Alejandro Rodriguez v. QG Printing Corp. et al

NOTICE OF MOTION AND MOTION to Dismiss Case for Failure to State A Claim

C.D. Cal.August 26, 2016

LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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’ NOTICE OF MOTION AND MOTION TO DISMISS STACEY E. JAMES, Bar No. 185651 sjames@littler.com SHANNON M. GOING, Bar No. 273844 sgoing@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ALEJANDRO RODRIGUEZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. QG PRINTING CORP., an unknown business entity; QUAD/GRAPHICS, an unknown business entity; QUAD GRAPHICS, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 5:16-cv-01792-GHK (SPx) (Riverside Superior Court Case No. RIC 1606900) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Date: October 17, 2016 Time: 9:30 a.m. Judge: Hon. George H. King Complaint filed: June 3, 2016 Case 5:16-cv-01792-GHK-SP Document 13 Filed 08/26/16 Page 1 of 3 Page ID #:94 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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’ NOTICE OF MOTION AND MOTION TO DISMISS TO PLAINTIFF ALEJANDRO RODRIGUEZ AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 17, 2016 at 9:30 a.m., in Courtroom 650 of the United States District Court, Central District of California, located at 255 E. Temple Street, 6th Floor, Los Angeles, CA 90012, Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) (“Defendants”) will and hereby do move this Court for an order dismissing Plaintiff Alejandro Rodriguez’s (“Plaintiff”) Complaint, and all claims set forth therein, with prejudice for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Defendants also move this Court for an order dismissing Plaintiff’s claims for penalties associated with alleged unpaid minimum wages, inaccurate wage statements, failure to keep accurate payroll records, and unreimbursed business expenses because they are barred by the applicable statute of limitations pursuant to Cal. Code Civ. Proc. § 340(a). Lastly, Plaintiff’s claims under California Labor Code sections 1197.1, 204, and 1174(d) for penalties associated with unpaid minimum wages, inaccurate wage statements, and failure to keep accurate payroll records must be dismissed because there is no private right of action under these statutes. This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which commenced on August 19, 2016 and concluded on August 24, 2016. See Declaration of Shannon M. Going In Support of Defendants’ Motion to Dismiss, ¶¶ 3-6. \\ \\ \\ Case 5:16-cv-01792-GHK-SP Document 13 Filed 08/26/16 Page 2 of 3 Page ID #:95 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS 2. This Motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of Shannon M. Going, Plaintiff’s Complaint, and upon all other papers and pleadings on file in this matter. Dated: August 26, 2016 s/Shannon M. Going STACEY E. JAMES SHANNON M. GOING LITTLER MENDELSON, P.C. Attorneys for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) Firmwide:142198481.1 050407.1106 Case 5:16-cv-01792-GHK-SP Document 13 Filed 08/26/16 Page 3 of 3 Page ID #:96 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS STACEY E. JAMES, Bar No. 185651 sjames@littler.com SHANNON M. GOING, Bar No. 273844 sgoing@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ALEJANDRO RODRIGUEZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. QG PRINTING CORP., an unknown business entity; QUAD/GRAPHICS, an unknown business entity; QUAD GRAPHICS, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 5:16-cv-01792-GHK (SPx) (Riverside Superior Court Case No. RIC 1606900) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [F.R.C.P. 12(B)(6)] Date: October 17, 2016 Time: 9:30 a.m. Judge: Hon. George H. King Complaint filed: June 3, 2016 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 1 of 27 Page ID #:97 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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. I. INTRODUCTION ............................................................................................... 1 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY .......................... 2 III. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO MEET FEDERAL PLEADING STANDARDS UNDER TWOMBLY AND IQBAL.................................................................................. 2 A. Plaintiff Must Offer Specific Facts In Support Of His Claims ................. 2 B. Courts Routinely Dismiss Wage And Hour Class Action Complaints, Such As Plaintiff’s Complaint, That Merely State Bare Assertions And Conclusory Allegations Without Any Facts ........... 4 1. Plaintiff Has Not Met The Basic Pleading Threshold Required For Him To Proceed Under Iqbal and Twombly ............ 5 2. Plaintiff’s Unpaid Overtime Wage Compensation Claim Is Supported By Conclusory Allegations (First Claim) ..................... 5 3. Plaintiff Asserts Mere Recitations For His Claims Of Meal Period And Rest Break Violations (Second And Third Claims) ............................................................................................ 6 4. Plaintiff’s Unpaid Minimum Wage Claim Lacks Any Factual Allegations (Fourth Claim) ................................................ 7 5. Plaintiff Asserts No Factual Allegations For His Claim For “Final Wages Not Timely Paid” (Fifth Claim) ............................... 8 6. Plaintiff’s Claim For Wages Not Timely Paid During Employment Is Devoid Of Factual Allegations (Sixth Claim) ...... 9 7. Plaintiff Asserts Conclusory Allegations For His Inaccurate Wage Statement Claim (Seventh Claim) ...................................... 10 8. Plaintiff’s Asserts Conclusory Allegations For Defendants’ Failure to Keep Payroll Records Claim (Eighth Claim) ............... 11 9. Plaintiff Fails To State A Claim For Unreimbursed Business Expenses (Ninth Claim) ................................................................ 12 10. Plaintiff Fails To State A Claim For Violation Of The California Business & Professions Code Section 17200 Et Seq. (Tenth Claim) ........................................................................ 13 C. Plaintiff’s Allegations Related To Claims For Any Penalties Pursuant to Labor Code Sections 1197.1, 226(e), 1174.5, And 2802 Must Be Dismissed Because The Statute Of Limitations Has Run On Those Claims (Fourth, Seventh, Eighth, and Ninth Penalty Claims) .................................................................................................... 13 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 2 of 27 Page ID #:98 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE ii. D. There Is No Private Right Of Action Under Sections 1197.1 or 204 ..... 15 E. The Eighth Cause of Action For The Alleged Violation of Labor Code Section 1174 Must Be Dismissed With Prejudice Because Plaintiff Has Not Exhausted His Administrative Remedies, And The Statute Of Limitations Has Passed .................................................. 16 F. Plaintiff’s Allegations In His Section 17200 Claim Regarding Penalty Claims Are Immaterial And Therefore Must Be Dismissed ..... 18 IV. DEFENDANTS FULFILLED THEIR OBLIGATION TO MEET AND CONFER UNDER LOCAL RULE 7-3 ............................................................ 19 V. CONCLUSION ................................................................................................. 19 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 3 of 27 Page ID #:99 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 iii. CASES Arias v. Superior Court, 46 Cal. 4th 969 (2009) .......................................................................................................17 Ashcroft v. Iqbal, 129 S. Ct. 1937 ............................................................................................................3, 9, 12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................... passim Baas v. Dollar Tree Stores, 2009 U.S. Dist. LEXIS 57531 (N.D. Cal., June 18, 2009) .......................................18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................... passim Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb. 25, 2016) ...........................................4 Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365 (2005) ....................................................................................18, 17 Craib v. Bulmash, 49 Cal.3d 475 .......................................................................................................................15 Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345 (C.D. Cal. July 17, 2009) .........................4, 10, 12, 13 Department of Industrial Relations v. UI Video Stores, Inc., 55 Cal. App. 4th 1084 (1997) ..........................................................................................15 Glover v. Fremont Inv. & Loan, 2009 U.S. Dist. Lexis 117890 (N.D. Cal. Dec. 18, 2009) ....................................6, 13 Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365 (1975) ..............................................................................................15 Gonzalez v. Fallanghina, LLC, 2016 U.S. Dist. LEXIS 96121 (N.D. Cal. July 22, 2016) ...........................................4 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 4 of 27 Page ID #:100 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE iv. Harding v. Time Warner, Inc., 2009 U.S. Dist. LEXIS 72851 (S.D. Cal. Aug. 18, 2009) ................................ passim Hill v. Opus Corp., 841 F. Supp. 2d 1070 (C.D. Cal. 2011) ...................................................................................14 In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609 (N.D. Cal. 2007) ...........................................................................18 Jablon v. Dean Witter & Co., 614 F.2d 677 (1980) ...........................................................................................................14 Jeske v. Maxim Healthcare Servs., Inc., 2012 U.S. Dist. LEXIS 2963, 2012 WL 78242 (E.D. Cal. Jan. 10, 2012) ...........15 Johnson v. GMRI, Inc., 2007 U.S. Dist. LEXIS 27368 (E.D. Cal., Mar. 29, 2007) .......................................17 Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114 (N.D. Cal. 2011) aff'd, 546 F. App'x 613 (9th Cir. 2013) .......................................................................................................................................15 Kuang Xuan Liu v. Win Woo Trading, LLC, 2016 U.S. Dist. LEXIS 78121 (N.D. Cal., June 15, 2016) .......................................18 Landers v. Quality Communs., Inc., 2014 U.S. App. LEXIS 21440 (9th Cir. Nov. 12, 2014) .........................................4, 6 Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592 (2010) .......................................................................................................16 Madrigal v. Tommy Bahama Group, Inc., 2010 U.S. Dist. LEXIS 121573 (C.D. Cal. Oct. 18, 2010) (Otero, J.) ..................17 Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) ..........................................................................................3, 8 Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) .....................................................................................................14 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 5 of 27 Page ID #:101 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE v. Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ..............................................................................................2 Sasha Ovieda v. Sodexo Operations, LLC, 2012 U.S. Dist. LEXIS 173844 (C.D. Cal. May 7, 2012) ......................................4, 6 Schneider v. Space Systems/Loral Inc., 2012 U.S. Dist. LEXIS 19001 (N.D. Cal. Feb. 14, 2012) ................................4, 9, 10 Silva v. U.S. Bancorp et al., 2011 U.S. Dist. LEXIS 152817 (C.D. Cal. Oct. 6, 2011) .........................................17 Thomas v. Home Depot, USA, 527 F. Supp. 2d 1003 (N.D. Cal. 2007) .............................................................................17, 18 Tomlinson v. Indymac Bank, 359 F. Supp. 2d 891 (C.D. Cal. 2005) ...........................................................................18 Vikco Ins. Servs., Inc. v. Ohio Indemnity Co., 70 Cal. App. 4th 55 (1999) ...............................................................................................17 Young v. ABM Sec. Servs., 905 F.2d 1541 (9th Cir. 1990) .........................................................................................15 STATUTES California Business & Professions Code section 17200 et seq. ................................2, 13 California Code of Civil Procedure section 340(a) ....................................................14, 17 California Labor Code sections 201 and 202 (6) ................................................................2 California Labor Code sections 201, 202, and 203 ........................................................8, 9 California Labor Code section 204 ............................................................................. passim0 California Labor Code section 210 .......................................................................................15 California Labor Code section 226 .........................................................................................2 California Labor Code section 1174 ..........................................................................1, 17, 20 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 6 of 27 Page ID #:102 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 (CONTINUED) PAGE vi. California Labor Code sections 1194 .....................................................................................8 California Labor Code Section 1197 ..........................................................................8, 15, 16 California Labor Code section 2699 ..............................................................................16, 17 California Labor Code section 2800 and 2802 ..................................................................12 California Labor Code section 2802 ......................................................................................2 Fair Labor Standards Act ..........................................................................................................4 OTHER AUTHORITIES Federal Rule of Civil Procedure 8(a) .....................................................................................3 Federal Rule of Civil Procedure 12(b)(6) ................................................................... passim Local Rule 7-3............................................................................................................................19 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 7 of 27 Page ID #:103 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION Plaintiff Alejandro Rodriguez (“Plaintiff”) has not pled a single fact to support his claims against his former employers Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) (“Defendants”) 1. The allegations in the Complaint fail to explain when, why or how Defendants allegedly failed to pay wages to Plaintiff or other putative class members. Rather, Plaintiff instead relies solely on unfounded conclusions and recitations of the legal elements. Such contentions fail to state any viable claim. Accordingly, the Court should dismiss Plaintiff’s claims in their entirety. Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). Further, not only does Plaintiff fail to meet the pleading standards set forth in Iqbal and Twombly, Plaintiff’s claims for penalties associated with alleged unpaid minimum wages, inaccurate wage statements, failure to keep accurate payroll records, and unreimbursed business expenses also independently fail because they are barred by the applicable statute of limitations. Plaintiff had only one year from his termination to seek statutory penalties. Plaintiff’s employment terminated in June 2014. Plaintiff, however, filed this action approximately two years after his termination. He is subsequently barred from pursuing these claims. Finally, Plaintiff’s claims under California Labor Code sections 1197.1, 204, and 1174(d) for penalties associated with alleged unpaid minimum wages, inaccurate wage statements, and failure to keep accurate payroll records must be dismissed because there is no private right of action under these statutes. Accordingly, the Court should grant Defendants’ motion and dismiss each and every one of Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). 1 Plaintiff also named “QUAD GRAPHICS, an unknown business entity,” however, it appears that no such legal entity exists. Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 8 of 27 Page ID #:104 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 2. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff worked for Defendants from April 2013 to June 2014. (Dkt #1; Complaint, ¶ 20.) Plaintiff filed his class action-styled complaint, asserting a variety of wage and hour claims, on June 3, 2016. Defendant removed the case to the Central District of California on August 19, 2016. (Dkt #1.) Plaintiff seeks to represent “[a]ll current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of this Complaint to final judgment.” (Dkt #1; Complaint, ¶ 15.) He asserts ten claims in his Complaint for: (1) unpaid overtime wages in violation of California Labor Code2 sections 510 and 1198, (2) meal period violations under Labor Code sections 226.7 and 512(a), (3) rest period violations under Labor Code section 226.7, (4) unpaid minimum wages in violation of Labor Code sections 1194, 1197, and 1197.1, (5) final wages not timely paid in violation of Labor Code sections 201 and 202, (6) wages not timely paid during employment in violation of Labor Code section 204, (7) non-compliant wage statements in violation of Labor Code section 226(a), (8) failure to keep requisite payroll records in violation of Labor Code section 1174(d), (9) unreimbursed business expenses in violation of Labor Code sections 2800 and 2802, and (10) violation of California Business & Professions Code section 17200 et seq. (See generally Dkt #1, Complaint.) III. