Andres Salazar v. Clougherty Packing, Llc et al

NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint

C.D. Cal.January 23, 2017

NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gabrielle Wirth (SBN 106492) wirth.gabrielle@dorsey.com Jessica L. Linehan (SBN 223569) linehan.jessica@dorsey.com DORSEY & WHITNEY LLP 600 Anton Boulevard, Suite 2000 Costa Mesa, CA 92626-7655 Telephone: (714) 800-1400 Facsimile: (714) 800-1499 Attorneys for Defendants CLOUGHERTY PACKING, LLC dba FARMER JOHN and HORMEL FOODS CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANDRES SALAZAR, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOUGHERTY PACKING, LLC dba FARMER JOHN, a Delaware limited liability corporation; HORMEL FOODS CORPORATION, a Delaware corporation; and DOES 1 through 20, inclusive, Defendants. CASE NO: 2:16-cv-09484 BRO (GJSx) [Los Angeles Superior Court Case No. BC622487] Assigned for all purposes to: Hon. Beverly Reid O’Connell Courtroom: 7C NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: February 27, 2017 Time: 1:30 p.m. Courtroom: 7C Complaint Filed: June 1, 2016 First Amended Complaint: July 20, 2016 / / / / / / / / / Case 2:16-cv-09484-BRO-GJS Document 10 Filed 01/23/17 Page 1 of 4 Page ID #:252 1 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT, pursuant to the Federal Rules of Civil Procedure, Rule 12(b)(6) and the inherent powers of this Court, on February 27, 2017 at 1:30 p.m. or as soon thereafter as the matter may be heard, in Courtroom 7C of the United States District Court for the Central District of California, located at 350 West 1st Street, Los Angeles, CA. 90012, before the Honorable Beverly Reid O’Connell Judge presiding, Defendants Clougherty Packing, LLC dba Farmer John and Hormel Foods Corporation will and hereby move to dismiss the First Amended Complaint herein, as follows: 1. Plaintiff’s First Cause of Action for Failure to Pay Minimum Wages fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for Minimum Wages. 2. Plaintiff’s Second Cause of Action for Failure to Pay Overtime Wages fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for Overtime Wages. 3. Plaintiff’s Third Cause of Action for Failure to Provide Meal Periods fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for in violation of Labor Code section 226.7 relating to meal periods. 4. Plaintiff’s Fourth Cause of Action for Failure to Permit Rest Breaks fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim in violation of Labor Code section 226.7 relating to rest periods. 5. Plaintiff’s Fifth Cause of Action for Failure to Provide Accurate Itemized Wage Statements fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for failure to provide accurate wages statements under Labor Code section 226.7. 6. Plaintiff’s Sixth Cause of Action for Failure to Pay All Wages Due Within the Required Time and Upon Separation of Employment fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for failure to pay Case 2:16-cv-09484-BRO-GJS Document 10 Filed 01/23/17 Page 2 of 4 Page ID #:253 2 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wages on termination under Labor Code section 201 and 202. 7. Plaintiff’s Seventh Cause of Action for Violation of Business and Professions Code section 17200, et seq. fail because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for unfair business practices under section 17,200. 8. Plaintiff’s Eighth Cause of Action for Enforcement of Labor Code section 2698 et seq. fail because Plaintiff’s First Amended Complaint fails to set forth specific violations that are the basis for his PAGA claims and fails to allege he gave “written notice.... to the LWDA” and employees of “the specific provisions of the code alleged to have been violated” including the facts and theories alleged to support the violation as required by Labor Code section 2699.3 9. The claims against Defendant Hormel Foods Corporations must be dismissed as Plaintiff has not pleaded facts sufficient to state a claim and that Hormel is Plaintiff’s employer or to make a parent company liable for the acts of its subsidiary Clougherty Packing. This motion is based on this Notice of Motion and Motion to Dismiss, the Memorandum of Points and Authorities in support thereof, all pleadings and records on file in this action, and any other matters as may properly come before the Court at oral argument or otherwise. This Motion is made pursuant to the Local Rule 7-3 conferences which took place starting December 28, 2016 and continued until the last conference on January 13, 2017. DATED: January 23, 2017 DORSEY & WHITNEY LLP By: /s/ Gabrielle M. Wirth Gabrielle Wirth Jessica L. Linehan Attorneys for CLOUGHERTY PACKING, LLC dba FARMER JOHN and HORMEL FOODS CORPORATION Case 2:16-cv-09484-BRO-GJS Document 10 Filed 01/23/17 Page 3 of 4 Page ID #:254 1 CERTIFICATE OF SERVICE 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 CERTIFICATE OF SERVICE All Case Participants are registered for the USDC CM/ECF System CASE NAME: Andres Salazar vs. Clougherty Packing, LLC dba Farmer John; Hormel Foods Corporation CASE NUMBER: 2:16-cv-09484 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT I hereby certify that on January 23, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Northern District by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. Dated: January 23, 2017 DORSEY & WHITNEY LLP By: /s/ Gabrielle M. Wirth Case 2:16-cv-09484-BRO-GJS Document 10 Filed 01/23/17 Page 4 of 4 Page ID #:255 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gabrielle Wirth (SBN 106492) wirth.gabrielle@dorsey.com Jessica L. Linehan (SBN 223569) linehan.jessica@dorsey.com DORSEY & WHITNEY LLP 600 Anton Boulevard, Suite 2000 Costa Mesa, CA 92626-7655 Telephone: (714) 800-1400 Facsimile: (714) 800-1499 Attorneys for Defendants CLOUGHERTY PACKING, LLC dba FARMER JOHN and HORMEL FOODS CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANDRES SALAZAR, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOUGHERTY PACKING, LLC dba FARMER JOHN, a Delaware limited liability corporation; HORMEL FOODS CORPORATION, a Delaware corporation; and DOES 1 through 20, inclusive, Defendants. CASE NO: 2:16-cv-09484 BRO (GJSx) [Los Angeles Superior Court Case No. BC622487] Assigned for all purposes to: Hon. Beverly Reid O’Connell Courtroom: 7C DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: February 27, 2017 Time: 1:30 p.m. Courtroom: 7C Complaint Filed: June 1, 2016 First Amended Complaint: July 20, 2016 / / / Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 1 of 20 Page ID #:256 i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 II. STATEMENT OF FACTS .............................................................................. 