other class members were entitled to reimbursement for necessary business-related expenses.” (Complaint, ¶35). However, Plaintiff fails to allege any of the facts needed to convert his ninth claim for unpaid business expenses from the possible to the plausible, including, but not limited to, what expenses Plaintiff allegedly incurred, why those expenses were reasonable and necessary so as to be reimbursable under Section 2802 of the Labor Code, and whether Plaintiff notified Defendants of these supposed expenses or otherwise requested reimbursement. Thus, for the same reasons set forth in Sections III.C through III.G, supra, this claim fails because it is devoid of factual support and does not meet federal pleading standards. VIII. PLAINTIFF’S CLAIM UNDER SECTION 17200 DOES NOT SAVE HIS TIME BARRED PENALTY BASED CLAIMS, AND REGARDLESS, IT IS MERELY CONCLUSORY AND SHOULD BE DISMISSED. A. Plaintiff’s Section 17200 Does Not Extend the Limitations Period for His Sixth, Seventh or Eighth Claims. Plaintiff contends that Defendant has violated Business and Professions Code Section 17200, et seq. (the “UCL”) based on 14 sets of violations of the California Labor Code. (Complaint, ¶113). The UCL is a derivative claim and does not Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 27 of 31 Page ID #:145 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 22 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx proscribe any particular conduct; rather, it borrows from other laws by making them independently actionable as unfair competitive practices. Defendant anticipates Plaintiff will argue his penalty based claims are subject to a longer statute of limitations because these claims are predicate violations for his UCL claim, and therefore subject to a four year limitations period. (See Heckathorn Decl. ¶3, Exh. B). This theory does not rescue Plaintiff’s stale penalty based claims. Plaintiff’s UCL claim does not extend the limitations period for these claims because remedies under Section 17200 of the Business and Professions Code are limited to injunctive relief and restitution. (Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003)). In Korea Supply, the California Supreme Court “defined an order for ‘restitution’ as one ‘compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.”’ (Id. at 1144-45). Payment of wages constitutes restitution because wages are the property of the employee who has given his or her labor to the employer in exchange for that property. (Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 177 (2000)). Penalties, in contrast, are not monies owed in exchange for the labor of the employee and therefore cannot be classified as “restitution” for which a claim under Section 17200 would arise. (See Montecino v. Spherion Corp., 427 F. Supp. 2d 965 (C.D. Cal. 2006) (Section 203 penalty claim cannot be brought under California Business and Professions Code as it does not constitute a claim for restitution); Smith v. L’Oreal, USA, Inc., No. BC284690, 2008 WL 6014565, at *1 (Cal. Super. Ct., L.A. Nov. 12, 2008) (striking restitution claim for waiting time penalties because “such penalties are merely punitive in nature, and disgorgement of such withheld penalties does not restore the status quo.”)). As such, Plaintiff’s sixth, seventh and eighth claims are all time barred as set Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 28 of 31 Page ID #:146 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 23 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx forth in Sections IV.B, V.A and VI.A, supra. B. Plaintiff’s UCL Claim is Merely Conclusory and Must Be Dismissed. In his UCL claim, Plaintiff merely characterizes his previously pled claims for relief (discussed above) as unfair competition. (See Complaint, ¶¶110-116.) These “piggy-back” claims result exclusively from his first through ninth causes of action, and amount to nothing more than conclusory statements based on other conclusory statements. Predictably, Plaintiff has not included any evidentiary facts to clarify the basis for this claim, and it is as deficient in setting forth any non-conclusory, non- ambiguous factual statements as his previous claims. Because those claims are subject to dismissal, as outlined above, so, too, is his derivative unfair competition claim. (See Aleksick v. 7-Eleven, Inc., 205 Cal. App. 4th 1176, 1185 (2012) (“When a statutory claim fails, a derivative UCL claim also fails.”); cf. also, e.g., White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1089-90 (N.D. Cal. 2007) (dismissing the plaintiff’s unfair competition claim on the ground that it was derivative of his off-the- clock and meal and rest break claims, which had already been dismissed)). Moreover, to the extent that Plaintiff’s tenth cause of action is predicated on his earlier claims for waiting time penalties and inaccurate wage statements, it does not state a viable claim for relief because the “predicate violation” on which an unfair competition claim is based must be one that would give rise to a restitutionary remedy, and the Labor Code provisions underlying Plaintiff’s Labor Code sections 203 and 226 claims provide for recovery of penalties - not wages - which cannot be recovered as “restitution” under a UCL