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO MEET FEDERAL PLEADING STANDARDS UNDER TWOMBLY AND IQBAL A. Plaintiff Must Offer Specific Facts In Support Of His Claims A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2 Defendants’ references to the Labor Code are to the California Labor Code unless otherwise indicated. Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 9 of 27 Page ID #:105 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 3. 2001). A court ruling on a Rule 12(b)(6) motion must decide whether the facts alleged, if true, would entitle the plaintiff to a legal remedy. Id. To comply with the pleading requirements in Federal Rule of Civil Procedure 8(a), a plaintiff must plead specific facts that, if true, support a reasonable inference of liability. See Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 557. A plaintiff cannot state a viable claim based solely on unfounded legal conclusions. Iqbal, 129 S. Ct. at 1950 citing Twombly, 550 U.S. at 555. A formulaic recitation of the elements of a claim will also not suffice. Rather, the plaintiff bears an “obligation to provide the grounds of [his] entitlement to relief . . . [with] more than labels and conclusions.” Twombly, 550 U.S. at 555; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A pleading that offers only “naked assertions devoid of further factual enhancement” will not survive a motion to dismiss. See Twombly, 550 U.S. at 555, 557; Iqbal, 129 S. Ct. at 1949. Factual allegations that offer nothing more than a speculative possibility as to potential relief are likewise insufficient. Twombly, 550 U.S. at 555 citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). (“The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). To assess compliance with these pleading requirements, a court must disregard all legal conclusions, conclusory statements and formulaic recitals of the elements of a claim and look to only the well-pled, non-conclusory factual allegations. It must assume the truth of those facts and decide based on those facts alone, whether plaintiff has stated a claim for relief. See Iqbal, 129 S. Ct. at 1949-50. If those facts fail to state a claim for relief, then the lawsuit cannot proceed as framed and the court must grant dismissal. Id. Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 10 of 27 Page ID #:106 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 4. B. Courts Routinely Dismiss Wage And Hour Class Action Complaints, Such As Plaintiff’s Complaint, That Merely State Bare Assertions And Conclusory Allegations Without Any Facts Courts have increasingly dismissed class action complaints asserting wage and hour claims that are devoid of factual allegations and “slavishly repeat the statutory language as to the purported factual allegations.” See Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345, at *7 (C.D. Cal. July 17, 2009); Harding v. Time Warner, Inc., 2009 U.S. Dist. LEXIS 72851 (S.D. Cal. Aug. 18, 2009) (dismissing putative class action alleging that “the employer failed to pay and properly calculate overtime” and “provide all wages in a compliant manner,” among other similarly vague allegations); Sasha Ovieda v. Sodexo Operations, LLC, 2012 U.S. Dist. LEXIS 173844 (C.D. Cal. May 7, 2012) (dismissing wage-and-hour class action for failing to meet Iqbal factual pleading standards); Schneider v. Space Systems/Loral Inc., 2012 U.S. Dist. LEXIS 19001 (N.D. Cal. Feb. 14, 2012) (same); Gonzalez v. Fallanghina, LLC, 2016 U.S. Dist. LEXIS 96121, *17 (N.D. Cal. July 22, 2016) (dismissing a complaint for federal and California Labor Code violations where plaintiff simply alleged legal conclusions without facts and circumstances to support the elements of his claims); Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435, *14 (C.D. Cal. Feb. 25, 2016) (dismissing a complaint for California Labor Code violations because it fails to allege “non-conclusory factual content”); see also Landers v. Quality Communs., Inc., 2014 U.S. App. LEXIS 21440 (9th Cir. Nov. 12, 2014) (affirming district court’s dismissal of complaint presenting generalized allegations of violations of overtime provisions under the Fair Labor Standards Act). Similar to these cases, Plaintiff’s Complaint should be dismissed because his allegations amount to mere recitation of the elements of the claims and fail to satisfy minimum pleading requirements. Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 11 of 27 Page ID #:107 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 5. 1. Plaintiff Has Not Met The Basic Pleading Threshold Required For Him To Proceed Under Iqbal and Twombly Here, Plaintiff alleges only a single, even arguable “fact” in his entire Complaint: Defendants, jointly and severally, employed Plaintiff as an hourly-paid, non-exempt employee, from approximately April 2013 to approximately June 2014 in the State of California. (Dkt #1, Complaint, ¶ 20.) However, even though Plaintiff certainly knows the details of his own employment, he does not allege what position he held with Defendants, the amount of wages Defendants supposedly owe him, any explanation about why Defendants owe him wages, or any factual details whatsoever. Plaintiff likewise alleges there exists a general “scheme of wage abuse,” yet offers not a single factual insight into what the purported wage abuse is or how it qualifies as a “scheme.” (Dkt #1, Complaint, ¶ 27.) Plaintiff’s allegations consist of pure legal conclusions and skeletal recitations of the elements of each claim, which are subject to dismissal. See Twombly, 550 U.S. at 570 (holding conclusory allegations insufficient and concluding that “Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed”). 2. Plaintiff’s Unpaid Overtime Wage Compensation Claim Is Supported By Conclusory Allegations (First Claim) To support Plaintiff’s unpaid overtime wage compensation claim, Plaintiff solely asserts the following conclusory allegations:  “At all material times set forth herein, Defendants failed to pay overtime wages to Plaintiff and the other class members for all hours worked. Plaintiff and the other class members were required to work more than eight (8) hours per day and/or forty (40) hours per week without overtime compensation.” (Dkt #1, Complaint, ¶ 39.)  “During the relevant time period, Plaintiff and other class members worked Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 12 of 27 Page ID #:108 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 6. in excess of eight (8) hours in a day, and/or in excess of forty (40) hours in a week. . . . Defendants intentionally and willfully failed to pay overtime wages owed to Plaintiff and the other class members, including failing to properly calculate the overtime rate.” (Dkt #1, Complaint, ¶¶ 54-55.) Plaintiff’s bare allegations cannot survive a motion to dismiss. Harding, 2009 U.S. Dist. Lexis 72851, at *4 citing Jones v. Casey’s Gen. Stores, 538 F. Supp. 2d 1094, 1102 (S.D. Iowa 2008) (relying on Twombly, court disregarding conclusory allegations that “Time Warner violated the Labor Code by ‘maintain(ing) ... a practice of paying employees without regard to the number of hours actually worked”); see also Landers, 2014 U.S. App. LEXIS 21440, at *19-*21 (court affirmed district court’s dismissal of complaint that generally alleged defendant failed to pay overtime wages and court further noted absence of detailed allegations of when plaintiff was not paid overtime). “Simply tracking statutory language or raising general allegations [] is insufficient to properly raise a claim for relief.” Glover v. Fremont Inv. & Loan, 2009 U.S. Dist. Lexis 117890 at *6 (N.D. Cal. Dec. 18, 2009) citing Twombly, 550 U.S. at 555. 3. Plaintiff Asserts Mere Recitations For His Claims Of Meal Period And Rest Break Violations (Second And Third Claims) Plaintiff’s allegations to support his meal period and rest break claims include fewer factual allegations in comparison to those claims courts have dismissed. See Harding, 2009 U.S. Dist. Lexis 72851, at *9-*10 (dismissing claims alleging defendant failed to “provide uninterrupted Meal Periods”); Weigele, 2010 U.S. Dist. LEXIS 120475, *11-*12 (dismissing claims alleging “Defendant required Plaintiffs to work . . . without being given a 30-minute meal period for shifts of at least five hours” and “Defendant required Plaintiffs to work without being given paid ten minute rest periods for every four hours or major fraction thereof”); Ovieda, 2012 U.S. Dist. LEXIS 173844, at *5-*9 (plaintiff failed to meet minimum pleading requirement by averring defendants “failed to provide their employees with required ten minute rest Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 13 of 27 Page ID #:109 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 7. periods”). Plaintiff merely parrots the elements of the claims:  “Defendants failed to provide Plaintiff and the other class members the required rest and meal periods during the relevant time period as required under the Industrial Welfare Commission Wage Orders and thus they are entitled to any and all applicable penalties.” (Dkt #1, Complaint, ¶ 29.)  “Defendants failed to provide the requisite uninterrupted meal and rest periods to Plaintiff and the other class members. (Dkt #1, Complaint, ¶ 40.)  “Plaintiff and the other class members who were scheduled to work for a period of time no longer than six (6) hours, and who did not waive their legally-mandated meal periods by mutual consent” (Dkt #1, Complaint, ¶ 63), [or] “who were scheduled to work for a period of time in excess of six (6) hours” (Dkt #1, Complaint, ¶ 64) “were required to work for periods longer than five (5) hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period.” (Dkt #1, Complaint, ¶¶ 63-64.)  “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.” (Dkt #1, Complaint, ¶ 73.) Plaintiff’s so-called allegations regarding his meal period and rest break claims lack a single factual allegation and, subsequently, should be dismissed. 4. Plaintiff’s Unpaid Minimum Wage Claim Lacks Any Factual Allegations (Fourth Claim) Plaintiff again fails to assert factual allegations to support his claim for unpaid minimum wage compensation, alleging only the following:  “Defendants knew or should have known that Plaintiff and the other class members were entitled to receive at least minimum wages for compensation and that they were not receiving at least minimum wages for all hours worked.” (Dkt #1, Complaint, ¶ 32.)  “Defendants failed to pay Plaintiff and the other class members at least Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 14 of 27 Page ID #:110 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 8. minimum wages for all off the clock hours worked.” (Dkt #1, Complaint, ¶ 41.)  “During the relevant time period, Defendants failed to pay minimum wage to Plaintiff and the other class members as required, pursuant to California Labor Code sections 1194, 1197, and 1197.1” (Dkt #1, Complaint, ¶ 80.) Plaintiff provides no information whatsoever to Defendants so it can properly defend against this claim. Instead, Plaintiff improperly recites the same conclusory allegations that Defendants failed to pay minimum wages. See Moss v. U.S. Secret Service, 572 F. 3d 962, 969 (9th Cir. 2009) quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (“bare assertions ... amounting to nothing more than a formulaic recitation of the elements ..., for the purposes of ruling on a motion to dismiss, are not entitled to an assumption of truth.”). This claim too should be dismissed. 5. Plaintiff Asserts No Factual Allegations For His Claim For “Final Wages Not Timely Paid” (Fifth Claim) Plaintiff’s waiting-time claim under Labor Code sections 201, 202, and 203 hinges on his overtime, minimum wage, and meal and rest break claims. (See Dkt #1, Complaint, ¶¶ 33, 84.) Similar to his allegations to support those claims, Plaintiff provides mere formulaic recitation of his claim for untimely payment of final wages:  “Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all wages owed to them upon discharge or resignation, including overtime and minimum wages, meal and rest period premiums, and they did not, in fact, receive all wages owed to them at the time of their discharge or resignation.” (Dkt #1, Complaint, ¶ 33.)  “Defendants failed to pay Plaintiff and the other class members all wages owed to them upon discharge or resignation.” (Dkt #1, Complaint, ¶ 42.)  “Defendants intentionally and willfully failed to pay the other class members who are no longer employed by Defendants their wages, earned and unpaid, Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 15 of 27 Page ID #:111 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 9. within seventy-two (72) hours of their leaving Defendants’ employ.” (Dkt #1, Complaint, ¶ 86.) Plaintiff’s threadbare recitals of the elements of this claim cannot survive a motion to dismiss. See Weigele, 2010 U.S. Dist. LEXIS 120475, at *11 (court found insufficient allegation that “Defendant . . . willfully failed and refused, and continues to fail and refuse to pay wages promptly when due upon termination of employment to each of the Plaintiffs.”); Schneider, 2012 U.S. Dist. LEXIS 19001 (same). Plaintiff’s Sections 201, 202, and 203 claim should be dismissed. 6. Plaintiff’s Claim For Wages Not Timely Paid During Employment Is Devoid Of Factual Allegations (Sixth Claim) Plaintiff’s allegations to support his claim for wages not timely paid during employment in violation of Labor Code section 204 amount to threadbare recitals of the elements of the cause of action. Plaintiff alleges:  “Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all wages owed to them during their employment. Plaintiff and the other class members did not receive payment of all wages, including overtime and minimum wages and meal and rest period premiums, within any time permissible under California Labor Code section 204.” (Dkt #1, Complaint, ¶ 34.)  “Defendants failed to pay Plaintiff and the other class members all wages within any time permissible under California law, inter alia, California Labor Code section 204.” (Dkt #1, Complaint, ¶ 43.)  “Defendants 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.” (Dkt #1, Complaint, ¶ 94.) Plaintiff fails to satisfy pleading requirements that a complaint contain sufficient factual matter, that accepted as true, will “state a claim to relief that is plausible on its face.” Ashcroft, 129 S. Ct. at 1949. Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 16 of 27 Page ID #:112 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 10. Plaintiff’s Sixth Claim should be dismissed for failing to state a claim for which relief may be granted. See Harding, 2009 U.S. Dist. LEXIS 72851, at *8-*10 (dismissing claim alleging defendant failed to “provide all wages in a compliant manner”); Deleon, 2009 U.S. Dist. LEXIS 74345, at *2, *8 (court dismissed section 204 claim because plaintiff merely parroted the statutory language). 7. Plaintiff Asserts Conclusory Allegations For His Inaccurate Wage Statement Claim (Seventh Claim) Plaintiff supports his inaccurate wage statement claim with conclusory allegations that courts have similarly found insufficient and dismissed. See Harding, 2009 U.S. Dist. LEXIS 72851, at *8-*10 (dismissing claim alleging defendant failed to “provide Itemized Wage Statements”); Schneider, 2012 U.S. Dist. LEXIS 19001 (same). Similar to his claims for unpaid overtime and minimum wage compensation and meal and rest period claims, which establish Plaintiff’s Seventh Claim (See Dkt #1, Complaint, ¶ 96), Plaintiff only provides conclusory allegations:  “Defendants knew or should have known that Plaintiff and the other class members were entitled to receive complete and accurate wage statements in accordance with California law, but, in fact, they did not receive complete and accurate wage statements from Defendants. The deficiencies included, inter alia, the failure to include the total number of hours worked by Plaintiff and the other class members.” (Dkt #1, Complaint, ¶ 35.)  “Defendants failed to provide complete or accurate wage statements to Plaintiff and the other class members.” (Dkt #1, Complaint, ¶ 44.)  “Defendants have intentionally and willfully failed to provide Plaintiff and the other class members with complete and accurate wage statements. The deficiencies include, but are not limited to: the failure to include the total number of hours worked by Plaintiff and the other class members.” (Dkt #1, Complaint, ¶ 98.) Plaintiff’s limited allegations as to this claim are substantially identical, and Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 17 of 27 Page ID #:113 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 11. similarly lack any factual allegation. His allegations are vague and fail to provide sufficient notice to Defendants as to the claim asserted against it, impeding Defendants’ ability to properly answer and defend against the claim. This claim must be dismissed. 8. Plaintiff’s Asserts Conclusory Allegations For Defendants’ Failure to Keep Payroll Records Claim (Eighth Claim) Plaintiff’s allegations to support his claim for Defendants’ failure to keep payroll records in violation of Labor Code section 1174(d) lack even threadbare recitals of the elements. Plaintiff’s allegations are similarly pled like the rest of his claims:  “Defendants knew or should have known that Defendants had to keep complete and accurate payroll records for Plaintiff and the other class members in accordance with California law, but, in fact, did not keep complete and accurate payroll records.” (Dkt #1, Complaint, ¶ 36.)  “Defendants failed to keep complete or accurate payroll records for Plaintiff and the other class members.” (Dkt #1, Complaint, ¶ 45.)  “Defendants have 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.” (Dkt #1, Complaint, ¶ 105.) Plaintiff’s allegations suffer from the same lack of factual support to assert a section 1174(d) claim as his other previous claims. This conclusory claim should be dismissed as it fails to provide sufficient notice to Defendants as to the claim asserted against it, impeding Defendants’ ability to properly answer and defend against the claim. See Harding, 2009 U.S. Dist. LEXIS 72851, at *3 (applying the Twombly/Ashcroft standard, court held that “conclusory allegations” “will be ‘assigned no weight.’”). Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 18 of 27 Page ID #:114 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 12. 9. Plaintiff Fails To State A Claim For Unreimbursed Business Expenses (Ninth Claim) Plaintiff’s allegations to support his claim for unreimbursed business expenses in violation of Labor Code sections 2800 and 2802 amount to threadbare recitals of the elements of the cause of action. Plaintiff alleges:  “Defendants knew or should have known that Plaintiff and the other class members were entitled to reimbursement for necessary business-related expenses.” (Dkt #1, Complaint, ¶ 37.)  “Defendants failed to reimburse Plaintiff and the other class members for necessary business-related expenses and costs.” (Dkt #1, Complaint, ¶ 46.)  “Defendants intentionally and willfully failed to reimburse Plaintiff and the other class members for all necessary business-related expenses and costs. Plaintiff and the other class members are entitled to recover from Defendants their business-related expenses and costs incurred during the course and scope of their employment, plus interest accrued from the date on which the employee incurred the necessary expenditures at the same rate as judgments in civil actions in the State of California.” (Dkt #1, Complaint, ¶ 111.) Plaintiff fails to satisfy pleading requirements that a complaint contain sufficient factual matter, that accepted as true, will “state a claim to relief that is plausible on its face.” Ashcroft, 129 S. Ct. at 1949. Here, Plaintiff does not even identify the alleged “business-related expense or cost” he claims Defendants failed to reimburse. Plaintiff’s Ninth Claim should be dismissed for failing to state a claim for which relief may be granted. See Harding, 2009 U.S. Dist. LEXIS 72851, at *8-*10 (dismissing claim alleging defendant failed to “provide all wages in a compliant manner”); Deleon, 2009 U.S. Dist. LEXIS 74345, at *2, *8 (court dismissed section 204 claim because plaintiff merely parroted the statutory language). Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 19 of 27 Page ID #:115 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 13. 10. Plaintiff Fails To State A Claim For Violation Of The California Business & Professions Code Section 17200 Et Seq. (Tenth Claim) Plaintiff’s claim for violation of the California Business & Professions Code section 17200 et seq. is predicated on Plaintiff’s First through Ninth Claims. (See Dkt #1, Complaint, ¶¶ 112-118.) Because Plaintiff fails to sufficiently plead his First through Ninth Claims, his Tenth Claim is also subject to dismissal for conclusory allegations that do not meet the minimum pleading requirement. Glover, 2009 U.S. Dist. LEXIS 117890 at *6. At its core, Plaintiff’s Complaint alleges nothing more than the fact that Plaintiff worked for Defendant in some capacity and his assertion that Defendant violated wage and hour laws. Courts have rejected such conclusory allegations as insufficient to state a claim. See Weigele, 2010 U.S. Dist. LEXIS 120475; DeLeon, 2009 U.S. Dist. LEXIS 74345; Villegas, 2009 U.S. Dist. LEXIS 19265; Harding, 2009 U.S. Dist. LEXIS 72851. Plaintiff’s Complaint fails to meet the minimum showing required under Iqbal and Twombly and requires dismissal. This Court should grant Defendant’s motion to dismiss Plaintiff’s claims in their entirety. C. Plaintiff’s Allegations Related To Claims For Any Penalties Pursuant to Labor Code Sections 1197.1, 226(e), 1174.5, And 2802 Must Be Dismissed Because The Statute Of Limitations Has Run On Those Claims (Fourth, Seventh, Eighth, and Ninth Penalty Claims) To the extent Plaintiff is seeking penalties, Plaintiff’s Fourth, Seventh, Eighth, and Ninth causes of action fail to state a claim because he is time barred from seeking penalties. Plaintiff lacks standing to pursue claims for penalties for alleged unpaid minimum wage compensation, inaccurate wage statements, failure to keep accurate payroll records, and unreimbursed business expenses because the statute of limitations Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 20 of 27 Page ID #:116 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 14. has run on those claims.3 Accordingly, those claims must be dismissed. A claim for penalties is subject to a one-year statute of limitations under California Code of Civil Procedure section 340(a). Cal. Code Civ. Proc. § 340(a) (“[w]ithin one year: (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual . . . except if the statute imposing it prescribes a different limitation.”). This one-year statute of limitations applies to Plaintiff’s claim for penalties for alleged unpaid minimum wage compensation (Dkt #1, Complaint, ¶ 82), inaccurate wage statements (Dkt #1, Complaint, ¶¶ 96-102), failure to keep accurate payroll records (Dkt #1, Complaint, ¶¶ 103-107), and unreimbursed business expenses (Dkt 31, Complaint ¶¶ 108-111). Cal. Code Civ. Proc. § 340 (one-year statute of limitations govern claims for penalties); see also Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, 1118, fn. 16 (2007) (claim for itemized wage statement violations are governed by a one-year statute of limitations). Plaintiff is time barred from asserting these claims since his employment terminated in June 2014. (See Dkt #1, Complaint, ¶ 20 (“Defendants . . . employed Plaintiff . . . from approximately April 2013 to approximately June 2014”). To satisfy the statute of limitations, Plaintiff had to bring his claim for penalties by June 2015, which he did not. Plaintiff filed his claim for penalties for the first time on June 3, 2016 - approximately two years after his employment terminated. Accordingly, allegations related to Plaintiff’s claims for penalties for alleged unpaid minimum wage compensation, inaccurate wage statements, failure to keep accurate payroll records, and unreimbursed business expenses must be dismissed. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (1980) (complaint fails to state a claim where the action is time-barred based upon the facts asserted). 3 Defendants’ challenge of certain allegations within Plaintiff’s Fourth Claim for unpaid minimum wages, namely Plaintiff’s pursuit of penalties under that Claim, are properly raised in a Rule 12(b)(6) motion. See Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1081 (C.D. Cal. 2011) (finding Rule 12(b)(6) motion appropriate where defendant challenged legal sufficiency of certain allegations within a claim). Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 21 of 27 Page ID #:117 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 15. D. There Is No Private Right Of Action Under Sections 1197.1 or 204. Labor Code Sections 1197.1 and 204 direct enforcement to the California Labor Commissioner. Neither section contains language that can be interpreted to suggest a private right to sue. Only the Labor Commissioner has the authority to pursue penalties against an employer for violation of Labor Code sections 1197.1 and 204. The agency is charged with enforcing Labor Code provisions § 1171 et seq., governing wages, hours, and working conditions of California employees, including section 1197.1. Craib v. Bulmash, 49 Cal.3d 475, 261, Cal. Rptr. 686, 777 P.2d 1120 (1989); Department of Industrial Relations v. UI Video Stores, Inc., 55 Cal. App. 4th 1084 (1997). See also Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114, 1136 (N.D. Cal. 2011) aff'd, 546 F. App'x 613 (9th Cir. 2013) (internal citations omitted) (“There is nothing in section 204 or 210 that indicates, in clear understandable, unmistakable terms, that a private right of action exists for violations of section 204.”); Jeske v. Maxim Healthcare Servs., Inc., 2012 U.S. Dist. LEXIS 2963, 2012 WL 78242, at *5 (E.D. Cal. Jan. 10, 2012) (“[the plaintiff] fails to demonstrate that she is entitled to pursue a private right of action for a section 204 violation and offers nothing to suggest that she can rehabilitate the claim”). Where a statute creates