Andrew Dawson v. Hitco Carbon Composites, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case Motion to Dismiss and/or Strike Plaintiff's First Amended Complaint

C.D. Cal.March 7, 2017

87521387.2 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 MCGUIREWOODS LLP Matthew C. Kane (SBN #171829) Email: mkane@mcguirewoods.com Sabrina A. Beldner (SBN #221918) Email: sbeldner@mcguirewoods.com Sylvia J. Kim (SBN #258363) Email: skim@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 Attorneys for Defendant HITCO CARBON COMPOSITES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANDREW DAWSON, individually, and on behalf of other members of the general public similarly situated, Plaintiffs, vs. HITCO CARBON COMPOSITES, INC., an unknown business entity; and DOES 1 through 100, inclusive, Defendants. CASE NO. 2:16-cv-07337-PSG-FFM DEFENDANT HITCO CARBON COMPOSITES, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. #30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f): (1) NOTICE OF MOTION (2) REQUEST FOR JUDICIAL NOTICE (3) MEMORANDUM OF POINTS AND AUTHORITIES Filed Under Separate Cover: (4) [PROPOSED] ORDER Date: May 8, 2017 Time: 1:30p.m. Crtrm.: 6A, 6th Floor Judge: Hon. Phillip S. Gutierrez Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 1 of 39 Page ID #:584 87521387.6 i DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 NOTICE OF MOTION ............................................................................................ viii REQUEST FOR JUDICIAL NOTICE ..................................................................... xii MEMORANDUM OF POINTS AND AUTHORITIES ............................................ 1 I. INTRODUCTION ............................................................................................ 1 II. STATEMENT OF FACTS ............................................................................... 2 III. LEGAL ARGUMENT ..................................................................................... 3 A. APPLICABLE LEGAL STANDARDS ............................................................ 3 1. Fed. R. Civ. P. 12(b)(6) and 12(f) ............................................... 3 2. The Twombly And Iqbal Pleading Standards .............................. 4 B. THE FIRST CAUSE OF ACTION FOR FAILURE TO PROVIDE MEAL BREAKS STILL FAILS AS A MATTER OF LAW. ........................................ 4 C. THE SECOND CAUSE OF ACTION FOR ALLEGED REST BREAK VIOLATIONS STILL FAILS AS A MATTER OF LAW .................................. 8 D. THE THIRD CAUSE OF ACTION FOR FAILURE TO PAY MINIMUM WAGES STILL FAILS AS A MATTER OF LAW .......................................... 9 1. The Claim Still Fails To Comply With Rule 8 ............................ 9 2. Plaintiff’s Pursuit of Penalties Under Cal. Labor Code § 1197.1 Fails As A Matter Of Law. ............................................ 11 E. THE FOURTH CAUSE OF ACTION FOR FAILURE TO PAY ALL WAGES DUE AT TERMINATION AND/OR WAITING TIME PENALTIES STILL FAILS AS A MATTER OF LAW ................................... 12 1. The Claim Still Fails To Comply With Rule 8 .......................... 12 2. Because Section 226.7 Payments Are Not “Wages Earned,” The Non-Payment Thereof At Termination Does Not Trigger Liability For Waiting Time Penalties .................... 12 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 2 of 39 Page ID #:585 87521387.6 ii DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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. THE FIFTH CAUSE OF ACTION FOR FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS STILL FAILS AS A MATTER OF LAW. ................................................................................. 15 1. The FAC Violates The MTD Order By Reasserting Plaintiff’s Time-Barred Claim For Wage Statement Penalties. .................................................................................... 15 2. The Claim Still Fails To Comply With Rule 8 Because The FAC Does Not Allege Any Knowing And Intentional Violation That Resulted In The Requisite Injury And Actual Damages ......................................................................... 16 3. The Wage Statements Accurately Reported All Wages Paid ............................................................................................ 18 4. Section 226.7 Payments Are Not Subject To Reporting ........... 18 G. THE SIXTH CAUSE OF ACTION FOR FAILURE TO REIMBURSE BUSINESS-RELATED EXPENSES STILL FAILS AS A MATTER OF LAW ...................................................................................................... 20 H. THE SEVENTH CAUSE OF ACTION FOR UCL VIOLATIONS STILL FAILS AS A MATTER OF LAW. .............................................................. 22 1. The UCL Claim Still Fails To Comply With Rule 8. ................ 22 2. The UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL ...... 23 3. Section 203 And Section 226 Penalties Are Not Subject To Restitution Under The UCL ................................................. 24 I. THE INJUNCTIVE RELIEF CLAIMS SHOULD BE DISMISSED OR STRICKEN BECAUSE PLAINTIFF LACKS STANDING TO SEEK SUCH RELIEF ................................................................................................... 24 IV. CONCLUSION .............................................................................................. 25 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 3 of 39 Page ID #:586 87521387.6 iii DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Allstate Ins. Co. v. Countrywide Fin. Corp., 824 F. Supp. 2d 1164 (C.D. Cal. 2011) ................................................................ 11 Angeles v. U.S. Airways, Inc., 2013 WL 622032 (N.D. Cal. Feb. 19, 2013) ........................................................ 16 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 4, 6 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) .................................................................................. 3 Banko v. Apple, Inc., 2013 WL 6623913 (N.D. Cal. Dec. 16, 2013) ..................................................... 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................... 4, 6 Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581 (N.D. Cal. Apr. 18, 2013).................................................. 8, 16 Campbell v. PriceWaterhouseCoopers, 2008 WL 3836972 (E.D. Cal. Aug. 14, 2008) ..................................................... 24 Castellon v. Penn-Ridge Trans., Inc., 2015 WL 6697233 (C.D. Cal. Nov. 2, 2015) ...................................................... 11 Christie v. Tuesday Morning, Inc., U.S. Dist. Ct., C.D. Cal., Case No. 2:14-cv-06505-PSG-AGR (May 27, 2015) ................................................................................................................. 7 Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205 (C.D. Cal. 2006) .................................................................. 13 De La Torre v. American Red Cross, 2013 WL 5573101 (C.D. Cal. Oct. 9, 2013) .................................................. 17, 18 Esquivel v. Performance Food Group, Inc., C.D. Cal. Case No. 2:11-cv-07284 (C.D. Cal. Nov. 14, 2011) .............................. 8 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 4 of 39 Page ID #:587 87521387.6 iv DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994) ............................................................................................................... 3 Farm Credit Svcs. v. Am. State Bank, 339 F.3d 764 (8th Cir. 2003) .................................................................................. 4 Freeman v. Zillow, Inc., 2015 WL 5179511 (C.D. Cal. Mar. 19, 2015) ................................................... 7, 9 Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116 (D.P.R. 1972) .................................................................................. 3 Gonzalez v. Fallanghina, LLC, 2016 WL 3951655 (N.D. Cal. July 22, 2016) ........................................................ 6 Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141 (E.D. Cal. Nov. 2, 2016) ............................. 14, 17 Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738 (E.D. Cal. Feb. 3, 2017) ............................ 6, 23, 24 Jones v. Spherion Staffing, LLC, 2012 WL 3264081 (C.D. Cal. Aug 7, 2012) ........................................................ 14 Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014) ........................................................................ 5, 9, 10 Lefevere v. Pacific Bell Directory, 2014 WL 5810530 (N.D. Cal. Nov. 17, 2014) ................................................... 8, 9 Lopez v. Wendy’s Int’l, Inc., 2011 WL 6967932 (C.D. Cal. Sept. 19, 2011) ................................................. 6, 21 Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379 (E.D. Cal. May 31, 2013) ...................................................... 22 Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498 (E.D. Cal. Aug. 15, 2011) ..................................................... 22 Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal. Nov. 28, 2011) ................................... 12, 13, 20, 23 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 5 of 39 Page ID #:588 87521387.6 v DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Parson v. Golden State FC, LLC, 2016 WL 1734010 (N.D. Cal. May 2, 2016) ....................................................... 23 Pepper v. Apple Inc., 846 F.3d 313, 2017 U.S. App. LEXIS 577 (9th Cir. 2017) ................................. 11 Pulido v. Coca Cola Enters., Inc., 2006 WL 1699328 (C.D. Cal. May 25, 2006) ...................................................... 13 Ramirez v. Manpower, Inc., 2014 WL 116531 (N.D. Cal. Jan. 13, 2014) ........................................................ 16 Raphael v. Tesoro Ref. & Mktg. Co. LLC, 2015 WL 4127905 (C.D. Cal. July 8, 2015) .......................................................... 5 Ridgeway v. Wal-Mart Stores Inc., 2017 U.S. Dist. LEXIS 10510 (N.D. Cal. Jan. 25, 2017) .................................... 11 Robles v. Schneider National Carriers, Inc., C.D. Cal. Case No. 5:16-cv-02482-JGB-KK (Feb. 10, 2017) ................... 8, 10, 16 Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv-00891-DSF-RZx (June 18, 2013) .............................. 14 Rubin v. Wal-Mart Stores, Inc., 599 F.Supp.2d 1176 (N.D. Cal. 2009) .................................................................. 24 Sanchez v. Ritz Carlton, 2015 WL 5009659 (C.D. Cal. Aug. 17, 2015) ....................................................... 7 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983) .................................................................................. 3 Singletary v. Teavana Corporation, 2014 WL 1760884 (N.D. Cal. Apr. 2, 2014) ........................................................ 14 Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128 (C.D. Cal. Mar. 25, 2015) ..................................................... 9 In re Wal-Mart Stores, Inc., 505 F.Supp.2d 609 (N.D. Cal. 2007) .................................................................... 24 Woo v. Home Loan Group, L.P., 2007 WL 6624925 (S.D. Cal. July 27, 2007) ....................................................... 23 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 6 of 39 Page ID #:589 87521387.6 vi DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Cases Brewer v. Premier Golf Prop., LP, 168 Cal.App.4th 1243 (2008) ............................................................................... 13 Brinker v. Sup. Ct., 53 Cal.4th 1004 (2012) ........................................................................... 5, 6, 14, 20 Clark v. Sup. Ct., 50 Cal.4th 605 (2010) ........................................................................................... 23 Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554 (2007) .......................................................................................... 21 Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012) ................................................................. 13, 14, 20, 23, 24 Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242 (2016) ............................................................................... 15 Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) ............................................................................. 12, 13, 20 Pineda v. Bank of America, N.A., 50 Cal.4th 1389 (2010) ......................................................................................... 24 Federal Authorities Fed. R. Civ. Proc § 8 ................................................................... 1, 2, 4, 6, 7, 9, 10, 12, 16, 20, 21, 22 § 12(b)(6) .......................................................................................................... 3, 11 § 12(b)(6) and 12(f) ................................................................................................ 3 § 12(c) ................................................................................................................... 11 § 12(g) ................................................................................................................... 11 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 7 of 39 Page ID #:590 87521387.6 vii DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Statutes Cal. Bus. & Prof. Code § 17200. ................................................................................. 3 Cal. Code Civ. P. § 340(a) ................................................................................... 11, 15 Cal. Labor Code § 201 ........................................................................................................... 3, 12, 15 § 202 ................................................................................................................. 3, 15 § 203 ............................................................................................... 3, 12, 14, 15, 24 § 226 ......................................................................................... 3, 16, 17, 19, 20, 24 § 226(a) ........................................................................................................... 19, 20 § 226(e) ..................................................................................... 2, 11, 15, 17, 18, 19 § 226(e)(1) ............................................................................................................ 16 § 226(e)(2)(B) ....................................................................................................... 17 § 226(e)(2)(B)(i)-(ii) ............................................................................................. 18 § 226.7 .............................................................. 2, 12, 13, 14, 15, 18, 19, 20, 23, 24 § 226.7(b) .............................................................................................................. 13 § 512 ....................................................................................................................... 2 § 1194 ..................................................................................................................... 2 § 1197 ..................................................................................................................... 2 § 1197.1 ............................................................................................................ 2, 11 § 2800 ..................................................................................................................... 3 § 2802 ................................................................................................... 3, 20, 21, 22 Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 8 of 39 Page ID #:591 87521387.6 viii DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 NOTICE OF MOTION TO PLAINTIFF ANDREW DAWSON AND HIS COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that, on May 8, 2017, at 1:30p.m., in Courtroom 6A of the United States District Court, Central District of California, located at 350 West 1st Street, Los Angeles, CA 90012, Defendant HITCO Carbon Composites, Inc. (“HCC” or “Defendant”) will and hereby does move the Court to dismiss and/or strike Plaintiff’s First Amended Complaint (Dkt. #30) (the “FAC”) pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(f) on the grounds that: 1. Plaintiff’s purported First Cause of Action for meal break premiums pursuant to Cal. Labor code §§ 226.7 and 512(a) fails as a matter of law because instead of pleading facts, the complaint proffers nothing more than conclusory allegations that defendant violated the law, which fail to satisfy the pleading requirements of Fed. R. Civ. P. 8 (“Rule 8”); and 2. Plaintiff’s purported Second Cause of Action for rest break premiums pursuant to Cal. Labor Code § 226.7 (“Section 226.7”) fails as a matter of law because it fails to comply with the Rule 8 pleading requirements; and 3. Plaintiff’s purported Third Cause of Action for unpaid minimum wages in violation of Cal. Labor Code §§ 1194, 1197 and 1197.1 fails as a matter of law because: a. The claim fails to comply with the Rule 8 pleading requirements; and/or b. The Cause of Action includes a claim under Cal. Labor Code § 1197.1 that is time-barred and for which there is no private right of action; and Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 9 of 39 Page ID #:592 87521387.6 ix DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Plaintiff’s purported Fourth Cause of Action for failure to timely pay wages at separation and/or waiting time penalties pursuant to Cal. Labor Code §§ 201-203 fails as a matter of law because: a. The claim fails to set forth sufficient facts to comply with the pleading requirements of Rule 8; and/or b. Section 226.7 payments for missed or non-compliant meal and rest breaks do not constitute “wages earned” for purposes of triggering the final pay requirements; and 5. Plaintiff’s purported Fifth Cause of Action for failure to provide accurate, itemized wage statements in violation of Cal. Lab. Code § 226(a) (“Section 226(a)”) fails as a matter of law and/or should be stricken because: a. Plaintiff’s claim for statutory penalties pursuant to Cal. Lab. Code § 226(e) is time-barred by the applicable one-year statute of limitations; and/or b. The claim fails to comply with the pleading requirements of Rule 8 because it does not properly allege any knowing and intentional violation that resulted in the requisite injury and actual damages; and/or Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 10 of 39 Page ID #:593 87521387.6 x DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 c. Plaintiff fails to allege that his wage statements were inaccurate as to the payment of wages actually paid to him; and/or d. Section 226.7 payments are not subject to reporting under Section 226(a); and/or e. The claim seeks, in the alternative, statutory penalties and injunctive relief, despite the Court’s order that Plaintiff could seek “his alleged actual damages only;” 6. Plaintiff’s purported Sixth Cause of Action for failure to reimburse business-related expenses in violation of Cal. Labor Code § 2802 fails as a matter of law because it fails to comply with the Rule 8 pleading requirements; and 7. Plaintiff’s purported Seventh Cause of Action for violation of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., fails as a matter of law because: a. It is derivative of the factually and legally insufficient allegations of Plaintiff’s First through Sixth Causes of Action that also fail as a matter of law; and b. To the extent such penalties are being sought based on an alleged failure to provide legally-compliant meal and rest breaks or otherwise pay premiums for non-compliant meal and rest breaks under Section 226.7, a failure to provide accurate itemized wage payments under Section 226 or a failure to pay waiting time Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 11 of 39 Page ID #:594 87521387.6 xi DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 penalties under Section 203, such payments are not subject to restitution and, therefore, are not recoverable under the UCL; and 8. Plaintiff’s request for injunctive relief should be dismissed or stricken because he lacks standing to seek such relief as a former employee, and because the Court ordered that the claim for injunctive relief be dismissed, permitting the claim to be reasserted only if Plaintiff could plead “changed circumstances…presented in good faith,” something that Plaintiff has not done. This Motion is based on this Notice, the attached Request for Judicial Notice and Memorandum of Points and Authorities, the Court’s file and records in this action, all matters which may be judicially noticed pursuant to Rule 201 of the Federal Rules of Evidence, and such other evidence and arguments as may be made or presented at or before the hearing on this Motion. On February 27, 2017, HCC initiated the meet and confer process with Plaintiff regarding the grounds for this Motion in accordance with the requirements of Local Rule 7-3. However, the parties were unable to resolve the defects in Plaintiff’s claims, thus necessitating the filing of this Motion. DATED: March 7, 2017 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Attorneys for Defendant HITCO CARBON COMPOSITES, INC. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 12 of 39 Page ID #:595 87521387.6 xii DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 REQUEST FOR JUDICIAL NOTICE TO THE HONORABLE PHILLIP S. GUTIERREZ, UNITED STATES DISTRICT JUDGE, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: Pursuant to Fed. R. Evid. 201(b) and (d), Defendant HITCO Carbon Composites, Inc. (“HCC” or “Defendant”) hereby requests that the Court take judicial notice of the following documents attached hereto in support of its Motion to Dismiss and/or Strike Plaintiff’s First Amended Complaint Pursuant to Fed. R. Civ. P. Rule 12(b)(6) and/or 12(f) (the “Motion”): Exhibit A: Complaint filed in this action on August 29, 2016. Exhibit B: First Amended Complaint filed in this action on February 21, 2017. See Dkt. #30. Exhibit C: Order issued in Christie v. Tuesday Morning, Inc., Case No. 2:14- cv-06505-PSG-AGR (C.D. Cal. May 27, 2015) (Gutierrez, J.). Exhibit D: Order issued in Esquivel v. Performance Food Group, Inc., Case No. 2:11-cv-07284 (C.D. Cal. Nov. 14, 2011) (Nguyen, J.). Exhibit E: Order issued in Robles v. Schneider National Carriers, Inc., No. 5:16-cv-02482-JGB-KK (C.D. Cal. Feb. 10, 2017) (Bernal, J.). Exhibit F: Excerpts of the transcript of the Industrial Welfare Commission (“IWC”) Public Hearing of June 30, 2000, available at the URL http://www.dir.ca.gov/IWC/PUBHRG6302000.pdf. Exhibit G: Order issued in Rodriguez v. Old Dominion Freight Line, Inc., Case No. 13-cv-00891-DSF-RZx (C.D. Cal. June 18, 2013) (Fischer, J.). Exhibit H: Statement of Decision filed in the Superior Court of California, County of Santa Clara, on September 20, 2011 in Case No.: 1-08- CV-103426 therein, entitled Brian Driscoll, et. al. v. Graniterock Company. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 13 of 39 Page ID #:596 87521387.6 xiii DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Exhibit I: The California Department of Industrial Relations, Enrolled Bill Rep. on A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. Exhibit J: The Assembly Committee on Labor Relations, Analysis of A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. Exhibit K: The California Department of Industrial Relations Division of Labor Standards Enforcement (“DLSE”) Opinion Letter Re: Electronic Itemized Wage Statements (July 6, 2006). Defendant’s request is made pursuant to Fed. R. Evid. Rule 201(b) and (d) on the grounds that the foregoing documents are proper subjects for judicial notice because they are records of this Court and other federal courts, and/or their contents are not subject to reasonable dispute and they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. DATED: March 7, 2017 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Attorneys for Defendant HITCO CARBON COMPOSITES, INC. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 14 of 39 Page ID #:597 87521387.6 1 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Approximately six weeks ago, the Court granted Defendant HITCO Carbon Composites, Inc.’s (“HCC”) motion to dismiss and/or strike all of the claims in Plaintiff’s original putative wage and hour class action Complaint on the grounds that it consisted of “broad conclusory allegations” and “generic boilerplate allegations” that “merely recite the statutory language, without providing any factual support.” See Dkt. #27 (the “MTD Order”) at pp. 5-6. The Court’s MTD Order meticulously set forth Plaintiff’s failure to satisfy the Fed. R. Civ. P. 8 (“Rule 8”) pleading standard as to each of the asserted claims, and afforded Plaintiff leave to amend, spelling out what an amended pleading would have to allege to properly plead substantive facts that support those claims and meet the Rule 8 standard. But Plaintiff’s First Amended Complaint (“FAC”) fails to do so, as it continues to not allege substantive facts that would support his claims in the manner required by Rule 8. For example, although Plaintiff adds the allegation that he worked as a so-called “Utility Worker,” he fails to allege any facts substantiating what such a position is, the job duties he performed in that position, how his position related in any way to the myriad claims he asserts, or whether his job duties were similar in any way to those of the putative class members (“PCMs”). Further, while the FAC now generically asserts that Plaintiff experienced meal and rest break violations and worked off-the-clock due to “business related inquiries and instructions and meeting time-sensitive company deadlines,” it fails to allege any facts substantiating even a single occasion where any such “inquiries,” “instructions” and “deadlines” occurred and resulted in Plaintiff experiencing any such violations. Thus, Plaintiff continues to allege nothing but boilerplate, generic and non-specific allegations that do nothing to give HCC fair notice of the nature and basis of the claims being asserted against it, rather than facts that would plausibly demonstrate any conduct by HCC giving rise to such violations. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 15 of 39 Page ID #:598 87521387.6 2 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Moreover, the FAC directly violates the MTD Order in two respects as to the purported wage statement claim. First, the MTD Order directed that Plaintiff could only seek his actual damages on this claim, yet the FAC continues to seek penalties under Cal. Labor Code § 226(e), even though the MTD Order held recovery of such penalties was time-barred. Second, the MTD Order dismissed the request for injunctive relief on this claim, and admonished what would be needed to amend to seek such relief, but the FAC wholly disregards the MTD Order in that respect as well. Given Plaintiff’s continued failure to plead sufficient facts to support cognizable legal theories, his violations of the MTD Order, and the other substantive defects raised herein, the FAC should be dismissed and/or stricken without further leave to amend. II. STATEMENT OF FACTS On August 29, 2016, Plaintiff filed a Complaint against HCC purporting to allege nine wage and hour violation claims on behalf of himself and other PCMs. See Exh. A (Complaint). On October 21, 2016, after removing the action to this Court, HCC filed a motion to dismiss and/or strike Plaintiff’s Complaint for failing to comply with Rule 8, among other defects. See Dkt. #10. On January 20, 2017, the Court granted that motion, dismissing all of Plaintiff’s claims. See Dkt. #27 (MTD Order). The MTD Order dismissed some of Plaintiff’s claims with leave to amend, some with leave to amend subject to specific conditions, and some without leave to amend. Id. On February 21, 2017, Plaintiff filed his FAC. See Exh. B (FAC) (Dkt. #30). The FAC alleges that Plaintiff was employed by HCC as a “non-exempt Utility Worker, from approximately January 2013 to approximately June 2014,” see id. at ¶ 19, and purports to re-plead all seven of his purported causes of action, as follows: (1) Failure to provide or pay for missed or non-compliant meal breaks in violation of Cal. Labor Code §§ 226.7 & 512; (2) Failure to provide or pay for missed or non-compliant rest breaks in violation of Cal. Labor Code §§ 226.7; (3) Failure to pay minimum wages in violation of Cal. Labor Code §§ 1194, 1197 and 1197.1; Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 16 of 39 Page ID #:599 87521387.6 3 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (4) Failure to pay all wages upon termination and/or waiting time penalties, in violation of Cal. Labor Code §§ 201-203; (5) Failure to furnish accurate itemized wage statements in violation of Cal. Labor Code § 226; (6) Failure to reimburse business expenses in violation of Cal. Labor Code §§ 2800 and 2802; and (7) Violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (the “UCL”). See id. The FAC continues to seek recovery of, inter alia, unpaid wages, missed meal and rest break payments, inaccurate wage statement penalties, waiting time penalties, reimbursement of business expenses, restitution, injunctive relief and attorney’s fees and costs. See id., Prayer for Relief. III. LEGAL ARGUMENT A. APPLICABLE LEGAL STANDARDS 1. Fed. R. Civ. P. 12(b)(6) and 12(f) Under Fed. R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”), a complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory; or (2) the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Similarly, Fed. R. Civ. P. 12(f) (“Rule 12(f)”) empowers the Court to “order stricken from any pleading ... any redundant, immaterial, impertinent, or scandalous matter.”1 Matters may also be stricken to reduce trial complication and “to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). 