claim. (See, e.g., Pineda v. Bank of Am., N.A., 50 Cal. 4th 1389, 1401-02 (2010) (holding that “section 203 penalties cannot be recovered as restitution under the UCL”); In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 619 (N.D. Cal. 2007) (“[C]laims pursuant to Labor Code §§ 203 and 226 cannot support a § 17200 claim.”); Ordonez v. Radio Shack, No. CV 10-7060 CAS MANX, 2011 WL 499279, at *6 (C.D. Cal. Feb. 7, 2011) Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 29 of 31 Page ID #:147 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 24 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx (“Section 226(e) on its face provides for penalties rather than restitution and therefore cannot be the predicate violation on which to based {sic} plaintiff’s UCL claim.”)). As a result, Plaintiff’s unfair competition claim must be dismissed. IX. PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF. Plaintiff is no longer employed by Defendant, and therefore lacks Article III standing to seek injunctive relief against his former employer. (See Walsh v. Nev. Dep’t Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (former employee does not satisfy the injury component of Article III standing because “she would not stand to benefit from an injunction.”) and Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011) (“Plaintiffs not employed by Costco throughout this case do not have standing to seek injunctive relief.”)). Even a former employee seeking to represent current employees in a putative class action lacks standing to seek prospective injunctive relief on behalf of a putative class. (See, e.g., Ramirez v. Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531, at *7 (N.D. Cal. Jan. 10, 2014) (finding former employee did not face any threat of real and immediate future harm where she did not allege in the complaint that she intended to return to work for defendant in the future)). Accordingly, Plaintiff’s request for injunctive relief should be dismissed with prejudice. X. DEFENDANT’S MOTION SHOULD BE GRANTED IN ITS ENTIRETY. Ultimately, Plaintiff’s Complaint fails because Plaintiff has not offered a single factual allegation specific to Defendant, his employment with Defendant, or Defendant’s daily employment and wage-payment policies and practices that would substantiate his otherwise conclusory allegations. This type of empty, ambiguous, evanescent, and slapdash pleading violates federal pleading standards and Plaintiff’s counsel knows it. Accordingly, because Plaintiff’s Complaint fails to allege even a single non-conclusory, non-ambiguous fact to support the elements of his various individual and class-wide claims, his entire Complaint is fatally uncertain and wholly Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 30 of 31 Page ID #:148 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 25 Case No. 2:17-CV-03080-PSG-JPR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT 29648074_2.docx fails to state facts sufficient to state a claim against Defendant. Thus, this Court should grant Defendant’s Motion in its entirety and dismiss all of Plaintiff’s claims with prejudice. DATED: April 28, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Laura D. Heckathorn Linda Claxton Laura D. Heckathorn Attorneys for Defendant UFP RIVERSIDE, LLC Case 2:17-cv-03080-PSG-JPR Document 8-1 Filed 04/28/17 Page 31 of 31 Page ID #:149 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 1 of 13 Page ID #:150 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 2 of 13 Page ID #:151 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 3 of 13 Page ID #:152 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 4 of 13 Page ID #:153 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 5 of 13 Page ID #:154 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 6 of 13 Page ID #:155 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 7 of 13 Page ID #:156 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 8 of 13 Page ID #:157 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 9 of 13 Page ID #:158 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 10 of 13 Page ID #:159 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 11 of 13 Page ID #:160 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 12 of 13 Page ID #:161 Case 2:17-cv-03080-PSG-JPR Document 8-2 Filed 04/28/17 Page 13 of 13 Page ID #:162 Case No. 2:17-CV-03080-PSG-JPR [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT 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 29646561_1.docx LINDA CLAXTON, CA Bar No. 125729 linda.claxton@ogletree.com LAURA D. HECKATHORN, CA Bar No. 228861 laura.heckathorn@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: 213.239.9800 Facsimile: 213.239.9045 Attorneys for Defendant UFP RIVERSIDE, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA AARON FEAO; individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. UFP RIVERSIDE, LLC, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 2:17-CV-03080-PSG-JPR [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLASS ACTION COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) [Concurrently filed with Notice of Motion; Memorandum of Points & Authorities in Support of Motion; Request for Judicial Notice and Declaration