Alejandro Rodriguez v. QG Printing Corp. et alNOTICE OF MOTION AND MOTION to Dismiss Case Plaintiff's First Amended Complaint for Failure to State A ClaimC.D. Cal.December 8, 2016LITTLER 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 Firmwide:144278544.1 050407.1106 MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT STACEY E. JAMES, Bar No. 185651 sjames@littler.com CHRISTINA H. HAYES, Bar No. 267153 chayes@littler.com AMBERLY A MORGAN, Bar No. 273891 amorgan@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, QUAD/GRAPHICS, and QUAD GRAPHICS 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 ODES 1 through 100, inclusive, Defendants. Case No. 5:16-CV-01792-GHK (SPx) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM Date: January 30, 2017 Time: 9:30 a.m. Dept: 650 Dist. Judge: Hon. George H. King TO PLAINTIFF ALEJANDRO RODRIGUEZ AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 30, 2017 at 9:30 a.m., in Courtroom 650 of the United States District Court, Central District of California, located at 255 E. Temple Street, Sixth Floor, Los Angeles, California 90012, Defendants QG PRINTING CORP, presently known as QG PRINTING LLC, and Case 5:16-cv-01792-GHK-SP Document 37 Filed 12/08/16 Page 1 of 3 Page ID #:455 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 Firmwide:144278544.1 050407.1106 2. MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 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”) First Amended 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, failure to pay timely 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, untimely wages during employment, and failure to keep accurate payroll records must be dismissed with prejudice 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 was initiated pursuant to a meet and confer letter sent via email and U.S. Mail to Plaintiff’s counsel on November 30, 2016, and followed by a telephonic conference which took place on December 2, 2016. See Declaration of Christina H. Hayes In Support of Defendants’ Motion to Dismiss, ¶¶ 2-3, Exhibits A-B, filed concurrently herewith. This motion is based upon this notice of motion and motion, the memorandum of points and authorities filed concurrently with this motion, Plaintiff’s First Amended Complaint, the declaration Christina H. Hayes and all the exhibits attached thereto, all / / / / / / / / / / / / Case 5:16-cv-01792-GHK-SP Document 37 Filed 12/08/16 Page 2 of 3 Page ID #:456 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 Firmwide:144278544.1 050407.1106 3. MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT pleadings, records and papers on file in this action, and such other further evidence and argument as may be presented at or before the time of the hearing. Dated: December 8, 2016 /s/ Christina H. Hayes STACEY E. JAMES CHRISTINA H. HAYES AMBERLY MORGAN LITTLER MENDELSON, P.C. Attorneys for Defendants QG PRINTING CORP, QUAD/GRAPHICS, and QUAD GRAPHICS Case 5:16-cv-01792-GHK-SP Document 37 Filed 12/08/16 Page 3 of 3 Page ID #:457 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 Firmwide:144278780.1 050407.1106 DECL. OF CHRISTINA HAYES ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT STACEY E. JAMES, Bar No. 185651 sjames@littler.com CHRISTINA H. HAYES, Bar No. 267153 chayes@littler.com AMBERLY A MORGAN, Bar No. 273891 amorgan@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, QUAD/GRAPHICS, and QUAD GRAPHICS 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 ODES 1 through 100, inclusive, Defendants. Case No. 5:16-CV-01792-GHK (SPx) DECLARATION OF CHRISTINA H. HAYES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM Date: January 30, 2017 Time: 9:30 a.m. Dept: 659 Dist. Judge: Hon. George H. King I, CHRISTINA H. HAYES, 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 Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 1 of 9 Page ID #:458 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 Firmwide:144278780.1 050407.1106 2. DECL. OF CHRISTINA HAYES ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT Defendants’ Motion to Dismiss Plaintiff’s First Amended 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. Pursuant to Local Rule 7-3, on November 30, 2016, my office sent a meet and confer letter by email and U.S. Mail to counsel for Plaintiff Alejandro Rodriguez (“Plaintiff”) setting forth the grounds for Defendants’ potential motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). A true and correct copy of my November 30, 2016 correspondence to Plaintiff’s counsel is attached hereto as Exhibit A. 3. On December 2, 2016, the parties met and conferred telephonically to further discuss Defendants’ potential motion to dismiss. During the telephonic conference, the parties were unable to reach a resolution that would avoid the necessity of filing the instant motion. Immediately following the parties’ telephonic conference, I sent Plaintiff’s counsel an e-mail confirming that the parties had been unable to reach a resolution and informing Plaintiff’s counsel that Defendants would proceed to file a motion to dismiss. A true and correct copy of my December 2, 2016 email correspondence to Plaintiff’s counsel is attached hereto as Exhibit B. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 8th day of December, 2016, at Jacksonville, Oregon. /s/ Christina H. Hayes CHRISTINA H. HAYES Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 2 of 9 Page ID #:459 EXHIBIT A Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 3 of 9 Page ID #:460 Exhibit A Page 3 Littler Employmt nt & Labor L,w~ Solutions Wo•ldw1df' November 30, 2016 VIA US MAIL AND E-MAIL Edwin Aiwazian Lawyers for Justice, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Email: edwin@lfjpc.com Re: Rodriguez v. QG Printing Corp., eta/. Littler Mendelson, PC 501 W. Broadway Suite 900 San Diego, CA 92101 .3577 Christina H. Hayes 619 .515.1809 direct 619.232.0441 main 619.374.2559 fax chayes@littler.com United States Central District Case No.: 5:16-cv-01792-GHK (SPx) Dear Counsel: As you know, my office represents Defendants QG Printing Corp, presently known as QG Printing LLC, and Quad/Graphics, Inc. ("Defendants'') in the above-referenced matter. Pursuant to Local Rule 7-3 of the United States District Court for the Central District of California, this letter serves as Defendants' attempt to engage in a pre-filing conference of the parties. Specifically, Defendants intend to file a motion to dismiss Plaintiff's First Amended Complaint ("FAC'') under Federal Rule of Civil Procedure, Rule 12(b )(6), challenging the sufficiency of all of Plaintiff's causes of action. Plaintiff has alleged numerous claims for violations of the California Labor Code, including claims for failure to pay meal and rest break premiums, failure to pay minimum wages and wages for all hours worked, failure to pay timely earned wages, failure to pay timely final wages, failure to provide accurate wage statements, failure to keep requisite payroll records, failure to indemnify necessary expenditures, and violation of California's unfair competition law. Plaintiff asserts these claims on behalf of himself and all similarly situated employees. However, Plaintiff fails to set forth any factual allegations establishing his entitlement to relief on any of the foregoing claims. Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." A complaint may be dismissed under Rule 12(b)(6) where either the complaint lacks a cognizable legal theory, or where the complaint fails to plead facts essential to the statement of a claim under that theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A motion to dismiss is properly granted when a plaintiff fails to provide "more than labels and conclusions"; moreover, "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly(''Twombly''), 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible ttl fCOIT' Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 4 of 9 Page ID #:461 Exhibit A Page 4 Edwin Aiwazian November 30, 2016 Page 2 on its face/' and the factual allegations "must be enough to raise a right to relief above the speculative level." !d. at 555, 570. Here, Plaintiff's causes of action are subject to dismissal because Plaintiff's FAC asserts that Defendants violated the law without providing any factual allegations to support these claims. See, e.g., Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Glover v. Fremont Jnv. & Loan, 2009 U.S. Dist. LEXIS 117890, at *7 (N.D. Cal. Dec. 18, 2009) (''Simply tracking statutory language or raising general allegations [] is insufficient to properly raise a claim for relief.") (citing Twombly, 550 U.S. at 555). Plaintiff's FAC is a recitation of legal conclusions, and the few facts he does provide are too vague, uncertain and ambiguous to be deciphered. Accordingly, Defendants intend to move the Court to dismiss Plaintiff's FAC in its entirety. Additionally, Defendants intend to move the Court to dismiss Plaintiff's claims for penalties set out in the fourth, seventh, eighth and ninth causes of action as these claims are barred by the one-year statute of limitations set forth in California Code of Civil Procedure section 340(a). Plaintiff is time barred from asserting these claims since his employment terminated in June 2014, and Plaintiff did not file his Complaint until approximately two years after his employment terminated. Plaintiff is further barred from asserting claims for penalties under Labor Code section 1197.1 and section 204 as there is no private right of action under either of these sections. Accordingly, to the extent Plaintiff's fourth and sixth causes of action are based on these sections of the Labor Code, they are subject to dismissal with prejudice. Plaintiff's eighth cause of action for alleged violation of Labor Code section 1174 is also barred because Plaintiff has not exhausted his administrative remedies and the statute of limitations has passed. Specifically, Plaintiff's private claim for section 1174.5 civil penalties can only be made pursuant to the Private Attorney General Act of 2004 (''PAGA''). See Silva v. U.S. Bancorp eta!., 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). 