1 Matter is “immaterial” if it has no essential or important relationship to the claim for relief or defenses pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). An “impertinent” allegation is neither responsive nor relevant to the issues involved in the action and which could not be put in issue or given in evidence between the parties. Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116, 120 n. 6 (D.P.R. 1972). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 17 of 39 Page ID #:600 87521387.6 4 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Twombly And Iqbal Pleading Standards Under Rule 8, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”) (emph. added). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Iqbal”). Pleadings that contain “no more than conclusions ... are not entitled to the assumption of truth” otherwise applicable to complaints on a motion to dismiss. Id. at 679. Accordingly, the Court is “free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Farm Credit Svcs. v. Am. State Bank, 339 F.3d 764, 767 (8th Cir. 2003) (cit. omitted) (emph. added). Thus, a two-pronged approach is used to analyze the sufficiency of a complaint under Rule 8: (1) the Court should first identify and disregard conclusory allegations which are not entitled to the assumption of truth; and (2) it should then determine whether the remaining allegations, if taken as true, present a plausible claim for relief. Iqbal, 556 U.S. at 679. “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.” Id. at 678 (emph. added). Therefore, a complaint must allege “enough facts to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556, n.3. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (emph. added). B. THE FIRST CAUSE OF ACTION FOR FAILURE TO PROVIDE MEAL BREAKS STILL FAILS AS A MATTER OF LAW. In the MTD Order, the Court recognized the inadequacy of the original Complaint’s meal break violation allegations, noting that Plaintiff merely parroted the Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 18 of 39 Page ID #:601 87521387.6 5 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 elements of the meal break laws. See Dkt. #27 at p. 5. Specifically, the Court held:  Plaintiff’s “broad conclusory allegations are insufficient to state a plausible claim that Plaintiff was a victim of Defendant’s alleged violations of the labor laws.” Id. at p. 5.  “Plaintiff’s allegations merely recite the statutory language, without providing any factual support.” Id. at p. 6.  “[T]he Complaint is replete with generic boilerplate allegations that fail to identify even the most basic information concerning Plaintiff’s employment, such as the nature of Plaintiff’s job with Defendant.” Id. (emph. added). The MTD Order was clear and unambiguous as to the inadequacy of Plaintiff’s meal break violation allegations, and the need to provide substantive allegations from which the Court could draw a “reasonable inference” that HCC is liable, such as “relevant facts or dates during which these allegations occurred.” Id. at p. 6, quoting Raphael v. Tesoro Ref. & Mktg. Co. LLC, 2015 WL 4127905 (C.D. Cal. July 8, 2015) (Wright, J.). As a result, and following the precedent of Landers v. Quality Communications, Inc., 771 F.3d 638, 645 (9th Cir. 2014), the Court dismissed Plaintiff’s meal break violation cause of action. Dkt. #27 at p. 6. Notwithstanding this clear and unambiguous ruling, the FAC adds only two factually devoid allegations: (1) that Plaintiff worked as a “Utility Worker”; and (2) that his meal periods “were missed, shortened, late, and/or were interrupted because Defendants required them to perform work duties including, but not limited to, responding to business related inquiries and instructions and meeting time-sensitive company deadlines.” FAC, ¶¶ 19, 54, 66. To plead and prove a meal break violation claim, a plaintiff must allege and establish that the employer (1) did not relieve the employee of all duty; (2) did not relinquish all control over the employee’s activities and permit a reasonable opportunity to take a compliant meal break; and (3) impeded or discouraged the employee from taking meal breaks. Brinker v. Sup. Ct., 53 Cal.4th 1004, 1040 (2012). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 19 of 39 Page ID #:602 87521387.6 6 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Applying the Rule 8 pleading standards enunciated in Twombly and Iqbal, and as this Court did in the MTD Order, numerous courts have dismissed meal break violation claims on the ground that they failed to allege sufficient facts to plausibly establish the Brinker elements. The recent decision in Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738, *20 (E.D. Cal. Feb. 3, 2017), illustrates how the FAC’s allegations still fall short. In Guerrero, after a successful Rule 8 challenge, the plaintiff proffered an amended pleading with more robust break allegations than Plaintiff supplies in his FAC here, alleging that the defendants’ “business model was such that Non-Exempt Employees were assigned too much work that could not reasonably [sic] completed in their assigned shift work, and/or role,” resulting in the plaintiff and other employees being forced to work through breaks for fear of their jobs. The Guerrero plaintiff also alleged that he and other employees were “routinely and regularly being forced to eat their meal while driving and/or working their routes,” and identified specific dates on which he alleges he was denied meal and rest periods. Id. at *10-11. Nevertheless, the Guerrero court held that the plaintiff’s allegations of feeling “pressured” to work through breaks, and having “too much work” for breaks, were “too vague and conclusory” under the Iqbal and Twombly standards, and therefore dismissed the meal break claim. Id. at *16-17. Likewise, in Gonzalez v. Fallanghina, LLC, 2016 WL 3951655, *6 (N.D. Cal. July 22, 2016), the plaintiff alleged that he was “never offered” meal breaks and was “compelled” to work through meal breaks, but failed to plead specific facts about what instructions he was given, and by whom, that would have prevented plaintiff from taking meal breaks. As a result, the court held that these threadbare allegations did not give the defendants enough facts to “adequately investigate and defend themselves” against the claims. See id. In Lopez v. Wendy’s Int’l, Inc., 2011 WL 6967932, *5 (C.D. Cal. Sept. 19, 2011) (Morrow, J.), the court dismissed meal break violation claims that were based on Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 20 of 39 Page ID #:603 87521387.6 7 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 allegations which “indicate[d] only that Wendy’s locations were busy and/or understaffed, and that she was ordered to complete her assigned tasks.” The court reasoned that the plaintiff had not alleged “that managers gave her these orders knowing that they would result in missed meal or rest breaks, that they were given to her as she prepared to take a break, or that they were associated in any other way with her meal and rest breaks.” Id. The court further noted that the plaintiff had failed to allege “that she requested a break that was denied or that supervisors told her the restaurant was too busy for breaks to be taken,” “that she was told to complete her assigned tasks even if it meant skipping breaks, or that her tasks had to be completed before a break was permitted,” or “that Wendy’s employees were penalized or reprimanded in any way for taking breaks to which they were entitled.” Id. The FAC here still fails to satisfy Rule 8 because it alleges no facts to plausibly suggest that Plaintiff actually experienced a non-compliant meal break. The FAC’s references to “work duties,” “business related inquiries,” “instructions,” and “deadlines” as purportedly interfering with meal breaks are nothing but generic, non- descriptive buzzwords that could be alleged by any plaintiff working in any type of position against any employer. But these allegations in no way plausibly suggest that Plaintiff actually experienced a non-compliant meal period and that any non- compliance was the result of affirmative conduct by HCC.2 Indeed, Plaintiff fails to 2 See, e.g., Sanchez v. Ritz Carlton, 2015 WL 5009659, *2 (C.D. Cal. Aug. 17, 2015) (Gutierrez, J.) (dismissing meal break claims for failure to comply with Rule 8 that were based on allegations that defendants’ policies forced class members to forego their meal breaks when they worked alone because they were required to be on duty at all times); Freeman v. Zillow, Inc., 2015 WL 5179511, *5 (C.D. Cal. Mar. 19, 2015) (Staton, J.) (holding that allegations that the defendant “implemented an automated method of ‘recording’ its employees work hours … regardless of [whether] employees … missed meal and rest breaks,” “‘demanded’ that employees work through their ‘meal and rest breaks while denying them compensation by automatically detracting this time from their previously auto-populated timesheets” and “had a consistent policy or practice” of “failing to provide employees with duty-free meal periods” were conclusory and failed to “raise the possibility of violations”); Christie v. Tuesday Morning, Inc., U.S. Dist. Ct., C.D. Cal., Case No. 2:14-cv-06505-PSG-AGR (May 27, 2015) (Gutierrez, J.) (Exh. C) at p. 6 (dismissing meal break claims where the pleading allegations failed to “distinguish between actively discouraging employees from Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 21 of 39 Page ID #:604 87521387.6 8 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 any facts which plausibly suggest that he was ever instructed to skip breaks, identify any HCC supervisors or managers that prevented him from taking breaks, and identify any specific HCC policies that resulted in him missing breaks. Allegations which are “conclusory and do not indicate how [HCC] prevented the meal ... breaks” simply do not suffice. See Lefevere v. Pacific Bell Directory, 2014 WL 5810530, *1, 3 (N.D. Cal. Nov. 17, 2014) (emph. added). Accordingly, the FAC’s allegations fail to plausibly suggest that HCC did not comply with its obligation to provide meal breaks to Plaintiff or the PCMs, and his claim should be dismissed without further leave to amend. C. THE SECOND CAUSE OF ACTION FOR ALLEGED REST BREAK VIOLATIONS STILL FAILS AS A MATTER OF LAW The MTD Order likewise dismissed Plaintiff’s rest break claim on similar grounds as required dismissal of his meal break claim. See Dkt. #27 at 4-6. Once again, the only additional “facts” proffered in the FAC are that rest breaks were not available because of generic “work duties including, but not limited to, responding to business related inquiries and instructions and completing time-sensitive company deadlines.” See Exh. B (FAC), ¶ 66. However, the FAC still fails to plead any facts from which the Court can reasonably infer that a rest break violation has occurred with respect to Plaintiff or the PCMs. Very recently, in Robles v. Schneider National Carriers, Inc., C.D. Cal. Case taking breaks … and failing to ensure that they took breaks….,” and thus failed to show that the employer prevented the employee from taking a break) (cit. omitted); Esquivel v. Performance Food Group, Inc., C.D. Cal. Case No. 2:11-cv-07284 (C.D. Cal. Nov. 14, 2011) (Nguyen, J.) (Exh. D) at p.3 (dismissing meal break claims based on allegations that employer’s policy of imposing too much work impeded the taking of compliant meal breaks, reasoning that the mere allegation that Plaintiff was deprived of legally compliant breaks because his schedule was “overload[ed]” was vague and conclusory and failed to show how the employer deprived plaintiff or anyone else of breaks); Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581, *4-5 (N.D. Cal. Apr. 18, 2013) (dismissing meal break claim despite allegations that employer “pressured, incentivized, and discouraged” and made it “difficult” for plaintiffs and the class to take meal breaks because plaintiffs did not provide any facts surrounding the alleged pressure tactics they were subjected to, and failed to provide any facts describing the instances of “difficulty” as to any class member). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 22 of 39 Page ID #:605 87521387.6 9 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 No. 5:16-cv-02482-JGB-KK (Feb. 10, 2017) (Bernal, J.) (“Robles”) (RJN, Exh. E) at pp. 4-5, the court held that rest break allegations failed to comply with Rule 8 because “there are no factual allegations that Defendant actually required - or even encouraged - class members to skip breaks; …without more factual context, it is unclear how Defendant ‘failed’ to provide these rest periods[.] … Here, there is nothing to indicate that Plaintiff’s failure to take break is attributable to Defendant’s policies or practices, rather than his own idiosyncratic decisions.” Similarly, here, Plaintiff again has failed to allege any facts plausibly suggesting that he actually experienced a rest break violation, much less that it was the result of affirmative conduct by HCC.3 Therefore, Plaintiff’s Second Cause of Action for rest break violations should be dismissed without further leave to amend. D. THE THIRD CAUSE OF ACTION FOR FAILURE TO PAY MINIMUM WAGES STILL FAILS AS A MATTER OF LAW 1. The Claim Still Fails To Comply With Rule 8 In the MTD Order, the Court held that Plaintiff’s minimum wage allegations “provide nothing beyond generalized and conclusory statements to tie the alleged labor-code violations to Defendant.” Dkt. #27 at p. 7 (emph. added). Citing Landers, the Court held that Plaintiff failed to provide “any detail” as to any workweek in which he was denied minimum wages and, therefore, his “generalized allegations, devoid of any factual detail, are insufficient to state a plausible claim.” Id. Despite this clear and unequivocal ruling, the FAC still fails to comply with the pleading standard enunciated in Landers by failing to allege any particular workweek 3 See also Freeman, 2015 WL 5179511 at *5 (dismissing Complaint where the plaintiff failed to “allege a given instance where Defendant failed to provide him with a meal or rest break in compliance with state law”); Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128, *2 (C.D. Cal. Mar. 25, 2015) (Staton, J.) (dismissing meal and rest period claims because the plaintiff “largely recites the statutory elements of the meal and rest break claims and then repeats those elements as his factual allegations.”); Lefevere, 2014 WL 5810530 at *3 (dismissing meal break claim because the complaint did not “indicate how the defendants prevented the. . . rest breaks, or . . . that plaintiff did not in fact take [such] breaks”). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 23 of 39 Page ID #:606 87521387.6 10 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 in which Plaintiff (or any PCM) was denied minimum wages. This is fatal to Plaintiff’s minimum wage claim. See Landers, 771 F.3d at 645. Moreover, the FAC does nothing to remedy Plaintiff’s problem of relying on allegations that are nothing but “generalized and conclusory statements.” Instead, the FAC compounds the problem by adding more generic allegations, such as that “Defendants’ failure to pay minimum wage 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, including, but not limited to, donning and doffing, responding business-related inquiries, and completing time-sensitive company deadlines.” See Exh. B (FAC) ¶ 75. As with the meal and rest break claims, these allegations are generic and lack any factual support. The FAC’s allegations provide no explanation of what “work duties” Plaintiff performed as a “Utility Worker,” fail to identify or explain what “inquiries” or “deadlines” he was subjected to, and fail to set forth any facts plausibly suggesting that any off-the-clock work was directed, required or instructed by HCC. Moreover, while the FAC now refers to “donning and doffing” as allegedly occurring off-the-clock, it fails to allege any facts as to what Plaintiff donned or doffed, when or where that occurred, or how it resulted in compensable time for himself or any other PCM. Once again, the FAC alleges nothing but generic, non-descriptive buzzwords that could be alleged by any plaintiff working in any type of position against any employer. See, e.g., Robles (Exh. E) at pp. 6-7 (plaintiff’s minimum wage allegations, including those that class members “were regularly required to work, and did in fact work, uncompensated time, time compensated at less than minimum wage” could not be distinguished from the inadequate pleading in Landers, where plaintiff “does not explain how or why” the defendant’s alleged unlawful conduct “caused uncompensated time.”). Accordingly, Plaintiff’s minimum wage claim still fails to comply with the Rule 8 pleading standard and should be dismissed without further leave to amend. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 24 of 39 Page ID #:607 87521387.6 11 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff’s Pursuit of Penalties Under Cal. Labor Code § 1197.1 Fails As A Matter Of Law. Plaintiff’s Third Cause of Action should also be dismissed and/or stricken to the extent it seeks statutory penalties under Cal. Lab. Code § 1197.1. See FAC, ¶ 77. First, any claim under Section 1197.1 is time-barred, as Plaintiff’s employment with HCC ended in June 2014. See Exh. B (FAC) ¶ 19. Plaintiff did not file his original Complaint until August 29, 2016, more than two years later. As a result, and as the Court held in the MTD Order with respect to Plaintiff’s claim for penalties under Cal. Labor Code § 226(e), his pursuit of any statutory penalties is barred by the applicable one-year limitations period. See Cal. Code Civ. P. § 340(a). Second, Plaintiff cannot pursue a claim under Section 1197.1 because the statute does not provide for a private right of action. Rather, such penalties can only be pursued under the California Labor Code Private Attorney General Act (“PAGA”). See, e.g., Castellon v. Penn-Ridge Trans., Inc., 2015 WL 6697233, *3 (C.D. Cal. Nov. 2, 2015) (Guilford, J.); Ridgeway v. Wal-Mart Stores Inc., 2017 U.S. Dist. LEXIS 10510, *30 (N.D. Cal. Jan. 25, 2017). No PAGA claim has been brought by Plaintiff. See Exh. B (FAC). Therefore, Plaintiff’s claim for penalties under Section 1197.1 should be dismissed and/or stricken without leave to amend.4 4 While this argument was not previously raised by HCC in its challenge to the original Complaint, the Court has the discretion to and should consider it in this Motion, as it would further judicial economy and avoid HCC seeking the same relief under a second, separate motion pursuant to Fed.R.Civ.P. 12(c). See, e.g., Pepper v. Apple Inc., 846 F.3d 313, 2017 U.S. App. LEXIS 577, at *11-12 (9th Cir. 2017) (recognizing that it is appropriate for courts to consider issues raised in a second Rule 12(b)(6) motion where it would expedite the case and narrow the issues involved); Allstate Ins. Co. v. Countrywide Fin. Corp., 824 F. Supp. 2d 1164, 1175 (C.D. Cal. 2011) (Pfaelzer, J.) (same); Banko v. Apple, Inc., 2013 WL 6623913, at *2 (N.D. Cal. Dec. 16, 2013) (“Although Rule 12(g) technically prohibits successive motions to dismiss that raise arguments that could have been made in a prior motion . . . courts faced with a successive motion often exercise their discretion to consider the new arguments in the interests of judicial economy.”). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 25 of 39 Page ID #:608 87521387.6 12 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 E. THE FOURTH CAUSE OF ACTION FOR FAILURE TO PAY ALL WAGES DUE AT TERMINATION AND/OR WAITING TIME PENALTIES STILL FAILS AS A MATTER OF LAW 1. The Claim Still Fails To Comply With Rule 8 Plaintiff’s purported Fourth Cause of Action under Cal. Labor Code § 203 (“Section 203”) still fails to allege facts sufficient to support a claim for failure to pay final wages at separation, as Plaintiff still “does not explain what wages he alleges were due nor the basis for asserting that such wages were due.” See Dkt. #27 (MTD Order) at p. 11. Rather, the only allegations that Plaintiff adds to this claim in the FAC are the same generic, unsupported allegations regarding “donning and doffing,” “work duties,” “business-related inquiries,” and “completing time-sensitive company deadlines.” See Exh. B (FAC) ¶¶ 81-82. Because the predicate claim for unpaid wages continues to not comply with the requirements of Rule 8, this wholly derivative claim still fails as well. Accordingly, the waiting time penalties claim should be dismissed without further leave to amend. 2. Because Section 226.7 Payments Are Not “Wages Earned,” The Non-Payment Thereof At Termination Does Not Trigger Liability For Waiting Time Penalties Plaintiff’s Section 203 claim also fails to the extent it relies on a failure to make Section 226.7 payments at termination because Section 226.7 payments do not constitute “wages earned” under Cal. Labor Code § 201 (“Section 201”) for purposes of incurring waiting time penalties under Section 203. Section 201 provides, in pertinent part, that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Cal. Lab. Code § 201 (emph. added). Section 226.7 payments for missed or non-compliant meal and rest breaks are not “wages earned” for purposes of triggering Section 203 liability because they are actually liquidated damages intended to “compensate[] the employee for events other than time spent working.” Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1113 (2007) (emph. added). Accord Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, *8 (C.D. Cal. Nov. 28, 2011) (Carney, J.) (emph. added). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 26 of 39 Page ID #:609 87521387.6 13 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Although Murphy held that the measure of the remedy provided under Section 226.7 is a “premium wage” for statute of limitations purposes, the California Supreme Court concurrently recognized that it is “an amount of compensation” for “noneconomic injuries.” Murphy, 40 Cal.4th at 1113.5 Indeed, the Section 226.7 payment does not in any way correlate to the amount of time that an employee actually works through a meal or rest break. Rather, the same fixed sum of one full hour of pay is owed, regardless of whether the employee works through only a portion of the meal or rest break or through the entire break.6 See Cal. Lab. Code § 226.7(b); Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205, 1208 (C.D. Cal. 2006) (Carney, J.) (Section 226.7 “does not compensate an employee for additional services rendered”); Pulido v. Coca Cola Enters., Inc., 2006 WL 1699328, *8 (C.D. Cal. May 25, 2006) (Phillips, J.) (Section 226.7 is “punitive” with “no correlation to the employee’s actual labor”). The California Supreme Court spoke to this issue and expressly acknowledged that Section 226.7 payments are more properly characterized exclusively as damages and not wages for work performed. Specifically, in Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012), the court held that the Section 226.7 payment is intended to pay employees for the “nonprovision of meal and rest periods,” as distinguished from work performed during the meal period: “Section 226.7 is not aimed at protecting or providing employees’ wages. Instead, the statute is primarily concerned with ensuring the health and welfare of employees by requiring that employers provide meal and rest periods as mandated by the IWC. [Citation] When an 5 See also Nguyen, 2011 WL 6018284, at *8 (A Section 226.7 payment “is properly considered liquidated damages, not wages earned ….”) (emph. added); Brewer v. Premier Golf Prop., LP, 168 Cal.App.4th 1243, 1254 (2008) (remedies for missed meal break “include an award in the nature of liquidated damages under section 226.7”) (emph. added). 6 Section 226.7 payments have also been characterized as “penalties.” During the June 30, 2000 hearing at which the California Industrial Welfare Commission (“IWC”) adopted the “hour of pay” remedy for meal break violations, IWC Commissioner Barry Broad clarified that the meal break violation payments are “penalties” intended to “encourage employers not to” deprive employees of meal breaks. See Exh. F (IWC Public Hearing Transcript (June 30, 2000)), at p. 30. Indeed, “penalty” (as opposed to “wage”) was the only term used throughout the hearing to describe the payments. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 27 of 39 Page ID #:610 87521387.6 14 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 employee sues for a violation of section 226.7, he or she is suing because an employer has allegedly ‘require[d] [the] employee to work during [a] meal or rest period mandated by an applicable order of the Industrial Welfare Commission.’ [Citation] In other words, a section 226.7 action is brought for the nonprovision of meal and rest periods, not for the ‘nonpayment of wages.’” Id. at 1255 (brackets in orig.) (emph. added). The foundation for distinguishing between “wages” that an employee earns for performing work, on the one hand, and the “premium pay” under Section 226.7 that compensates for a non-compliant meal and rest break, on the other, as set out in Kirby, was laid in Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012): “The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and a Section 226.7 payment] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no Section 226.7 payment], but nonetheless owes regular compensation to its employees for time worked.” Id. at 1040 n. 19. Post-Kirby, several district courts have held that unpaid Section 226.7 payments cannot trigger waiting time penalties under Section 203.7 As one court in this district has held, “Kirby forecloses the possibility of an action under [S]ections 201 and 203 for the nonpayment of wages” and “makes clear that an employer who owes an employee a premium wage under [Section] 226.7 is not also liable for a violation of § 203.” See Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv- 00891-DSF-RZx (June 18, 2013) (Fischer, J.) (“Rodriguez”) (Exh. G) at pp. 7-8 (dismissing Section 203 claim based on unpaid Section 226.7 payments because a plaintiff “cannot maintain a § 203 claim on the basis of unpaid compensation due under 7 See, e.g. Jones v. Spherion Staffing, LLC, 2012 WL 3264081, *8-9 (C.D. Cal. Aug 7, 2012) (Kronstadt, J.) (citing Kirby in holding that Section 226.7 payments cannot be pursued under Section 203); Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141, at *21-24 (E.D. Cal. Nov. 2, 2016) (dismissing Section 203 claim based on non-payment of Section 226.7 payments for missed breaks); Singletary v. Teavana Corporation, 2014 WL 1760884, *4 (N.D. Cal. Apr. 2, 2014) (granting motion for summary judgment on Section 203 claim that was based on the non- payment of Section 226.7 payments, holding that per Kirby, the wrong at issue in Section 226.7 is the non-provision of rest breaks, not a denial of wages). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 28 of 39 Page ID #:611 87521387.6 15 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 § 226.7 as a matter of law”). Furthermore, as the California Court of Appeal recently observed: We understand that the remedy for a section 226.7 violation is an extra hour of pay, but the fact that the remedy is measured by an employee’s hourly wage does not transmute the remedy into a wage as that term is used in section 203, which authorizes penalties to an employee who has separated from employment without being paid. Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242, 1261 (2016). Accordingly, payments under Section 226.7 are “liquidated damages” that do not constitute “wages earned,” and therefore are not subject to any payment obligation under Section 201. Consequently, the FAC fails to state a claim for waiting time penalties under Section 203 on that basis, and this purported claim should be dismissed or stricken without leave to amend. F. THE FIFTH CAUSE OF ACTION FOR FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS STILL FAILS AS A MATTER OF LAW. 1. The FAC Violates The MTD Order By Reasserting Plaintiff’s Time-Barred Claim For Wage Statement Penalties. This MTD Order held that Plaintiff’s claim for penalties under Cal. Labor Code § 226(e) (“Section 226(e)”) is time-barred under the applicable one-year statute of limitations. See Cal. Civ. Code P. § 340(a). To that end, the MTD Order afforded Plaintiff leave to amend the Section 226(e) claim as to “his alleged actual damages only.” See Dkt. #27 at pp. 10-11 (emph. added). But, the FAC disregards this limitation on the leave to amend afforded by continuing to seek penalties under Section 226(e), and not just on behalf of himself, but on behalf of the other PCMs Plaintiff seeks to represent. See Exh. B (FAC) ¶ 91 and Prayer, ¶¶ 31-32. Therefore, Plaintiff’s pursuit of Section 226(e) penalties should be dismissed without leave to amend again.8 8 Plaintiff also seeks injunctive relief on this claim, see Exh. B (FAC), ¶ 92, which the Court has already held he lacks standing to pursue as a former employee. See Dkt. #27 at pp. 13-14. As we discuss below in Section III.I., Plaintiff lacks standing to seek injunctive relief and his pursuit of such relief on his wage statement claim should be dismissed or stricken accordingly. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 29 of 39 Page ID #:612 87521387.6 16 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Claim Still Fails To Comply With Rule 8 Because The FAC Does Not Allege Any Knowing And Intentional Violation That Resulted In The Requisite Injury And Actual Damages Even if the FAC sought only Plaintiff’s actual damages - as the MTD Order made clear was all that he might be able to seek - his claim still fails to comply with Rule 8. To seek actual damages for wage statement violations, a Plaintiff must allege facts supporting the essential elements that (1) HCC committed “knowing and intentional failure[s] … to comply” with Section 226(a), (2) that Plaintiff was injured as a result of this knowing and intentional failure, and (3) that Plaintiff suffered actual damages as a result. See Cal. Lab. Code § 226(e)(1) (emph. added). Plaintiff’s FAC fails to properly allege these essential elements of such a claim. Once again, the FAC alleges no facts to plausibly suggest that HCC provided inaccurate wage statements to Plaintiff, or that it did so knowingly and intentionally. Rather, Plaintiff simply alleges the same conclusory language that HCC “ha[s] intentional and willfully failed to provide Plaintiff and the other class members with complete and accurate wage statements.” See Exh. B (FAC), ¶ 88. But, as this Court and others have held, such conclusory allegations are insufficient under Rule 8.9 The FAC also fails to allege the requisite injury resulting from any ostensible inaccurate wage statements. As the MTD Order held, the “deprivation of information is not itself sufficient to establish a cognizable injury.” See Dkt. #27 at p. 9 (cit. omitted). See also Angeles v. U.S. Airways, Inc., 2013 WL 622032, *10 (N.D. Cal. 9 See, e.g., MTD Order (Dkt. #27) at pp. 9-11; Robles (Exh. E) at pp. 7-11 (dismissing Section 226 claim where plaintiff did not “explain how Defendant’s statements were inaccurate” or what act by defendant caused his hours to not be accurate); Ramirez v. Manpower, Inc., 2014 WL 116531, *5 (N.D. Cal. Jan. 13, 2014) (dismissing Cal. Lab. Code § 226 claims as merely “parrot[ing] the language of the statute” by alleging that defendant “knowingly and intentionally” failed to “include the total number of hours worked by Plaintiff and the Non-Compliant Wage Statement Subclass members, ... list all applicable hourly rates, . . . include the inclusive dates for the period worked by the Plaintiff and the Non-Compliant Wage Statement Subclass members, and . . . accurately report the gross and net earnings of the Plaintiff and the Non-Compliant Wage Statement Subclass members”); Brown, 2013 WL 1701581 at *8 (“Although the [operative complaint] generally alleges that ‘violations of the law were committed knowingly and wilfully’ [sic] … plaintiffs fail to support this conclusory allegation with factual support.”). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 30 of 39 Page ID #:613 87521387.6 17 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Feb. 19, 2013) (“A plaintiff must adequately plead an injury arising from an employer’s failure to provide full and accurate wage statements, and the omission of the required information alone is not sufficient.”); Guerrero, 2016 U.S. Dist. LEXIS 152141, at *17-21 (dismissing Section 226 claim and holding “the mere fact that the information was missing from the wage statement is not a cognizable injury”) (cit. omitted). Moreover, a cognizable injury is deemed to exist only when it is impossible to “promptly and easily determine from the wage statement alone . . . the amount of gross wages or net wages actually paid to the employee during the pay period.” Cal. Lab. Code § 226(e)(2)(B) (emph. added). See also Dkt. #27 at pp. 9-10, citing De La Torre v. American Red Cross, 2013 WL 5573101 (C.D. Cal. Oct. 9, 2013) (Pregerson, J.). In De La Torre, the plaintiff’s Section 226 claims were dismissed because they failed to sufficiently allege a cognizable injury under Section 226(e). While the plaintiff alleged that her bonus payments were not included on her paychecks, she did not allege that she was unable to “promptly and easily determine” from the wage statement “the amount of gross wages or net wages actually paid to her during the pay periods at issue.” Id. at *6 (emph. added). Consequently, the De La Torre court held that the plaintiff had “not alleged actual injury resulting from the inaccuracy on her wage statement as required by Section 226.” Id. Thus, in order to allege a cognizable injury under Section 226(e), Plaintiff had to allege that his wage statements were inaccurate as to the wages actually paid to him - which they undisputedly were not. While the FAC adds an allegation that Plaintiff and PCMs were “unable to determine the total amount of hours they worked, were unable to determine the total amount of compensation they were owed, and were unable to verify they were paid the proper amount,” see Exh. B (FAC), ¶ 89, once again, this is just a threadbare, generic and conclusory allegation that fails to provide any factual insight into how such “injury” existed. Additionally, the FAC does not allege that Plaintiff or the PCMs were unable to determine from their wage statements alone the amount of wages actually paid to them, as required under Section 226(e). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 31 of 39 Page ID #:614 87521387.6 18 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Finally, the FAC fails to allege facts that plausibly suggest Plaintiff has suffered any actual damages caused by any injury suffered as a result of his receipt of any inaccurate wage statements from HCC, notwithstanding that the MTD Order directed that is what his FAC needed to do. Given that any claim for Section 226(e) penalties is time-barred, Plaintiff’s failure to plead any actual damages is fatal to this claim. Therefore, the FAC fails to properly allege the essential elements of a claim for inaccurate wage statements actual damages under Section 226(e) and that purported claim should be dismissed without further leave to amend. 3. The Wage Statements Accurately Reported All Wages Paid The inaccurate wage statement claim in the FAC still fails for the separate and independent reason that, under Section 226(e), employers are only required to accurately report wages that the employee is actually being paid. See Dkt. #27 at pp. 9-10; De La Torre, 2013 WL 5573101 at *6 (finding plaintiff failed to state a claim for Section 226(e) penalties where there was no allegation that she was unable to determine the amount of wages actually paid to her during “the pay periods at issue”). Indeed, Section 226(e) makes clear that the statute addresses wage statements that do not accurately report gross and net wages actually “paid . . . during the pay period” and the amount of deductions actually “made . . . during the pay period.” See Cal. Labor Code § 226(e)(2)(B)(i)-(ii) (emph. added). Here, Plaintiff does not allege that the wage statements he received from HCC were inaccurate in reporting the wages actually paid to him and the deductions actually made during the applicable pay period. Accordingly, the claim fails as a matter of law on this basis as well. 4. Section 226.7 Payments Are Not Subject To Reporting While the inaccurate wage statement claim in the FAC is unclear as to whether it is based, in part, on an alleged failure to itemize meal and rest break payments under Section 226.7, in opposing HCC’s initial motion to dismiss, Plaintiff referenced his pleading of allegedly owed Section 226.7 payments in connection with his wage Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 32 of 39 Page ID #:615 87521387.6 19 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 statement claim. See Dkt. #23 at p. 14. To the extent Plaintiff seeks recovery under Section 226(e) for the purported non-payment of Section 226.7 payments, this claim fails for the separate and independent reason that Section 226.7 payments are not included in the list of what must be itemized on wage statements under Section 226(a).10 If Section 226.7 payments were included in that list, an employee would be further incentivized to forgo his meal and reset breaks in order to obtain a double recovery, one in the form of a missed meal and rest break payment under Section 226.7 and another in the form of an inaccurate wage statement penalty under Section 226. However, this is not the result intended by the California Legislature in enacting Section 226(a). As the legislative history of Section 226(a) indicates, “the purpose of Section 226 was for transparency, not double recovery.”11 Thus, Section 226(a) “is intended to ensure that employers provide accurate itemized wage statements to employees, not to govern employers’ obligations with respect to meal [or rest] periods.” See Exh. H (Driscoll Stmt. of Dec.) at p. 22 (emph. added).12 10 Section 226(a) requires employers to itemize: (1) gross wages earned; (2) total hours worked; (3) piece-rate units earned; (4) deductions; (5) net wages earned; (6) inclusive dates of pay period; (7) employee’s name and social security number or employee identification number; (8) employer’s name and address; and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate. Cal. Labor Code § 226(a). 11 See Exh. H, (Driscoll Stmt. of Dec.) at p. 21 (emph. added). See also Exh. I (Cal. Dept. of Indus. Rels., Enrolled Bill Rep. on A.B. 3731 (1976)) (“Employees would benefit by having an itemized statement of deductions which would include both the gross and net wages so that they will be in a better position to evaluate the effect of payroll deductions and their accuracy.”) (emph. added); Exh. J (Assem. Com. on Lab. Rels., Analysis of A.B. 3731 (1976)), p. 1 (“The purpose of requiring greater wage stub information is to insure that employees are adequately informed of compensation received and are not shortchanged by their employers.”) (emph. added). Moreover, although the opinion letters of the California Division of Labor Standards Enforcement (“DLSE”) are not binding on this Court, they have nevertheless expressed agreement that transparency is the goal of Section 226. See, e.g., Exh. K (DLSE Op. Ltr. Re: Electronic Itemized Wage Stmts. (July 6, 2006)), p. 2 (“The purpose of the wage statement requirement is to provide transparency as to the calculation of wages.”) (emph. added). 12 HCC extensively briefed this issue in its original motion to dismiss (see Dkt. #10 at pp. 16-18), demonstrating that neither the plain statutory language nor the Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 33 of 39 Page ID #:616 87521387.6 20 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Second, Plaintiff’s claim also fails because Section 226.7 payments “are not wages earned for the purposes of Section 226(a)” in that they are actually liquidated damages. Nguyen, 2011 WL 6018284 at *8 (emph. added). As the California Supreme Court acknowledged in Murphy, Brinker and Kirby, Section 226.7 payments are akin to damages and not compensation for work performed. Murphy, 40 Cal.4th at 1113; Brinker, 53 Cal.4th at 1040 n. 19; Kirby, 53 Cal.4th at 1255. To that end, the Nguyen court explicitly held that Section 226.7 payments are “properly considered liquidated damages, not wages earned for the purposes of Section 226(a)” and are consequently not subject to the reporting requirements in Section 226(a). Nguyen, 2011 WL 6018284 at *8 (emph. added). Therefore, Plaintiff’s Section 226 claim fails to the extent it is predicated on an alleged failure to itemize Section 226.7 payments. For all of these reasons, Plaintiff’s Fourth Cause of Action fails as a matter of law and should be dismissed and/or stricken without further leave to amend. G. THE SIXTH CAUSE OF ACTION FOR FAILURE TO REIMBURSE BUSINESS- RELATED EXPENSES STILL FAILS AS A MATTER OF LAW The FAC’s Sixth Cause of Action for failure to reimburse business-related expenses in violation of Cal. Lab. Code § 2802 (“Section 2802”) continues to not comply with the Rule 8 pleading requirements. The MTD Order dismissed this claim, holding that “Plaintiff resorts to conclusory boilerplate allegations that merely repeat the language of the statute.” Dkt. #27 at 12. The FAC fares no better, generically and vaguely referring to “necessary business-related expenses and costs…that were not fully reimbursed by Defendants.” See Exh. B (FAC), ¶ 95. Although Plaintiff offers some potential examples of business expenses, including “personal phones for business-related purposes and costs incurred to comply with Defendants’ dress code, including the costs of purchasing protective footwear” (id.), these allegations are factually insufficient to state a plausible claim legislative history of Section 226(a) requires that Section 226.7 payments be itemized on wage statements. Plaintiff did not contest these arguments. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 34 of 39 Page ID #:617 87521387.6 21 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 under Section 2802. First, Plaintiff does not plead facts alleging that he actually incurred any of these expenses, when such expenses were incurred, that the expenses were required (and why) or compelled by HCC, or the amount of such expenses. He simply asserts that he was not “fully reimbursed” by HCC for expenses, and then gives some potential examples of expenses, without alleging any facts plausibly suggesting even one instance of Plaintiff or any PCM incurring any such expenses. As a result, Plaintiff has failed to state a plausible claim for relief under the requirements of Rule 8. Second, as discussed above, the FAC is wholly devoid of any allegations of the job duties Plaintiff and the PCMs performed, notwithstanding the MTD Order holding that Plaintiff needed to have such allegations. Consequently, there is no way to plausibly determine whether any of the potential examples of expenses the FAC generically identifies were “reasonable and necessary,” or even business-related, much less required by HCC. See Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 568 (2007) (under Section 2802, it is necessary to “determine whether the expenses incurred were reasonable and therefore necessary”). Third, the FAC contains no factual allegations explaining how Plaintiff or any PCM was not “fully reimbursed.” Did Plaintiff fail to seek reimbursement? Did he seek reimbursement but HCC denied that request? Did HCC reimburse for only a portion of the expenses incurred? For example, while Plaintiff references expenses for “protective footwear,” he does not proffer any allegations that would allow the Court to infer that HCC required footwear that was materially different from normal shoes or boots for which an employer would not have a duty to reimburse, that he actually purchased such footwear for his work, or that he requested and/or was denied reimbursement. These are the very basic allegations that Plaintiff should be able to provide to permit the Court and HCC to understand the nature of the claim asserted against it. See Lopez, 2011 WL 6967932, *12 (dismissing plaintiff’s Section 2802 claim on Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 35 of 39 Page ID #:618 87521387.6 22 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 grounds that, inter alia, she “fail[ed] to allege that she paid for a uniform or equipment or that Defendant did not reimburse its employees for these costs” and “fail[ed] to allege what ‘uniform and equipment’ she and other class members were required to purchase.” Id. at *13. See also Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498, *1-2 (E.D. Cal. Aug. 15, 2011) (dismissing a plaintiff’s Section 2802 claims alleging that the plaintiff and all similarly situated individuals were “not reimbursed for out of pocket expenses for the use of their personal vehicles as a requirement of employment” and that the defendant “willfully failed to properly reimburse expenses relating to the use of personal vehicles to Plaintiff, and to the class, at the time they quit or were discharged,” finding that these allegations contained “no factual content” and were “limited to threadbare, legal conclusions that merely parrot the statutory requirements of [Section 2802].”) Id. at *2. In Nelson, the court held that “Plaintiff must allege more specific facts about himself and the purported class he seeks to represent. … Plaintiff must explain the precise nature of business related travel he claims Defendant required him to perform without reimbursement, how Defendant acquired the knowledge of such use, and how Defendant willfully failed to reimburse Plaintiff, or any other class member, for such expense.” Id. at *3. For these reasons, Plaintiff’s Sixth Cause of Action is still insufficient under Rule 8 and should be dismissed without further leave to amend. H. THE SEVENTH CAUSE OF ACTION FOR UCL VIOLATIONS STILL FAILS AS A MATTER OF LAW. 1. The UCL Claim Still Fails To Comply With Rule 8. The FAC’s UCL claim continues to fail because it is wholly derivative of the defective predicate violation claims discussed herein. See Dkt. #27 at pp. 12-13 (“Where a plaintiff cannot state a claim under the ‘borrowed’ law, he cannot state a UCL claim either.”) (cit. omitted). See also Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379, *25 (E.D. Cal. May 31, 2013) (same). Here, Plaintiff’s UCL claim is based entirely on claims for relief that fail to satisfy the Rule 8 pleading requirements Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 36 of 39 Page ID #:619 87521387.6 23 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for the reasons discussed above. Accordingly, the Seventh Cause of Action should be dismissed or stricken without further leave to amend as it is based upon Plaintiff’s legally deficient claims for alleged meal and rest break violations, unpaid wages, final pay violations, wage statement violations and expense reimbursement violations. 2. The UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL The UCL claim purports to seek restitution of Section 226.7 payments for meal and rest break violations. See Exh. B (FAC) ¶ 100 and Prayer, ¶ 40. Under the UCL, a private plaintiff’s “remedies are generally limited to injunctive relief and restitution.” Clark v. Sup. Ct., 50 Cal.4th 605, 610 (2010). “In describing the difference between restitutionary and compensatory relief, California courts have noted that restitution describes relief in which a defendant is asked to return something he wrongfully received, while damages describe relief in which a defendant is asked to compensate a plaintiff for injury suffered as a result of the defendant’s conduct.” Woo v. Home Loan Group, L.P., 2007 WL 6624925, *3 (S.D. Cal. July 27, 2007) (emph. added). Section 226.7 payments are not recoverable as restitution because, as discussed above, they are essentially liquidated damages that are intended to compensate for events other than time spent working. Indeed, as noted above, the Section 226.7 payment does not in any way correlate to the amount of time that an employee actually works through a meal period. Instead, “the statute is primarily concerned with ensuring the health and welfare of employees by requiring that employers provide meal periods as mandated by the IWC …. In other words, a section 226.7 action is brought for the nonprovision of meal and rest periods, not for the ‘nonpayment of wages.’” Kirby, 53 Cal.4th at 1255 (emph. in orig). As such, they are not subject to restitution as a matter of law. See Nguyen, 2011 WL 6018284, at *8; Parson v. Golden State FC, LLC, 2016 WL 1734010, *6-7 (N.D. Cal. May 2, 2016) (dismissing UCL claim because Section 226.7 payments are not subject to restitution); Guerrero, 2017 U.S. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 37 of 39 Page ID #:620 87521387.6 24 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Dist. LEXIS 15738, *20 (“This Court likewise finds that [] § 226.7 wages do not constitute restitution recoverable under [the] UCL”) (relying on Kirby). 3. Section 203 And Section 226 Penalties Are Not Subject To Restitution Under The UCL Plaintiff’s UCL claim also purports to seek restitution of penalties available under Section 203 and Section 226. See Exh. B (FAC) ¶ 100 and Prayer, ¶ 40. However, it is well-settled that Section 203 penalties for late final wage payments and Section 226 penalties for inaccurate wage statements are not recoverable as restitution under the UCL because they are punitive in nature.13 Therefore, for all of the foregoing reasons, the UCL claim fails as a matter of law and should be dismissed or stricken without further leave to amend. I. THE INJUNCTIVE RELIEF CLAIMS SHOULD BE DISMISSED OR STRICKEN BECAUSE PLAINTIFF LACKS STANDING TO SEEK SUCH RELIEF The MTD Order dismissed the claims for injunctive relief on standing grounds because, as a former employee, Plaintiff alleged no prospect of returning to work for HCC and had “not shown any likelihood whatsoever of future injury, let alone a real and immediate threat.” See Dkt. #27 at pp. 13-14 and authorities cited therein. In doing so, the Court expressed skepticism that this claim could be amended, and cautioned Plaintiff that any amendment “must be presented in good faith.” Id. (Emph. added). Plaintiff ignored this clear and unequivocal admonition, not only reasserting the same claim for injunctive relief but adding a claim for injunctive relief in the wage 13 See e.g., Pineda v. Bank of America, N.A., 50 Cal.4th 1389, 1304 (2010) (“section 203 penalties cannot be recovered as restitution under the UCL”); Campbell v. PriceWaterhouseCoopers, 2008 WL 3836972, *6 (E.D. Cal. Aug. 14, 2008) (holding that Sections 203 and 226 penalties were not recoverable under the UCL because their remedies were penalties and not restitution); Guerrero, 2017 U.S. Dist. LEXIS 15738, *21 (affirmatively citing Pineda and Campbell and dismissing UCL claim based on Section 203 and Section 226 because such payments are not recoverable as restitution); Rubin v. Wal-Mart Stores, Inc., 599 F.Supp.2d 1176, 1179 (N.D. Cal. 2009) (same); In re Wal-Mart Stores, Inc., 505 F.Supp.2d 609, 619 (N.D. Cal. 2007) (same). Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 38 of 39 Page ID #:621 87521387.6 25 DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT [DKT. # 30] PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 statement claim as well, without pleading any changed circumstances, much less good-faith allegations that could otherwise support a claim for injunctive relief. See FAC, ¶ 92, Prayer for Relief at ¶¶ 33, 44. Therefore, Plaintiff’s pursuit of injunctive relief in the FAC should be dismissed or stricken without further leave to amend. IV. CONCLUSION For all of the foregoing reasons, HCC respectfully requests that the Court dismiss and/or strike Plaintiff’s FAC as set forth herein without further leave to amend. DATED: March 7, 2017 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Attorneys for Defendant HITCO CARBON COMPOSITES, INC. Case 2:16-cv-07337-PSG-FFM Document 31 Filed 03/07/17 Page 39 of 39 Page ID #:622 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 1 of 25 Page ID #:21 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 1 of 149 Page ID #:623 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 2 of 25 Page ID #:22 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 2 of 149 Page ID #:624 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 3 of 25 Page ID #:23 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 3 of 149 Page ID #:625 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 4 of 25 Page ID #:24 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 4 of 149 Page ID #:626 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 5 of 25 Page ID #:25 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 5 of 149 Page ID #:627 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 6 of 25 Page ID #:26 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 6 of 149 Page ID #:628 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 7 of 25 Page ID #:27 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 7 of 149 Page ID #:629 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 8 of 25 Page ID #:28 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 8 of 149 Page ID #:630 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 9 of 25 Page ID #:29 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 9 of 149 Page ID #:631 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 10 of 25 Page ID #:30 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 10 of 149 Page ID #:632 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 11 of 25 Page ID #:31 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 11 of 149 Page ID #:633 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 12 of 25 Page ID #:32 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 12 of 149 Page ID #:634 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 13 of 25 Page ID #:33 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 13 of 149 Page ID #:635 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 14 of 25 Page ID #:34 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 14 of 149 Page ID #:636 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 15 of 25 Page ID #:35 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 15 of 149 Page ID #:637 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 16 of 25 Page ID #:36 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 16 of 149 Page ID #:638 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 17 of 25 Page ID #:37 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 17 of 149 Page ID #:639 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 18 of 25 Page ID #:38 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 18 of 149 Page ID #:640 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 19 of 25 Page ID #:39 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 19 of 149 Page ID #:641 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 20 of 25 Page ID #:40 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 20 of 149 Page ID #:642 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 21 of 25 Page ID #:41 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 21 of 149 Page ID #:643 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 22 of 25 Page ID #:42 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 22 of 149 Page ID #:644 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 23 of 25 Page ID #:43 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 23 of 149 Page ID #:645 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 24 of 25 Page ID #:44 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 24 of 149 Page ID #:646 Case 2:16-cv-07337 Document 1-1 Filed 09/29/16 Page 25 of 25 Page ID #:45 Exhibit A Exhibit A Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 25 of 149 Page ID #:647 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 V. Andre Sherman (Cal. State Bar No. 198684) GIRARDI | KEESE 1126 Wilshire Boulevard Los Angeles, California 90017 Telephone: (213) 977-0211 Facsimile: (213) 481-1554 Edwin Aiwazian (Cal. State Bar No. 232943) Romina Keshishyan (Cal. State Bar No. 303522) LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, California 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 Attorneys for Plaintiff Andrew Dawson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ANDREW DAWSON, individually, and on behalf of other members of the general public similarly situated; Plaintiff, vs. HITCO CARBON COMPOSITES, INC., an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No.: 2:16-cv-07337-PSG-FFM Honorable Philip S. Gutierrez Courtroom 880 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES (1) Violation of California Labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premiums); (2) Violation of California Labor Code § 226.7 (Unpaid Rest Period Premiums); (3) Violation of California Labor Code §§ 1194, 1197, and 1197.1 (Unpaid Minimum Wages); (4) Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (5) Violation of California Labor Code § 226(a) (Non- Compliant Wage Statements (6) Violation of Labor Code §§ 2800 and 2802 (Unreimbursed Business Expenses); (7) Violation of California Business & Professions Code §§ 17200, et seq. DEMAND FOR JURY TRIAL Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 1 of 28 Page ID #:556 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 26 of 149 Page ID #:648 2 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 COMES NOW, Plaintiff ANDREW DAWSON (“Plaintiff COLLINS”), individually, and on behalf of other members of the general public similarly situated, and alleges as follows: JURISDICTION AND VENUE 1. This class action was originally brought in the Superior Court for the County of Los Angeles pursuant to the California Code of Civil Procedure section 382. 2. This Court has asserted jurisdiction over this action pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d). 3. Upon information and belief, Defendant is a Delaware corporation doing business in California, and at all times hereinafter mentioned, an employer whose employees are engaged throughout this District and throughout the State of California. Defendant maintains offices, has agents, and is licensed to transact and does transact business in this District. PARTIES 4. Plaintiff ANDREW DAWSON is an individual residing in the State of California, County of Los Angeles. 