of Laura D. Heckathorn] Date: July 10, 2017 Time: 1:30 p.m. Place: Courtroom 6A, 6th Floor First Street Courthouse 350 West 1st Street Complaint Filed: February 16, 2017 Trial Date: None Judge: Hon. Philip S. Gutierrez _________ Case 2:17-cv-03080-PSG-JPR Document 8-3 Filed 04/28/17 Page 1 of 4 Page ID #:163 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 1 Case No. 2:17-CV-03080-PSG-JPR [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT29646561_1.docx On July 10, 2017, at 1:30 p.m., a hearing was held on the motion by defendant UFP Riverside, LLC (“Defendant”) to dismiss the Class Action Complaint (“Complaint”) filed by plaintiff Aaron Feao (“Plaintiff”) pursuant to Federal Rule of Civil Procedure 12(b)(6)(“Motion”). The Court, having considered the papers on the Motion, the arguments of counsel, and the law, and good cause appearing therefore, hereby rules as follows: 1. Plaintiff’s Complaint fails to allege specific facts that make his claims plausible, as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and Ashcroft v. Iqbal, 556 U.S. 662 (2009) and therefore should be dismissed. 2. Plaintiff’s first claim for unpaid overtime wages in violation of Labor Code Sections 510 and 1198 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 3. Plaintiff’s second claim for unpaid meal period premiums in violation of California Labor Code Sections 226.7 and 512(a) fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 4. Plaintiff’s third claim for unpaid rest period premiums in violation of California Labor Code Section 226.7 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 5. Plaintiff’s fourth claim for violation for unpaid minimum wages in violation of California Labor Code Sections 1194, 1197, and 1197.1 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 6. Plaintiff’s fifth claim for failure to timely pay final wages in violation of California Labor Code Sections 201 and 202 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could Case 2:17-cv-03080-PSG-JPR Document 8-3 Filed 04/28/17 Page 2 of 4 Page ID #:164 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 2 Case No. 2:17-CV-03080-PSG-JPR [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT29646561_1.docx plausibly be entitled to relief under FRCP 8. 7. Plaintiff’s sixth claim for wages not timely paid during employment in violation of California Labor Code Section 204 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 8. Plaintiff’s sixth claim for wages not timely paid during employment in violation of California Labor Code Section 204 fails because it is time barred. 9. Plaintiff’s sixth claim for wages not timely paid during employment in violation of California Labor Code Section 204 fails because there is no private cause of action to collect penalties under this law. 10. Plaintiff’s seventh claim for non-complaint wage statements in violation of California Labor Code Section 226(a) fails because it is time barred. 11. Plaintiff’s seventh claim for non-complaint wage statements in violation of California Labor Code Section 226(a) fails because it does not allege the wage statements inaccurately reported the wages reported to him. 12. Plaintiff’s seventh claim for non-complaint wage statements in violation of California Labor Code Section 226(a) fails because it fails to allege a cognizable injury. 13. Plaintiff’s eighth claim for failure to keep requisite payroll records in violation of California Labor Code Section 1174(d) fails because it is time barred. 14. Plaintiff’s eighth claim for failure to keep requisite payroll records in violation of California Labor Code Section 1174(d) fails because Plaintiff lacks standing. 15. Plaintiff’s eighth claim for failure to keep requisite payroll records in violation of California Labor Code Section 1174(d) fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 16. Plaintiff’s ninth claim for unreimbursed business expenses in violation Case 2:17-cv-03080-PSG-JPR Document 8-3 Filed 04/28/17 Page 3 of 4 Page ID #:165 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 3 Case No. 2:17-CV-03080-PSG-JPR [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT29646561_1.docx of California Labor Code Sections 2800 and 2802 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 17. Plaintiff’s tenth claim for violation of California Business and Professions Code Section 17200 fails because it does not allege specific factual allegations showing that Plaintiff or any member of the putative class could plausibly be entitled to relief under FRCP 8. 18. Plaintiff’s tenth claim for violation of California Business and Professions Code Section 17200 fails because it is based upon his defective claims for labor code violations. 19. Plaintiff’s request for injunctive relief fails because he lacks standing as a former employee of Defendant. Defendant’s motion to dismiss Plaintiff’s Complaint is therefore GRANTED. Plaintiff’s sixth, seventh and eighth claims are dismissed with prejudice. Plaintiff’s request for injunctive relief is dismissed with prejudice. Plaintiff’s remaining claims are dismissed without prejudice. IT IS SO ORDERED. Dated: By: _________________________ Hon. Philip S. Gutierrez Case 2:17-cv-03080-PSG-JPR Document 8-3 Filed 04/28/17 Page 4 of 4 Page ID #:166