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). Notice to the LWDA must be given within the one-year statute of limitations. Thomas v. Home Depoe 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). Here, Plaintiff has not provided notice to the LWDA of his intention to file a PAGA claim, nor could he do so now since the one-year statute of limitations has long run. Accordingly, Plaintiff's eighth cause of action is subject to dismissal with prejudice. Finally, 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 Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 5 of 9 Page ID #:462 Exhibit A Page 5 Edwin Aiwazian November 30, 2016 Page 3 1197.1. However, a section 17200 claim cannot be based upon penalty statutes such as Labor Code sections 204, 1174.5, and 1197.1. In re Wai-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). Accordingly, the allegations in Plaintiff's tenth cause of action are immaterial to any claim for relief, and must be dismissed from the FAC. Based on the foregoing, Defendants respectfully request that Plaintiff dismiss his FAC in its entirety or seek leave to file a second amended complaint providing factual allegations in support of his claims and omitting any claims that are barred by the statute of limitations or for which there is no private right of action. As you are no doubt aware, Defendants have a limited period of time in which to file their Motion to Dismiss. As such, please advise whether you are available to meet and confer on these issues on either Thursday, December 1 or Friday, December 2. Sincerely, Christina H. Hayes Firmwide:144224853.1 050407.1106 Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 6 of 9 Page ID #:463 EXHIBIT B Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 7 of 9 Page ID #:464 1 Hayes, Christina H. From: Hayes, Christina H. Sent: Friday, December 02, 2016 2:28 PM To: 'edwin@lfjpc.com'; 'romina@lfjpc.com' Cc: James, Stacey E.; Morgan, Amberly A. Subject: RE: Rodriguez v. QG Printing Corp., et al. Dear Mr. Aiwazian, Thank you for your call. I am writing to confirm that the parties have satisfied their meet and confer obligations with respect to Defendants’ motion to dismiss Plaintiff’s First Amended Complaint. As the parties were unable to reach a resolution, Defendants will proceed to file a motion to dismiss for the reasons set forth in Defendants’ meet and confer correspondence. We will let you know when we have selected a hearing date. Also, as requested by Ms. Keshishyan, this email confirms that Defendants will agree to engage in a Rule 26(f) conference to take place within one (1) week of the Court’s ruling on Defendants’ second motion to dismiss. Please feel free to contact me if you have any questions. Thanks, Christina Christina Hayes, Attorney At Law 619.515.1809 direct 619.374.2559 fax chayes@littler.com 501 W. Broadway, Suite 900 | San Diego, CA 92101-3577 | littler.com Employment & Labor Law Solutions Worldwide From: Hayes, Christina H. Sent: Friday, December 02, 2016 1:02 PM To: edwin@lfjpc.com; 'romina@lfjpc.com' Cc: James, Stacey E.; Morgan, Amberly A. Subject: RE: Rodriguez v. QG Printing Corp., et al. Dear Counsel, I am writing to follow‐up on my meet and confer correspondence dated November 30, 2016. Please let me know when you are available to meet and confer regarding Defendants’ anticipated motion to dismiss Plaintiff’s First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Christina Christina Hayes, Attorney At Law 619.515.1809 direct 619.374.2559 fax chayes@littler.com 501 W. Broadway, Suite 900 | San Diego, CA 92101-3577 | littler.com Employment & Labor Law Solutions Worldwide Exhibit B Page 6 Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 8 of 9 Page ID #:465 2 From: Hammett, Kristine F. Sent: Wednesday, November 30, 2016 4:04 PM To: edwin@lfjpc.com Cc: Hayes, Christina H.; James, Stacey E.; Morgan, Amberly A. Subject: Rodriguez v. QG Printing Corp., et al. Dear Counsel, Please find, attached to this email, correspondence to you from Christina Hayes. Thank you for your attention to this matter. Kristine Kristine Hammett, Legal Secretary 619.515.1870 direct KDippold@littler.com 501 W. Broadway, Suite 900 | San Diego, CA 92101-3577 | littler.com Employment & Labor Law Solutions Worldwide Exhibit B Page 7 Case 5:16-cv-01792-GHK-SP Document 37-1 Filed 12/08/16 Page 9 of 9 Page ID #:466 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 Firmwide:144201159.4 050407.1106 MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT STACEY E. JAMES, Bar No. 185651 sjames@littler.com CHRISTINA H. HAYES, Bar No. 267153 chayes@littler.com AMBERLY A MORGAN, Bar No. 273891 amorgan@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, QUAD/GRAPHICS, and QUAD GRAPHICS 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 ODES 1 through 100, inclusive, Defendants. Case No. 5:16-CV-01792-GHK (SPx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM [F.R.C.P. 12(b)(6)] Date: January 30, 2017 Time: 9:30 a.m. Dept: 650 Dist. Judge: Hon. George H. King Trial Date: None Set Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 1 of 33 Page ID #:467 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 Firmwide:144201159.4 050407.1106 i. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT I. INTRODUCTION ............................................................................................... 1 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY .......................... 2 III. ARGUMENT....................................................................................................... 3 A. The Legal Standard Applicable To Defendants’ Motion To Dismiss ...................................................................................................... 3 B. Plaintiff’s Complaint Must Be Dismissed Pursuant To Rule 12(b)(6) For Failure To Plead Sufficient Facts To State A Claim For Relief ................................................................................................... 6 1. Plaintiff’s First Cause of Action for Unpaid Overtime Fails To Allege Sufficient Facts To State A Claim For Relief ............... 6 2. Plaintiff’s Second And Third Causes of Action for Meal And Rest Break Violations Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............... 9 3. Plaintiff’s Fourth Cause of Action For Unpaid Minimum Wage Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................................... 12 4. Plaintiff’s Fifth Cause of Action For Untimely Final Wages Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ......................................................... 13 5. Plaintiff’s Sixth Cause of Action For Untimely Wages During Employment Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ................... 14 6. Plaintiff’s Seventh Cause Of Action For Inaccurate Wage Statements Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................... 14 7. Plaintiff’s Eighth Cause of Action For Failure To Keep Payroll Records Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................... 15 8. Plaintiff Ninth Cause of Action For Unreimbursed Business Expenses Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief ............................... 16 9. Plaintiff’s Tenth Cause of Action For Violation Of The California Business & Professions Code Section 17200 Et Seq. Fails To Allege Sufficient Facts To State A Claim For Relief ............................................................................................. 17 Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 2 of 33 Page ID #:468 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 Firmwide:144201159.4 050407.1106 ii. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT C. Plaintiff’s Claims For Penalties Pursuant to Labor Code Sections 1197.1, 204, 226(e), 1174.5, 204, and 2802 Are Time Barred (Fourth, Sixth, Seventh, Eighth, and Ninth Claims) ............................... 18 1. Plaintiff’s Claim For Penalties Under Labor Code Section 1197.1 Is Time Barred .................................................................. 19 2. Plaintiff’s Sixth Cause of Action Is Time Barred ........................ 20 3. Plaintiff’s Seventh Cause of Action Is Time Barred .................... 20 4. Plaintiff’s Eighth Cause of Action Is Time Barred ...................... 21 5. Plaintiff’s Claim For “Statutory Penalties” Under Labor Code Section 2802 Is Time Barred To The Extent Any Such Penalties Exist ............................................................................... 22 D. There Is No Private Right Of Action Under Sections 1197.1 or 204 ..... 22 E. Plaintiff’s Eighth Cause of Action Must Be Dismissed With Prejudice Because Plaintiff Has Not Exhausted His Administrative Remedies, And The Statute Of Limitations Has Passed ......................... 23 F. Plaintiff’s Allegations In His Section 17200 Claim Regarding Penalty Claims Are Immaterial And Therefore Must Be Dismissed ..... 25 IV. CONCLUSION ................................................................................................. 25 Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 3 of 33 Page ID #:469 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(S) Firmwide:144201159.4 050407.1106 iii. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Federal Cases Anderson v. Blockbuster, Inc., 2010 U.S. Dist. LEXIS 53854 (E.D. Cal. May 4, 2010) .................................. passim 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)...................................... 24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).......................................................................................... passim Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453 (S.D. Cal. 2007) ............................................................................. 21 Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930 (N.D. Cal. Apr. 18, 2013) ....................................... 11 Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb 25, 2016) ................................. passim Castellon v. Penn-Ridge Transp., Inc., 2015 U.S. Dist. LEXIS 149079 (C.D. Cal. Nov. 2, 2015) ...................................... 22 Cordell v. PICC Lines Plus LLC, 2016 U.S. Dist. LEXIS 121708 (N.D. Cal. Sept. 8, 2016) ................................ 23, 24 Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345 (C.D. Cal. July 17, 2009) ......................... 