2 III. LEGAL STANDARD ..................................................................................... 3 A. Motion to Dismiss Standard .................................................................. 3 IV. ARGUMENT ................................................................................................... 4 A. Causes of Action One and Two For Failure to Pay Minimum Wages and Overtime Should be Dismissed. ..................................................... 4 B. Causes of Action Three and Four For Failure to Provide Meal and Rest Periods Should Be Dismissed for Failure to State a Claim. ......... 6 C. The Fifth Cause of Action for Failure to Provide Accurate Wage Statements Should Be Dismissed for Failure to State a Claim. ............ 8 D. The Sixth Cause of Action for Failure to Pay All Wages Upon Termination Must be Dismissed for Failure to State a Claim. ............. 9 E. The Seventh Cause of Action for Unfair Business Practices in Violation of California Business and Professions Code 17200 et seq. Should Be Dismissed for Failure to State a Claim. ............................ 10 F. Count Eight for Enforcement of Labor Code Section 2698 et seq. Should Be Dismissed for Failure to State a Claim. ............................ 11 G. The First Five Causes of Action Should Also Be Dismissed as Plaintiff Has Not Pleaded Facts from Where the Court Could Conclude that His Claim He Is A Non Exempt Employee Is Plausible. ............................................................................................. 11 H. Plaintiff Fails to State Facts Sufficient to Constitute for a Cause of Action for PAGA Penalties ................................................................. 12 I. All Causes of Action Fail to State a Claim Against Hormel .............. 13 J. The Court Should Deny Plaintiff Leave to Amend. ........................... 13 V. CONCLUSION ............................................................................................. 13 Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 2 of 20 Page ID #:257 ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Adams v. Johnson 355 F.3d 1179 (9th Cir. 2004). ....................................................................................... 4 Alonzo v. Maximus 832 F.Supp. 2d 1122 (C.D. Cal 2011) ............................................................................ 2 Archila v. KFC U.S. Props., Inc. 420 Fed. Appx. 667, 669 (9th Cir. 2011), cert. denied, 132 S.Ct. 246 (2011) .......... 12 Ashcroft v. Iqbal 556 U.S. 662 (2009). .................................................................................... 1, 3, 4, 8, 12 Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007) ................................................................................................... 3, 4 Brinker Restaurant Corp. v. Superior Court of San Diego 53 Cal.4th 1004 (2012) ................................................................................................... 7 Byrd v. Masonite Corp. 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. 2016) ........................................................ 5, 6 Carter v. Prime Healthcare Paradise Valley LLC 198 Cal.App.4th 396 (2011). .......................................................................................... 7 Corbin v. Time Warner Entertainment Advance 821 F.3d 1069 (9th Cir. 2016) ........................................................................................ 5 Diaz v. City of San Fernando 2015 U.S. Dist. LEXIS 116423 (C.D. Cal. Aug. 28, 2015) ......................................... 12 Fayer v. Vaughn 649 F.3d 1061 (9th Cir. 2011) ........................................................................................ 4 Fraley v. Facebook, Inc. 830 F. Supp. 2d 785 (N.D. Cal. 2011) ........................................................................... 3 Harding v. Time Warner, Inc. 2009 U.S. Dist. LEXIS 72851 (S.D. Cal. Aug. 18, 2009) ............................................. 8 Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 3 of 20 Page ID #:258 iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Harris v. Vector Marketing Corp. 656 F. Supp. 2d 1128 (N.D. Cal. 2009) ......................................................................... 9 Kettenring v. Los Angeles Unified School Dist. 167 Cal. App. 4th 507 (2008) ....................................................................................... 10 Landers v. Quality Communications, Inc. 771 F.3d 638 (9th Cir. 2014). ......................................................................... 1, 2, 4, 5, 6 Libas Ltd. v. Carillo 329 F.3d 1128 (9th Cir. 2003). ....................................................................................... 4 Manzarek v. St. Paul Fire & Marine Ins. Co. 519 F.3d 1025 (9th Cir. 2008). ....................................................................................... 4 McKell v. Washington Mutual Inc. 142 Cal.App.4th 1457 (2006). ........................................................................................ 6 N. Star Int’l v. Ariz. Corp. Com’n 720 F. 2d 578 (9th Cir. 1983). ........................................................................................ 