5. Defendant HITCO CARBON COMPOSITES, INC., at all times herein mentioned, was and is, upon information and belief, an employer whose employees are engaged throughout the State of California, including the County of Los Angeles. 6. At all relevant times, Defendants HITCO CARBON COMPOSITES, INC. was the “employer” of Plaintiff within the meaning of all applicable California laws and statutes. /// /// /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 2 of 28 Page ID #:557 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 27 of 149 Page ID #:649 3 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 7. At all times herein relevant, Defendants HITCO CARBON COMPOSITES, INC. and DOES 1 through 100, and each of them, were the agents, partners, joint venturers, joint employers, representatives, servants, employees, successors-in-interest, co-conspirators and/or assigns, each of the other, and at all times relevant hereto were acting within the course and scope of their authority as such agents, partners, joint venturers, joint employers, representatives, servants, employees, successors, co-conspirators and/or assigns, and all acts or omissions alleged herein were duly committed with the ratification, knowledge, permission, encouragement, authorization and/or consent of each defendant designated as a DOE herein. 8. The true names and capacities, whether corporate, associate, individual or otherwise, of defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who sues said defendants by such fictitious names. Plaintiff is informed and believes, and based on that information and belief alleges, that each of the defendants designated as a DOE is legally responsible for the events and happenings referred to in this Complaint, and unlawfully caused the injuries and damages to Plaintiff and the other class members as alleged in this Complaint. Plaintiff will seek leave of court to amend this Complaint to show the true names and capacities when the same have been ascertained. 9. Defendant HITCO CARBON COMPOSITES, INC. and DOES 1 through 100 will hereinafter collectively be referred to as “Defendants.” 10. Plaintiff further alleges that Defendants, directly or indirectly controlled or affected the working conditions, wages, working hours, and conditions of employment of Plaintiff and the other class members and aggrieved employees so as to make each of said Defendants employers and employers liable under the statutory provisions set forth herein. /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 3 of 28 Page ID #:558 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 28 of 149 Page ID #:650 4 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 CLASS ACTION ALLEGATIONS 11. Plaintiff brings this action on his own behalf and on behalf of all other members of the general public similarly situated, and, thus, seeks class certification under Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. 12. The proposed class is defined as follows: All 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 August 29, 2012 to final judgment. 13. Plaintiff reserves the right to establish subclasses as appropriate. 14. The class is ascertainable and there is a well-defined community of interest in the litigation: a. Numerosity: The class members are so numerous that joinder of all class members is impracticable. The membership of the entire class is unknown to Plaintiff at this time; however, the class is estimated to be greater than fifty (50) individuals and the identity of such membership is readily ascertainable by inspection of Defendants’ employment records. b. Typicality: Plaintiff’s claims are typical of all other class members’ as demonstrated herein. Plaintiff will fairly and adequately protect the interests of the other class members with whom he has a well-defined community of interest. c. Adequacy: Plaintiff will fairly and adequately protect the interests of each class member, with whom he has a well- defined community of interest and typicality of claims, as demonstrated herein. Plaintiff has no interest that is antagonistic to the other class members. Plaintiff’s attorneys, the proposed class counsel, are versed in the rules governing class action discovery, certification, and settlement. Plaintiff Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 4 of 28 Page ID #:559 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 29 of 149 Page ID #:651 5 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 has incurred, and during the pendency of this action will continue to incur, costs and attorneys’ fees, that have been, are, and will be necessarily expended for the prosecution of this action for the substantial benefit of each class member. d. Superiority: A class action is superior to other available methods for the fair and efficient adjudication of this litigation because individual joinder of all class members is impractical. e. Public Policy Considerations: Certification of this lawsuit as a class action will advance public policy objectives. Employers of this great state violate employment and labor laws every day. Current employees are often afraid to assert their rights out of fear of direct or indirect retaliation. However, class actions provide the class members who are not named in the complaint anonymity that allows for the vindication of their rights. 15. There are common questions of law and fact as to the class members that predominate over questions affecting only individual members. The following common questions of law or fact, among others, exist as to the members of the class: a. Whether Defendants’ failure to pay wages, without abatement or reduction, in accordance with the California Labor Code, was willful; b. Whether Defendants’ had a corporate policy and practice of failing to pay their hourly-paid or non-exempt employees within the State of California for all hours worked, missed (short, late, interrupted, and/or missed altogether) meal periods and rest breaks in violation of California law; /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 5 of 28 Page ID #:560 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 30 of 149 Page ID #:652 6 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 c. Whether Defendants deprived Plaintiff and the other class members of meal and/or rest periods or required Plaintiff and the other class members to work during meal and/or rest periods without compensation; d. Whether Defendants failed to pay minimum wages to Plaintiff and the other class members for all hours worked; e. Whether Defendants failed to pay all wages due to Plaintiff and the other class members within the required time upon their discharge or resignation; f. Whether Defendants failed to timely pay all wages due to Plaintiff and the other class members during their employment; g. Whether Defendants complied with wage reporting as required by the California Labor Code; including, inter alia, section 226; h. Whether Defendants kept complete and accurate payroll records as required by the California Labor Code; i. Whether Defendants failed to reimburse Plaintiff and the other class members for necessary business-related expenses and costs; j. Whether Defendants’ conduct was willful or reckless; k. Whether Defendants engaged in unfair business practices in violation of California Business & Professions Code section 17200, et seq.; l. The appropriate amount of damages, restitution, and/or monetary penalties resulting from Defendants’ violation of California law; and m. Whether Plaintiff and the other class members are entitled to compensatory damages pursuant to the California Labor Code. /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 6 of 28 Page ID #:561 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 31 of 149 Page ID #:653 7 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 16. Class certification of the First through Seventh causes of action is appropriate pursuant to Rule 23(b)(3) because the aforementioned questions of law and fact common to the class predominate over any questions affecting only individual members of the class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. Defendants’ common and uniform policies and practices have unlawfully denied Plaintiff and the other class members meal period premiums for all meal periods that were not provided in compliance with the applicable Industrial Welfare Commission (“IWC”) Order and California Labor Code, have denied them rest period premiums for all rest periods that were not provided in compliance with the applicable IWC Order and California Labor Code, have denied them of minimum wages for all hours worked, have denied them payment of their final wages in a timely manner, have denied them of accurate wage statements in compliance with the California Labor Code, have denied them from getting reimbursed for necessary business related expenses, and amount to unfair competition under California Business and Professions Code Sections 17200 et seq. The damages suffered by individual class members are relatively small compared to the expense and burden of individual prosecution of this litigation. For this reason, as well as the fact that class members currently employed by Defendants may fear direct or indirect retaliation from Defendants for prosecuting an action against Defendants, the class members’ interests in individually controlling the prosecution of this action is minimal. In addition, a class action in this forum is desirable as it will eliminate the risk of inconsistent rulings regarding the legality of Defendants’ policies, practices, and procedures. Managing this case as a class action will not present difficulties as the parties can utilize approved methods of random statistical sampling and expert testimony at trial. /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 7 of 28 Page ID #:562 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 32 of 149 Page ID #:654 8 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 17. Once class certification is granted, Plaintiff will send notice to all members of the class consistent with the requirements of Rule 23(c)(2) of the Federal Rules of Civil Procedure. Specifically, Plaintiff will submit a proposed notice to the Court for its approval, stating (i) the nature of this action, (ii) the definition of the certified class, (iii) the class claims, issues, and/or defenses, (iv) that a class member may enter an appearance through an attorney if he or she so desires, (v) that the Court will exclude from the class any member who requests exclusion, (vi) the time and manner for requesting exclusion, and (vii) the binding effect of a class judgment on class members under Rule 23(c)(3). GENERAL ALLEGATIONS 18. At all relevant times set forth herein, Defendants employed Plaintiff and other persons as hourly-paid or non-exempt employees within the State of California. 19. Defendants, jointly and severally, employed Plaintiff as an hourly- paid, non-exempt Utility Worker, from approximately January 2013 to approximately June 2014, in the State of California, County of Los Angeles. 20. Defendants hired Plaintiff and the other class members and classified them as hourly-paid or non-exempt employees, and failed to compensate them for all hours worked, and missed, shortened, late, and/or interrupted meal periods and/or rest periods. 21. Defendants had the authority to hire and terminate Plaintiff and the other class members; to set work rules and conditions governing Plaintiff’s and the other class members’ employment; and to supervise their daily employment activities. 22. Defendants exercised sufficient authority over the terms and conditions of Plaintiff’s and the other class members’ employment for them to be joint employers of Plaintiff and the other class members. /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 8 of 28 Page ID #:563 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 33 of 149 Page ID #:655 9 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 23. Defendants directly hired and paid wages and benefits to Plaintiff and the other class members. 24. Defendants continue to employ hourly-paid or non-exempt employees within the State of California. 25. Plaintiff and the other class members worked over eight (8) hours in a day, and/or forty (40) hours in a week during their employment with Defendants. 26. Plaintiff is informed and believes, and based thereon alleges, that Defendants engaged in a uniform policy/practice of wage abuse against their hourly-paid or non-exempt employees within the State of California. This uniform policy/practice involved, inter alia, failing to pay them for all regular wages earned, and missed, shortened, late, and/or interrupted meal periods and rest breaks in violation of California law. 27. Plaintiff is informed and believes, and based thereon alleges, that Defendants failed to provide Plaintiff and the other class members the required rest and meal periods during the relevant time period as required under the Industrial Welfare Commission Wage Orders and thus they are entitled to any and all applicable penalties. 28. Plaintiff is informed and believes, and based thereon alleges, that 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 lasting 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. /// /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 9 of 28 Page ID #:564 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 34 of 149 Page ID #:656 10 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 29. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all meal periods or payment of one additional hour of pay at Plaintiff’s and the other class member’s regular rate of pay when a meal period was missed, shortened, late, and/or interrupted, and they did not receive all meal periods or payment of one additional hour of pay at Plaintiff’s and the other class member’s regular rate of pay when a meal period was missed, shortened, late, and/or interrupted. 30. Plaintiff is informed and believes, and based thereon alleges, that Defendants failed to provide, authorize, and permit Plaintiff and other class members to take full, uninterrupted, off-duty rest periods 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 failed to make a good faith effort to authorize, permit, and provide such rest breaks in the middle of each work period. 31. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all rest periods or payment of one additional hour of pay at Plaintiff’s and the other class member’s regular rate of pay when a rest period was missed, shortened, late, and/or interrupted and they did not receive all rest periods or payment of one additional hour of pay at Plaintiff’s and the other class members’ regular rate of pay when a rest period was missed, shortened, late, and/or interrupted. 32. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive at least minimum wages for compensation and that they were not receiving at least minimum wages for all hours worked. Defendants’ failure to pay minimum wages included, inter alia, Defendants’ effective payment Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 10 of 28 Page ID #:565 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 35 of 149 Page ID #:657 11 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 of zero dollars per hour for hours Plaintiff and the other class members worked off-the-clock performing work duties, including, but not limited to, donning and doffing, responding to business-related inquiries, and completing time-sensitive company deadlines. 33. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all wages owed to them upon discharge or resignation, including minimum wages and meal and rest period premiums, and they did not, in fact, receive all such wages owed to them at the time of their discharge or resignation. 34. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive all wages owed to them during their employment. Plaintiff and the other class members did not receive payment of all wages, including minimum wages and meal and rest period premiums, within any time permissible under California Labor Code section 204. 35. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to receive complete and accurate wage statements in accordance with California law, but, in fact, they did not receive complete and accurate wage statements from Defendants. The deficiencies included, inter alia, the failure to include the accurate total number of hours worked by Plaintiff and the other class members and the accurate total amount of wages earned by Plaintiff and the other class members. /// /// /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 11 of 28 Page ID #:566 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 36 of 149 Page ID #:658 12 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 36. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that Plaintiff and the other class members were entitled to reimbursement for all necessary business-related expenses, including, the use of personal phones for business-related purposes and costs incurred to comply with Defendants’ dress code, including the costs of purchasing protective footwear. 37. Plaintiff is informed and believes, and based thereon alleges, that Defendants knew or should have known that they had a duty to compensate Plaintiff and the other class members pursuant to California law, and that Defendants had the financial ability to pay such compensation, but willfully, knowingly, and intentionally failed to do so, and falsely represented to Plaintiff and the other class members that they were properly denied wages, all in order to increase Defendants’ profits. 38. At all material times set forth herein, Defendants failed to provide the requisite uninterrupted meal and rest periods to Plaintiff and the other class members. 39. At all material times set forth herein, Defendants failed to pay Plaintiff and the other class members at least minimum wages for all hours worked. 40. At all material times set forth herein, Defendants failed to pay Plaintiff and the other class members all wages owed to them upon discharge or resignation. 41. At all material times set forth herein, Defendants failed to pay Plaintiff and the other class members all wages within any time permissible under California law, including, inter alia, California Labor Code section 204. 42. At all material times set forth herein, Defendants failed to provide complete or accurate wage statements to Plaintiff and the other class members. 43. At all material times set forth herein, Defendants failed to keep complete or accurate payroll records for Plaintiff and the other class members. /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 12 of 28 Page ID #:567 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 37 of 149 Page ID #:659 13 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 44. At all material times set forth herein, Defendants failed to reimburse Plaintiff and the other class members for necessary business-related expenses and costs. 45. At all material times set forth herein, Defendants failed to properly compensate Plaintiff and the other class members pursuant to California law in order to increase Defendants’ profits. 46. California Labor Code section 218 states that nothing in Article 1 of the Labor Code shall limit the right of any wage claimant to “sue directly . . . for any wages or penalty due to him [or her] under this article.” FIRST CAUSE OF ACTION (Violation of California Labor Code §§ 226.7 and 512(a)) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 47. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 46, and each and every part thereof with the same force and effect as though fully set forth herein. 48. At all relevant times, the IWC Order and California Labor Code sections 226.7 and 512(a) were applicable to Plaintiff’s and the other class members’ employment by Defendants. 49. At all relevant times, California Labor Code section 226.7 provides that no employer shall require an employee to work during any meal or rest period mandated by an applicable order of the California IWC. 50. At all relevant times, the applicable IWC Wage Order and California Labor Code section 512(a) provide that an employer may not require, cause or permit an employee to work for a work period of more than five (5) hours per day without providing the employee with a meal period of not less than thirty (30) minutes, except that if the total work period per day of the employee is no more than six (6) hours, the meal period may be waived by mutual consent of both the employer and employee. Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 13 of 28 Page ID #:568 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 38 of 149 Page ID #:660 14 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 51. At all relevant times, the applicable IWC Wage Order and California Labor Code section 512(a) further provide that an employer may not require, cause or permit an employee to work for a work period of more than ten (10) hours per day without providing the employee with a second uninterrupted meal period of not less than thirty (30) minutes, except that if the total hours worked is no more than twelve (12) hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. 52. During the relevant time period, Plaintiff and the other class members who were scheduled to work for a period of time no longer than six (6) hours, and who did not waive their legally-mandated meal periods by mutual consent, were required to work for periods longer than five (5) hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period. 53. During the relevant time period, Plaintiff and the other class members who were scheduled to work for a period of time in excess of six (6) hours were required to work for periods longer than five (5) hours without an uninterrupted meal period of not less than thirty (30) minutes and/or rest period. 54. During the relevant time period, Plaintiff and the other class members’ meal periods were missed, shortened, late, and/or were interrupted because Defendants required them to perform work duties including, but not limited to, responding to business related inquiries and instructions and meeting time- sensitive company deadlines. 55. As a result, Defendants failed to relieve Plaintiff and the other class members of all duties, failed to relinquish control over Plaintiff and the other class members’ activities, failed to permit Plaintiff and the other class members a reasonable opportunity to take, and impeded or discouraged them from taking thirty (30) minute uninterrupted meal periods no later than the end of their fifth hour of work for shifts lasting at least six (6) hours, and/or to take second thirty (30) minute uninterrupted meal periods no later than their tenth hour of work for Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 14 of 28 Page ID #:569 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 39 of 149 Page ID #:661 15 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 shifts lasting more than ten (10) hours. 56. During the relevant time period, Defendants intentionally and willfully required Plaintiff and the other class members to work during meal periods and failed to compensate Plaintiff and the other class members the full meal period premium for work performed during meal periods. 57. During the relevant time period, Defendants failed to pay Plaintiff and the other class members the full meal period premium due pursuant to California Labor Code section 226.7. 58. Defendants’ conduct violates applicable IWC Wage Order and California Labor Code sections 226.7 and 512(a). 59. Pursuant to applicable IWC Wage Order and California Labor Code section 226.7(b), Plaintiff and the other class members are entitled to recover from Defendants one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided. SECOND CAUSE OF ACTION (Violation of California Labor Code § 226.7) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 60. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 59, and each and every part thereof with the same force and effect as though fully set forth herein. 61. At all times herein set forth, the applicable IWC Wage Order and California Labor Code section 226.7 were applicable to Plaintiff’s and the other class members’ employment by Defendants. 62. At all relevant times, California Labor Code section 226.7 provides that no employer shall require an employee to work during any rest period mandated by an applicable order of the California IWC. /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 15 of 28 Page ID #:570 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 40 of 149 Page ID #:662 16 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 63. At all relevant times, the applicable IWC Wage Order provides that “[e]very employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period” and that the “rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof” unless the total daily work time is less than three and one-half (3 ½) hours. 64. During the relevant time period, Defendants required Plaintiff and other class members to work three and one-half (3 ½) or more hours without authorizing or permitting a ten (10) minute rest period per each four (4) hour period, or major fraction thereof, worked. 65. During the relevant time period, Defendants did not provide Plaintiff and the other class members ten (10) minute rest periods when they worked shifts of at least three and one-half (3 ½) hours but less than four (4) hours in length. 66. During the relevant time period, Plaintiff and the other class members’ rest periods were missed, shortened, late, and/or interrupted because Defendants required them to perform work duties including, but not limited to, responding to business related inquiries and instructions and completing time-sensitive company deadlines. 67. 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. 68. As a result, Defendants failed to provide, authorize, and/or permit Plaintiff and other class members to take full, uninterrupted, off-duty rest periods for every shift lasting three and one-half (3 ½) 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) 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. Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 16 of 28 Page ID #:571 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 41 of 149 Page ID #:663 17 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 69. 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. 70. During the relevant time period, Defendants failed to pay Plaintiff and the other class members the full rest period premium due pursuant to California Labor Code section 226.7 71. Defendants’ conduct violates applicable IWC Wage Orders and California Labor Code section 226.7. 72. Pursuant to the applicable IWC Wage Orders and California Labor Code section 226.7(b), Plaintiff and the other class members are entitled to recover from Defendants one additional hour of pay at the employees’ regular hourly rate of compensation for each work day that the rest period was not provided. THIRD CAUSE OF ACTION (Violation of California Labor Code §§ 1194, 1197, and 1197.1) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 73. Plaintiff incorporate by reference the allegations contained in paragraphs 1 through 72, and each and every part thereof with the same force and effect as though fully set forth herein. 74. At all relevant times, California Labor Code sections 1194, 1197, and 1197.1 provide that the minimum wage to be paid to employees, and the payment of a lesser wage than the minimum so fixed is unlawful. 75. During the relevant time period, Defendants failed to pay minimum wage to Plaintiff and the other class members as required, pursuant to California Labor Code sections 1194, 1197, and 1197.1. Defendants’ 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, including, but not limited to, donning and doffing, responding to Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 17 of 28 Page ID #:572 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 42 of 149 Page ID #:664 18 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 business-related inquiries, and completing time-sensitive company deadlines. 76. 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. 77. Pursuant to California Labor Code section 1197.1, Plaintiff and the other class members are entitled to recover a penalty of $100.00 for the initial failure to timely pay each employee minimum wages, and $250.00 for each subsequent failure to pay each employee minimum wages. 78. Pursuant to California Labor Code section 1194.2, Plaintiff and the other class members are entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. FOURTH CAUSE OF ACTION (Violation of California Labor Code §§ 201 and 202) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 79. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 78, and each and every part thereof with the same force and effect as though fully set forth herein. 80. At all relevant times herein set forth, California Labor Code sections 201 and 202 provide that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately, and if an employee quits his or her employment, his or her wages shall become due and payable not later than seventy-two (72) hours thereafter, unless the employee has given seventy-two (72) hours’ notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 18 of 28 Page ID #:573 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 43 of 149 Page ID #:665 19 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 81. During the relevant time period, Defendants intentionally and willfully failed to pay Plaintiff Dawson and the other class members who were discharged their wages, earned and unpaid, immediately at the time of their discharge. Plaintiff Dawson was not paid at the time of his discharge wages earned and unpaid throughout his employment, including but not limited to, minimum wages for time worked off-the-clock to perform work duties including donning and doffing, responding to business-related inquiries, and completing time- sensitive company deadlines and for meal and rest period premium payments. 