4, 7, 10, 11 Elliot v. Spherion Pacific Work, LLC, 368 Fed. Appx. 761 (9th Cir. 2010) ........................................................................ 21 Harding v. Time Warner, Inc., 2009 U.S. Dist. LEXIS 72851 (S.D. Cal. Aug. 18, 2009) ................................. 14, 16 Hernandez v. Towne Park, Ltd., 2012 U.S. Dist. LEXIS 86975 (C.D. Cal. 2012) ..................................................... 19 Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 4 of 33 Page ID #:470 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(S) Firmwide:144201159.4 050407.1106 iv. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Hill v. Opus Corp., 841 F. Supp. 2d 1070 (C.D. Cal. 2011) ................................................................... 19 Jablon v. Dean Witter & Co., 614 F.2d 677 (9th. Cir. 1980) .................................................................................. 19 Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114 (N.D. Cal. 2011) aff’d, 546 F. App’x 613 (9th Cir. 2013) ................................................................................................................. 22 Khalili v. Comerica Bank, 2011 U.S. Dist. LEXIS 64559 (N.D. Cal. June 16, 2011)......................................... 8 Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014) ................................................................................. 7, 8 Madrigal v. Tommy Bahama Group, Inc., 2010 U.S. Dist. LEXIS 121573 (C.D. Cal. Oct. 18, 2010) ..................................... 23 Mitchell v. Sung, 816 F. Supp. 597 (N.D. Cal. 1993) .......................................................................... 19 Moss v. U.S. Secret Service, 572 F. 3d 962 (9th Cir. 2009) .................................................................................. 13 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ..................................................................................... 3 Renick v. Dun & Bradstreet Receivable Management Services, 290 F.3d 1055 (9th Cir. 2002) ................................................................................. 17 Sasha Ovieda v. Sodexo Operations, LLC, 2012 U.S. Dist. LEXIS 173844 (C.D. Cal. May 7, 2012) ......................... 4, 5, 16, 17 Schneider v. Space Systems/Loral Inc., 2012 U.S. Dist. LEXIS 19001 (N.D. Cal. Feb. 14, 2012) ............................... 4, 7, 14 Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393 (9th Cir. 1986) ................................................................................. 19 Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 5 of 33 Page ID #:471 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(S) Firmwide:144201159.4 050407.1106 v. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Silva v. U.S. Bancorp, 2011 U.S. Dist. LEXIS 152817 (C.D. Cal. Oct. 6, 2011) ....................................... 24 Singer v. Becton, Dickinson & Co., 2008 U.S. Dist. LEXIS 56326 (S.D. Cal., July 25, 2008) ....................................... 20 Thomas v. Home Depot, USA, 527 F. Supp. 2d 1003 (N.D. Cal. 2007) ................................................................... 24 Tomlinson v. Indymac Bank, 359 F. Supp. 2d 891 (C.D. Cal. 2005) ..................................................................... 25 In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609 (N.D. Cal. 2007) ..................................................................... 25 Weigele v. FedEx Ground Package Sys., 2010 U.S. Dist. LEXIS 120475 (S.D. Cal. Nov. 15, 2010) ......................... 11, 14, 18 California Cases Arias v. Superior Court, 46 Cal. 4th 969 (2009) ............................................................................................. 24 Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365 (2005) .................................................................................. 24 Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365 (1975) ..................................................................................... 22 Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592 (2010) ............................................................................................. 23 Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) ..................................................................................... 18, 21 Federal Statutes Federal Rules of Civil Procedure Rule 8(a)(2) ................................................................................................................ 3 Rule 12(b)(6) ................................................................................................... passim Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 6 of 33 Page ID #:472 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(S) Firmwide:144201159.4 050407.1106 vi. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT California Statutes California Code of Civil Procedure § 340 ........................................................................................................................ 18 § 338(a) .................................................................................................................... 19 § 340(a) .................................................................................................. 18, 20, 21, 22 California Labor Code § 201 .................................................................................................................... 3, 13 § 202 .................................................................................................................... 3, 13 § 203 ........................................................................................................................ 13 § 204 .................................................................................. 2, 3, 14, 18, 20, 22, 23, 25 § 210 .................................................................................................................. 20, 23 § 210(b) .................................................................................................................... 23 § 226 ........................................................................................................................ 21 § 226(a) .......................................................................................................... 3, 20, 25 § 226(e) ........................................................................................................ 18, 20, 21 § 226.7 ................................................................................................................... 2, 3 § 510 ......................................................................................................................... 2 § 512(a) ..................................................................................................................... 2 § 1174 ..................................................................................................................... 24 § 1174(d) ........................................................................................ 2, 3, 21, 23, 24, 25 § 1174.5 ................................................................................................. 18, 21, 24, 25 § 1194 .................................................................................................................. 3, 13 § 1197 .................................................................................................................. 3, 13 § 1197.1 ....................................................................... 2, 3, 13, 18, 19, 20, 22, 23, 25 § 1197.1(a) ............................................................................................................... 19 § 1197.1(b) ............................................................................................................... 22 § 1198 ........................................................................................................................ 2 § 2699.3(a) ............................................................................................................... 24 § 2699.5 ................................................................................................................... 24 § 2800 ........................................................................................................................ 3 § 2802 ...................................................................................................... 3, 18, 22, 25 California’s Unfair Competition Law, California Business and Professions Code § 17200, et seq. .......................................................................................... 2, 3, 17, 25 Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 7 of 33 Page ID #:473 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(S) Firmwide:144201159.4 050407.1106 vii. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Other Authorities California Wage Order No. 4, § 20(B) ......................................................................... 23 Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 8 of 33 Page ID #:474 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 Firmwide:144201159.4 050407.1106 1. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT I. INTRODUCTION Plaintiff Alejandro Rodriguez (“Plaintiff”) cannot proceed with his lawsuit 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 because the causes of action set forth in his First Amended Complaint (“FAC”) fail as a matter of law. After the Court dismissed Plaintiff’s original complaint for failure to state a claim (See Dkt. 33), Plaintiff filed his FAC on November 8, 2016, in which he continues to bring a putative wage and hour class action against Defendants on behalf of all of Defendants’ non-exempt employees in the state of California. However, Plaintiff’s FAC suffers from the exact same legal defects that resulted in the dismissal of his original complaint. Specifically, Plaintiff’s FAC, like his original complaint, relies on mere recitation of the statutory elements and formulaic conclusions that Defendants violated the law. Nowhere in the FAC does Plaintiff plead specific facts, circumstances, acts or practices that, if true, would establish that Defendants violated the law and are liable to Plaintiff or any putative class member. Such minimal pleading cannot withstand scrutiny under the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“Twombly”) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“Iqbal”). Additionally, Plaintiff’s penalty claims, as set forth in his Fourth, Sixth, Seventh, Eighth and Ninth Causes of Action, independently fail because they are barred by the applicable statute of limitations. Plaintiff had only one year from the date his employment ended to seek statutory penalties. Plaintiff’s employment with Defendants ended in June 2014, but Plaintiff waited approximately two years from the date of his resignation to file the instant action. Accordingly, Plaintiff is time-barred from pursuing any claims for penalties, and these claims must be dismissed with 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 37-2 Filed 12/08/16 Page 9 of 33 Page ID #:475 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 Firmwide:144201159.4 050407.1106 2. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT prejudice. Finally, Plaintiff’s claims under California Labor Code sections 1197.1, 204, and 1174(d) must be dismissed with prejudice for the additional and independent reason that these statutes do not create a private right of action. Based on the foregoing, and as fully set forth herein, Defendants respectfully request the Court dismiss Plaintiff’s FAC in its entirety and with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff worked for Defendants from approximately April 2013 to approximately June 2014. (Dkt. 34, FAC, ¶ 16.) On June 3, 2016, Plaintiff filed his original class-action styled complaint, alleging various causes of action under the California Labor Code2 as well as a derivative claim asserted under California’s Unfair Competition Law, California Business and Professions Code section 17200, et seq. (“UCL claim”). Defendants removed the case to the Central District of California on August 19, 2016. (Dkt. 1.) On August 26, 2016, Defendants filed a motion to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt . 13.) The Court granted Defendants’ motion on October 18, 2016 and dismissed all of Plaintiff’s claims with leave to amend. (Dkt. 33.) On November 8, 2016, Plaintiff filed his FAC, asserting the same ten causes of action alleged in his original complaint. By way of his FAC, 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 June 3, 2012 to final judgment.” (Dkt. 34, FAC, ¶ 11.) Specifically, Plaintiff alleges claims for: (1) unpaid overtime wages in violation of Labor Code sections 510 and 1198, (2) meal period violations under Labor Code sections 226.7 and 512(a), (3) rest period violations 2 Defendants’ references to the Labor Code are to the California Labor Code unless otherwise indicated. Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 10 of 33 Page ID #:476 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 Firmwide:144201159.4 050407.1106 3. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 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. 34, FAC.) Pursuant to Local Rule 7-3, Defendants sent a meet and confer letter to Plaintiff’s counsel via email and U.S. mail on November 30, 2016 setting forth the grounds for the instant motion. (Declaration of Christina H. Hayes (“Hayes Decl.”), ¶ 2, Ex. A.) The parties subsequently met and conferred telephonically on December 2, 2016. (Id., ¶ 3, Ex. B.) Despite these meet and confer efforts, the parties were unable to reach a resolution of the issues set forth herein, necessitating the filing of the instant motion. (Id.) III. ARGUMENT A. The Legal Standard Applicable To Defendants’ Motion To Dismiss A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims stated in the complaint. See Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss under Rule 12(b)(6), the court must decide whether the facts alleged in the complaint, if true, would entitle the plaintiff to some form of legal remedy. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). While the pleader must establish “a short and plain statement of the claim showing that the pleader is entitled to relief” (see Fed. R. Civ. P. 8(a)(2)), threadbare recitals are not sufficient. Dismissal is proper where there is “no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Id. In Twombly and Iqbal, the United States Supreme Court established a two-step process for analyzing the sufficiency of a complaint. First, the Court must exclude or Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 11 of 33 Page ID #:477 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 Firmwide:144201159.4 050407.1106 4. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT ignore “conclusory statements” or “threadbare recitals of the elements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555) (“Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation’”). Second, the Court must determine whether the complaint states a claim that is plausible on its face. Id. (citing Twombly, 550 U.S. at 570). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). If a plaintiff’s allegations do not bring his “claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Twombly, 550 U.S. at 570. After Twombly and Iqbal, courts have increasingly dismissed wage-and-hour class action complaints-like this one-that merely recite statutory language and “slavishly repeat the statutory language as to the purported factual allegations.” See, e.g., Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345, at *7 (C.D. Cal. July 17, 2009) (“Deleon”); see also Sasha Ovieda v. Sodexo Operations, LLC, 2012 U.S. Dist. LEXIS 173844 (C.D. Cal. May 7, 2012) (“Ovieda”) (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); see also Anderson v. Blockbuster, Inc., 2010 U.S. Dist. LEXIS 53854 (E.D. Cal. May 4, 2010) (“Anderson”) (dismissing a complaint for California Labor Code violations where the conclusory allegations did not meet minimum pleading requirements). For example, in Ovieda, supra, the district court dismissed a putative class action where, as here, the plaintiff alleged a litany of California Labor Code violations, including failure to pay overtime, failure to provide meal and rest periods, Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 12 of 33 Page ID #:478 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 Firmwide:144201159.4 050407.1106 5. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT failure to provide accurate wage statements and maintain accurate records, failure to pay wages upon termination, and unlawful business practices. Ovieda, 2012 U.S. Dist. LEXIS 173844 at *2. Applying Twombly and Iqbal, the court found the plaintiff’s “bare-bones allegations to be devoid of sufficient factual enhancement to allow [the court] to draw the reasonable inference that Defendant is liable for the misconduct alleged.” Id. at *9. The court accordingly dismissed the entire complaint, including its individual, class, and representative claims. Id. at *12. Similarly, in Anderson, supra, the district court dismissed a putative wage and hour class action complaint for failing to include allegations beyond parroting the statute. Anderson, 2010 U.S. Dist. LEXIS 53854 at *6. As in Ovieda, the plaintiff in Anderson alleged violations of the California Labor Code, including failure to pay overtime, failure to provide proper wage statements, and violations of California’s Unfair Competition Law. See id. at *2-3. As with the FAC here, the plaintiff in Anderson alleged simply that “Plaintiff and class members consistently worked in excess of eight hours in a day, in excess of 12 hours in a day and/or in excess of 40 hours in a week” and that “Defendant willfully failed to pay all overtime.” Id. at *6. The Court held that none of the causes of action “met minimum pleading requirements,” noting that “Plaintiff fails to state when or how Defendant failed to pay the required wages.” Id. at *8. As the court concluded, “[w]ithout more, such legal conclusions do not suffice.” Id. Like the complaints in Ovieda and Anderson, Plaintiff’s FAC fails to meet the minimal pleading standard set forth in Iqbal and Twombly. Despite being given the opportunity to cure the deficiencies in his original complaint, Plaintiff has failed to make any factual averments establishing that his right to relief, or the right to relief of any putative class member, is anything more than speculative. Consequently, the FAC fails to provide Defendants with the requisite fair notice of what Plaintiff’s claims are and the grounds upon which they rest, and should accordingly be dismissed with prejudice. Twombly, 550 U.S. at 555. Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 13 of 33 Page ID #:479 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 Firmwide:144201159.4 050407.1106 6. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT B. Plaintiff’s Complaint Must Be Dismissed Pursuant To Rule 12(b)(6) For Failure To Plead Sufficient Facts To State A Claim For Relief. Plaintiff’s FAC is devoid of any specific factual allegations that would “permit the Court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. The only truly “factual” allegations in the FAC relate to the most basic details- that Plaintiff, a resident of the County of Riverside, was employed by Defendants as a “maintenance mechanic” from approximately April 2013 through June 2014, and that Defendants have employed and currently employ other non-exempt persons in California. (Dkt. 34, FAC, ¶¶ 4, 15, 16, 21.) These allegations do not establish the plausibility of Plaintiff’s claims. Indeed, Plaintiff has not alleged any specific facts establishing that he, let alone each and every non-exempt employee in California, is entitled to payments for unpaid overtime, missed meal or rest breaks, unreimbursed business expenses, or the host of other wage and hour violations alleged in the FAC. Notably, Plaintiff fails to provide an estimate of the number of overtime hours he worked each week, fails to allege his rate of pay, fails to allege how many meal or rest breaks he did not receive or why any particular meal or rest break was not taken, fails to explain why his wage statements allegedly did not contain all hours worked, fails to identify any specific job-related expenses for which he was not reimbursed and the circumstances surrounding such purported non-reimbursement, and fails to state whether or not he was paid any wages at the time of his resignation, when those wages were paid, and what, if anything, was missing from that payment. In short, Plaintiff entirely fails to provide the factual basis necessary to “nudge[] [his] claims across the line from conceivable to plausible,” let alone to do so with respect to the claims of the putative class. Twombly, 550 U.S at 570. 