3 Perez v. Safety-Kleen Systems, Inc. 253 F.R.D. 508 (N.D. Cal. 2008). .................................................................................. 7 Ramirez v. Manpower, Inc. 2014 U.S. Dist. LEXIS 4072 (N.D. Cal. Jan. 10, 2014) .......................................... 9, 11 Raphael v. Tesoro Ref. & Mktg. Co. LLC 2015 U.S. Dist. LEXIS 88767 (C.D. Cal. July 8, 2015) ................................................ 6 Reinhart v. Gemini Motor Transp. 869 F. Supp. 2d 1158 (E.D. Cal. 2012) .......................................................................... 9 Rhoades v. Progressive Casualty Insurance Company, Inc. 2011 U.S. Dist. LEXIS 13773 (E.D. Cal. Feb. 3, 2011) ................................................ 8 Schermer v. Tatum 245 Cal.App.4th 912 (2016) ........................................................................................... 8 See’s Candy v. Superior Court of San Diego County 210 Cal.App.4th 889 (2012) ........................................................................................... 2 Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 4 of 20 Page ID #:259 iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Silva v. AvalonBay Communities, Inc. 2015 U.S. Dist. LEXIS 140673 (C.D. Cal. Oct. 8, 2015) .............................................. 6 Soto v. Castlerock Farming and Transport, Inc., No. CIV-F-09-0701 AWI JLT, 2012 WL 1292519 at *7-8 (E.D. Cal. Apr. 16, 2012) ............................................................... Stansfield v. Starkey 220 Cal. App.3d 71 (1990) ............................................................................................. 7 White v. Starbucks Corp. 497 F. Supp. 2d 1080 (N.D. Cal. 2007). .................................................................. 7, 11 Statutes 29 CFR §785.48(b) ............................................................................................................ 2 Cal. Lab. Code § 203 ....................................................................................................... 10 Cal. Lab. Code § 226(a) ..................................................................................................... 8 Cal. Lab. Code § 226(e)(1). ............................................................................................... 8 Fed. R. Civ. P. 12(b)(6) ..................................................................................................... 3 Other Authorities DLSE Manuel Section 47.1 ............................................................................................... 2 Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 5 of 20 Page ID #:260 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Defendants Clougherty Packing, LLC dba Farmer John and Hormel Foods Corporation (“Defendants”) hereby move to dismiss the First Amended Complaint filed by Plaintiff Andres Salazar (“Plaintiff”) pursuant to Rule 12(b)(6), on the grounds that it fails to state a single claim upon which relief may be granted. I. INTRODUCTION Plaintiff’s First Amended Complaint (“FAC”) is Plaintiff’s second attempt to plead viable claims for eight causes of action against Defendants: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to permit rest breaks; (5) failure to provide accurate itemized wage statements; (6) failure to pay all wages due within the required time and upon separation of employment; (7) violation of Business and Professions Code section 17200 et seq.; and (8) enforcement of Labor Code section 2698 et. seq. (“PAGA”). Other than boilerplate assertions and legal conclusions, Plaintiff does not tell Defendants or this Court anything about the facts giving rise to his claims. Nonetheless, for the limited purpose of this Motion to Dismiss only, Defendants largely accept Plaintiff’s vague and contradictory allegations. Even accepting the truth of Plaintiff’s factual allegations, however, Plaintiff’s first and second causes of action for failure to pay minimum and overtime wages are fatally deficient. Landers v. Quality Communications, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014). Plaintiff fails to allege any detail regarding a specific workweek which Plaintiff worked in excess of 40 hours or worked off the clock and was not paid. In addition, Plaintiff’s third, fourth, fifth, sixth, and seventh causes of action amount only to unadorned, “the-defendant-unlawfully-harmed-me” accusations forbidden by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s sparse, and often extraneous, allegations fall short of alleging facts sufficient to support a plausible claim as to any of his eight causes of action. To grant Plaintiff yet another opportunity to amend his First Amended Complaint would be futile Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 6 of 20 Page ID #:261 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and a waste of the Court’s and Defendants’ time and resources. As such, Defendants respectfully request that the Court dismiss each of Plaintiff’s eight claims without leave to amend. II. STATEMENT OF FACTS Plaintiff pleads that:  Plaintiff was employed “at all relevant times” as a non-exempt employee. FAC ¶ 26. Plaintiff does not allege when he worked or what he did, although in State Court, he finally admitted he was subject to a collective bargaining agreement. He does not plead sufficient facts for the court to ascertain if he is likely a non-exempt employee, nor any facts which suggest there was a given week in which he was entitled to be denied minimum or overtime wages. Landers v. Quality Communications 771 F.3d 638, 646 (9th Cir. 2014)1  Plaintiff was allegedly not paid minimum wages or overtime for all hours worked because “Defendants rounded Plaintiff and class members pay to their advantage.” FAC ¶¶ 29, 30, 38, 48. Again, Plaintiff does not allege when this occurred or how this practice was illegal. Rounding policies are