82. During the relevant time period, Defendants intentionally and willfully failed to pay other class members who quit their employment with Defendants with less than seventy-two (72) hours’ notice their wages, earned and unpaid, within seventy-two (72) hours of their leaving Defendants’ employ. Other class members were not given at the time of leaving Defendants’ employ all of the wages earned and unpaid throughout their employment, including but not limited to, minimum wages for time worked off-the-clock completing work duties including donning and doffing, responding to business-related inquiries, and completing time-sensitive company deadlines, and for meal and rest period premium payments. 83. Defendants’ failure to pay Plaintiff and the other class members who are no longer employed by Defendants’ their wages, earned and unpaid, within seventy-two (72) hours of their leaving Defendants’ employ, is in violation of California Labor Code sections 201 and 202. 84. California Labor Code section 203 provides that if an employer willfully fails to pay wages owed, in accordance with sections 201 and 202, then 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 is commenced; but the wages shall not continue for more than thirty (30) days. /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 19 of 28 Page ID #:574 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 44 of 149 Page ID #:666 20 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 85. Plaintiff and the other class members are entitled to recover from Defendants the statutory penalty wages for each day they were not paid, up to a thirty (30) day maximum pursuant to California Labor Code section 203. FIFTH CAUSE OF ACTION (Violation of California Labor Code § 226(a)) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 86. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 85, and each and every part thereof with the same force and effect as though fully set forth herein. 87. At all material times set forth herein, California Labor Code section 226(a) provides that every employer shall furnish each of his or her employees an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. /// /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 20 of 28 Page ID #:575 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 45 of 149 Page ID #:667 21 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 88. Defendants have intentionally and willfully failed to provide Plaintiff and the other class members with complete and accurate wage statements. The deficiencies include, but are not limited to: the failure to include the accurate total number of hours worked by Plaintiff and the other class members. 89. As a result of Defendants’ violation of California Labor Code section 226(a), Plaintiff and the other class members have suffered injury and damage to their statutorily-protected rights. Because Plaintiff and the putative class members’ wage statements did not reflect the accurate number of regular hours worked, did not reflect the applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate, Plaintiff and the putative class members were unable to determine the total amount of hours they worked, were unable to determine the total amount of compensation they were owed, and were unable to verify they were paid the proper amount. In order to determine how much Plaintiff and the putative class members should have been paid, Plaintiff and the putative class members would have had to engage in discovery and mathematical computations in order to reconstruct the missing information. 90. More specifically, Plaintiff and the other class members have been injured by Defendants’ intentional and willful violation of California Labor Code section 226(a) because they were denied both their legal right to receive, and their protected interest in receiving, accurate and itemized wage statements pursuant to California Labor Code section 226(a). 91. Plaintiff and the other class members are entitled to recover from Defendants the greater of their actual damages caused by Defendants’ failure to comply with California Labor Code section 226(a), or an aggregate penalty not exceeding four thousand dollars per employee. /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 21 of 28 Page ID #:576 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 46 of 149 Page ID #:668 22 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 92. Plaintiff and the other class members are also entitled to injunctive relief to ensure compliance with this section, pursuant to California Labor Code section 226(g). SIXTH CAUSE OF ACTION (Violation of California Labor Code §§ 2800 and 2802) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 93. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 92, and each and every part thereof with the same force and effect as though fully set forth herein. 94. Pursuant to California Labor Code sections 2800 and 2802, an employer must reimburse its employee for all necessary expenditures incurred by the employee in direct consequence of the discharge of his or her job duties or in direct consequence of his or her job duties or in direct consequence of his or her obedience to the directions of the employer. 95. Plaintiff and the other class members incurred necessary business- related expenses and costs throughout the duration of their employment that were not fully reimbursed by Defendants, including but not limited to the use of personal phones for business-related purposes and costs incurred to comply with Defendants’ dress code, including the costs of purchasing protective footwear. 96. Defendants have intentionally and willfully failed to reimburse Plaintiff and the other class members for all necessary business-related expenses and costs. Plaintiff and the other class members are entitled to recover from Defendants their business-related expenses and costs incurred during the course and scope of their employment, plus interest accrued from the date on which the employee incurred the necessary expenditures at the same rate as judgments in civil actions in the State of California. /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 22 of 28 Page ID #:577 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 47 of 149 Page ID #:669 23 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 SEVENTH CAUSE OF ACTION (Violation of California Business & Professions Code §§ 17200, et seq.) (Against HITCO CARBON COMPOSITES, INC. and DOES 1 through 100) 97. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 96, and each and every part thereof with the same force and effect as though fully set forth herein. 98. Defendants’ conduct, as alleged herein, has been, and continues to be, unfair, unlawful and harmful to Plaintiff, other class members, to the general public, and Defendants’ competitors. Accordingly, Plaintiff seeks to enforce important rights affecting the public interest within the meaning of Code of Civil Procedure section 1021.5. 99. Defendants’ activities as alleged herein are violations of California law, and constitute unlawful business acts and practices in violation of California Business & Professions Code section 17200, et seq. 100. A violation of California Business & Professions Code section 17200, et seq. may be predicated on the violation of any state or federal law. In this instant case, Defendants’ policies and practices of requiring employees, including Plaintiff and the other class members, to work through their meal and rest periods without paying them proper compensation violate California Labor Code sections 226.7 and 512(a). Defendants’ policies and practices of failing to pay minimum wages violate California Labor Code sections 1194, 1197, 1197.1. Moreover, Defendants’ policies and practices of failing to timely pay wages to Plaintiff and the other class members violate California Labor Code sections 201, and 202. Defendants also violated California Labor Code sections 226(a), 2800 and 2802. 101. As a result of the herein described violations of California law, Defendants unlawfully gained an unfair advantage over other businesses. /// /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 23 of 28 Page ID #:578 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 48 of 149 Page ID #:670 24 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 102. Plaintiff and the other class members have been personally injured by Defendants’ unlawful business acts and practices as alleged herein, including but not necessarily limited to the loss of money and/or property. 103. Pursuant to California Business & Professions Code sections 17200, et seq., Plaintiff and the other class members are entitled to restitution of the wages withheld and retained by Defendants during a period that commences August 29, 2012; an award of attorneys’ fees pursuant to California Code of Civil procedure section 1021.5 and other applicable laws; and an award of costs. DEMAND FOR JURY TRIAL Plaintiff, individually, and on behalf of other members of the general public similarly situated, requests a trial by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiff, individually and on behalf of all other members of the general public similarly situated, prays for relief and judgment against Defendants, jointly and severally, as follows: Class Certification 1. That this action be certified as a class action; 2. That Plaintiff be appointed as the representative of the Class; 3. That counsel for Plaintiff be appointed as Class Counsel; and 4. That Defendants provide to Class Counsel immediately the names and most current/last known contact information (address, e-mail and telephone numbers) of all class members. As to the First Cause of Action 5. That the Court declare, adjudge and decree that Defendants violated California Labor Code sections 226.7 and 512 and applicable IWC Wage Orders by willfully failing to provide all meal periods (including second meal periods) to Plaintiff and the other class members; /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 24 of 28 Page ID #:579 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 49 of 149 Page ID #:671 25 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 6. That the Court make an award to Plaintiff and the other class members of one (1) hour of pay at each employee’s regular rate of compensation for each workday that a meal period was not provided; 7. For all actual, consequential, and incidental losses and damages, according to proof; 8. For premium wages pursuant to California Labor Code section 226.7(b); 9. For pre-judgment interest on any unpaid wages from the date such amounts were due; 10. For reasonable attorneys’ fees and costs of suit incurred herein; and 11. For such other and further relief as the Court may deem just and proper. As to the Second Cause of Action 12. That the Court declare, adjudge and decree that Defendants violated California Labor Code section 226.7 and applicable IWC Wage Orders by willfully failing to provide all rest periods to Plaintiff and the other class members; 13. That the Court make an award to Plaintiff and the other class members of one (1) hour of pay at each employee’s regular rate of compensation for each workday that a rest period was not provided; 14. For all actual, consequential, and incidental losses and damages, according to proof; 15. For premium wages pursuant to California Labor Code section 226.7(b); 16. For pre-judgment interest on any unpaid wages from the date such amounts were due; and 17. For such other and further relief as the Court may deem just and proper. /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 25 of 28 Page ID #:580 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 50 of 149 Page ID #:672 26 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 As to the Third Cause of Action 18. That the Court declare, adjudge and decree that Defendants violated California Labor Code sections 1194, 1197, and 1197.1 by willfully failing to pay minimum wages to Plaintiff and the other class members; 19. For general unpaid wages and such general and special damages as may be appropriate; 20. For statutory wage penalties pursuant to California Labor Code section 1197.1 for Plaintiff and the other class members in the amount as may be established according to proof at trial; 21. For pre-judgment interest on any unpaid compensation from the date such amounts were due; 22. For reasonable attorneys’ fees and costs of suit incurred herein pursuant to California Labor Code section 1194(a); 23. For liquidated damages pursuant to California Labor Code section 1194.2; and 24. For such other and further relief as the Court may deem just and proper. As to the Fourth Cause of Action 25. That the Court declare, adjudge and decree that Defendants violated California Labor Code sections 201, 202, and 203 by willfully failing to pay all compensation owed at the time of termination of the employment of Plaintiff and the other class members no longer employed by Defendants; 26. For all actual, consequential, and incidental losses and damages, according to proof; 27. For statutory wage penalties pursuant to California Labor Code section 203 for Plaintiff and the other class members who have left Defendants’ employ; /// Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 26 of 28 Page ID #:581 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 51 of 149 Page ID #:673 27 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 28. For pre-judgment interest on any unpaid compensation from the date such amounts were due; and 29. For such other and further relief as the Court may deem just and proper. As to the Fifth Cause of Action 30. That the Court declare, adjudge and decree that Defendants violated the record keeping provisions of California Labor Code section 226(a) and applicable IWC Wage Orders as to Plaintiff and the other class members, and willfully failed to provide accurate itemized wage statements thereto; 31. For actual, consequential and incidental losses and damages, according to proof; 32. For statutory penalties pursuant to California Labor Code section 226(e); 33. For injunctive relief to ensure compliance with this section, pursuant to California Labor Code section 226(g); and 34. For such other and further relief as the Court may deem just and proper. As to the Sixth Cause of Action 35. That the Court declare, adjudge and decree that Defendants violated California Labor Code sections 2800 and 2802 by willfully failing to reimburse Plaintiff and the other class members for all necessary business-related expenses as required by California Labor Code sections 2800 and 2802; 36. For actual, consequential and incidental losses and damages, according to proof; 37. For the imposition of civil penalties and/or statutory penalties; 38. For reasonable attorneys’ fees and costs of suit incurred herein; and 39. For such other and further relief as the Court may deem just and proper. Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 27 of 28 Page ID #:582 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 52 of 149 Page ID #:674 28 FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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 LA W YE RS fo r J U ST IC E, P C 41 0 W es t A rd en A ve nu e, S ui te 2 03 Gl en da le , C al ifo rn ia 9 12 03 As to the Seventh Cause of Action 40. That the Court decree, adjudge and decree that Defendants violated California Business and Professions Code sections 17200, et seq. by failing to provide all meal and rest periods to Plaintiff and the other class members, failing to pay at least minimum wages to Plaintiff and the other class members, failing to pay Plaintiff’s and the other class members’ wages timely as required by California Labor Code section 201, and 202 and by violating California Labor Code sections 226(a), 2800 and 2802. 41. For restitution of unpaid wages to Plaintiff and all the other class members and all pre-judgment interest from the day such amounts were due and payable; 42. For the appointment of a receiver to receive, manage and distribute any and all funds disgorged from Defendants and determined to have been wrongfully acquired by Defendants as a result of violation of California Business and Professions Code sections 17200, et seq.; 43. For reasonable attorneys’ fees and costs of suit incurred herein pursuant to California Code of Civil Procedure section 1021.5; 44. For injunctive relief to ensure compliance with this section, pursuant to California Business and Professions Code sections 17200, et seq.; and 45. For such other and further relief as the Court may deem just and proper. Dated: February 21, 2017 LAWYERS for JUSTICE, PC By: /s/ Edwin Aiwazian Edwin Aiwazian Attorneys for Plaintiff Case 2:16-cv-07337-PSG-FFM Document 30 Filed 02/21/17 Page 28 of 28 Page ID #:583 Exhibit B Exhibit B Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 53 of 149 Page ID #:675 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. Present: The Honorable Philip S. Gutierrez, United States District Judge Wendy Hernandez Not Reported Deputy Clerk Court Reporter Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present Proceedings (In Chambers): (In Chambers) Order GRANTING Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) Before the Court is Defendant Tuesday Morning, Inc.’s (“Defendant”) motion to dismiss Plaintiff Briana Christie’s (“Plaintiff”) Second Amended Complaint. Dkt. # 43. The Court finds this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15. After considering the arguments in the moving, opposing, and reply papers, the Court GRANTS the motion to dismiss without leave to amend. I. Background Defendant employed Plaintiff as a store manager for four years. Dkt. # 40, SAC ¶ 5. On July 14, 2014, Plaintiff sued her former employer in Los Angeles County Superior Court. Dkt. # 1-2 (“Compl.”). She brought class claims for failure to pay wages without discount, failure to provide meal periods, failure to provide rest periods, failure to pay hourly wages, failure to provide accurate written wage statements, failure to timely pay all final wages, and unfair competition on the theory that she was an hourly, non-exempt employee who received wages on a pay card that charged fees. Id. On August 19, 2014, Defendant removed the action to this Court under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Dkt. # 1 ¶ 8. The next day, Plaintiff filed an amended complaint in Los Angeles County Superior Court. The amended complaint omitted the claims for failure to pay overtime, failure to provide meal breaks, and failure to provide rest CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 8 #43 (06/08 HRG OFF) JS-6 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 1 of 8 Page ID #:497 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 54 of 149 Page ID #:676 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. breaks. Dkt. # 33, Defendant’s Request for Judicial Notice (“RJN”), Ex. 1.1 The amended complaint therefore did not depend on allegations that Plaintiff was a non-exempt employee. On November 21, 2014, Plaintiff filed a First Amended Complaint (“FAC”) in this Court. Dkt. # 31. The FAC raised the same seven claims as her complaint in state court and added an eighth claim for civil penalties under the Private Attorneys General Act (“PAGA”), Cal. Lab. Code §§ 2698, et seq. However, it replaced the argument that Plaintiff held a non-exempt position with the assertion that she was misclassified as an exempt employee. FAC ¶ 9. Further, it removed the class allegations from the claims for meal periods, rest periods, and hourly wages. Id. ¶¶ 23-63. On March 2, 2015, the Court granted the motion to dismiss the FAC with leave to amend. Dkt. #39, Order of Dismissal, at 11. On April 6, 2015, Plaintiff filed a Second Amended Complaint (“SAC”), omitting the stand-alone claim for failure to pay wages without discount, but continuing to allege that Defendant had broken the law by paying wages on a pay card that charged fees. Dkt. # 40. On May 5, 2015, Defendant brought the present motion to dismiss. Dkt. # 32 (“Mot.”). For the reasons below, the Court grants the Motion. II. Legal Standard A motion to dismiss under Rule 12(b)(6) tests whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013); Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009). The court, however, is not required to accept “legal conclusions . . . cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); see Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. 1 The Court previously granted Defendant’s request for judicial notice of the amended complaint and two California Department of Industrial Relations, Division of Labor Standards Enforcement (“DLSE”) opinion letters. Dkt. # 39, Order of Dismissal, at 1-2 n.1. On a motion to dismiss, the Court may consider documents that have been judicially noticed. Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001), overruled on other grounds, Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002). CV-90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 2 of 8 Page ID #:498 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 55 of 149 Page ID #:677 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. After accepting all non-conclusory allegations as true and drawing all reasonable inferences in favor of the plaintiff, the court must decide whether the complaint states a plausible claim to relief. See Iqbal, 556 U.S. at 679-80. “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. . . . 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. at 678 (citing Twombly, 550 U.S. at 556); see Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). III. Discussion A. Pay Card Claims (Counts Four, Five, Six, and Seven) In response to the motion to dismiss the FAC, Plaintiff conceded that Labor Code § 212 does not create a private right of action. Dkt. # 36 at 2. Thus, she no longer brings a stand-alone claim for violation of § 212 for failure to pay wages without discount. However, she continues to allege that Defendant violated the law by paying wages on a pay card that charged fees and to plead pay-card-based class claims for failure to provide accurate written wage statements (Cal. Lab. Code § 226) (Count Four) and failure to timely pay all final wages (Cal. Lab. Code §§ 201- 03) (Count Five). She also uses the pay card as a partial basis for her claims under the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq. (Count Six) and PAGA (Count Seven). The FAC and SAC both state that Plaintiff received her wages and vacation pay “on a ‘pay card,’ or pre-loaded debit card,” and that she “incurred fees when attempting to use the pay card at various businesses in California.” SAC ¶ 12; FAC ¶ 7. The SAC adds that Plaintiff was paid wages on a pay card “[u]pon her separation of employment,” that “[u]pon information and belief” she “was denied all opportunities to access her wages without discount,” and that the businesses at which she incurred fees included “banks.” SAC ¶ 12. Plaintiff has failed to plead a violation of law based on the pay card. She simply repeats the Order of Dismissal by making the conclusory allegation that she “was denied all opportunities to access her wages without discount[.]” Compare SAC ¶ 12 with Order of Dismissal at 6. However, she does not specify any incidents when she tried and failed to access the entire amount of her wages. To satisfy Twombly/Iqbal, she must “draw on [her] memory and personal experience to develop factual allegations with sufficient specificity that they plausibly suggest that defendant failed to comply with its statutory obligations[.]” Landers v. Quality CV-90 (10/08) CIVIL MINUTES - GENERAL Page 3 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 3 of 8 Page ID #:499 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 56 of 149 Page ID #:678 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. Comm’ns, Inc., 771 F.3d 638, 643-45 (9th Cir. 2014), as amended (Jan. 26, 2015), cert. denied, 135 S. Ct. 1845 (2015). Further, Plaintiff pleads “upon information and belief.” SAC ¶ 12. Such a pleading suffices only if the circumstances “are peculiarly within the opposing party’s knowledge,” if the plaintiff “cannot be expected to have personal knowledge of the relevant facts,” and if she “state[s] the factual basis for the belief.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993). Plaintiff, however, offers no reason to suspect that Defendant is aware of incidents when she “was denied all opportunities to access her wages without discount,” no explanation for why she cannot be expected to be aware of such incidents, and no indication of the basis for her belief that she was, in fact, denied access to the entire amount of her wages. Accordingly, Plaintiff’s allegations on information and belief are insufficient to state a claim. See, e.g., Blantz v. Cal. Dep’t of Corr. & Rehab., Div. of Corr. Health Care Servs., 727 F.3d 917, 926-27 (9th Cir. 2013) (holding that allegations on information and belief were “conclusory” and “insufficient to state a claim”); Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009) (holding that such allegations were not “plausibl[e]”); U.S. v. Center for Diagnostic Imagining, Inc., 787 F. Supp. 2d 1213, 1221 (W.D. Wash. 2011) (dismissing such allegations as “insufficient”). Because Plaintiff has failed to plead a violation of law based on the pay card, she cannot state pay-card-based claims for failure to provide accurate written wage statements, failure to timely pay all final wages, and violations of the UCL and PAGA.2 / / / / / / / / / / / / / / B. Misclassification Claims (Counts One, Two, Three, Six, and Seven) 2 Given its finding that Plaintiff has failed to plead sufficient facts, the Court does not need to rule on Defendant’s claim that its schedule of pay card program fees proves that its employees have “various fee free options for accessing their wages every pay period” - an argument perhaps best reserved for summary judgment. See Mot. at 11 n.10. Likewise, the Court need not reach Defendant’s remaining arguments that: Plaintiff did not plead sufficient facts to show that Defendant knowingly, intentionally, and injuriously neglected to provide accurate written wage statements and willfully neglected to timely pay all final wages; Plaintiff cannot rely on the UCL to collect restitution because her claim for the return of fees charged by various businesses is really a claim for statutory and civil penalties not allowed under the statute; and Plaintiff cannot pursue PAGA penalties because her letter to the Labor and Workforce Development Agency does not contain sufficient detail to satisfy the administrative exhaustion requirement. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 4 of 8 Page ID #:500 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 57 of 149 Page ID #:679 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. Apparently abandoning the theory the she held a non-exempt position, Plaintiff claims that she was misclassified as an exempt employee not subject to the protections of the Labor Code and the Wage Orders. As a result, she pleads misclassification-based claims for failure to provide meal periods (Cal. Lab. Code §§ 204, 223, 226.7, 512, 1198) (Count One), failure to provide rest periods (Cal. Lab. Code §§ 204, 223, 226.7, 1198) (Count Two), and failure to pay hourly and overtime wages (Cal. Lab. Code §§ 223, 510, 1194, 1197, 1198) (Count Three). She also uses the misclassification as a partial basis for her claims under the UCL (Count Six) and PAGA (Count Seven). 1. Misclassification To support the argument that Plaintiff was misclassified as exempt, the SAC alleges that she was “primarily engaged in and spent more than one-half of her work time performing non- exempt and non-managerial work, including, but not limited to, cleaning the store, stocking shelves, pricing products, covering the register, and customer service tasks.” SAC ¶ 7. Defendant denigrates these allegations as “sparse” and lacking in “facts to support her conclusions regarding her belief that she was misclassified as exempt.” Mot at 18. By pleading that she spent more than half her time on specific non-exempt assignments, Plaintiff provides sufficient factual detail to survive a motion to dismiss. Defendant’s citation to Schneider v. Space Sys./Loral, Inc., No. 5:11-cv-02489-JF, 2011 WL 4344232, at *3 n.5 (N.D. Cal. 2011) misses the mark. In Schneider, the court granted a motion to dismiss where the plaintiff pled the legal conclusion that he “primarily performed non- exempt work.” In contrast, in Khan v. K2 Pure Solutions, L.P., No. 12-CV-05526-WHO, 2013 WL 6503345, at *5 (N.D. Cal. Dec. 4, 2013), the court declined to dismiss because the plaintiff alleged that his duties included a list of specific manual and menial tasks. As in Khan, Plaintiff’s list of non-exempt tasks adequately supports an allegation of misclassification. The Court now turns to her individual claims. 