1. Plaintiff’s First Cause of Action for Unpaid Overtime Fails To Allege Sufficient Facts To State A Claim For Relief. In order to state a plausible cause of action for individual or class-wide unpaid overtime under the Labor Code, Plaintiff must plead facts establishing that he worked Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 14 of 33 Page ID #:480 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 Firmwide:144201159.4 050407.1106 7. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT overtime and actually earned overtime compensation that Defendants failed to pay. See Schneider, 2012 U.S. Dist. LEXIS 19001, at *6 (dismissing overtime claim where amended complaint failed to forth “facts setting out the uncompensated hours [plaintiff] worked, or any facts otherwise demonstrating he actually worked overtime). Conclusory allegations that Plaintiff and class members “worked in excess of eight hours in a day, in excess of 12 hours in a day and/or in excess of 40 hours in a week [are] insufficient to state a claim.” Id. (quoting Anderson, 2010 U.S. Dist. LEXIS 53854, at *2-3); see also Deleon, 2009 U.S. Dist. LEXIS 74345, *7 (granting motion to dismiss where the complaint merely “recite[d] the statutory language setting forth elements of the claim, and then slavishly repeat[ed] the statutory language as to the purported factual allegations”). To support his claim for unpaid overtime wages, Plaintiff merely repeats the same deficient language from his original complaint-language which this Court has already held fails to meet the pleading requirements of Twombly and Iqbal. (See Dkt. 33 (dismissing Plaintiff’s original complaint for failure to state a claim for relief). Plaintiff then adds the following new allegations: “[Plaintiff and other class members] perform[ed] work duties off the clock including, but not limited to, donning and doffing, responding to pages and business-related questions, and performing the pass down.” (Dkt. 34, FAC, ¶ 52; see also id. at ¶ 24.) “Plaintiff and the other class members did not receive overtime compensation at one and one-half times or twice their regular rate of pay for all hours spent performing job duties in excess of eight (8) hours in a day or forty (40) hours in a week.” (Id. ¶ 53.) These skeletal additions to Plaintiff’s FAC do nothing to cure the deficiencies in his original complaint. As established by the Ninth Circuit, a claim alleging unpaid overtime must “allege facts showing that there was a specific week in which [the plaintiff] was entitled to but denied minimum wages or overtime wages.” Landers v. Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 15 of 33 Page ID #:481 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 Firmwide:144201159.4 050407.1106 8. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Quality Commc’ns, Inc., 771 F.3d 638, 645 (9th Cir. 2014). Although Plaintiff is not required to allege the amount of overtime owed “with mathematical precision” he is required to provide “sufficient detail about the length and frequency of his unpaid work to support a reasonable inference that he worked more than forty hours in a given week.” See id. at 646 (quoting Nakahata v. New York-Presbyterian Healthcare Sys., 723 F.3d 192, 201 (2d Cir. 2013). In Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb 25, 2016), the court dismissed plaintiff’s claim for overtime under Landers, noting: [Plaintiff] fails to identify a single workweek in which he worked in excess of eight hours in a day or forty hours in a week such that he was entitled to overtime. Plaintiff does not allege his rate of pay, estimate how much overtime he was entitled to but did not receive, nor allege whether this occurred on a consistent basis. Moreover, he does not allege the basis for his knowledge and belief that other [employees of defendant] worked shifts in excess of eight hours and/or forty hours without adequate compensation. Indeed, the Complaint does not identify the length of any shift worked by Plaintiff to show that Defendants’ various obligations under the Labor Code were triggered. Under Landers, Plaintiff fails to state a claim for unpaid overtime. 2016 U.S. Dist. LEXIS 23435 at *8-9. Plaintiff’s FAC suffers from the same defects that resulted in dismissal of the overtime claims in Landers and Byrd. Notably, Plaintiff fails to estimate the length of “his average workweek, the average rate of pay, amount of overtime owed, ‘or any other facts that will permit the court to find plausibility.” Dkt. 33 (quoting Landers, 771 F.3d at 645); see also Khalili v. Comerica Bank, 2011 U.S. Dist. LEXIS 64559, at *6-7 (N.D. Cal. June 16, 2011) (dismissing overtime claims under Iqbal where the plaintiff “allege[d] Defendants failed to pay ‘proper’ overtime, without alleging what made Defendants’ actions ‘improper’”); Anderson, 2010 U.S. Dist. LEXIS 53854 at Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 16 of 33 Page ID #:482 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 Firmwide:144201159.4 050407.1106 9. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT *6, *8 (dismissing claim for unpaid wages where the complaint merely alleged that “Plaintiff . . . consistently worked in excess of eight hours in a day, in excess of 12 hours in a day and/or in excess of 40 hours in a week” and that “Defendants willfully failed to pay overtime” but failed to state “when or how Defendant failed to pay the required wages.”) Because Plaintiff’s First Cause of Action for unpaid overtime does nothing more than provide “‘naked assertion[s]’ devoid of ‘further factual enhancement’” it fails to meet the pleading standard set forth in Iqbal and Twombly. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557. Accordingly, Plaintiff’s First Cause of Action fails to set forth a cognizable claim upon which relief may be granted and should be dismissed with prejudice. 2. Plaintiff’s Second And Third Causes of Action for Meal And Rest Break Violations Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. As with his original deficient complaint, the allegations in Plaintiff’s FAC in support of his meal and rest break claims merely parrot the statutory elements. Plaintiff’s FAC adds only the following new allegations with respect to his meal period claim: “Defendants failed to relieve Plaintiff and other class members of all duties, failed to relinquish control over Plaintiff and the other class members’ activities, failed to permit Plaintiff and other class members a reasonable opportunity to take, and impeded or discouraged them from taking, thirty (30) minute uninterrupted meal breaks no later than the end of their fifth hour of work for shifts lasing at least six (6) hours, and/or to take second thirty (30) minute uninterrupted meal breaks no later than their tenth hour of work for shifts lasting more than ten (10) hours.” (Dkt. 34, FAC, ¶ 26.) “During the relevant time period, Plaintiff’s and the other class members’ meal periods were missed, short, late, and/or interrupted because Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 17 of 33 Page ID #:483 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 Firmwide:144201159.4 050407.1106 10. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Defendants required them to perform work duties including, but not limited to, responding to pages and business-related questions and repairing machines. (Id. ¶ 61.) With respect to his rest period claim, Plaintiff’s FAC adds the following conclusory allegations: “During the relevant time period, Plaintiff’s and the other class members’ rest periods were missed, short, late, and/or interrupted because Defendants required them to perform work duties including, but not limited to, responding to pages and business-related questions and repairing machines. (Id. ¶ 72.) “As a result, Defendant failed to provide, authorize, or permit Plaintiff and the other class members to take a full, uninterrupted, off-duty rest period for every shift lasting three and one half (3.5) to six (6) hours and/or two full, uninterrupted, off-duty rest periods for every shift lasting six (6) to ten (10) hours and/or three full, uninterrupted, off-duty rest periods for every shift lasting ten (10) hours to fourteen (14) hours, and failed to make a good faith effort to authorize, permit, and provide such rest breaks in the middle of each work period.” (Id. ¶ 73; see also id. at ¶ 28.) “During the relevant time period, Defendants 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.” (Id. ¶ 74.) Numerous courts have found that such conclusory allegations are insufficient to state a claim for relief. For example, in Deleon, supra, the plaintiff alleged that “Defendants required Plaintiff and class members to work during meal periods” and “Defendants required Plaintiff and class members to work during rest periods.” Deleon, 2009 U.S. Dist. LEXIS 74345 at *7-8. The Central District of California Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 18 of 33 Page ID #:484 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 Firmwide:144201159.4 050407.1106 11. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT found these allegations plus a recitation of statutory language insufficient to survive a motion to dismiss. Id. at *8. Similarly, in Weigele v. FedEx Ground Package Sys., 2010 U.S. Dist. LEXIS 120475 (S.D. Cal. Nov. 15, 2010) (“Weigele”), the court dismissed the plaintiffs’ meal period claim for failure to allege sufficient facts where the plaintiffs merely mimicked the statutory elements, stating: Defendant required Plaintiffs to work . . . without being given a 30- minute meal period for shifts of at least five hours and second 30-minute meal periods for shifts of at least ten hours during which Plaintiffs were relieved of all duties and free to leave the premises, nor did Defendant pay any Plaintiffs [sic] one hour’s pay at the employee’s regular rate of pay as premium pay compensation for failure to provide . . . meal periods. Weigele, 2010 U.S. Dist. LEXIS 120475 at *11-12. The Weigele court similarly dismissed the plaintiffs’ rest period claim, where the complaint merely alleged: Defendant required Plaintiffs to work without being given paid ten minute rest periods for every four hours or major fraction thereof worked . . . nor did Defendant pay any Plaintiffs [sic] one hour’s pay at the employee’s regular rate of pay as premium pay compensation for failure to provide rest . . . periods. Defendant’s conduct violated the applicable Wage Orders and Labor Code section 226.7. Id. at 12. Here, the allegations in Plaintiff’s FAC suffer from the same lack of factual detail that warranted dismissal of the meal and rest period claims in Deleon and Weigele. See also Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930, *14 (N.D. Cal. Apr. 18, 2013) (finding that plaintiffs failed to plead sufficient facts to state a claim for violation of California’s meal and rest break requirements where plaintiffs Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 19 of 33 Page ID #:485 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 Firmwide:144201159.4 050407.1106 12. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT alleged their employer “pressured, incentivized, and discouraged” them from taking meals breaks but failed to “provide any facts surrounding these alleged tactics”). Just like the plaintiffs in those cases, Plaintiff fails to allege any facts whatsoever to support his conclusory assertion that there was a common policy or practice that deprived Plaintiff and the putative class members of their meal and rest periods. Indeed, Plaintiff fails to identify any instances where he, much less any other member of the putative class, was denied a meal period or rest break. See Byrd, 2016 U.S. Dist. LEXIS 23435 at *9 (holding that the plaintiff failed to state a claim for unpaid meal and rest period premiums where “[n]owhere in the Complaint does Plaintiff identify a specific instance in which he was denied . . . a meal period or rest break”). Accordingly, Plaintiff’s Second and Third Causes of Action for unpaid meal and rest period premiums should be dismissed with prejudice for failure to allege sufficient facts to state a claim for relief. 3. Plaintiff’s Fourth Cause of Action For Unpaid Minimum Wage Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. With respect to his claim for unpaid wages, Plaintiff’s FAC repeats the same deficient allegations from his original complaint, while also adding the following conclusory allegations: “Defendant’s failure to pay minimum wages included, inter alia, Defendants’ effective payment of zero dollars per hour for hours Plaintiff and the other class members worked off the clock performing work duties.” (Dkt. 34, FAC, ¶ 30.) “During the relevant time period, Plaintiff and the other class members were required to perform job duties off the clock, including, but not limited to, donning and doffing, responding to pages and business-related questions, repairing machines, and performing the pass down.” (Id. ¶ 81; see also id. at ¶ 24.) / / / / Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 20 of 33 Page ID #:486 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 Firmwide:144201159.4 050407.1106 13. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT “Defendants’ failure to pay Plaintiff and the other class members the minimum wage as required violates California Labor Code sections 1194, 1197, and 1197.1. Pursuant to those sections Plaintiff and the other class members 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 unpaid and interest thereon. (Id. ¶ 82.) These allegations do nothing to cure the deficiencies in Plaintiff’s original complaint. Once again, Plaintiff “fails to allege a single instance in which [Defendants] failed to pay [him] all wages due to him during his employment,” a failure which the Central District in Byrd held warranted dismissal. Byrd, 2016 U.S. Dist. LEXIS 23435 at *9. Similarly, Plaintiff fails to establish the basis for his knowledge and belief that other non-exempt employees were not paid all wages owed to them. Id. Indeed, Plaintiff has failed to set forth any factual information regarding why he allegedly worked off-the-clock, how frequently his alleged off-the-clock work occurred, or any other details that would raise a plausible entitlement to relief. Instead, Plaintiff relies on conclusory allegations and a recitation of the statutory elements. See Moss v. U.S. Secret Service, 572 F. 3d 962, 969 (9th Cir. 2009) (“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.”) (quoting Twombly, 550 U.S. at 555). Accordingly, Plaintiff’s Fourth Cause of Action for unpaid minimum wages should be dismissed with prejudice. 4. Plaintiff’s Fifth Cause of Action For Untimely Final Wages Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. 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. 34, FAC, ¶¶ 87-94.) As with his allegations in support of those claims, Plaintiff merely recites the statutory elements and relies on conclusory allegations devoid of any Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 21 of 33 Page ID #:487 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 Firmwide:144201159.4 050407.1106 14. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT factual detail. Plaintiff’s threadbare recitals of the elements of this claim cannot survive a motion to dismiss. See Byrd, 2016 U.S. Dist. LEXIS 23435 at *9 (dismissing plaintiff’s claim for unpaid final wages where the plaintiff failed to “allege what final wages he was owed upon leaving Defendants’ employ”); 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 at *8-9 (same). Plaintiff’s Fifth Cause of Action should accordingly be dismissed with prejudice. 5. Plaintiff’s Sixth Cause of Action For Untimely Wages During Employment Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. Plaintiff’s allegations in support of his claim for untimely wages in violation of Labor Code section 204 amount to threadbare recitals of the elements of the cause of action. Plaintiff fails to add any additional language to the deficient allegations in his original complaint, other than to specify that Defendants’ alleged failure to timely pay all wages due includes “earned and unpaid minimum, overtime and premium wages.” (Dkt. 34, FAC, ¶ 103.) This new allegation does nothing to satisfy the requirement that a complaint contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). As such, Plaintiff’s Sixth Cause of Action should be dismissed with prejudice for failure to state a claim for which relief may be granted. 6. Plaintiff’s Seventh Cause Of Action For Inaccurate Wage Statements Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. Plaintiff supports his inaccurate wage statement claim with conclusory allegations that courts have repeatedly found insufficient and dismissed. See Harding v. Time Warner, Inc., 2009 U.S. Dist. LEXIS 72851, *9-10 (S.D. Cal. Aug. 18, 2009) (dismissing claim alleging defendant failed to “provide accurate Itemized Wage Statements”); Schneider, 2012 U.S. Dist. LEXIS 19001 at *8-9 (same). Plaintiff’s Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 22 of 33 Page ID #:488 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 Firmwide:144201159.4 050407.1106 15. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT limited allegations as to this claim are substantially identical to the deficient allegations in his original complaint. Indeed, with respect to his Seventh Cause of Action, Plaintiff’s FAC adds only the following allegation: “[The wage statements failed to include] the accurate total number of hours worked by Plaintiff and the other class members and the accurate amount of wages earned. Because Plaintiff’s and the other class members’ wage statements did not reflect this information, Plaintiff and the other class members were unable to determine the total amount they were owed, and were unable to verify they were paid the proper amount. In order to determine how much Plaintiff and the other class members should have been paid, Plaintiff and the other class members would have had to engage in discovery and mathematical computations in order to reconstruct the missing information.” (Dkt. 34, FAC, ¶ 107.) As with his other claims, Plaintiff fails to “identify a single deficient wage statement,” see Byrd, 2016 U.S. Dist. LEXIS 23435 at *9, or set forth any specific factual allegations that would establish a plausible entitlement to relief. As shown above, Plaintiff has not pleaded any facts to demonstrate that Defendants failed to properly compensate Plaintiff for all time worked, and thus, Plaintiff cannot sustain a derivative wage statement claim by simply reciting that Defendants failed to provide “the accurate total number of hours worked by Plaintiff . . . and the accurate amount of wages earned.” (Dkt. 34, FAC, ¶ 107.) Accordingly, Plaintiff’s wage statement claim cannot survive Defendants’ motion to dismiss and should be dismissed with prejudice. 7. Plaintiff’s Eighth Cause of Action For Failure To Keep Payroll Records Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. Plaintiff’s allegations in support of his Eighth Cause of Action lack even threadbare recitals of the elements. Once again Plaintiff does nothing to cure the deficiencies in his original complaint, other than to add a mere three words - Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 23 of 33 Page ID #:489 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 Firmwide:144201159.4 050407.1106 16. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT “accurate number of” - to his Eighth Cause of Action (see Dkt. 34, FAC, ¶ 114), and to add the following sentence to his general allegations: “Defendants’ failure included, inter alia, to keep accurate records of the hours worked and wages earned by Plaintiff and the other class members,” (see id., ¶ 34). Plaintiff “does not identify a single . . . inadequate payroll record,” Byrd, 2016 U.S. Dist. LEXIS 23435 at *9, but instead relies on threadbare recitals and conclusory allegations that must be disregarded at the pleading stage. See Harding, 2009 U.S. Dist. LEXIS 72851, at *9 (applying the Twombly/Ashcroft standard, court held that “conclusory allegations” “will be ‘assigned no weight.’”). For these reasons, Plaintiff’s Eighth Cause of Action should also be dismissed with prejudice. 