not per se illegal. See 29 CFR §785.48(b); DLSE Manuel Section 47.1, 47.2; Alonzo v. Maximus 832 F.Supp. 2d 1122, 1127-9 (C.D. Cal 2011); See’s Candy v. Superior Court of San Diego County, 210 Cal.App.4th 889, 903 (2012)  Plaintiff did not “receive all meal periods or payment of one (1) additional hour of pay at Plaintiff and class members regular rate of pay when they did not receive a timely uninterrupted meal period” and “meal periods were short, missed or late and/or they were not permitted to take a second meal period.” Plaintiff further alleges the conclusion that he was not paid all wages upon termination, that the above acts violate Business and Professions Code section 1 Landers at least pleaded he was a cable service installer who alleged he was subjected to a piecework system that failed to pay him for all of the overtime he worked or paid him at the rate less than required under the FLSA. Landers, 771 F.3d at 640. This much more detailed pleading that presented here was still insufficient to state a claim. Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 7 of 20 Page ID #:262 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17200 and entitle Plaintiff to PAGA penalties. FAC ¶¶ 31, 57.  Plaintiff did not receive all rest breaks or payment of one (1) additional hour of pay when the rest break was missed ( FAC ¶ 32) and that he was required to work through his rest period and/or was not authorized to take his rest period. FAC ¶ 64.  Plaintiff was not provided with an accurate itemized wage statement “accurately showing his regular and overtime rates of pay.” FAC ¶ 71. For the reasons set forth herein, Plaintiff’s allegations fall short of supporting any of the eight causes of action asserted. Therefore, Defendant respectfully requests that the Court grant Defendant’s Motion to Dismiss as to all eight causes of action. III. LEGAL STANDARD A. Motion to Dismiss Standard Plaintiff’s claims must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “The purpose of a motion to dismiss under rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Com’n, 720 F. 2d 578, 581 (9th Cir. 1983). A claim challenged pursuant to Rule 12(b)(6) may be dismissed “based on either (1) the lack of a cognizable legal theory, or (2) the absence of sufficient facts alleged under a cognizable legal theory.” Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 793 (N.D. Cal. 2011) (internal quotation marks omitted). To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)) “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. (internal quotation marks omitted). “[A] plaintiff’s obligation to Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 8 of 20 Page ID #:263 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, at 555. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Id. (internal quotation marks and ellipsis omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The Court, however, need not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). Thus, dismissal with prejudice is warranted where “it appears beyond doubt that [the plaintiff] can prove no set of facts to support [his] claim.” Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003). Plaintiff’s First Amended Complaint (“FAC”) fails to allege facts sufficient to meet the pleading requirements specified by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). IV. ARGUMENT A. Causes of Action One and Two For Failure to Pay Minimum Wages and Overtime Should be Dismissed. Plaintiff’s first cause of action for failure to pay minimum wages is no more than “a pleading that offers labels and conclusions or formulaic recitation of the elements of a cause of action” which the Supreme Court has held cannot survive a motion to dismiss.” Iqbal 556 US at 678. In Landers, the court granted a motion to dismiss where, like here “[t]he complaint did not allege facts showing that there was a given week in which he was entitled to but denied minimum wages or overtime wages.” 771 Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 9 of 20 Page ID #:264 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d at 646. Although Landers dealt specifically with failure to pay wages under the Fair Labor Standards Act (“FLSA”), it applies equally to comparable California Labor Code sections. See, e.g., Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435, at *7 n.5 (C.D. Cal. 2016) (noting that the Ninth Circuit has applied Landers in cases alleging violations of the California Labor Code). In affirming the District Court’s dismissal of the complaint, the Ninth Circuit explained in Landers: Notably absent from the allegations in Landers’s complaint, however, was any detail regarding a given workweek when Landers worked in excess of forty hours and was not paid overtime for that given workweek and/or was not paid minimum wages. Although plaintiffs in these types of cases cannot be expected to allege “with mathematical precision,” the amount of overtime compensation owed by the employer, they should be able to allege facts demonstrating there was at least one workweek in which they worked in excess of forty hours and were not paid overtime wages. Landers’s allegations failed 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.” Instead, as in Nakahata, Landers “merely alleged that [he was] not paid for overtime hours worked....” Although these allegations “raise the possibility” of under compensation in violation of the FLSA, a possibility is not the same as plausibility. Landers’s comparable allegations fail to state a plausible claim under Rule 8. Landers, 771 F.3d at 646 (citations omitted). As to the minimum wage claim, Plaintiff alleges only “During the relevant time period, Defendants paid Plaintiff and the class members less than minimum wages when they rounded Plaintiff’s and class members’ time punches2 to Defendants’ advantage, among other reasons. To the extent these hours do not qualify for the payment