an obligation and provides a remedy, the statutory remedy is exclusive. See Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365, 373 (1975). Section 1197.1(b) specifies that if the “Labor Commissioner determines that a person has paid or caused to be paid a wage less than the minimum, the Labor Commissioner may issue a citation to the person in violation . . . .” Additionally, California Labor Code section 210 specifically authorizes the Labor Commissioner to issue a fine against employers who violate section 204. Young v. ABM Sec. Servs., 905 F.2d 1541, at *3 (9th Cir. 1990). For both sections, the legislature has bestowed the Labor Commissioner - not the individual employee or class of employees - with the ability to pursue civil penalties, restitution of wages or liquidated damages under the code section. Similarly, California Wage Order No. 4, Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 22 of 27 Page ID #:118 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 16. Section 20(B) discussing penalties, confirms the only remedy is an administrative action by the Department of Labor Standards Enforcement: “The labor commissioner may also issue citations pursuant to California Labor Code Section 1197.1 for non- payment of wages for overtime work in violation of this order.” The legislature knows full well how to articulate in a statute whether or not a “private right of action” is being created, as that precise phrase appears in many California statutes. In the Labor Code, this private right is often referred to as a “civil action.” The Private Attorneys’ General Act (“PAGA”), Labor Code section 2699 et seq., specifically states that “an aggrieved employee may recover the civil penalty described in subdivision (f) in a civil action pursuant to the procedures specified in Section 2699.3 filed on behalf of himself or herself and other current or former employees against whom one or more of the alleged violations was committed.” Cal. Labor Code § 2699 (emphasis added). There is no such language in Section 1197.1 or Section 204 that creates a right to sue under that statute. The California Legislature must have specifically manifested its intent to create the right to sue under a statute with “clear, understandable, unmistakable terms, which strongly and directly indicate that the Legislature intended to create a private cause of action.” Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592, 597 (2010). There is simply no “clear, understandable, unmistakable” language in Section 1197.1 or Section 204 creating a private right of action. For these reasons, Plaintiff’s claims for penalties under Sections 1197.1 and Section 204 must be dismissed, as there is no private right of action under Labor Code section 1197.1 or 204. E. The Eighth Cause of Action For The Alleged Violation of Labor Code Section 1174 Must Be Dismissed With Prejudice Because Plaintiff Has Not Exhausted His Administrative Remedies, And The Statute Of Limitations Has Passed. Plaintiff’s eighth cause of action for violation of Labor Code section 1174 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 23 of 27 Page ID #:119 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 17. alleges that Defendants “intentionally and willfully failed to keep accurate and complete payroll records.” (Dkt #1, Complaint, ¶ 105.) Plaintiff demands penalties pursuant to Section 1174.54 . As mentioned in Section III.D, under California law, “a private right of action exists only if the language of the statute or its legislative history clearly indicates that the Legislature intended to create such a right to sue for damages.” Madrigal v. Tommy Bahama Group, Inc., 2010 U.S. Dist. LEXIS 121573, *13-14 (C.D. Cal. Oct. 18, 2010) (Otero, J.) (emphasis supplied); see also Johnson v. GMRI, Inc., 2007 U.S. Dist. LEXIS 27368, *4 (E.D. Cal., Mar. 29, 2007); Vikco Ins. Servs., Inc. v. Ohio Indemnity Co., 70 Cal. App. 4th 55, 82 (1999). Similarly, here, there is no indication in Section 1174 or anywhere that the statute grants a private right to sue for damages. Rather, the remedy for violation of section 1174(d) is the imposition of a civil penalty. See Lab. Code § 1174.5. Plaintiff’s private claim for Section 1174.5 civil penalties can only be made pursuant to the PAGA. See Silva v. U.S. Bancorp et al., 2011 U.S. Dist. LEXIS 152817, *5-6 (C.D. Cal. Oct. 6, 2011) (claim for section 1174.5 civil penalties dismissed with prejudice because of failure to exhaust PAGA administrative remedies). PAGA, allows litigants to sue privately for a violation of section 1174(d) as a proxy for the California Labor & Workforce Development Agency (“LWDA”) to collect civil penalties that could otherwise have been assessed and collected by the agency. See Lab. Code § 2699.5; Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009). No PAGA claim may be brought unless the plaintiff has first exhausted his administrative remedies by providing notice to the LWDA. See Lab. Code § 2699.3(a). In Caliber Bodyworks, the Court of Appeal sustained a dismissal with prejudice of claims for violation of Section 1174 and for PAGA penalties because the 4 As discussed above in Section III.C, any claim for penalties is barred by the one-year statute of limitations. See Code Civ. Pro. § 340(a); Thomas v. Home Depot, USA, 527 F. Supp. 2d 1003, 1007 (N.D. Cal. 2007). Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 24 of 27 Page ID #:120 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 18. employee did not exhaust administrative remedies under PAGA and no claim for civil penalties could be sustained except through PAGA. Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 370, 383 (2005). Notice to the LWDA must be given within the one-year statute of limitations. Thomas v. Home Depot, USA, 527 F. Supp. 2d 1003, 1007 (N.D. Cal. 2007) (one-year statute of limitations applies to claims for civil penalties); Baas v. Dollar Tree Stores, 2009 U.S. Dist. LEXIS 57531, *17 (N.D. Cal., June 18, 2009) (one-year statute of limitations applies to PAGA claims); Kuang Xuan Liu v. Win Woo Trading, LLC, 2016 U.S. Dist. LEXIS 78121, *15 (N.D. Cal., June 15, 2016) (same). Here, Plaintiff does not allege a claim for violation of the PAGA nor does he seek recovery of penalties under that statute. Plaintiff has not provided notice to the LWDA of his intention to do so nor could he do so now since the one-year statute of limitations has long run. Plaintiff must concede that the eighth cause of action for violation of Labor Code section 1174 is subject to dismissal with prejudice as a matter of law. F. Plaintiff’s Allegations In His Section 17200 Claim Regarding Penalty Claims Are Immaterial And Therefore Must Be Dismissed. Plaintiff’s Tenth Cause of Action for Unfair Business Practices contains references to the penalty provisions of the Labor Code, including sections 204, 226(a), 1174(d), 2802, and 1197.1. (Dkt #1, Complaint, ¶ 53.) However, a section 17200 claim cannot be based upon penalty statutes such as Labor Code sections 204, 1174.5, and 1197.1. In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 619 (N.D. Cal. 2007) (dismissing section 17200 claim at pleading stage because penalty claims cannot form basis of section 17200 claim); Tomlinson v. Indymac Bank, 359 F. Supp. 2d 891, 895 (C.D. Cal. 2005) (granting judgment on the pleadings on grounds penalty claims cannot be raised through a section 17200 claim; also, because penalties are not restitutionary, they cannot be recovered under section Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 25 of 27 Page ID #:121 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 19. 