8. Plaintiff Ninth Cause of Action For Unreimbursed Business Expenses Must Be Dismissed For Failure To Allege Sufficient Facts To State A Claim For Relief. Plaintiff attempts to cure the defects in his Ninth Cause of Action for unreimbursed business expenses by adding the following allegation to his FAC: “Plaintiff and the other class members incurred necessary business- related expenses and costs that were not fully reimbursed by Defendants, including but not limited to, the costs of purchasing protective footwear, the costs of providing tools, and the use of personal vehicles for business- related travel.” (Dkt. 34, FAC, ¶¶ 119.) Notably missing from Plaintiff’s FAC are any specific allegations setting forth, “what, if any, business-related expenses he incurred during his employment that [Defendants] did not fully reimburse.” Byrd, 2016 U.S. Dist. LEXIS 23435 at *9. In Ovieda, the plaintiff alleged the defendants were “required to provide uniforms and equipment to their employees free of charge,” and that “[d]uring the court of Plaintiff’s employment, Defendants, pursuant to their policies and procedures, charges their employees for uniforms and equipment.” Ovieda, 2012 U.S. Dist. LEXIS 173844 at *6. As a result, the plaintiff alleged she “suffered, and continues to suffer, substantial losses.” Id. The Central District concluded these allegations failed Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 24 of 33 Page ID #:490 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 Firmwide:144201159.4 050407.1106 17. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT to state a claim for relief. Specifically, the Ovieda court noted, “with respect to this claim, Plaintiff never explicitly alleges that she herself was charged for a uniform or equipment, let alone that her job duties required her to wear a uniform or use specific equipment.” Id. Similarly, here, Plaintiff makes vague references to “protective footwear,” “tools” and “the use personal vehicles” (see Dkt. 34, FAC, ¶ 119), but fails to allege these items were required as part of his job duties (much less as part of the job duties for all non-exempt employees working in California), or to identify any specific instances where he purchased any of these items as part of his job duties but was not reimbursed by Defendants. Accordingly, Plaintiff’s Ninth Cause of Action should be dismissed with prejudice for failure to state a claim for relief. 9. Plaintiff’s Tenth Cause of Action For Violation Of The California Business & Professions Code Section 17200 Et Seq. Fails To Allege Sufficient Facts To State A Claim For Relief. Plaintiff’s claim for violation of the California Business & Professions Code section 17200 et seq. is predicated on Plaintiff’s First through Ninth Causes of Action. (See Dkt. 34, FAC, ¶¶ 121-127.) Because Plaintiff fails to sufficiently plead his First through Ninth Causes of Action, his Tenth Cause of Action is also subject to dismissal for conclusory allegations that do not meet the minimum pleading requirement. Renick v. Dun & Bradstreet Receivable Management Services, 290 F.3d 1055, 1058 (9th Cir. 2002) (a violation of California Business and Professions Code section 17200 et seq. generally requires the plaintiff establish a violation of an underlying statute). As set forth above, Plaintiff’s FAC fails to cure any of the deficiencies in Plaintiff’s original complaint. At its core, Plaintiff’s FAC alleges nothing more than the fact that Plaintiff worked for Defendants in some capacity and that Defendants violated wage and hour laws. In Anderson v. Blockbuster Inc., supra, the court similarly dismissed an unfair competition claim that derived from violations of California Labor Code provisions where the complaint merely parroted the statutory language for each purported claim. Anderson, 2010 U.S. Dist. Lexis 53854, at *8-9 (holding that plaintiff must plead sufficient factual content to allow the court to make a Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 25 of 33 Page ID #:491 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 Firmwide:144201159.4 050407.1106 18. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT reasonable inference that defendant is liable for the claims alleged by plaintiffs); see also Weigele, 2010 U.S. Dist. LEXIS 120475 at *13 n. 4 (dismissing plaintiffs’ labor code claims for failure to plead sufficient factual allegations and noting that “[b]ecause Plaintiffs’ unfair competition claim derives from their overtime claims and meal and rest period claims, the unfair competition claim fails if the other claims fail”). As in Anderson, Plaintiff has failed to plead sufficient facts to establish entitlement to relief on any of his claims for alleged violations of the California Labor Code. Accordingly, Plaintiff’s Tenth Cause of Action for unfair competition should be dismissed with prejudice for failure to state a claim upon which relief may be granted. C. Plaintiff’s Claims For Penalties Pursuant to Labor Code Sections 1197.1, 204, 226(e), 1174.5, 204, and 2802 Are Time Barred (Fourth, Sixth, Seventh, Eighth, and Ninth Claims) 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. 34, FAC, ¶ 83), untimely payment of wages (id. ¶¶ 99-104), inaccurate wage statements (id. ¶¶ 105- 111), failure to keep accurate payroll records (id. ¶¶ 112-116), and unreimbursed business expenses (id. ¶¶ 117-120). See 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 n. 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. 34, FAC, ¶ 16 (“Defendants . . . employed Plaintiff . . . from approximately April 2013 to approximately June 2014”). To satisfy the statute of limitations, Plaintiff was required to bring his claim for penalties by June Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 26 of 33 Page ID #:492 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 Firmwide:144201159.4 050407.1106 19. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 2015, which he did not. Instead Plaintiff filed his claim for penalties for the first time on June 3, 2016 - approximately two years after his employment ended. Accordingly, Plaintiff’s claims for penalties, as set forth in his Fourth, Sixth, Seventh, Eighth, and Ninth Causes of Action, must be dismissed. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th. Cir. 1980) (complaint fails to state a claim where the action is time-barred based upon the facts asserted); see also Mitchell v. Sung, 816 F. Supp. 597, 602 (N.D. Cal. 1993) (courts may dismiss claims that are barred by the statute of limitations). Moreover, Plaintiff’s defective claims for penalties cannot be saved by amendment, and should therefore be dismissed with prejudice. Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) (leave to amend should be denied if the court determines that any amendment to “the challenged pleading could not possibly cure the deficiency”). 1. Plaintiff’s Claim For Penalties Under Labor Code Section 1197.1 Is Time Barred. Plaintiff pursues his Fourth Cause of Action, in part, under Labor Code section 1197.1.3 (Dkt. 34, FAC, ¶ 83.) Section 1197.1 is clearly a penalty statute that is subject to a one year statute of limitations.4 See Hernandez v. Towne Park, Ltd., 2012 U.S. Dist. LEXIS 86975, *29 (C.D. Cal. 2012) (“Hernandez notes that Towne Park assumes his § 1197.1 claim is governed by the three-year statute of limitations set forth in California Code of Civil Procedure § 338(a) . . . In reality, however, recovery 3 Defendants’ challenge to certain allegations within Plaintiff’s Fourth Claim for unpaid minimum wages, including specifically, Plaintiff’s pursuit of penalties under that Claim, is properly raised in a Rule 12(b)(6) motion. See Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1081-82 (C.D. Cal. 2011) (finding rule 12(b)(6) motion appropriate where defendant challenged legal sufficiency of certain allegations within a claim). 4 Section 1197.1 states, “Any employer or other person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee a wage less than the minimum fixed by an applicable state or local law, or by an order of the commission shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203. . . .” Lab. Code. § 1197.1(a) (emphasis added.) Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 27 of 33 Page ID #:493 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 Firmwide:144201159.4 050407.1106 20. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT of such penalties is governed by a one-year statute of limitations. . . .”). Consequently, Plaintiff’s claim for penalties under Labor Code Section 1197.1 is barred by the statute of limitations, and must be dismissed with prejudice. 2. Plaintiff’s Sixth Cause of Action Is Time Barred. Plaintiff’s sixth cause of action alleges that Plaintiff was not paid in a timely manner under Labor Code section 204. (Dkt. 34, FAC, ¶ 103.) Plaintiff prays for “all actual, consequential, and incidental losses and damages.” (Id., Prayer for Relief, ¶ 36). However, “Section 210 provides the only remedy for failure to comply with 204 i.e., for failure to make timely wage payments, and the remedy is a civil penalty.” Singer v. Becton, Dickinson & Co., 2008 U.S. Dist. LEXIS 56326, *8 (S.D. Cal., July 25, 2008) (emphasis added). Section 210 provides that “every person who fails to pay the wages of each employee as provided in Section[] 204 . . . shall be subject to a civil penalty.” Cal. Lab. Code § 204 (emphasis added). Thus, “[b]ecause 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) and Plaintiff’s [FAC] as to this cause of action is untimely.” Singer, 2008 U.S. Dist. LEXIS 56326 at *8 (granting motion to dismiss and finding the plaintiff’s section 204 claim was barred by the one year state of limitations.) Accordingly, Plaintiff’s Sixth Cause of Action is time barred and should be dismissed with prejudice. 