of overtime, Plaintiff and class members were not being paid at least minimum wages for their work.” FAC ¶ 38. However, Plaintiff does not (and cannot truthfully) 2 No rounding occurred, but even if it had, rounding is not per se illegal. Corbin v. Time Warner Entertainment Advance 821 F.3d 1069 (9th Cir. 2016) Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 10 of 20 Page ID #:265 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allege that in any work week within the statute of limitations, he worked time for which he was not paid whether straight time or overtime. Plaintiff’s overtime claim is similarly bare of any facts which show that he worked more than 40 hours in a given work week without being compensated for the hours worked in excess of 40 in that week. Thus, the second claim for overtime must be dismissed as well. Id. at 645-46. See Raphael v. Tesoro Ref. & Mktg. Co. LLC, 2015 U.S. Dist. LEXIS 88767, at *7 (C.D. Cal. July 8, 2015) (in analyzing various claims of Labor Code violations, court held that plaintiff “includes no relevant facts or dates during which these alleged violations occurred, instead he claims that “at all relevant times” [defendant] failed to comply with a laundry list of regulations … Each of [plaintiff’s] other allegations read the same way, barren of facts describing specific periods of time where pay was denied or specific practices engaged in by [defendant] and instead only offers conclusory language, and for that reason each is insufficient to withstand [defendant’s] Motion.”) (emphasis added); Silva v. AvalonBay Communities, Inc., 2015 U.S. Dist. LEXIS 140673, at *22 (C.D. Cal. Oct. 8, 2015) (motion to dismiss two claims granted where “[t]he Complaint does not identify any particular workweek for which Plaintiff was allegedly denied overtime wages.”). Thus, Plaintiff’s first and second counts should be dismissed. B. Causes of Action Three and Four For Failure to Provide Meal and Rest Periods Should Be Dismissed for Failure to State a Claim. Plaintiff’s third and fourth causes of action for failure to provide meal and rest breaks are supported only by conclusory allegations, which cannot be considered in determining whether a claim for relief has been stated. McKell v. Washington Mutual Inc., 142 Cal.App.4th 1457, 1469 (2006). The pleading standards set forth in Landers apply equally to a complaint’s meal period, and rest break allegations. Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435, at *7 n.5 (C.D. Cal. 2016) (noting that a plaintiff must, at minimum, assert allegations in support of such claims sufficient to demonstrate a plausible claim, not merely a possible one). “Facts, not conclusions, must be pleaded” Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 11 of 20 Page ID #:266 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and “where, as here, statutory remedies are invoked, the facts must be pleaded with particularity.’” Carter v. Prime Healthcare Paradise Valley LLC, 198 Cal.App.4th 396, 410 (2011). An allegation is “particular” if it states “how, when, where, … and by what means” each subject element of the claim has been satisfied. Stansfield v. Starkey, 220 Cal. App.3d 71, 73 (1990) (in ruling on fraud claim, which must be alleged with particularity). In Brinker Restaurant Corp. v. Superior Court of San Diego, 53 Cal.4th 1004, 1040 (2012), the California Supreme Court held that “proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.” Id. An employer cannot be held liable for premium pay unless it knows or has reason to know that the employee is working through break periods; employers cannot “impede or discourage” employees from taking breaks. Id. In order to establish a claim under this principle, “the employee must show that he was forced to forego his meal breaks as opposed to merely showing that he did not take them regardless of the reason.” White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1089 (N.D. Cal. 2007). Applying these principles, courts have held that employees fail to establish meal-and-rest violations where there is no “specific policy or practice that discouraged them from taking their meal breaks” or threats of adverse action against employees for taking breaks. See Perez v. Safety-Kleen Systems, Inc., 253 F.R.D. 508, 515 (N.D. Cal. 2008). Here, Plaintiff fails to allege any facts demonstrating a specific policy or practice preventing or discouraging meal or rest breaks, or any threats of adverse action for taking breaks, much less a policy or policies or threats affecting all “hourly employees” of Clougherty, regardless of their positions or duties, or all “hourly employees” of every one of Clougherty’s “subsidiaries or affiliated companies . . . within the State of California.” Rather, Plaintiff simply copies boilerplate recitations of the California meal and rest break requirements and concludes that Clougherty (and all of its subsidiaries Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 12 of 20 Page ID #:267 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and affiliates in California) violated them. FAC ¶¶ 53-60, 62-67. Thus, Plaintiff’s third and fourth causes of action fail as a matter of law and are subject to dismissal. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (courts are “not bound to accept as true a legal conclusion couched as a factual allegation” on a motion to dismiss); id. at 1949 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.”). cf. Schermer v. Tatum, 245 Cal.App.4th 912, 925 (2016) (merely alleging that there is a uniform policy or procedure used in every lease transaction is a conclusion which is disregarded not a factual allegations which is presumed to be true C. The Fifth Cause of Action for Failure to Provide Accurate Wage Statements Should Be Dismissed for Failure to State a Claim. Plaintiff's Fifth Cause of Action for failure to provide accurate wage statements is similarly defective. California Labor Code section 226 requires employers to provide accurate itemized wage statements showing several categories of information and to maintain such statements for three years. Cal. Lab. Code § 226(a). If there is a “knowing and intentional failure by an employer” to comply with said requirements, and the violation causes the employee to suffer an injury, the injured employee can recover penalties. Cal. Lab. Code § 226(e)(1). A claim for improper wage statements must specify the alleged wage statement deficiencies to support the underlying claim. Rhoades v. Progressive Casualty Insurance Company, Inc., 2011 U.S. Dist. LEXIS 13773, at *8 (E.D. Cal. Feb. 3, 2011) (granting a motion to dismiss where plaintiff alleged simply that “Defendants did not provide Plaintiffs or Class Members with accurate itemized wage statements[.]”); see also Harding v. Time Warner, Inc., 2009 U.S. Dist. LEXIS 72851, at *10, (S.D. Cal. Aug. 18, 2009) (Plaintiff’s allegations that the employer failed to “provide accurate Itemized Wage Statements” and conducted a practice that "included the 'rounding' of reported time worked--to the nearest 15 minutes…” were nothing more than “conclusory allegations” to be “assigned no weight”). In addition, Plaintiff must plead Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 13 of 20 Page ID #:268 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that the employer had actual knowledge that Plaintiff’s wage statements were deficient but issued them anyway. See Harris v. Vector Marketing Corp., 656 F. Supp. 2d 1128, 1146 (N.D. Cal. 2009) (dismissing a claim under section 226 where no such facts were alleged). The “knowing and intentional” elements must be specifically supported by facts, not conclusions. See Reinhart v. Gemini Motor Transp., 869 F. Supp. 2d 1158, 1168-69 (E.D. Cal. 2012) (granting motion to dismiss claim under Section 226). Plaintiff does somewhat identify the deficiency in the wage statement by alleging that they “include among other things, the failure to correctly state the gross and net wages earned and all applicable hourly rates in effect and the number of hours worked each hourly rate by plaintiff and class members.” FAC ¶¶ 70, 71. However, Plaintiff fails to provide any specific facts that he was not provided with proper wage statement in any particular period, nor plead any facts sufficient to establish that Defendants’ failure was “knowing and intentional.” FAC ¶ 70. Therefore, the fifth cause of action must also be dismissed. Ramirez v. Manpower, Inc., 2014 U.S. Dist. LEXIS 4072, at *18 (N.D. Cal. Jan. 10, 2014) (dismissing claim where “Plaintiff merely parrots the language of the statute by saying ‘Defendants have knowingly and intentionally failed to comply with California Labor Code §226(a)…’ and falls short of providing any factual content that allows the Court to draw the reasonable inference that Defendants are liable for the misconduct alleged.”). D. The Sixth Cause of Action for Failure to Pay All Wages Upon Termination Must be Dismissed for Failure to State a Claim. California Labor Code Section 201(a) provides that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Id. “If an employer willfully fails to pay, without abatement or reduction..., any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced; but the wages shall not continue for more than 30 days.” Cal. Lab. Code § 203. Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 14 of 20 Page ID #:269 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As Plaintiff has failed to allege sufficient facts to establish a claim for unpaid wages under any theory, Plaintiff’s claim for an alleged failure to pay wages at the time of discharge also fails. See Kettenring v. Los Angeles Unified School Dist., 167 Cal. App. 4th 507, 514 n.7 (2008) (plaintiff’s Section 203 claim fails where plaintiff could not establish a prima facie case for unpaid wages). In any event, Plaintiff again fails to allege facts in support of his claim. Plaintiff does not even assert he was discharged. Instead, he states only “Plaintiff is informed and believes, and thereon alleges that Defendants knew or should have known that Plaintiff and waiting time subclass members were “entitled to timely payment of wages upon separation of employment.” FAC ¶ 34. Plaintiff vaguely asserts that “during the relevant time period, Defendants willfully failed to pay Plaintiff and Waiting Time Subclass members all their earned wages upon termination including, but not limited to, proper overtime compensation, either at the time of discharge or within seventy-two (72) hours of their leaving Defendants’ employ in violation of Labor Code §§201 and 202.” (FAC. ¶ 75.) But Plaintiff identifies no amount of wages that was unpaid to him or any other putative class member, much less facts supporting the conclusory allegation that Defendant (and its subsidiaries and affiliates) knowingly and willfully failed to pay such wages. Plaintiff’s sixth cause of action must therefore be dismissed. E. The Seventh Cause of Action for Unfair Business Practices in Violation of California Business and Professions Code 17200 et seq. Should Be Dismissed for Failure to State a Claim. Plaintiff’s unfair business practices claim, brought pursuant to Business & Professions Code section 17200 et seq., is based solely on the various Labor Code violations Plaintiff alleges in his First Amended Complaint. FAC ¶¶ 80-85. Specifically, Plaintiff incorporates and again refers to his preceding claims as the basis for his unfair competition claim, claiming Defendants “intentionally avoided paying Plaintiff and class members' wages and monies, thereby creating for Defendants an artificially lower cost of doing business….” FAC ¶ 79, 83-84. Because each of the Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 15 of 20 Page ID #:270 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 foregoing claims fail for the reasons discussed