17200). Accordingly, these allegations are immaterial to any claim for relief, and must be dismissed from the Complaint. IV. DEFENDANTS FULFILLED THEIR OBLIGATION TO MEET AND CONFER UNDER LOCAL RULE 7-3 Under Local Rule 7-3, counsel for Defendants contacted Plaintiff’s counsel to meet and confer about Defendants’ intent to file a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). (Declaration of Shannon M. Going (“Going Decl.”), ¶¶ 3-10.) Counsel for Defendants reached Plaintiff’s counsel by voicemail and by email on August 19, 2016 and offered to resolve deficiencies in the Complaint in lieu of filing this motion. Counsel for Defendants participated in a telephonic conference with Plaintiff’s counsel on August 22, 2016 and discussed the deficiencies in the Complaint. (Id. at 7) During the call, Plaintiff’s counsel confirmed more than once, his unwillingness to amend his Complaint in any way to address Defendants’ concerns. (Id.) Following the conversation, Defendants’ counsel sent counsel for Plaintiff a letter requesting authority relating to Plaintiff’s position. (Id. at 8, Exh. D.) On August 24, 2016, Plaintiff’s counsel responded with a letter wherein they cited legal authority that they believe supports Plaintiff’s position and also raised issues regarding engaging in initial discovery. (Id. at 9, Exh. E.) On the same day, Counsel for Defendants responded to counsel for Plaintiff’s letter and notified them that counsel for Defendants would take their letter into consideration and get back to them regarding the remaining discovery issues. (Id. at 10, Exh. F.) This motion follows as a result of both parties being unable to reach to a mutual resolution. V. CONCLUSION Plaintiff’s Complaint must be dismissed in its entirety, as none of his claims meet minimum pleading requirements and are devoid of facts. In addition, Plaintiff’s claims for penalties for unpaid minimum wage compensation, inaccurate wage statements, failure to keep accurate payroll records, and unreimbursed business expenses independently fail and must be dismissed because they are barred by the Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 26 of 27 Page ID #:122 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 ISO DEFENDANTS’ MOTION TO DISMISS 20. applicable statute of limitations. Further, Plaintiff’s claim for penalties under Sections 1197.1, 204, and 1174(d) should be dismissed since there is no private right of action under Labor Code sections 1197.1, 204, and 1174(d) . Dated: August 26, 2016 s/Shannon M. Going STACEY E. JAMES SHANNON M. GOING LITTLER MENDELSON, P.C. Attorneys for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) Firmwide:142199872.4 050407.1106 Case 5:16-cv-01792-GHK-SP Document 13-1 Filed 08/26/16 Page 27 of 27 Page ID #:123 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 DECLARATION OF SHANNON M. GOING IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS CASE NO. 5:16-cv-01792-GHK (SPx) STACEY E. JAMES, Bar No. 185651 sjames@littler.com SHANNON M. GOING, Bar No. 273844 sgoing@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ALEJANDRO RODRIGUEZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. QG PRINTING CORP., an unknown business entity; QUAD/GRAPHICS, an unknown business entity; QUAD GRAPHICS, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 5:16-cv-01792-GHK (SPx) (San Bernardino Superior Court Case No. RIC 1606900) DECLARATION OF SHANNON M. GOING IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CLAIM Date: October 17, 2016 Time: 9:30 a.m. Judge: Hon. George H. King Complaint filed: June 3, 2016 Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 1 of 25 Page ID #:124 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 DECLARATION OF SHANNON M. GOING IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS CASE NO. 5:16-cv-01792-GHK (SPx) I, SHANNON M. GOING, declare as follows: 1. I am an attorney admitted to practice in the State of California and am an Associate in the law firm of Littler Mendelson, P.C., counsel of record for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) (“Defendants”) in this action. I make this Declaration in support of Defendants’ Motion to Dismiss Plaintiff’s Complaint for Failure to State a Claim. All of the information set forth herein is based on my personal and firsthand knowledge or based on information and documents retained by our firm in the regular course of its business operations, and if called and sworn as a witness, I could and would competently testify thereto. 2. On August 19, 2016, Defendants removed this action from Riverside Superior Court to this Court based on diversity jurisdiction. 3. On August 19, 2016, I called the office of attorney Edwin Awaizian, counsel for Plaintiff Alejandro Rodriguez (“Plaintiff”), at the number listed for counsel on Plaintiff’s Complaint. I was told that Mr. Awaizian was unavailable, and I left a message for him that I called to attempt to meet and confer about Defendants’ intention to file a motion to dismiss all of Plaintiff’s claims. During this call, I asked for and was provided Mr. Aiwazian’s email address. 4. Soon after I left my message with Mr. Aiwazian’s office, I sent him an email message requesting a time to meet and confer with him regarding Defendants’ intent to file a motion to dismiss. Mr. Aiwazian responded that he was available at 7:00 p.m. that evening, and I replied to confirm that I would call him at that time. A true and correct copy of these messages is attached hereto as Exhibit A. 5. When I called Mr. Aiwazian at 7:00 p.m. on August 19, he did not respond. After waiting approximately 20 minutes past our agreed-upon time to talk, I emailed Mr. Aiwazian to request that he provide me with his availability to meet and Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 2 of 25 Page ID #:125 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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. confer the following business day. A true and correct copy of this message is attached hereto as Exhibit B. 6. Mr. Aiwazian emailed me on Friday, August 19 and Sunday, August 21, and I replied on Monday, August 22, and we agreed upon a time for a phone conversation on August 22, 2016. True and correct copies of these messages are attached hereto as Exhibit C. 7. On August 22, 2016, I participated in a telephonic conference with Mr. Aiwazian and summarized the deficiencies in the Complaint. During the call, Mr. Aiwazian confirmed more than once his unwillingness to amend his Complaint in any way to address Defendants’ concerns. 8. On August 23, 2016, I sent counsel for Plaintiff a letter requesting authority relating to the previous discussion and confirming our prior discussions. A true and correct copy of my letter of August 23, 2016 to Mr. Awaizian is attached hereto as Exhibit D. 9. On August 24, 2016, I received a letter from Romina Keshishyan, an attorney with Lawyers for Justice, PC, counsel for Plaintiff, wherein they cited legal authority that they believe supports Plaintiff’s position and also raised numerous other issues, including discovery. A true and correct copy of Ms. Keshishyan’s correspondence of August 24, 2016 is attached hereto as Exhibit E. 10. On August 24, 2016, I responded via email to counsel regarding Plaintiff’s letter and notified them that counsel for Defendants would take their letter into consideration and get back to them regarding the remaining issues. A true and correct copy of my email of August 24, 2016 to Plaintiff’s counsel is attached hereto as Exhibit F. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. \\ \\ Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 3 of 25 Page ID #:126 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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. Executed this 26th day of August, 2016, at San Diego, California. s/Shannon M. Going SHANNON M. GOING Firmwide:141926305.2 050407.1106 Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 4 of 25 Page ID #:127 EXHIBIT A Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 5 of 25 Page ID #:128 From: Sent: To: Cc: Subject: Good afternoon Edwin, Going, Shannon M. Friday, August 19, 2016 1:53 PM edwin@lfjpc.com James, Stacey E.; Parti, Vani Alejandro Rodriguez v. Quad/Graphics, Inc. I'm writing to follow up on the message I left with your office today regarding the Alejandro Rodriguez matter. My office represents Defendants QG Printing Corp, presently known as QG Printing LLC, and Quad/Graphics, Inc. (erroneously sued as QUAD/GRAPHICS). As you may already know, we filed removal papers today. We also plan to file a motion to dismiss under FRCP 12(b)(6), however, I am reaching out to you first to meet and confer in advance of filing to see if we can resolve any issues informally. I am available to discuss today or next week, so please let me know if we can set a time for a call. I can be reached by phone and email, and my contact information is in my signature block below. Best regards, Shannon Shannon M. Going, Associate 619.515.1804 direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 1 San Diego, CA 92101-3577 llittler.com Employment & Labor Law Solutions Worldwide 1 Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 6 of 25 Page ID #:129 EXHIBIT B Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 7 of 25 Page ID #:130 From: Sent: To: Cc: Subject: Edwin, Going, Shannon M. Friday, August 19, 2016 7:24 PM Lawyers for Justice, PC James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan RE: Alejandro Rodriguez v. Quad/Graphics, Inc. I left a message on your phone shortly after seven. Since I haven't heard back from you, let's set a time for a call on Monday. I am available between 9:30 and 10:00 a.m., and then any time after 11:30. Best, Shannon Shannon M. Going, Associate 619.515.1804 direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 I San Diego, CA 92101-3577 [Littler] I littler.com Employment & Labor Law Solutions Worldwide From: Going, Shannon M. Sent: Friday, August 19, 2016 5:54 PM To: 'Lawyers for Justice, PC' Cc: James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan Subject: RE: Alejandro Rodriguez v. Quad/Graphics, Inc. Thanks for your prompt reply, Edwin. I can chat at 7:00p.m. this evening and will call your cell number then. Thank you. Shannon Shannon M. Going, Associate 619.515.1804 direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 I San Diego, CA 92101-3577 [Littler] llittler.com Employment & Labor Law Solutions Worldwide From: Lawyers for Justice, PC [mailto:edwin@lfjpc.com] Sent: Friday, August 19, 2016 1:56 PM To: Going, Shannon M. Cc: James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan; Edwin Aiwazian Subject: Re: Alejandro Rodriguez v. Quad/Graphics, Inc. I'm in the middle of a deposition right now. Please email me a courtesy copy of the removal papers. 