3. Plaintiff’s Seventh Cause of Action Is Time Barred. By way of his Seventh Cause of Action, Plaintiff alleges violations of Labor Code section 226(a) for failure to provide accurate wage statements and seeks remedies for statutory penalties pursuant to section 226(e). (Dkt. 34, FAC, ¶¶ 105- 111, Prayer for Relief.) California Labor Code section 226(e) provides: An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 28 of 33 Page ID #:494 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 Firmwide:144201159.4 050407.1106 21. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000) . . . . Cal. Lab Code § 226(e) (emphasis added). It is therefore readily apparent from a plain reading of the statute that the relief available for a violation of Labor Code section 226 is a penalty. Further, the California Supreme Court has confirmed that “[i]n section 226, the Legislature imposed a penalty on employers who fail to provide itemized earnings statements that comply with the Labor Code.” See Murphy, 40 Cal. 4th at 1108. Such a claim is “undisputedly governed by a one-year statute of limitations.” Id. at 1118 n. 16. Accordingly, the Ninth Circuit has held that if a plaintiff “is claiming penalties under section 226, [citation to Murphy], California’s one-year statute of limitations bars this claim [citing Cal. Code Civ. Pro. § 340].” Elliot v. Spherion Pacific Work, LLC, 368 Fed. Appx. 761, 764 (9th Cir. 2010); see also Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453, 462 (S.D. Cal. 2007) (“Recovery under § 226(a) constitutes a penalty and is therefore governed by a one-year statute of limitations under California Code of Civil Procedure § 340(a).”). Accordingly, Plaintiff’s Seventh Cause of Action for inaccurate wage statements is time barred and should be dismissed with prejudice. 4. Plaintiff’s Eighth Cause of Action Is Time Barred. Plaintiff’s Eight Cause of Action demands civil penalties pursuant to California Labor Code section 1174.5, which provides for “a civil penalty of five hundred dollars ($500)” for violation of section 1174(d) by willfully failing to maintain accurate and complete records or failing to allow any member of the Industrial Welfare Commission to inspect such records. See Cal. Lab Code § 1174.5 (emphasis added). Thus, this claim is subject to the one-year statute of limitations and should be dismissed with prejudice. See Cal. Code Civ. Pro. § 340(a). / / / / Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 29 of 33 Page ID #:495 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 Firmwide:144201159.4 050407.1106 22. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 5. Plaintiff’s Claim For “Statutory Penalties” Under Labor Code Section 2802 Is Time Barred To The Extent Any Such Penalties Exist. Plaintiff prays for the recovery of “statutory penalties” in his Ninth Cause of Action for violation of Labor Code section 2802. (Dkt. 34, FAC, Prayer for Relief ¶ 50.) As previously noted, a claim for penalties is subject to a one year statute of limitations. See Cal. Code Civ. Proc. § 340(a). Because Plaintiff did not assert this claim within one year of the termination of his employment, his claim for “statutory penalties” under Labor Code Section 2802 is barred by the statute of limitations, and this claim for penalties must be dismissed with prejudice. D. There Is No Private Right Of Action Under Sections 1197.1 or 204. Plaintiff’s claims under Labor Code sections 1197.1 and 204 must be dismissed for the additional and independent reason that these sections do not create a private right of action. Rather, Labor Code sections 1197.1 and 204 direct enforcement to the California Labor Commissioner, and only the Labor Commissioner has the authority to pursue penalties against an employer for violation of Labor Code sections 1197.1 and 204. See Byrd, 2016 U.S. Dist. LEXIS 23435 at *21 (Labor Code section 204 does “not offer Plaintiff a private right of action”); 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.”); Castellon v. Penn-Ridge Transp., Inc., 2015 U.S. Dist. LEXIS 149079, *8 (C.D. Cal. Nov. 2, 2015) (“the penalties under Labor Code section 1197.1 are only recoverable under [the Private Attorney General Act]”) . 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 . . . .” Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 30 of 33 Page ID #:496 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 Firmwide:144201159.4 050407.1106 23. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Additionally, Labor Code section 210 specifically authorizes the Labor Commissioner to issue a fine against employers who violate section 204. See Cal. Lab. Code § 210(b) (“The penalty shall be recovered by the Labor Commissioner. . .”) (emphasis added). 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.5 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, *14 (C.D. Cal. Oct. 18, 2010) (emphasis added); see also Lu v. Hawaiian Gardens Casino, Inc., 50 Cal. 4th 592, 597 (2010) (to create a private right of action, the 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.”) Here, sections 1197.1 and 204 do not contain such “clear, understandable [and] unmistakable” language, and thus do not create a private right of action. Plaintiff’s claims under sections 1197.1 and 204 must be dismissed with prejudice. E. Plaintiff’s Eighth Cause of Action Must Be Dismissed With Prejudice Because Plaintiff Has Not Exhausted His Administrative Remedies, And The Statute Of Limitations Has Passed. Similarly, Plaintiff’s Eighth Cause of Action for failure to maintain accurate and complete payroll records in violation of Labor Code section 1174(d) must also be dismissed because there is “no private right of action directly under the Labor Code for violation of section 1174(d).” Cordell v. PICC Lines Plus LLC, 2016 U.S. Dist. 5 California Wage Order No. 4, Section 20(B) discussing penalties, confirms the only available remedy under section 1197.1 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.” Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 31 of 33 Page ID #:497 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 Firmwide:144201159.4 050407.1106 24. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT LEXIS 121708, *30 (N.D. Cal. Sept. 8, 2016). The only remedy for violation of section 1174(d) is the imposition of a civil penalty. See Lab. Code § 1174.5. A private claim for civil penalties under section 1174.5 may only be made pursuant to the Private Attorney General Act of 2004 (“PAGA”). See Silva v. U.S. Bancorp, 2011 U.S. Dist. LEXIS 152817, *7-8 (C.D. Cal. Oct. 6, 2011) (claim for section 1174.5 civil penalties dismissed with prejudice because of failure to exhaust PAGA administrative remedies); Cordell, 2016 U.S. Dist. LEXIS 121708 at *30 (a claim for violation of section 1174 “arise[s] under the [PAGA], not under the Labor Code directly”). 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). However, no PAGA claim may be brought unless the plaintiff first exhausts his administrative remedies by providing notice to the LWDA. See Lab. Code § 2699.3(a); see also Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 383 (2005) (sustaining a dismissal with prejudice of claims for violation of Section 1174 and for PAGA penalties because the employee did not exhaust administrative remedies under PAGA and no claim for civil penalties could be sustained except through PAGA). This 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) (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 pursue such a claim nor could he do so now since the one- year statute of limitations has long run. As such, Plaintiff must concede that his Eighth Cause of Action for violation of Labor Code section 1174 is subject to Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 32 of 33 Page ID #:498 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 Firmwide:144201159.4 050407.1106 25. MPAs ISO MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 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 contains references to the penalty provisions of the Labor Code, including sections 204, 226(a), 1174(d), 2802, and 1197.1. (Dkt. 34, FAC, ¶ 124.) 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 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). Accordingly, these allegations are immaterial to any claim for relief, and must be dismissed from the FAC with prejudice. IV. CONCLUSION For all of the reasons set forth herein, Defendants respectfully request the Court grant this Motion and dismiss Plaintiff’s FAC, and each and every cause of action therein with prejudice, for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). Because Plaintiff has failed to demonstrate to this Court that he is in possession of facts supporting his claims against Defendants, Plaintiff must not be permitted leave to amend his FAC, as to do so would be futile. Dated: December 8, 2016 Respectfully submitted, /s/ Christina H. Hayes STACEY E. JAMES CHRISTINA H. HAYES AMBERLY MORGAN LITTLER MENDELSON, P.C. Attorneys for Defendants QG PRINTING CORP, QUAD/GRAPHICS, and QUAD GRAPHICS Case 5:16-cv-01792-GHK-SP Document 37-2 Filed 12/08/16 Page 33 of 33 Page ID #:499 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 Firmwide:144279195.1 050407.1106 ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 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 ODES 1 through 100, inclusive, Defendants. Case No. 5:16-CV-01792-GHK (SPx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: January 30, 2017 Time: 9:30 a.m. Dept: 650 Dist. Judge: Hon. George H. King On January 30, 2017, 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 Case 5:16-cv-01792-GHK-SP Document 37-3 Filed 12/08/16 Page 1 of 3 Page ID #:500 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 Firmwide:144279195.1 050407.1106 2. ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT GRANTS Defendants’ Motion to Dismiss with prejudice to Plaintiff Alejandro Rodriguez’s (“Plaintiff”) First Amended Complaint 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 Code 1 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 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. 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 37-3 Filed 12/08/16 Page 2 of 3 Page ID #:501 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 Firmwide:144279195.1 050407.1106 3. ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 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 Case 5:16-cv-01792-GHK-SP Document 37-3 Filed 12/08/16 Page 3 of 3 Page ID #:502