at length herein, Plaintiff’s derivative unfair business practices claim likewise fails. See White, 497 F. Supp. 2d at 1089-90 (dismissing claims under Section 17200 because they are “derivative” of underlying meal-period claims). See also Ramirez v. Manpower, Inc., 2014 U.S. Dist. Lexis 4072, at *21 (“Where Plaintiff cannot state a claim under the borrowed law, she cannot state a UCL claim either”). As such, Defendant respectfully requests that the Court dismiss Plaintiff’s third cause of action for unfair business practices. F. Count Eight for Enforcement of Labor Code Section 2698 et seq. Should Be Dismissed for Failure to State a Claim. The requirement that a plaintiff plead facts, rather than mere contentions or factual conclusions, applies equally to PAGA and class allegations. Schermer, 245 Cal. App. 4th at 923 (citing cases). Here, Plaintiff asserts a class of “All current and former non-exempt employees employed by Defendants in California within four years prior to the filing of the Complaint to the present and continuing.”.” FAC ¶ 20. Plaintiff alleges no facts regarding this putative class of “hourly employees.” He identifies no facts to suggest that putative class members worked in similar positions or locations, or under common management, or that they were subject to the same or similar policies or practices with respect to Plaintiff’s several wage and hour claims. By purporting to represent employees of Defendant’s “subsidiaries or affiliated companies,” these deficiencies are magnified. Indeed, Plaintiff expressly purports to assert wage and hour claims against Defendant, on behalf of individuals who were not employed by Defendant. Plaintiff’s failure to allege any facts in support of his PAGA claim. G. The First Five Causes of Action Should Also Be Dismissed as Plaintiff Has Not Pleaded Facts from Where the Court Could Conclude that His Claim He Is A Non Exempt Employee Is Plausible. Plaintiff must prove some facts which establish he could plausibly be a non- Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 16 of 20 Page ID #:271 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exempt employee or his claims must be dismissed. All claims fail to state a claim for relief in that Plaintiff does not allege the jobs he performed for Defendant, but rather only the conclusion that he was a “non-exempt employee” and that Defendants “are providers of meat products.” Rule 8 requires more than “labels and conclusions” or a formulaic recitation of the elements of a cause of action. Iqbal 556 US 662, 678. To survive a motion to dismiss, a complaint must “contain enough facts to state a claim for relief that is plausible on its face.” Id. at 696. The Court cannot discern whether Plaintiff’s claim that he is non-exempt is plausible in that one cannot tell if he is the President or a person who operates the machine packaging bacon. This motion to dismiss counts 1-7 must be granted for this reason as well. H. Plaintiff Fails to State Facts Sufficient to Constitute for a Cause of Action for PAGA Penalties As a threshold matter, Plaintiff’s cause of action for violation of PAGA fails to set forth specific violations that are the basis of his PAGA claim. Instead, the FAC merely incorporates by reference the prior allegations and the conclusion that “Defendants’ conduct violates numerous Labor Code sections including” the list of codes and what they pertain to. (See FAC ¶ 87-8.) Because Plaintiff has not coherently pled the basis of his PAGA claim, this claim should be dismissed. Further, Plaintiff’s PAGA claim cannot survive dismissal because to bring a PAGA suit, an employee must “give written notice ... to the [LWDA] and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.” Cal. Lab. Code § 2699.3(a)(1) (emphasis added); Soto v. Castlerock Farming and Transport, Inc., No. CIV-F-09-0701 AWI JLT, 2012 WL 1292519 at *7-8 (E.D. Cal. Apr. 16, 2012) (granting employer’s motion for summary adjudication based in part on plaintiff’s insufficient compliance with section 2699(a)(1)); Archila v. KFC U.S. Props., Inc., 420 Fed. Appx. 667, 669 (9th Cir. 2011), cert. denied, 132 S.Ct. 246 (2011) (affirming dismissal of plaintiff’s PAGA claim based on noncompliance with section 2699.3(a)(1)). Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 17 of 20 Page ID #:272 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff failed to timely exhaust his administrative remedies under PAGA. Although Plaintiff makes the conclusory allegation that he “complied” with his obligation to exhaust his administrative remedies with the California Labor and Workforce Development Agency,” Plaintiff fails to allege facts sufficient to establish that he set forth the “facts and theories alleged to support the violation. Therefore the Eighth Cause of Action for Enforcement of Labor Code Section 2698 must be dismissed. I. All Causes of Action Fail to State a Claim Against Hormel Plaintiff’s vague and conclusory allegations about his employer do not state enough facts for the Court to determine it is plausible that Hormel was Plaintiff’s employer. Plaintiff alleges only that he is a resident of California and that Clougherty Packing, LLC dba Farmer John has a principle place of business in Los Angeles County, California.3 As to Hormel, Plaintiff states only that, on information and belief, Hormel is a Delaware corporation with a principle place of business in Austin, Minnesota. Plaintiff then lumps together “Defendants” without any explanation or allegation that Plaintiff worked for Hormel, and if so where or when. Thus, the Complaint fails to state any cause of action against Hormel for his independent reason. J. The Court Should Deny Plaintiff Leave to Amend. Plaintiff has already amended his Complaint once. Yet despite this opportunity, Plaintiff continues to fail to state facts sufficient to constitute all seven causes of action. Unless, in his Opposition, Plaintiff can meet his burden of showing how the defects of his claims can be cured by yet another opportunity to amend, leave to amend should be denied. See Diaz v. City of San Fernando, 2015 U.S. Dist. LEXIS 116423 at *16 (C.D. Cal. Aug. 28, 2015). V. CONCLUSION For the foregoing reasons, this Court should dismiss Plaintiff’s First Amended 3 Plaintiff was employed by Clougherty Packing, LLC dba Farmer John. As noted earlier, Plaintiff should state what he did and when he worked. Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 18 of 20 Page ID #:273 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint in its entirety without leave to amend. DATED: January 23, 2017 DORSEY & WHITNEY LLP By: /s/ Gabrielle M. Wirth Gabrielle M. Wirth Attorneys for Clougherty Packing, LLC dba Farmer John and Hormel Foods Corporation Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 19 of 20 Page ID #:274 1 CERTIFICATE OF SERVICE 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 CERTIFICATE OF SERVICE All Case Participants are registered for the USDC CM/ECF System CASE NAME: Andres Salazar vs. Clougherty Packing, LLC dba Farmer John; Hormel Foods Corporation CASE NUMBER: 2:16-cv-09484 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT I hereby certify that on January 23, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Northern District by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. Dated: January 23, 2017 DORSEY & WHITNEY LLP By: /s/ Gabrielle M. Wirth Case 2:16-cv-09484-BRO-GJS Document 10-1 Filed 01/23/17 Page 20 of 20 Page ID #:275 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANDRES SALAZAR, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOUGHERTY PACKING, LLC dba FARMER JOHN, a Delaware limited liability corporation; HORMEL FOODS CORPORATION, a Delaware corporation; and DOES 1 through 20, inclusive, Defendants. CASE NO: 2:16-cv-09484 BRO (GJSx) [Los Angeles Superior Court Case No. BC622487] Assigned for all purposes to: Hon. Beverly Reid O’Connell Courtroom: 7C [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Date: February 27, 2017 Time: 1:30 p.m. Courtroom: 7C Complaint Filed: June 1, 2016 First Amended Complaint: July 20, 2016 / / / / / / Case 2:16-cv-09484-BRO-GJS Document 10-2 Filed 01/23/17 Page 1 of 4 Page ID #:276 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Clougherty Packing, LLC dba Farmer John and Hormel Foods Corporation (“Defendants”) Motion to Dismiss Plaintiff’s First Amended Complaint came on for hearing before this Court, before the Honorable Beverly Reid O’Connell, Judge presiding. Counsel of record appeared on behalf of the respective parties. Having considered all of the evidence submitted and issues presented in the papers, the record, and argument of counsel, IT IS HEREBY ORDERED THAT: 1. Defendants’ Motion to Dismiss is Granted. 2. Plaintiff’s First Cause of Action for Failure to Pay Minimum Wages is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for Minimum Wages. 3. Plaintiff’s Second Cause of Action for Failure to Pay Overtime Wages is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for Overtime Wages. 4. Plaintiff’s Third Cause of Action for Failure to Provide Meal Periods is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for in violation of Labor Code section 226.7 relating to meal periods. 5. Plaintiff’s Fourth Cause of Action for Failure to Permit Rest Breaks is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim in violation of Labor Code section 226.7 relating to rest periods. 6. Plaintiff’s Fifth Cause of Action for Failure to Provide Accurate Itemized Wage Statements is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for failure to provide accurate wages statements under Labor Code section 226.7. 7. Plaintiff’s Sixth Cause of Action for Failure to Pay All Wages Due Within the Required Time and Upon Separation of Employment is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for failure to pay wages on termination under Labor Code section 201 and 202. 8. Plaintiff’s Seventh Cause of Action for Violation of Business and Case 2:16-cv-09484-BRO-GJS Document 10-2 Filed 01/23/17 Page 2 of 4 Page ID #:277 2 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 Professions Code section 17200, et seq. is dismissed because Plaintiff’s First Amended Complaint fails to state facts sufficient to state a claim for unfair business practices under section 17,200. 9. Plaintiff’s Eighth Cause of Action for Enforcement of Labor Code section 2698 et seq. is dismissed because Plaintiff’s First Amended Complaint fails to allege specific facts supporting the specific violations that are the basis for his PAGA claims and fails to allege he gave “written notice.... to the LWDA” and employees of “the specific provisions of the code alleged to have been violated” including the facts and theories alleged to support the violation as required by Labor Code section 2699.3 10. The claims against Defendant Hormel Foods Corporations are Plaintiff has not pleaded facts sufficient to state a claim that Hormel is Plaintiff’s employer. IT IS SO ORDERED. DATED: _______ ____________________________ UNITED STATES JUDGE HONORABLE BEVERLY REID O’CONNELL Case 2:16-cv-09484-BRO-GJS Document 10-2 Filed 01/23/17 Page 3 of 4 Page ID #:278 1 CERTIFICATE OF SERVICE 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 CERTIFICATE OF SERVICE All Case Participants are registered for the USDC CM/ECF System CASE NAME: Andres Salazar vs. Clougherty Packing, LLC dba Farmer John; Hormel Foods Corporation CASE NUMBER: 2:16-cv-09484 [PROPOSED] ORDER GRANTING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT I hereby certify that on January 23, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Northern District by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. Dated: January 23, 2017 DORSEY & WHITNEY LLP By: /s/ Gabrielle M. Wirth Case 2:16-cv-09484-BRO-GJS Document 10-2 Filed 01/23/17 Page 4 of 4 Page ID #:279