1 Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 8 of 25 Page ID #:131 Please identify the issues your client is raising with the operative complaint and your best points and authorities to support them. My cell phone is 8182880877 and I'm available to speak with you tonight from 7 to 9 p.m. and over the weekend. On Fri, Aug 19, 2016 at 1:52 PM, Going, Shannon M. direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 I San Diego, CA 92101-3577 [Littler] I littler.com Employment & Labor Law Solutions Worldwide This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information. With kind regards, Edwin Aiwazian LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, California 91203 T {818} 265-1020 F {818) 265-1021 The information contained in this e-mail is legally privileged and confidential information intended only for the use of the individual or entity named above. If the receiver of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this email message is strictly prohibited and may violate the legal rights of others. If you have received this message in error, please immediately notify the sender by reply email or telephone, and delete it from your system. Thank you. 2 Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 9 of 25 Page ID #:132 EXHIBIT C Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 10 of 25 Page ID #:133 From: Going, Shannon M. Sent: To: Monday, August 22, 2016 8:59 AM Lawyers for Justice, PC Cc: Subject: James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan RE: Alejandro Rodriguez v. Quad/Graphics, Inc. Hi Edwin, I can give you a call at 330 today. I will call your cell number 8182880877 unless I hear otherwise from you. Shannon Shannon M. Going, Associate 619.515.1804 direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 I San Diego, CA 92101-3577 [Littler] I littler.com Employment & Labor Law Solutions Worldwide From: Lawyers for Justice, PC [mailto:edwin@lfjpc.com] Sent: Sunday, August 21, 2016 6:08 PM To: Going, Shannon M. Cc: James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan; Edwin Aiwazian Subject: Re: Alejandro Rodriguez v. Quad/Graphics, Inc. actually only 11 a.m. or 330 p.m. work for me do either of these times work for you? On Sun, Aug 21, 2016 at 5:57 PM, Lawyers for Justice, PC direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 I San Diego, CA 92101-3577 I littler.com Employment & Labor Law Solutions Worldwide From: Going, Shannon M. Sent: Friday, August 19, 2016 5:54 PM To: 'Lawyers for Justice, PC' Cc: James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan Subject: RE: Alejandro Rodriguez v. Quad/Graphics, Inc. Thanks for your prompt reply, Edwin. I can chat at 7:00p.m. this evening and will call your cell number then. Thank you. Shannon Shannon M. Going, Associate 619.515.1804 direct 619.615.2355 fax SGoing@littler.com 501 W. Broadway, Suite 900 I San Diego, CA 92101-3577 I littler.com Employment & Labor Law Solutions Worldwide From: Lawyers for Justice, PC [mailto:edwin@lfjpc.com] Sent: Friday, August 19, 2016 1:56PM To: Going, Shannon M. Cc: James, Stacey E.; Parti, Vani; Elizabeth M. R. Parker; Romina Keshishyan; Edwin Aiwazian Subject: Re: Alejandro Rodriguez v. Quad/Graphics, Inc. I'm in the middle of a deposition right now. Please email me a courtesy copy of the removal papers. Please identify the issues your client is raising with the operative complaint and your best points and authorities to support them. My cell phone is 8182880877 and I'm available to speak with you tonight from 7 to 9 p.m. and over the weekend. On Fri, Aug 19, 2016 at 1:52 PM, Going, Shannon M. wrote: Attached please fmd correspondence oftoday's date in the above-referenced matter. The original will follow in today's mail. Thank you. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information. With kind regards, Romina Keshishvan LAWYERS tor JUSTICE, PC 410 Arden A venue. Suite 203 Glendale, CA 91203 Phone (818) 265-1020 Fax (818) 265-1021 The information contained in this e-mail is legally privileged and confidential information intended only for the use of the individual or entity named above. lfthe receiver of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this email message is strictly prohibited and may violate the legal rights of others. lfyou have received this message in cnor. please immediately notify the sender by reply email or telephone, and delete it from your system. Thank you. 2 Case 5:16-cv-01792-GHK-SP Document 13-2 Filed 08/26/16 Page 25 of 25 Page ID #:148 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT CASE NO. 5:16-cv-01792-GHK (SPx) STACEY E. JAMES, Bar No. 185651 sjames@littler.com SHANNON M. GOING, Bar No. 273844 sgoing@littler.com LITTLER MENDELSON, P.C. 501 W. Broadway, Suite 900 San Diego, CA 92101.3577 Telephone: 619.232.0441 Facsimile: 619.232.4302 Attorneys for Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ALEJANDRO RODRIGUEZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. QG PRINTING CORP., an unknown business entity; QUAD/GRAPHICS, an unknown business entity; QUAD GRAPHICS, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 5:16-cv-01792-GHK (SPx) (San Bernardino Superior Court Case No. RIC 1606900) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Date: October 17, 2016 Time: 9:30 a.m. Complaint filed: June 3, 2016 Case 5:16-cv-01792-GHK-SP Document 13-3 Filed 08/26/16 Page 1 of 3 Page ID #:149 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT CASE NO. 5:16-cv-01792-GHK (SPx) ORDER On October 17, 2016, Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and QUAD/GRAPHICS, INC. (erroneously sued as QUAD/GRAPHICS, an unknown business entity) (“Defendants”) Motion to Dismiss came on regularly for hearing in the above-entitled Court before the Honorable George H. King. Having considered Defendants’ Motion, oral argument thereon, and all papers submitted in support of and in opposition to Defendants’ Motion, the Court hereby GRANTS Defendants’ Motion to Dismiss with prejudice to Plaintiff Alejandro Rodriguez (“Plaintiff”) claims for failure to allege facts sufficient to state a claim to relief that is plausible on its face. FED. R. CIV. P. 12(b)(6); Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). GOOD CAUSE HAVING BEEN SHOWN, IT IS HEREBY ORDERED THAT: 1. Plaintiff’s claim for alleged unpaid overtime wages in violation of California Labor Code1 sections 510 and 1198 is hereby dismissed WITH PREJUDICE. 2. Plaintiff’s claim for alleged meal period violations under Labor Code sections 226.7 and 512(a) is hereby dismissed WITH PREJUDICE. 3. Plaintiff’s claim for alleged rest period violations under Labor Code section 226.7 is hereby dismissed WITH PREJUDICE. 4. Plaintiff’s claim for alleged unpaid minimum wages in violation of Labor Code sections 1194, 1197, and 1197.1 is hereby dismissed WITH PREJUDICE. 5. Plaintiff’s claim for alleged failure to timely pay final wages in violation of Labor Code sections 201 and 202 is hereby dismissed WITH 1 The Court’s references to the Labor Code are to the California Labor Code unless otherwise indicated. Case 5:16-cv-01792-GHK-SP Document 13-3 Filed 08/26/16 Page 2 of 3 Page ID #:150 LITTLER MENDELSON, P.C. 501 W. Broadway Suite 900 San Diego, CA 92101.3577 619.232.0441 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. PREJUDICE. 6. Plaintiff’s claim for alleged wages not timely paid during employment in violation of Labor Code section 204 is hereby dismissed WITH PREJUDICE. 7. Plaintiff’s claim for alleged non-compliant wage statements in violation of Labor Code section 226(a) is hereby dismissed WITH PREJUDICE. 8. Plaintiff’s claim for alleged failure to keep accurate and complete payroll records in violation of Labor Code section 1174(d) is hereby dismissed WITH PREJUDICE. 9. Plaintiff’s claim for alleged unreimbursed business expenses in violation of Labor Code sections 2800 and 2802 are hereby dismissed WITH PREJUDICE. 10. Plaintiff’s claim for alleged violation of California Business & Professions Code section 17200 et seq. is hereby dismissed WITH PREJUDICE. * * * IT IS SO ORDERED. Dated: ____________ _______________________________________ HONORABLE George H. King United States District Judge Firmwide:141927048.1 050407.1106 Case 5:16-cv-01792-GHK-SP Document 13-3 Filed 08/26/16 Page 3 of 3 Page ID #:151