2. Failure to Provide Meal Periods (Count One) With regard to missed meal breaks, Plaintiff claims that Defendant: “maintained a policy or practice of not providing Plaintiff with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hour work period”; “failed to pay premium wages to Plaintiff when she worked five (5) hours without clocking out for any meal period”; and “employed Plaintiff for shifts of ten (10) or more hours without providing her with second meal periods and without paying her premium wages.” SAC ¶¶ 31-33; FAC ¶¶ 30-32. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 5 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 5 of 8 Page ID #:501 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 58 of 149 Page ID #:680 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. The SAC also includes two new facts. First, Plaintiff contends that, “due to Defendant[] understaffing [her] store, [she] either had to wait until another employee returned from his or her meal period or . . . was required to remain on the premises for her own meal period.” SAC ¶ 9. Second, plaintiff claims that “Defendant[] required [her] to execute an Agreement for On-Duty Meal Periods even though the nature of [her] work for Defendants as a Store Manager did not prevent her from being relieved of all duties.” Id. ¶ 10. Plaintiff’s re-pled meal break claim remains lacking in factual detail. The claim fails to “distinguish between actively discouraging employees from taking breaks [which constitutes a violation of law] and failing to ensure that they took breaks [which does not necessarily establish illegality].” See Lopez v. Wendy’s Int’l, Inc., No. CV 11-00275 MMM JCX, 2011 WL 6967932, at *3 (C.D. Cal. Sept. 19, 2011). The assertions that Plaintiff’s store suffered from understaffing, that she had to coordinate her meal breaks with a coworker, and that she was required to sign an on-duty meal break waiver do not per se show that Defendant knowingly prevented her from taking meal periods. See id. 3. Failure to Provide Rest Periods (Count Two) With respect to missed rest breaks, Plaintiff states that Defendant: “maintained a policy or practice of not providing Plaintiff with net rest periods of a least ten (10) minutes for each four (4) hour work period”; “failed to pay Plaintiff additional premium wages when required rest periods were not provided”; and promulgates written policies that “do not provide Plaintiff a paid rest break for each four hours worked.” SAC ¶¶ 43-45; FAC ¶¶ 42-44. She has added the contention that she “was not provided all of her rest breaks . . . to which she was entitled[.]” SAC ¶ 8. This unadorned legal conclusion does not cure the absence of facts to support the claim. Plaintiff “does not directly allege that [Defendant] did anything to impede, discourage or dissuade employees from taking rest periods” - which is the standard for liability. See Lopez, 2011 WL 6967932, at *5. Without more, the allegations that Plaintiff was misclassified as exempt and did not receive paid 10-minute rest breaks “lack[] factual support” and “fail[] to state a claim.” See Schneider, 2012 WL 476495, at *2-3. / / / / / / / 4. Failure to Pay Hourly and Overtime Wages (Count Four) CV-90 (10/08) CIVIL MINUTES - GENERAL Page 6 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 6 of 8 Page ID #:502 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 59 of 149 Page ID #:681 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. As for unpaid hourly and overtime wages, Plaintiff asserts that “during the relevant time period, Defendant failed to pay Plaintiff all earned wages every pay period at the correct rates, including overtime rates, because Defendant[] misclassified Plaintiff as a non-exempt employee and did not pay Plaintiff irrespective of the hours worked.” SAC ¶ 62; FAC ¶ 61. Further, she argues that Defendant “applied centrally devised policies and practices to her with respect to working conditions and compensation arrangements.” SAC ¶ 61; FAC ¶ 60. The SAC also states that Plaintiff “was not paid overtime compensation for the overtime hours she regulgarly [sic] worked, particularly, for example, during the holiday season.” SAC ¶ 11. In the context of affirming the dismissal of an overtime claim pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., the Ninth Circuit explained that “a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek.” Landers, 771 F.3d at 644-45. This requires “detail regarding a given workweek when [a plaintiff] worked in excess of forty hours and was not paid overtime for that given workweek and/or was not paid minimum wages.” Id. at 646. While Plaintiff’s claim that she was “not paid for overtime hours worked” raises the “possibility” of undercompensation, “a possibility is not the same as plausibility.” See id. 5. UCL and PAGA Claims (Counts Six and Seven) Plaintiff has failed to plead a violation of the meal break, rest break, or overtime provisions. Thus, Plaintiff cannot rely on such a violation to support a derivative claim pursuant to the UCL or PAGA. IV. Leave to Amend In deciding whether to grant leave to amend, a court weighs the evidence of: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether plaintiff has previously amended h[er] complaint.” Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). The fourth and fifth factors, futility and prior amendment, can be “dispositive.” Id. at 356. “[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to [her] claims, [t]he district court’s discretion to deny leave to amend is particularly broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (internal quotations and citations omitted). Plaintiff has filed a total of four versions of her complaint in state and federal court. Although the Court provided thorough guidance on the standards for pleading each claim, see CV-90 (10/08) CIVIL MINUTES - GENERAL Page 7 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 7 of 8 Page ID #:503 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 60 of 149 Page ID #:682 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:14-cv-06505-PSG-AGR Date May 27, 2015 Title Briana Christie v. Tuesday Morning, Inc., et al. Order of Dismissal, the SAC fails to cure the deficiencies identified in the opinion. Further, while Plaintiff “requests leave to amend her complaint with more specific factual allegations,” Dkt. # 46 (“Opp.”) at 10, the sole specific change she proposes is the addition of the statement that she “worked over 40 hours a week and was not paid for the excess hours in that workweek,” id. at 7 - a change that would still not meet the need for “detail regarding a given workweek when [a plaintiff] worked in excess of forty hours and was not paid overtime” Landers, 771 F.3d a 646 (emphasis added). This strongly suggests that granting leave to amend would be futile. Under the circumstances, the Court finds that denial of leave to amend is appropriate. V. Conclusion For the reasons explained above, the Court GRANTS Defendant’s motion to dismiss (Dkt. # 43) without leave to amend. IT IS SO ORDERED. Initials of Preparer XT CV-90 (10/08) CIVIL MINUTES - GENERAL Page 8 of 8 Case 2:14-cv-06505-PSG-AGR Document 48 Filed 05/27/15 Page 8 of 8 Page ID #:504 Exhibit C Exhibit C Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 61 of 149 Page ID #:683 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:11-cv-07284-JHN -PJWx Date November 14, 2011 Title Henry Esquivel et al v. Performance Food Group Inc et al Present: The Honorable JACQUELINE H. NGUYEN Alicia Mamer Not Reported N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not present Not present Proceedings: ORDER GRANTING DEFENDANT’S MOTION TO DISMISS [4] (In Chambers) The matter is before the Court on Defendant Performance Food Group Inc.’s (“Defendant”) Motion to Dismiss and/or Strike Plaintiffs’ First Amended Complaint (“FAC”). (“Motion”; docket no. 4.) The Court previously deemed the matter appropriate for decision without oral argument and took the matter under submission. The Court has reviewed the pleadings filed in connection with this matter and, for the reasons stated below, the Court GRANTS the Motion. I. Factual Background This putative class action arises out of an alleged failure to provide timely, off duty meal breaks to truck drivers. Plaintiffs Henry Esquivel (“Esquivel”), Alfredo Juarez (“Juarez”), and Steven Mustin (“Mustin”) were employed by Defendant as route delivery drivers from approximately April 2005 thorough November 5, 2010, April 2009 through December 2009, and August 2008 through December 2009, respectively. (FAC ¶¶ 6-8.) Plaintiffs allege that, throughout their employment, Defendant scheduled their delivery routes such that Plaintiffs were unable to take duty-free meal breaks. Plaintiffs claim that they were prevented from taking meal breaks because of the time pressure that they were under to make deliveries by a certain time of day. Further, Plaintiffs allege that even though they were unable to take meal breaks, Defendant failed to pay them a premium wage for working through the meal breaks. Finally, Plaintiffs claim that because their wage statements did not include amounts allegedly due for missed meal break premium wages, the wage statements were inaccurate. Based on these allegations, Plaintiffs’ First Amended Complaint (“FAC”) alleges the following causes of action: (1) failure to provide timely off-duty meal periods or pay missed meal break premium pay in violation of IWC Wage Order No. 7, §11; Cal. Labor CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 6 Case 2:11-cv-07284-JHN -PJW Document 21 Filed 11/14/11 Page 1 of 6 Page ID #:462 Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 62 of 149 Page ID #:684 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:11-cv-07284-JHN -PJWx Date November 14, 2011 Title Henry Esquivel et al v. Performance Food Group Inc et al Code §§ 226.7, 512; (2) failure to issue accurate itemized wages statements in violation of California Labor Code §§ 226 and 226.3; (3) failure to pay all compensation due upon separation of employment in violation of California Labor Code §§ 201-203; and (4) unfair, unlawful, and fraudulent business practices in violation of California Business and Professional Code §17200 et seq. The original complaint was filed in state court on July 19, 2011. Thereafter, Plaintiffs filed the FAC on August 19, 2011. On September 2, 2011, Defendant removed the case to this court under the Class Action Fairness Act. (Docket no. 1.) Defendant filed the instant Motion to Dismiss and/or Strike on September 16, 2011. (Docket no. 4.) Plaintiffs filed an Opposition, and Defendant filed a Reply. (Docket nos. 17-18.) II. Legal Standard Rule 12(b)(6) permits a defendant to seek dismissal of a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In evaluating a motion to dismiss, the court must accept as true all material factual allegations in the pleading and construe them in the light most favorable to the plaintiff. Nursing Home Pension Fund, Local 144 v. Oracle Corp., 380 F.3d 1226, 1229 (9th Cir. 2004). However, this tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The court need not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. Based on judicial experience and common sense, the court must determine whether a pleading plausibly states a claim for relief. Id. at 1950. If a complaint is dismissed, leave to amend is liberally granted. Fed. R. Civ. P. 15(a); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). III. Discussion Defendant moves to dismiss Plaintiff’s FAC in its entirety. The Court addresses each claim in turn below. 1. Failure to Provide Off-Duty Meal Breaks or Pay Missed Meal Break Premium Plaintiffs claim that Defendant structured their driving delivery schedules such that they CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 6 Case 2:11-cv-07284-JHN -PJW Document 21 Filed 11/14/11 Page 2 of 6 Page ID #:463 Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 63 of 149 Page ID #:685 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:11-cv-07284-JHN -PJWx Date November 14, 2011 Title Henry Esquivel et al v. Performance Food Group Inc et al were unable to take timely off-duty meal breaks and then failed to pay Plaintiffs premium pay for missed meal breaks, in violation of California Labor Code Section 226.7 (“Section 226.7")1 and 512 (“Section 512")2 and California Industrial Welfare Commission (“IWC”) Wage Order No. 7-2001(11) (codified at 8 Cal. Code Regs., tit. 8, § 11070). (FAC ¶¶ 20-22.) Defendant moves to dismiss the first cause of action for failure to plead adequately a viable claim. (Motion at 6.) The Court agrees that Plaintiffs’ FAC, which contains broad and conclusory allegations, fails to plead a plausible claim. Plaintiffs mainly allege that Defendants “employed a routine policy or practice of creating delivery routes that exerted significant time pressure on its drivers . . . . [and] [the time pressure built into the route by Defendants routinely impeded Plaintiffs and the other members of the Class from taking 30-minute, off-duty meal breaks in a timely fashion.” (FAC ¶ 22.) However, Plaintiffs fail to present their allegations with the required specificity. For example, Plaintiffs fail to allege why they could not have taken their 30-minute meal breaks at some point along their routes, 1 Section 226.7 provides: (a) No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission. (b) If an employer fails to provide an employee a meal period or rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the meal or rest period is not provided. 2 Section 512 provides: An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 6 Case 2:11-cv-07284-JHN -PJW Document 21 Filed 11/14/11 Page 3 of 6 Page ID #:464 Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 64 of 149 Page ID #:686 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:11-cv-07284-JHN -PJWx Date November 14, 2011 Title Henry Esquivel et al v. Performance Food Group Inc et al especially as they were working “12 to 15 hours per day.” (Id. ¶ 20.) Further, although Plaintiffs allege that the pressure to deliver by the “lunch-time rush” prevented them from taking timely meal breaks, because Plaintiffs do not allege the start and end times of their work day, the FAC is silent as to why Plaintiffs could not take meal breaks before or after the “lunch-time rush.” (Id. ¶ 23.) Finally, because Plaintiffs allege that they were paid on the basis of a “piece rate system that included . . . specific amounts allotted to the miles completed by drivers,” without more specific allegations of how Defendant discouraged or prevented them from taking meal breaks, it appears that Plaintiffs had an economic incentive not to take meal breaks, even if Defendant had adequately provided meal breaks. (See id. ¶ 20.) Thus, the Court finds that Plaintiffs’ bare, conclusory allegations that Defendant did not provide them with off-duty meal breaks or missed meal break pay are not sufficient to state a claim. See Iqbal, 129 S. Ct. at 1949. “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. V Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). Therefore, the Court dismisses without prejudice Plaintiffs’ first cause of action.3 2. Failure to Provide Accurate Itemized Wage Statements Plaintiffs claim that Defendant violated California Labor Code Section 226 (“Section 226") by failing to include payments for missed meal breaks on Plaintiffs’ wage statements. Plaintiffs allege that Defendants “knowingly provided Plaintiffs and other members of the Class with weekly itemized wage statements containing inaccurate information regarding the wages earned by Plaintiffs and members of the Class in that the payments owed to Plaintiffs and the members of the Class for untimely or missed meal 3 The California Supreme Court is considering the scope of an employer’s obligation to “provide” meal breaks, and whether that includes an obligation to somehow “ensure” that those breaks are taken. See, e.g., Brinkley v. Public Storage, Inc., 198 P.3d 1087, 87 Cal.Rptr.3d 674 (Jan. 14, 2009), and Brinker Restaurant Corp. v. Superior Court,196 P.3d 216, 85 Cal.Rptr.3d 688 (Oct. 22, 2008). Plaintiffs argue that until the California Supreme Court rules, the Court of Appeals decision in Cicairos v. Summit Logistics, Inc., holding that employers have “an affirmative obligation to ensure that workers are actually relieved of all duty”, is still good law. 133 Cal.4th 949, 962-63 (2005) (citing Dept. of Industrial Relations, ELSE, Opinion Letter No. 2002.01.28 (Jan. 28, 2002) p. 1.). The Court need not address this issue because the FAC’s bare allegations are not sufficient to state a claim. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 4 of 6 Case 2:11-cv-07284-JHN -PJW Document 21 Filed 11/14/11 Page 4 of 6 Page ID #:465 Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 65 of 149 Page ID #:687 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:11-cv-07284-JHN -PJWx Date November 14, 2011 Title Henry Esquivel et al v. Performance Food Group Inc et al periods were not included in gross wages earned by Plaintiffs and the Class.” (FAC ¶ 47.) Plaintiffs also allege that the pay stubs were confusing because they listed a d/b/a name of the company as the employer. (Id.) As an initial matter, Plaintiffs concede that Juarez’s and Mustin’s individual claims are time-barred because the one year statute of limitations has passed. (Opp’n at 13.) As to Plaintiff Esquivel, to the extent that his claim is premised on his Section 226.7 claim, this derivative claim is also dismissed without prejudice because the Court has dismissed his Section 226.7 claim. To the extent that Esquivel’s claim rests upon the argument that the pay stubs were confusing, the claim also fails. In the absence of any authority to support the allegation of injury on the fact that the pay stubs listed Performance Group as the employer but the W-2 forms listed Vistar Corporation, the Court dismisses this claim. Accordingly, Plaintiffs’ Second Cause of Action for failure to issue accurate itemized wages statements in violation of California Labor Code §§ 226 and 226.3 is dismissed without prejudice. 3. Failure to Pay Timely Wages Upon Separation Plaintiffs claim Defendant violated California Labor Code § 203 by failing to pay missed meal break premium wages upon termination. (FAC ¶ 52.) Because Plaintiffs’ Section 203 claims are premised on their Section 226.7 claim, which the Court has dismissed in this Order, this derivative claim is also dismissed without prejudice. 4. UCL Violations Plaintiffs claim Defendant violated California’s Unfair Competition Law as codified in California Business and Professions Code § 17200 et seq. (FAC ¶¶ 56-64.) Defendant moves to dismiss Plaintiffs’ claims to the extent it relies on underlying substantive claims that are dismissed. (Motion at 18.) If a plaintiff’s claim for an underlying action fails, he cannot make a claim under § 17200. See Briosos v. Wells Fargo Bank, 737 F. Supp. 2d 1018, 1033 (N.D. Cal. 2010) (“Because Plaintiff has failed to state claims for any underlying violation of state or CV-90 (06/04) CIVIL MINUTES - GENERAL Page 5 of 6 Case 2:11-cv-07284-JHN -PJW Document 21 Filed 11/14/11 Page 5 of 6 Page ID #:466 Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 66 of 149 Page ID #:688 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2:11-cv-07284-JHN -PJWx Date November 14, 2011 Title Henry Esquivel et al v. Performance Food Group Inc et al federal law, he cannot proceed on his unfair competition law claim under § 17200.”). Here, because this Order dismisses the underlying claims supporting the Section 17200 claim, the Court also dismisses without prejudice Plaintiffs’ Section 17200. IV. Conclusion For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss. Plaintiffs may file an amended complaint by no later than December 5, 2011.4 IT IS SO ORDERED. : N/A Initials of Preparer AM 4 Defendant also argues that Plaintiffs’ class action allegations should be dismissed or stricken because it is patently apparent that they cannot satisfy the commonality and superiority elements required for class certification. (Motion at 23.) Whether the case should be certified as a class action is more appropriately addressed in a motion for class certification. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 6 of 6 Case 2:11-cv-07284-JHN -PJW Document 21 Filed 11/14/11 Page 6 of 6 Page ID #:467 Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 67 of 149 Page ID #:689 From: cacd_ecfmail@cacd.uscourts.gov To: ecfnef@cacd.uscourts.gov Subject: Activity in Case 2:11-cv-07284-JHN -PJW Henry Esquivel et al v. Performance Food Group Inc et al Order on Motion to Dismiss Case Date: Monday, November 14, 2011 2:42:07 PM This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered on 11/14/2011 at 2:38 PM PST and filed on 11/14/2011 Case Name: Henry Esquivel et al v. Performance Food Group Inc et al Case Number: 2:11-cv-07284-JHN -PJW Filer: Document Number: 21 Docket Text: IN CHAMBERS ORDER GRANTING DEFENDANTS MOTION TO DISMISS [4] by Judge Jacqueline H. Nguyen: granting [4] Motion to Dismiss Case. The Court previously deemed the matter appropriate for decision without oral argument and took the matter under submission. The Court has reviewed the pleadings filed in connection with this matter and, for the reasons stated below, the Court GRANTS the Motion. Plaintiffs may file an amended complaint by no later than December 5, 2011. (ama) 2:11-cv-07284-JHN -PJW Notice has been electronically mailed to: Craig J Ackermann cja@laborgators.com, tatiana@laborgators.com, devin@laborgators.com, rosie@laborgators.com Michael David Mandel mmandel@mcguirewoods.com, rmorrissette@mcguirewoods.com Jordan S Esensten jesensten@wccelaw.com, emusgrave@wccelaw.com Sabrina A Beldner smcdonald@mcguirewoods.com, sbeldner@mcguirewoods.com Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 68 of 149 Page ID #:690 Matthew Charles Kane mkane@mcguirewoods.com, revey@mcguirewoods.com, rmorrissette@mcguirewoods.com Melissa M Harnett shouse@wccelaw.com, jlevin@wccelaw.com, mharnett@wccelaw.com Sylvia Jihae Kim skim@mcguirewoods.com 2:11-cv-07284-JHN -PJW Notice has been delivered by First Class U. S. Mail or by other means to: : Exhibit D Exhibit D Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 69 of 149 Page ID #:691 Page 1 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES-GENERAL Case No. EDCV 16-2482-JGB(KKx) Date February 10, 2017 Title William Robles v. Schneider National Carriers, Inc. Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE MAYNOR GALVEZ Not Reported Deputy Clerk Court Reporter Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s): None Present None Present Proceedings: Order: (1) GRANTING in Part and Denying in Part Defendant’s Motion to Dismiss (Dkt. No. 12); and (2) VACATING the February 13, 2017 Hearing (IN CHAMBERS) Before the Court is Defendant’s Motion to Dismiss. (Dkt. No. 12.) The Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After consideration of the papers filed in support of, and in opposition to, the Motion, the Court GRANTS in Part and DENIES in Part the Motion. The February 13, 2017 hearing is VACATED. I. INTRODUCTION On September 22, 2016, William Robles (“Plaintiff”) filed a complaint on behalf of himself and all others similarly situated against Schneider National Carriers, Inc (“Defendant” or “Schneider”) in California Superior Court for the County of Riverside. (“Complaint,” Dkt. No. 1-1). Defendant removed the action to this Court on December 1, 2016 pursuant to the Class Action Fairness Act. (Dkt. No. 1.) Plaintiff is a former truck driver for Schneider, where he worked from March 2009 through October 2015. (Complaint ¶ 4.) He alleges that, during that time, Schneider “willfully misclassified” him as an independent contractor in order to avoid paying him and other California truck drivers for all time worked, meal and rest periods missed, business expenses, and the employer’s share of payroll taxes and mandatory insurance. (Id. at ¶ 11.) In particular, Plaintiff alleges that Defendant’s strategy of paying its truck drivers flat rates based upon the Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 1 of 13 Page ID #:406 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 70 of 149 Page ID #:692 Page 2 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG loads delivered meant that he was not compensated for time spent driving to the assigned locations, waiting for and loading the pick-up loads, and then transporting the goods to the assigned locations. (Id. at ¶ 22.) Additionally, Defendant required truck drivers to personally incur and pay for expenses, including all costs and expenses of owning, maintaining, and fueling the trucks and vehicles they drove in the discharge of their duties. (Id.) Based on the above, the Complaint asserts six causes of action: (1) unfair competition; (2) failure to pay minimum wages; (3) failure to provide accurate itemized statements; (4) failure to provide wages when due; (5) failure to reimburse employees; and (6) illegal deductions from wages. Defendant now moves to dismiss or strike the Complaint in its entirety, arguing that it fails to support a cognizable legal theory. (“Motion,” Dkt. No. 12.)1 Plaintiff opposed the motion on January 23, 2017. (“Opp’n,” Dkt. No. 14.)2 Defendant filed its reply on January 30, 2017. (“Reply,” Dkt. No. 15.) 1 Together with its Motion, Defendant filed a Request for Judicial Notice. (“RJN,” Dkt. No. 12.) The request-to which Plaintiff does not object-asks that the Court take judicial notice of decisions from unpublished cases and various public documents evincing the legislative history of the statutes at issue-for example, an analysis of A.B. No. 3731 (1976) from the legislative history on California Labor Code Section 226. (RJN.) The Court finds that all of these are proper subjects of judicial notice. These documents are in the public record and their existence is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Indeed, courts routinely take judicial notice of these types of documents. See, e.g., Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of briefs, transcripts, and various other court filings from related case); Garcia v. Pacificare of California Inc., No. SACV1202022JVSRNBX, 2013 WL 12114019, at *3 (C.D. Cal. Mar. 6, 2013), aff'd, 750 F.3d 1113 (9th Cir. 2014) (taking judicial notice the legislative history of state statutes). See Louis v. McCormick & Schmick Rest. Corp., 460 F. Supp. 2d 1153, 1156 n.4. (C.D. Cal. 2006). Accordingly, the Court GRANTS Defendant’s Request for Judicial Notice. 2 Together with its Opposition, Plaintiff also submitted the Declaration of Molly A. Desario, in which Plaintiff’s counsel Ms. Desario states that Defendant’s counsel has only made “two recent challenges” to the “multitude of wage and hour class action complaints Plaintiff’s counsel has recently filed,” and that both have failed. (Desario Decl. ¶ 2.) She further provides her opinion that both cases “involve[d] the same kind of allegations pled in the Complaint here.” (Id.) Defendant submitted objections to the declaration, as well as the two exhibits attached therein-the two referenced cases-on the basis that they constitute a proffer of evidence that is neither referenced in the Complaint, nor a proper subject of judicial notice. (Objections, Dkt. No. 15-1.) The Court agrees that the declaration is improper, and notes that, to the extent that Plaintiff seeks to cite to cases he believes support his position, he should do so through a request for judicial notice or through the standard citation format in his opposition papers. However, Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 2 of 13 Page ID #:407 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 71 of 149 Page ID #:693 Page 3 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) allows a party to bring a motion to dismiss for failure to state a claim upon which relief can be granted. Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957) (holding that the Federal Rules require that a plaintiff provide “‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests”) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When evaluating a Rule 12(b)(6) motion, a court must accept all material allegations in the complaint - as well as any reasonable inferences to be drawn from them - as true and construe them in the light most favorable to the non-moving party. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005); Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to 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, 550 U.S. at 555 (citations omitted). Rather, the allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. Surviving a motion to dismiss requires a plaintiff to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009). “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. 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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). The Ninth Circuit has clarified that (1) a complaint must “contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively,” and (2) “the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). III. DISCUSSION Defendant moves to dismiss all of Plaintiff’s claims in the Complaint. The Court addresses each in turn. A. Unlawful, unfair, and deceptive business practices Under the UCL, “unfair competition” means “any unlawful, unfair or fraudulent because the Court need not-and does not-rely on the declaration to resolve the issues raised by Defendant’s Motion, it DENIES Defendant’s objections as moot. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 3 of 13 Page ID #:408 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 72 of 149 Page ID #:694 Page 4 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. When analyzing a UCL claim, courts consider each of the three prongs to determine whether a practice is unlawful, unfair, or fraudulent. Daro v. Superior Court, 151 Cal. App. 4th 1079, 1093 (2007) (“Because section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria-unlawful, unfair, or fraudulent-to be considered unfair competition.”) It is not entirely clear from the Complaint whether Plaintiff is asserting violations of the UCL under all three prongs or under one in particular. Plaintiff’s first cause of action asserts that Defendant has engaged in a business practice “which violates California law,” and has unjustly enriched Defendants at the class members’ expense. (Complaint ¶¶ 47-48.) This suggests that Plaintiff seeks to proceed under the “unlawful prong,” wherein the UCL claims rests on the violation of another law. Plaintiff also seems to allege claims under the fraudulent prong of the UCL: he alleges that Defendant’s practices were “deceptive and fraudulent in that Defendant’s uniform policy and practice was to represent to the California class members that they were not entitled to minimum wages, business expense reimbursement, payment for payroll taxes or mandatory insurance and other benefits as required by California law, when in fact these representations were false and likely to deceive.” (Id. at ¶¶ 49, 50.) He does not, however, specify when or how such representations were made. However, in his Opposition, Plaintiff clarifies his theory of liability, which raises a claim under the second prong: a practice that is unfair. Specifically, he explains that his UCL claim is predicated on Defendant’s practice of failing to provide meal and rest periods or providing premium pay for missed meal and break periods. (Opp’n at 17-18.) He relies heavily on Safeway, Inc. v. Superior Court of Los Angeles Cty., 238 Cal. App. 4th 1138 (2015), review denied (Oct. 21, 2015), where a California Court of Appeal affirmed certification for a class of plaintiffs asserting a UCL claim on the basis of failure to pay premium wages for missed, shortened, or delayed meal breaks. 238 Cal. App. 4th at 1155-56. With regard to Plaintiff’s allegations relating to missed meal breaks, the Complaint states that “Defendant failed to provide all the legally required unpaid, off-duty meal periods and all the legally required paid, off-duty rest periods to Plaintiff and the other California class members . . . Defendant did not have a policy or practice which provided or recorded all the legally required unpaid, off-duty meal periods and all the legally required paid, off-duty rest periods . . . Plaintiff and other members of the class therefore forfeited meal and rest breaks without additional compensation.” (Complaint at ¶ 16.) The problem here is not that there is no legally cognizable theory for failure to provide premium wages where an employer has instructed an employee to work or otherwise impeded the taking of breaks. The problem is rather that Plaintiff has not alleged sufficient facts to explain how Defendant impeded him or other class members from taking breaks-or even that it did. Under California law-and as explained in the very cases cited by Plaintiff-an employer’s duty with respect to meal breaks is an obligation to provide a meal period to employees. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012). An employer satisfies this obligation “if Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 4 of 13 Page ID #:409 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 73 of 149 Page ID #:695 Page 5 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG it relieves its employees of all duty, relinquishes control over their activities, and permits them a reasonable opportunity to take an uninterrupted 30-minute break.” Id. Here, there are no factual allegations that Defendant actually required-or even encouraged-class members to skip breaks; there are only allegations that Defendant “failed to provide” these rest periods. But without more factual context, it is unclear how Defendant “failed” to provide these rest periods; did Defendant require Plaintiff to take uninterrupted routes that would not allow him to stop for a meal? Did Defendant instruct Plaintiff to drive to so many different locations within a day that Plaintiff could not reasonably take any breaks? Did Defendant’s agents indicate to Plaintiff that he should not take breaks? As the court noted in Brinker, “work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations.” Id. at 1040-41. Here, there is nothing to indicate that Plaintiff’s failure to take breaks is attributable to Defendant’s policies or practices, rather than his own idiosyncratic decisions. This does not satisfy the Rule 8 pleading requirements Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s first cause of action. The Court grants Plaintiff leave to amend his complaint to clarify the factual allegations that would support a theory of liability for failure to provide meal breaks.3 3 Defendant’s Motion also requests that the Court strike Plaintiff’s allegation in his UCL claim that Schneider violated section 226.8, which imposes civil penalties for an employer’s willful misclassification of an individual as an independent contractor. (Motion at 24.) Plaintiff’s Opposition makes clear that his UCL claim is brought under 226.7, not 226.8; it appears that Plaintiff’s brief reference to 226.8 in the Complaint-included as it was in a long list of labor code sections-was in error. (See Complaint ¶ 47.) And, insofar as Plaintiff argues in his Opposition that he merely wishes to pursue injunctive relief under 226.8, this remedy is not available to him, since he is no longer an employee with Schneider. See, e.g., Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021-22 (9th Cir. 2004) (“Hangarter currently has no contractual relationship with Defendants and therefore is not personally threatened by their conduct . . . [thus] Hangarter lacked standing to prosecute an UCA claim for injunctive relief.”); Delodder v. Aerotek, Inc., No. CV 08-6044 CAS AGR, 2009 WL 3770670, at *3 (C.D. Cal. Nov. 9, 2009) (“The Court finds that plaintiffs lack standing to seek prospective relief under the UCL because plaintiffs do not dispute that they are no longer employees of defendant, and thus, they cannot demonstrate ‘a real or immediate threat of irreparable injury’ by defendant's employment practices.”) Accordingly, the Court GRANTS Defendant’s request to strike Plaintiff’s reference to section 226.8 from his first cause of action. The Court also notes that Plaintiff’s complaint seeks injunctive relief in his prayer for relief: specifically, he requests “[a]n order temporarily, preliminarily, and permanently enjoining and restraining Defendant from engaging in similar unlawful conduct.” For the reason noted above, Plaintiff lacks standing to pursue injunctive relief; he has not alleged any continuing employment relationship with Schneider and therefore cannot establish that he will suffer any threat of real and immediate future harm as result of the conduct alleged. Accordingly, the Court also GRANTS Defendant’s request to strike Plaintiff’s request for injunctive relief. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 5 of 13 Page ID #:410 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 74 of 149 Page ID #:696 Page 6 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG B. Failure to pay minimum wages Plaintiff’s second cause of action asserts that Schneider failed to compensate its truck drivers for all time worked by misclassifying them as independent contractors. (Complaint ¶¶ 63, 64.) Thus, “the Plaintiff and the California Class Members were regularly required to work, and did in fact work, uncompensated time, time compensated at less than minimum wage.” (Id. at ¶ 63.) Plaintiff also contends that the work that went unpaid involved “time spent waiting for Defendant’s loads to be ready for transport.” (Id. at ¶ 22.) Defendant argues that these statements are entirely conclusory allegations that fail to provide the level of factual specificity required to state a claim. (Motion at 4.) Specifically, Defendant notes that the allegations fail to identify “even one specific workweek in which the purported violations occurred” and “contains no facts from which the Court can reasonably infer that he actually worked any uncompensated hours.” (Id. at 4-5.) That is, “Plaintiff fails to identify any time that was supposedly worked by him [and the class] that [Schneider] ostensibly failed to compensate under its piece-rate formula.” (Id. at 5.) The disagreement between Plaintiff and Defendant is rooted in different interpretations of the requirements for asserting a claim for failure to pay minimum wages. Both Parties rely on the Ninth Circuit’s decision in Landers v. Quality Commc'ns, Inc., 771 F.3d 638 (9th Cir. 2014), as amended (Jan. 26, 2015), but reach different conclusions from its holding. In Landers, the Ninth Circuit laid out guidelines for courts evaluating the sufficiency of allegations in the context of wage-and-hour claims under the Fair Labor Standards Act (“FLSA”). Specifically, the Court explained that, while FLSA plaintiffs need not plead in detail the number of hours worked, their wages, or the amount of overtime owed, at a minimum a plaintiff must allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess of forty during that week. 771 F.3d at 645. The Court also noted that pleadings “are to be evaluated in the light of judicial experience” and that “the plausibility of a claim is ‘context- specific.’” Id. In that case, the plaintiff had alleged that the compensation system used by the defendants for the plaintiff was a de facto “piecework with no overtime” system, meaning that employees were paid a certain amount for each “piece” of work they performed pursuant to a schedule, but were not paid time and a half their “regular hourly rate” for work in excess of forty hours per week and did not receive minimum wage payments for their hours worked. Id. at 645- 46. These were “generalized allegations,” the Court found, which merely “raise[d] the possibility of undercompensation,” but “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.” Id. at 646 (internal marks omitted). Accordingly, the Court found that his allegations failed to state a plausible claim under Rule 8. Id. Here, while Plaintiff’s allegations do not arise under the FLSA, but under the California Labor Code-specifically, sections 1194, 1197, and 1197.1-it is hard to see how Plaintiff could persuasively distinguish his allegations from those in Landers. Exactly as in Landers, Plaintiff Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 6 of 13 Page ID #:411 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 75 of 149 Page ID #:697 Page 7 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG alleges that his compensation was on a piecework basis, such that class members “were regularly required to work, and did in fact work, uncompensated time, time compensated at less than minimum wage.” (Complaint ¶ 63.) But, like the Landers plaintiff, he does not explain how or why the load-based piece-rate compensation he received caused uncompensated time. In an effort to avoid the application of Landers, Plaintiff cites to this Court’s decision in Thomas-Byass v. Michael Kors Stores, Inc., 2015 U.S. Dist. LEXIS 164690 (C.D. Cal. Sept. 16, 2015), where the Court upheld the plaintiff’s claim for failure to pay overtime wages. But the decision in Michael Kors rested on strikingly different allegations. Specifically, the plaintiff explained that her overtime pay was wrongly calculated so as to underestimate the correct pay rate (by excluding her non-discretionary bonus pay from the calculation of her overtime rate), and that she was consequently undercompensated daily for the time she spent preparing mandatory sales reports after work. 2015 U.S. Dist. LEXIS 164690 at *11-14. Thus, the plaintiff made clear the manner in which she was undercompensated, provided information as to the regularity of the occurrence, and conveyed a sense of the scale of the under-compensation. Here, Plaintiff argues that he has fulfilled his burden by noting that he identified a specific task that went without compensation: his time spent waiting for trucks to be ready for departure. (Opp’n at 7.) But this lacks a host of additional contextual information that would take Plaintiff’s claims from possible to plausible: for example, how often he was forced to wait for a truck; how long he was generally forced to wait; whether he incurred unpaid waiting time regularly between 2009 and 20154; how the load-rate failed to compensate him for waiting time (for example, would the load-rate have compensated him at a minimum-wage rate had it not been for the waiting time?) Moreover, the Court does not understand Plaintiff’s contention that information regarding waiting time is “within the sole possession, custody, and control of the Defendant”: is Plaintiff suggesting that he himself has no sense of how long he would have to wait for trucks to be ready? While the Court recognizes that Plaintiff need not identify an exact calendar week or a particular instance of denied overtime, he must at least provide a general estimate of the time he alleges went uncompensated. This need not be done with mathematical precision, but should be sufficient to give fair notice to Defendant as to the breadth of the claim. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s second claim, but grants Plaintiff leave to amend to remedy the informational gaps noted above. C. Failure to provide itemized wage statements Plaintiff’s third cause of action asserts that Defendant violated California Labor Code Section 226 by failing to provide him with complete and accurate wage statements. He asserts that, “from time to time,” Defendant’s wage statements failed to show “the correct minimum wages for time worked, the correct allocation of lawfully required, paid, off-duty rest periods, and the correct payment for missed meal periods.” (Complaint ¶ 70.) As a result of these inaccurate wage statements, Plaintiff alleges that he had to expend costs “to calculat[e] the true amount of 4 Providing more details as to the time frame of his allegations would also clarify whether a statute of limitations defense might apply to some of Plaintiff’s claims. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 7 of 13 Page ID #:412 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 76 of 149 Page ID #:698 Page 8 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG time worked and the amount of employment taxes which were not properly paid to state and federal tax authorities.” (Id. at ¶ 71.) Defendant raises various arguments to challenge the sufficiency of these allegations. First, it argues that Plaintiff neglected to allege facts to plausibly suggest that Schneider knowingly and intentionally provided inaccurate wage statements. (Motion at 6.) Next, it argues that Plaintiffs fails to allege a required element: a cognizable injury beyond the fact of not receiving a compliant itemized wage statement. (Id. at 7.) Third, it points out that Plaintiff has not alleged that he received any wage statements from Schneider that were inaccurate in reporting wages actually paid to him, only that they did not show the “correct” wages that Plaintiff alleges should have been paid. (Id. at 8.) Finally, Defendant argues that, under Section 226.7, wage statements need not itemize payments for missed meal or rest breaks. (Id.) In response, Plaintiffs argue that, by alleging that Defendant’s policy of underpaying wages was deliberate, Plaintiff has satisfied its burden to show that the derivative wage statement was also intentional. (Opp’n at 9.) He also notes that the “injury” requirement is minimal, and satisfied by the allegation that the defendant furnished inaccurate information. (Id.) Next, he takes issue with Defendant’s view that it is entitled to provide wage statements which inaccurately report the amount of wages earned so long as the statements accurately report what was paid. (Id. at 10.) Finally, he disagrees that wage statements need not itemize meal period compensation, noting that several cases have recently disagreed with the case on which Defendant relies for this point. (Id.) The Court addresses each point in turn. First, it finds that the plain language of the statute requires wage statements to accurately report not just “wages paid,” but also “gross wages earned,” “total hours worked,” and “net wages earned.” Cal. Lab. Code § 226(a). Accordingly, the Court agrees with other district courts that, insofar as Plaintiff claims that the wage statements included only the amount he was actually paid, but not the amount he earned- perhaps by underrepresenting the number of hours worked, though the Complaint does not make this clear-Plaintiff may assert a violation of the statute. See also Pena v. Taylor Farms Pac., Inc., No. 2:13-CV-01282-KJM-AC, 2014 WL 1665231, at *9 (E.D. Cal. Apr. 23, 2014) (“If the statement must be accurate as to both wages earned and total hours worked, then accurate payment of inaccurately recorded hours would violate the statute.”); Rodriguez v. Cleansource, Inc., No. 14-CV-0789-L DHB, 2015 WL 5007815, at *7 (S.D. Cal. Aug. 20, 2015) (rejecting defendant’s contention that “employers are only required to accurately report wages that the employee is actually being paid” and upholding plaintiffs’ claims where they identified specific failures by defendant in accurately reporting time). Second, the Court repeats its conclusion from its decision in Michael Kors that Plaintiff may satisfy the intent element by alleging that Defendant deliberately underpaid its employees. See Michael Kors, 2015 U.S. Dist. LEXIS 164690, at *21 (“Plaintiff has alleged facts sufficient to infer that Defendant deliberately failed to pay wages for time worked, that it failed to provide requisite meal breaks, and therefore it knew it was providing inaccurate wage statements.”); see also Davenport v. Wendy's Co., No. 2:14-CV-00931 JAM, 2014 WL 3735611, at *7 (E.D. Cal. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 8 of 13 Page ID #:413 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 77 of 149 Page ID #:699 Page 9 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG July 28, 2014) (“Plaintiff alleges that Defendant ‘purposely’ misclassified salaried General Manager employees as exempt, and therefore Plaintiff has sufficiently alleged that the failure to provide accurate wage statements was ‘knowing and intentional’ under section 226(e)); Hennighan v. Insphere Ins. Sols., Inc., No. 13-CV-00638-JST, 2013 WL 1758934, at *5 (N.D. Cal. Apr. 24, 2013) (“an allegation of purposeful misclassification is required” to show a “knowing and intentional failure” to provide itemized wage statements under section 226). Accordingly, the Court finds that Plaintiff could satisfy the intent element where he could show that Defendant engaged in a deliberate scheme to underpay its employees.5 As discussed in the rest of this order, however, the Complaint in general fails to support a claim that Defendant deprived him of wages-which, of course, dooms his claim that Defendant deliberately underpaid him. The Court reaches a similar conclusion with regard to the injury element: the theory may work, but the claim lacks sufficient facts to support the cause of action. The terms of the statute state that “an employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide accurate and complete information” as required by section 226 and “the employee cannot promptly and easily determine from the wage statement alone” any of the following (i) The amount of gross wages or net wages paid to the employee during the pay period or any of the other information required to be provided on the wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of subdivision (a); (ii) Which deductions the employer made from gross wages to determine the net wages paid to the employee during the pay period. Nothing in this subdivision alters the ability of the employer to aggregate deductions consistent with the requirements of item (4) of subdivision (a); (iii) The name and address of the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer during the pay period; (iv) The name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number. 5 The Court is not convinced otherwise by Defendant’s citations to an unpublished California Superior Court decision and a Northern District decision. (Reply at 3.) In the first case, the court’s statement that an “intentional” violation of the labor code was not identical to an “intentional” violation of section 226 appears to be dicta-the court’s holding that the plaintiff could not sustain a section 226 claim rested on other grounds-and it involved a situation where the allegations indicated a good faith attempt by the defendant to pay for all hours worked. Brian Driscoll et al. v. Granite Rock Company, Case No. 1:08-CV-103426, Dkt. No. 12-1 (Super. Ct., Santa Clara County, Sept. 20, 2011). In the second case, Brown v. Wal-Mart Stores, Inc., No. C 08-5221 SI, 2013 WL 1701581 (N.D. Cal. Apr. 18, 2013), the court did not reject the theory that an intentional violation of wage and hour laws could support a claim of an intentional violation of section 226, but rather found that the plaintiff could not show an intentional violation of wage and hour laws in the first place. 2013 WL 1701581, at *8. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 9 of 13 Page ID #:414 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 78 of 149 Page ID #:700 Page 10 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG Cal. Lab. Code § 226(e)(2)(B). Items (2) through (4), as referenced in (i), include: (2) Total hours worked by the employee; (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis; and (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item. Cal. Lab. Code § 226(a)(2-4). Here, Plaintiff has alleged that the wage statements did not provide complete and accurate information because they did not “accurately itemize the gross wages earned, the net wages earned, and all applicable hourly rates in effect.” (Complaint ¶ 70.) Plaintiff also suggests that the wage statements did not indicate the “true amount of time worked,” which satisfies the second prong of the injury element: an employee must be able to “promptly and easily” determine the “total hours worked by the employee.” Accordingly, Plaintiff’s allegations, if supported, could suffice to make out an injury under section 226. See also Davenport, 2014 WL 3735611, at *7 (“the injury requirement is minimal” as indicated by 2013 statutory amendment to section 226(e), “which clarifies that “[a]n employee is deemed to suffer injury . . . if the employee cannot promptly and easily determine from the wage statement alone . . . the amount of gross wages or net wages” due to the employee”).6 However, while the theory of liability may hold up, it does not have specific factual support. As in Plaintiff’s failure to pay minimum wages claim, Plaintiff does not provide any clarifying information that would explain how Defendant’s statements were inaccurate. For example, if Plaintiff alleges that the statements did not accurately recite the number of hours worked, in what way does he allege that the statements under-counted his hours? Does he allege that he worked additional hours that Defendant never recognized? That Defendant listed him as having worked a set number of hours per load delivery, regardless of how many hours he actually worked? The same concerns apply to his remaining allegations, which seem only to parrot the language of 226, but do not explain how these terms applied in his case. Just as Plaintiff failed to explain in what way he was under-compensated under the piecework system, here, too, he fails to explain how the statements inaccurately represented the wages he earned. 6 Again, the Court notes that Defendant’s citations to cases that came out differently do not compel a contrary result here, although it acknowledges that the case law on this issue is not all in agreement. However, in both cases that Defendant cites-Milligan v. Am. Airlines, Inc., 577 F. App'x 718, 719 (9th Cir. 2014) and Angeles v. U.S. Airways, Inc., No. C 12-05860 CRB, 2013 WL 622032, at *10 (N.D. Cal. Feb. 19, 2013)-the courts focused on the fact that an omission in a wage statement was insufficient to establish injury; here, Plaintiff seems to assert not just that an itemized requirement was missing, but that the information included was actually wrong. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 10 of 13 Page ID #:415 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 79 of 149 Page ID #:701 Page 11 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s third cause of action, but grants leave to amend so that Plaintiff can provide additional factual support for his claim. D. Failure to provide wages when due In his fourth cause of action, Plaintiff contends that Defendant did not timely tender payment of all wages owed after Plaintiff’s employment ended in violation of California Labor Code Sections 201, 202, and 203. Again, the cause of action suffers from the same informational gaps discussed above: Plaintiff does not explain what wages he alleges were due nor the basis for asserting that such wages were due.7 Conclusory allegations that Defendant “did not timely tender payment of all wages owed as required by law” fall far short of the Twombly/Iqbal standard and fail to give Defendant fair notice of the grounds upon which the claim rests. See, e.g., Guerrero v. Halliburton Energy Servs., Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296, at *8 (E.D. Cal. Nov. 2, 2016) (“The Court agrees with Defendant that these allegations fail to satisfy the pleading requirements of Rule 8. Importantly, Plaintiff has not alleged when his employment with Defendant ended, nor has he alleged exactly what wages were earned and unpaid.”); Lopez v. Aerotek, Inc., No. SACV1400803CJCJCGX, 2015 WL 4504691, at *2 (C.D. Cal. July 23, 2015) (dismissing claim where “Plaintiff merely asserts that ‘Defendants willfully failed to pay their workers accrued wages due promptly upon separation, as required by Code sections 201 and 202.’. . . Plaintiff does not even generally allege what wages were earned and paid at the time of termination, nor does she allege how and in what manner any final wage payment was untimely under the Labor Code.”) Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s fourth cause of action. Plaintiff may amend his Complaint to provide additional factual support for his claim. E. Failure to reimburse employees for required expenses Plaintiff’s fifth cause of action asserts that Defendant failed to indemnify or reimburse Plaintiff or the class under California Labor Code Section 2802 for required expenses incurred in the discharge of their job duties. For example, Defendant failed to reimburse employees for the costs or expenses of owning and/or leasing and maintaining a car, or the fuel for the trucks and vehicles that employees utilized when driving to assigned locations by Defendant. (Complaint ¶ 82.) Defendant complains that these allegations are not specific enough to meet the standards of Rule 8. (Motion at 16-17.) It also argues that “the Complaint is devoid of any factual 7 Although Plaintiff asserts generally in the Complaint that Defendant did not compensate him at a minimum wage rate as the result of its piecework compensation structure, these allegations lacked clarifying information, as the Court has already discussed. Moreover, Plaintiff does not even make clear whether his section 203 claim relies on the same allegations of uncompensated work that form the basis for his failure to pay minimum wage claims. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 11 of 13 Page ID #:416 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 80 of 149 Page ID #:702 Page 12 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG allegation that any of the PCMs ever sought and were refused reimbursement for the alleged business expenses.” (Id. at 17.) On both counts, the Court is unpersuaded by Defendant’s arguments. First, the Complaint specifies both the type of expenses that were incurred-car maintenance and fuel costs-and explains why such costs were necessary to employment: Defendant required its truck drivers to drive to assigned locations in order to complete their principal job duties: picking up and delivering loads. That employees would necessarily incur vehicle and fuel costs to fulfill the job seems obvious under the circumstances. Second, there is no requirement that employees must have sought reimbursement. See Stuart v. RadioShack Corp., 641 F. Supp. 2d 901, 902-03 (N.D. Cal. 2009) (public policy underlying section 2802 focuses not on whether employee makes a request for reimbursement but rather on whether employer “either knows or has reason to know that the employee has incurred a reimbursable expense”). Here, it is reasonable to assume that, where the job expressly involved driving from place to place, Defendant had good reason to know that employees were incurring expenses related to the vehicles they drove-and yet failed to reimburse those expenses. While the Court acknowledges that Plaintiff would have done better to more clearly itemize the expenses,8 the deficiencies here are not so significant as to defeat his claim; the specifics of the expenses incurred may be developed through the course of discovery. Accordingly, the Court DENIES Defendant’s motion to dismiss Plaintiff’s fifth cause of action. F. Illegal deductions from wages In his sixth cause of action, Plaintiff asserts that Defendant illegally classified him and the putative class members as independent contractors, rather than employees, and is therefore required to comply with California law regarding deductions from wages. (Complaint ¶ 86.) Because Defendant “failed to pay all compensation due” and “made unlawful deductions from compensation,” Plaintiff alleges that it is in violation of California Labor Code section 221, which makes it unlawful “for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.” (Id. at ¶¶ 88-92.) Defendant counters that the explicit remedy for a violation of section 221 is found in sections 225 and 225.5-which provide for only criminal and agency enforcement of section 221. (Motion at 17.) That is, neither statute creates a private right of action for violations of section 221. The Court finds that the weight of authority-together with the clear language of the statute-supports Defendant’s argument. Unlike other sections of the Labor Code, which 8 For example, were employees required to purchase and maintain particular types of trucks? Did they have to maintain their trucks in a certain condition to maintain their employment? How significant were the fuel costs? Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 12 of 13 Page ID #:417 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 81 of 149 Page ID #:703 Page 13 of 13 CIVIL MINUTES-GENERAL Initials of Deputy Clerk MG expressly allow employees to file suit to recover wages,9 there is nothing to indicate that the legislature intended to create a private right of action to remedy violations of sections 221 or 223. See Cal. Lab. Code §§ 221, 223; see also Gunawan v. Howroyd-Wright Employment Agency, 997 F. Supp. 2d 1058, 1068 (C.D. Cal. 2014) (text of section 223 does not support existence of private right of action); Calop Bus. Sys., Inc. v. City of Los Angeles, 984 F. Supp. 2d 981, 1014 (C.D. Cal. 2013), aff'd in part, appeal dismissed in part, 614 F. App'x 867 (9th Cir. 2015) (same); 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) (same); contra Villalpando v. Exel Direct Inc., No. 12-CV-04137 JCS, 2014 WL 1338297, at *18 (N.D. Cal. Mar. 28, 2014) (finding “clear legislative intent” to allow private causes of action).10 Accordingly, the Court GRANTS Defendant’s motion as to its sixth cause of action. Because amendment would be futile in light of the absence of a private right of action, the Court dismisses Plaintiff’s UCL claim without leave to amend. See, e.g., Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1038, 1042 (9th Cir. 2011) (dismissal without leave to amend is appropriate where “amendment would be futile”). IV. CONCLUSION For the reasons stated above, the Court GRANTS in Part and DENIES in Part Defendant’s Motion to Dismiss. The Court dismisses Plaintiff’s first, second, third, fourth, and sixth causes of action, and grants Plaintiffs leave to amend all but the sixth cause of action, subject to the limitations described above. Plaintiffs may file an amended complaint no later than March 3, 2017. The February 13, 2017 hearing on the Motion is VACATED. IT IS SO ORDERED. 9 For example, section 203 provides that, “[i]f an employer willfully fails to pay, without abatement or reductions, in accordance with sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty . . . [and] [s]uit may be filed for these penalties at any time . . .” Cal. Labor Code § 203(a)-(b). Section 218, too, states that “[n]othing in this article shall limit the right of any wage claimant to sue directly or through an assignee for any wages or penalty due him under this article.” Cal. Lab. Code § 218. 10 The Court is not convinced by the reasoning in Villalpando, which, as Defendant points out, appears to be an outlier in its conclusion that section 221 creates a private right of action. In particular, the Court disagrees with Villalpando’s assumption that, because the conduct prohibited by section 221 is the wrongful deprivation of wages, it must confer a private cause of action so that employees can recover these unpaid wages. 2014 WL 1338297, at *18. After all, as noted above, other sections of the Labor Code involving unpaid wages expressly provide for a private right: thus, the fact that section 221 relates to unpaid wages would not seem to automatically confer a private right absent additional language in the statute confirming this to be so. Case 5:16-cv-02482-JGB-KK Document 17 Filed 02/10/17 Page 13 of 13 Page ID #:418 Exhibit E Exhibit E Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 82 of 149 Page ID #:704 STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS INDUSTRIAL WELFARE COMMISSION Public Hearing June 30, 2000 State capitol, Room 4202 Sacramento, California Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 83 of 149 Page ID #:705 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 2 P A R T I C I P A N T S --o0o-- Industrial Welfare Commission BILL DOMBROWSKI, Chair BARRY BROAD LESLEE COLEMAN DOUG BOSCO HAROLD ROSE Staff ANDREW R. BARON, Executive Officer MARGUERITE STRICKLIN, Legal Counsel RANDALL BORCHERDING, Legal Counsel MICHAEL MORENO, Principal Analyst DONNA SCOTTI, Administrative Analyst NIKKI VERRETT, Analyst Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 84 of 149 Page ID #:706 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 3 I N D E X Page Proceedings 6 Approval of Minutes 6 Amendments to Wage Orders 7 Reconsideration of May 26 Actions re Healthcare 11 TOM RANKIN, California Labor Federation, AFL-CIO 15 ALLEN DAVENPORT, Service Employees International 16 Union BARBARA BLAKE, United Nurses Associations of 17 California, AFSCME RICHARD HOLOBER, California Nurses Association 18 DON MADDY, George Steffes, Inc.; California 19 Healthcare Association Meal and Rest Period Proposals 23 TOM RANKIN, California Labor Federation, AFL-CIO 25 JULIANNE BROYLES, California Chamber of Commerce 26 JAMES ABRAMS, California Hotel and Motel 27 Association SPIKE KAHN, AFSCME Council 57 30 Amendment to Wage Order 5 - Personal Attendants, 33 Resident Managers, 24-Hour Childcare Commercial Fishing Regulations 35 Ski Industry Regulations 38 TOM RANKIN, California Labor Federation, AFL-CIO 39 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 85 of 149 Page ID #:707 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 4 PAM MITCHELL, Mammoth Mountain Ski Area employee 41 BILL CAMP, Sacramento Central Labor Council 43 INDEX (Continued) Page MARCIE BERMAN, California Employment Lawyers 44 Association PATRICIA GATES, Van Bourg, Weinberg, Roger & 45 Rosenfeld BOB ROBERTS, California Ski Industry Associations 47 Executive, Administrative, and Professional Duties 59 BRUCE YOUNG, California Retailers Association 61 LYNN THOMPSON, Law Firm of Bryan Cave, LLP; 63 California Retailers Association ART PULASKI, California Labor Federation, AFL-CIO106 TOM RANKIN, California Labor Federation, AFL-CIO 111 WALLY KNOX, California State Assembly member 113 JUDY PEREZ, Communication Workers of America 117 MARCIE BERMAN, California Employment Lawyers 117 Association LAURA HO, Saperstein, Goldstein, Demchak & 124 Baller PATRICIA GATES, Van Bourg, Weinberg, Roger & 126 Rosenfeld TOM BRANDEN, Machinists Union, District 135 Lodge 190 DON HUNSUCKER, United Food and Commercial 137 Workers Local 1288 WALTER JOHNSON, San Francisco Labor Council 145 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 86 of 149 Page ID #:708 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 5 Summaries and Statements as to the Basis 161 Extension of Interim Wage Order 2000 162 Other Business 163 MARY LOU THOMPSON, Littler, Mendelson, Fastiff, 163 Tichy & Mathiason INDEX (Continued) Page TOM RANKIN, California Labor Federation, AFL-CIO 166 Adjournment 167 Certificate of Reporter/Transcriber 168 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 87 of 149 Page ID #:709 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 25 COMMISSIONER ROSE: Aye.1 COMMISSIONER DOMBROWSKI: Five to nothing. That 2 is adopted.3 Let’s go to Item 4. Commissioner Broad has 4 circulated language concerning meal periods and rest 5 periods for Orders 1 through 13 and 15. Would you like 6 to --7 COMMISSIONER BROAD: Yes, Mr. Chairman. This is 8 a rather -- a relatively small issue, but I think a 9 significant one, and that is we received testimony that 10 despite the fact that employees are entitled to a meal 11 period or rest period, that there really is no incentive 12 as we establish it, for example, in overtime or other 13 areas, for employers to ensure that people are given 14 their rights to a meal period and rest period. At this 15 point, if they are not giving a meal period or rest 16 period, the only remedy is an injunction against the17 employer or -- saying they must give them.18 And what I wanted to do, and I’d to sort of 19 amend the language that’s in there to make it clearer, 20 that what it would require is that on any day that an 21 employer does not provide a meal period or rest period in22 accordance with our regulations, that it shall pay the 23 employee one hour -- one additional hour of pay at the 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 88 of 149 Page ID #:710 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 26 employee’s regular rate of compensation for each workday 1 that the meal or rest period is not provided.2 I believe that this will ensure that people do 3 get proper meal periods and rest periods. And I would --4 COMMISSIONER DOMBROWSKI: Let me ask a question.5 If you’re an employer and you provide for a 30-minute6 meal period a day, and your employee misses that meal 7 period or eats while working through that meal period, I 8 believe you get paid, correct? It’s a paid -- it would 9 then be a paid meal period.10 COMMISSIONER BROAD: Yes, it would be a paid 11 meal period.12 COMMISSIONER DOMBROWSKI: Right.13 COMMISSIONER BROAD: I mean, assuming they pay 14 you for it. I mean --15 COMMISSIONER DOMBROWSKI: Assuming that -- well, 16 okay. Does this say, then, if you had a 30-minute meal 17 period as your standard procedure, you would get -- and 18 you missed that, you get an hour’s worth of pay? Is that 19 what I’m -- additional -- an hour additional pay.20 COMMISSIONER BROAD: If your employer did not 21 let you have your meal period, I think, is what it says.22 So it’s -- it doesn’t involve, you know, waivers of a 23 meal period or time off or anything of that sort. And 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 89 of 149 Page ID #:711 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 27 rest periods, of course, are somewhat different.1 Employers are obligated to provide rest periods --2 COMMISSIONER DOMBROWSKI: Correct.3 COMMISSIONER BROAD: -- duty-free and must pay 4 for them. So if you don’t provide a rest period, then 5 the -- you know, the employee gets their day’s pay, but 6 they don’t get the rest, and so that’s -- with respect to 7 a meal period, it doesn’t have to be compensated.8 COMMISSIONER DOMBROWSKI: Okay.9 COMMISSIONER BROAD: So it’s particularly 10 egregious with regard to rest periods.11 COMMISSIONER DOMBROWSKI: Okay. I don’t -- does 12 anyone wish to testify on this item?13 MR. RANKIN: Tom Rankin, California Labor 14 Federation.15 I would like to express our support for 16 Commissioner Broad’s proposal. As he stated, the problem 17 exists right now that there is no remedy for a missed 18 meal period or a missed rest period. And what his 19 proposal does is provide a remedy.20 And the purpose of the rest period and the meal 21 period is, in the case of rest periods, to have a rest 22 break where an employee is relieved from work duties.23 The same is true for meal periods, to provide a break 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 90 of 149 Page ID #:712 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 28 where people can partake of a meal. It is not sufficient 1 that they -- if they don’t get their meal period, they 2 simply get paid for that half hour. Sure they do; 3 they’re working that half hour. I would hope they would.4 This provision of Mr. Broad’s at least provides 5 a minor disincentive for employers not to deny employees 6 their rights to rest and meal breaks.7 MS. BROYLES: Good morning, commissioners.8 Julianne Broyles, from the California Chamber of 9 Commerce.10 We had not been apprised, of course, of this 11 particular provision early on. Otherwise we probably 12 would have had more extensive comments on it.13 I guess I would have to, first of all, raise the 14 issue of the authority to establish a new crime, which 15 basically this is doing. Additionally, we would also 16 point out that if the employee has missed a meal period, 17 they are going to be paid for the meal period in almost 18 all instances. In terms of setting up a new penalty and 19 a crime for basically missing a rest period, as far as I 20 know there is no statute that would permit that to be 21 done. And we would oppose this particular amendment.22 MR. ABRAMS: Thank you, Mr. Chairman, members of 23 the Commission. My name is Jim Abrams. I’m with the 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 91 of 149 Page ID #:713 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 29 California Hotel and Motel Association.1 And two issues: first of all, we also question 2 the legislative authority of the Commission to, in 3 essence, adopt and impose new penalties with respect to 4 violations of what is, in essence, a statute, and then 5 the statute picking up the regulations of the Industrial 6 Welfare Commission. So, we object to and question the 7 authority of the IWC to adopt this particular provision.8 If, however -- and not conceding the point --9 if, however, this type of language is adopted, I have 10 several questions.11 First of all, Commissioner Broad, is it your 12 intent that the hour of pay that you reference here would 13 be treated as an hour worked for purposes of calculating 14 daily or weekly overtime?15 COMMISSIONER BROAD: No.16 MR. ABRAMS: I think -- and again, not conceding 17 that the Commission has any authority to adopt any such 18 provision as this, but if you decide to do so, I would 19 suggest to you that you need to make that clear.20 Secondly, I -- I’m not sure I understood your 21 comments with regard to on-duty -- agreed upon on-duty22 meal periods. I -- I think, in reading the language 23 here, my understanding was that it was intended that an 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 92 of 149 Page ID #:714 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 30 agreed upon on-duty meal period, for which the employee 1 is, in fact, paid for the half hour that he or she is 2 working, in essence, does not enter into this equation at 3 all. But you made a comment a moment ago that quite --4 with all due respect, confused me. I just want to 5 clarify that.6 COMMISSIONER BROAD: The employer who, under our 7 regulations, lawfully establishes an on-duty meal period 8 would not be affected if the employee then takes the on-9 duty meal period. This is an employer who says, “You do 10 not get lunch today, you do not get your rest break, you 11 must work now.” That is -- that is the intent.12 Let me respond, if I may. Clearly, I don’t 13 intend this to be an hour counted towards hours worked 14 any more than the overtime penalty. And, of course, the 15 courts have long construed overtime as a penalty, in 16 effect, on employers for working people more than full --17 you know, that is how it’s been construed, as more than 18 the -- the daily normal workday. It is viewed as a 19 penalty and a disincentive in order to encourage 20 employers not to. So, it is in the same authority that 21 we provide overtime pay that we provide this extra hour 22 of pay. And that --23 So, now, with regard to creating a new crime, I 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 93 of 149 Page ID #:715 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 31 guess you could argue that anything we do that changes 1 something creates a new crime to the extent that things -2 - that there are certain aspects of our wage orders that, 3 if violated, can be prosecuted criminally. But I don’t 4 believe we have the authority to establish a new crime in 5 the sense that we could say if you -- if you deny someone 6 their meal period or rest period, that you shall spend 7 six months in jail or a year in jail or it will be a 8 felony and so forth. No, we cannot establish new crimes.9 The Legislature, however, can establish crimes for 10 violations of our wage orders, which is their 11 prerogative, not ours.12 MR. ABRAMS: Understood. I -- and on that note, 13 I would -- we -- the California Hotel and Motel 14 Association objects to the proposal on the ground that 15 the -- we submit the Commission does not have the legal 16 authority to adopt such a penalty, also on the ground 17 that if -- to any extent that an employer is required to 18 pay this one hour of pay for a meal period missed, that 19 that has to be offset against whatever penalties the 20 Legislature has established for violation of the 21 Commission’s wage orders. Otherwise you are basically 22 saying to an employer, “You are going to be punished 23 twice.”24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 94 of 149 Page ID #:716 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 32 So we object to the proposed amendment.1 MS. BROYLES: Mr. Commissioner, can I make one 2 final point?3 If this is something that the Commission would 4 like to move forward on and put over -- or at least put 5 out notice so --6 COMMISSIONER DOMBROWSKI: It was noticed. It 7 was in the notice.8 COMMISSIONER BROAD: It has been in our notice 9 for a month. I mean, we did --10 MS. BROYLES: In terms of the full penalty, the 11 hour penalty?12 COMMISSIONER BROAD: No. The language that’s 13 proposed to be adopted has been out there. I think --14 MS. BROYLES: Right.15 COMMISSIONER BROAD: -- you may agree with that 16 substantively --17 MS. BROYLES: The amendment of Mr. -- of 18 Commissioner Broad.19 COMMISSIONER BROAD: -- but there’s no last-20 minute aspect to this at all.21 MS. KAHN: Spike Kahn, AFSCME Council 57.22 I represent quite a few workers in the hospital 23 industry at UCSF that -- just in policy, the clinics are 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 95 of 149 Page ID #:717 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 33 always understaffed and they just never have enough 1 staffing to let that person come out on a break. It’s 2 not every day, it just happens that people, because the 3 clinics are full, the patients are coming, you have to 4 keep the flow going because you don’t want your patients 5 to be waiting while you go out. And day after day,6 people don’t get a break.7 And I would like to support this amendment and 8 explain that, by having it on the books, it would give us 9 quite a bit of incentive to our employers that they would 10 just start following the contracts and following the laws 11 that are already down there, that you have to have a 12 break, just by having it on the books. I don’t think it 13 would come up that often, in the same way that they don’t 14 usually violate any of the -- the overtime laws. It’s 15 just a matter of they would be encouraged much more to 16 not keep on working us through our breaks and our lunch 17 times if it were there.18 So we’re in support of that.19 COMMISSIONER DOMBROWSKI: Thank you.20 Ms. Stricklin, regarding the legal question?21 MS. STRICKLIN: You were asking whether there22 was any legal impediment to such a penalty. And 516 of 23 the Labor Code allows the Commission to adopt or amend 24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 96 of 149 Page ID #:718 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 34 working condition orders with respect to break periods, 1 meal periods, and days of rest.2 And then again, if you look at Section 558, the 3 last section says that civil penalties provided in 558 4 are in addition to any other civil or criminal penalty 5 provided by law, so that a regulation which sets forth a 6 penalty would just be an additional penalty, which the 7 IWC has the power to do.8 COMMISSIONER DOMBROWSKI: Any other questions 9 from the commissioners?10 (No response)11 COMMISSIONER DOMBROWSKI: Okay. Commissioner 12 Broad, I believe you want to make a motion?13 COMMISSIONER BROAD: Yeah. I’ll move it.14 COMMISSIONER DOMBROWSKI: Is there a second?15 COMMISSIONER ROSE: Second.16 COMMISSIONER DOMBROWSKI: Okay. Call the roll.17 MR. BARON: Dombrowski.18 COMMISSIONER DOMBROWSKI: No.19 MR. BARON: Bosco.20 COMMISSIONER BOSCO: Aye.21 MR. BARON: Broad.22 COMMISSIONER BROAD: Aye.23 MR. BARON: Coleman.24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 97 of 149 Page ID #:719 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 35 COMMISSIONER COLEMAN: No.1 MR. BARON: Rose.2 COMMISSIONER ROSE: Aye.3 MR. BARON: Three to two.4 (Applause)5 COMMISSIONER DOMBROWSKI: Okay. I’d like to 6 move to Item 5, consideration of --7 COMMISSIONER BOSCO: How about a round of 8 applause for the veterinary?9 COMMISSIONER BROAD: Take care of the dogs and 10 cats right now.11 (Laughter)12 COMMISSIONER DOMBROWSKI: Here we are, moving 13 along so well.14 Item 5, consideration of amendment to Wage Order 15 5 concerning personal attendants. 16 I’d ask Mr. Baron to brief us.17 MR. BARON: This is an overall issue that has 18 been discussed previously. The background to this is 19 that there had been language in the earlier version of 20 the wage orders, in 5-93, that, when we went -- going 21 back to that -- had been changed in ’98, but then when we 22 went back to, now, the earlier versions, referenced a 54-23 hour workday (sic) for these categories of employees.24 Exhibit F Exhibit F Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 98 of 149 Page ID #:720 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM Case No. CV 13-891 DSF (RZx) Date 6/18/13 Title Marco Rodriguez v. Old Dominion Freight Line, Inc. Present: The Honorable DALE S. FISCHER, United States District Judge Debra Plato Not Present Deputy Clerk Court Reporter Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present Proceedings: (In Chambers) Order GRANTING IN PART and DENYING IN PART Defendant’s Motion to Dismiss (Docket No. 19) The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. I. INTRODUCTION Marco Rodriguez brings claims for violation of California Business and Professions Code § 17200 et seq. (UCL Claims), violation of California Labor Code §§ 201 and 202, Violation of California Labor Code § 226(a), wrongful termination in violation of public policy, retaliation in violation of public policy, intentional infliction of emotional distress (IIED), and defamation against Old Dominion Freight Line, Inc. (ODFL). ODFL moves to dismiss Rodriguez’s First Amended Complaint (FAC). From March 2010 to January 5, 2012, Rodriguez worked as a “Pick-Up and Delivery” driver for ODFL, a non-exempt and hourly position. (FAC ¶ 3.) He earned $18.85 per hour at the time of his termination. (Id.) During his time with ODFL, Rodriguez was employed in ODFL’s “Less than Truckload” (LTL) shipping business. (Id.) This business generally consists of intrastate transportation of relatively small packages and freight. (Id.) From April 2010 to late-2011, Rodriguez worked on a regular route between ODFL’s Montebello terminal to areas in the San Fernando Valley. (Id. ¶ 12.) He thereafter worked as an “on-call” Pick-Up and Delivery driver until he was terminated. Rodriguez alleges that on average he worked 50 hours per week and that he CV-90 (12/02) MEMORANDUM Page 1 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 1 of 14 Page ID #:717 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 99 of 149 Page ID #:721 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM regularly worked 60 hours per week. (Id. ¶ 13.) ODFL classified Rodriguez as “part- time” and did not provide him with benefits such as health insurance. (Id.) Rodriguez alleges that ODFL failed to pay him at the proper overtime rate and that ODFL failed to provide uninterrupted meal periods and rest breaks. (Id. ¶¶ 13, 17.) Rodriguez claims that ODFL required employees to “clock-in” and “clock-out” for meal periods on handheld devices immediately after starting their shifts and that ODFL would require him on occasion to indicate - fraudulently - on his handheld device that he took his meal period from 7:30 a.m. to 8:00 a.m. (Id. ¶ 17.) Rodriguez claims that he was told by ODFL’s dispatcher, “Marty,” that ODFL’s policy was to pay overtime for shifts of 13 hours or more only. (Id. ¶ 14.) He alleges that he has nine wage statements dated between May 7, 2010 and January 6, 2012 that all indicate “small payments of overtime for shifts of 13 hours or more only.” (Id.) Rodriguez was terminated on January 5, 2012 for “poor performance.” (Id. ¶ 21.) He claims the reasons for his dismissal were pretextual and that he was terminated in retaliation for complaining about ODFL’s overtime policy and failure to provide required meal and rest breaks. (Id. ¶¶ 21-22.) He claims that he was denied subsequent employment as a result of ODFL telling his prospective employers that he was terminated for “poor performance.” (Id. ¶ 26.) Specifically, Rodriguez claims that he received an offer of employment on October 1, 2012 with a October 22, 2012 start date that was rescinded due to ODFL’s statements about his performance. (Id.) Rodriguez also brings several class action claims. II. LEGAL STANDARD “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (alteration in original) (internal quotation marks omitted). But Rule 8 “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for failure to state a claim upon which relief can be granted. “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson, 551 U.S. at 94. However, allegations contradicted by matters properly subject to judicial notice or by exhibit need not be accepted as true, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), and a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Nor does a complaint suffice CV-90 (12/02) MEMORANDUM Page 2 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 2 of 14 Page ID #:718 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 100 of 149 Page ID #:722 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (alteration in original) (internal quotation marks omitted). A complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. This means that the complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “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. Ruling on a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id. at 1950 (alteration in original) (citation and internal quotation marks omitted). “Normally, when a viable case may be pled, a district court should freely grant leave to amend.” Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011). Leave to amend should be granted even if the plaintiff did not request leave, unless it is clear that the complaint cannot be cured by the allegation of different or additional facts. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). III. DISCUSSION Federal Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” The Court dismissed Rodriguez’s Complaint on April 2, 2013 because he failed to respond to ODFL’s motion to dismiss and failed to notify the Court that he had elected to amend his pleading as Rule 15(a)(1) permits. (Docket No. 11.) The Court’s order permitted Rodriguez to file an amended complaint no later than April 24, 2013. (Id.) Rodriguez filed his FAC on April 24, 2013. (Docket No. 16.) As the Court provided Rodriguez until April 24, 2013 to file his amended complaint and did not place restrictions on any amendment, the Court will allow Rodriguez to add the wrongful termination claim and class action claims in his FAC. In any event, as Rule 15(a)(2) provides that, in considering amendments to pleadings, “[t]he court should freely give leave when justice so requires.” This rule should be interpreted and applied with “extreme liberality,” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991), and leave to amend “should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999) (internal quotation marks omitted); see also Foman, 371 U.S. CV-90 (12/02) MEMORANDUM Page 3 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 3 of 14 Page ID #:719 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 101 of 149 Page ID #:723 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM at 182 (identifying these factors). It is far from clear that permitting the amendments here would prejudice ODFL, create undue delay, or that the amendments were sought in bad faith. The new claims and amendments in Rodriguez’s FAC are permissible. A. Individual UCL Claims Rodriguez bases his UCL claims on violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., failure to provide meal and rest breaks as required by California Labor Code § 226.7, failure to timely pay wages on termination in violation of California Labor Code §§ 201 and 202, and failure to provide accurate itemized wage statements in violation of California Labor Code § 226(a). “The UCL ‘borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.’” Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012) (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) (citations and quotation marks omitted)). “Virtually any law - federal, state or local - can serve as a predicate for an action under Business and Professions Code section 17200.” Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1361 (2010) (citations and quotation marks omitted). 1. FLSA Violations ODFL wrongly argues that Rodriguez’s FLSA violation allegation fails because Rodriguez “fails to allege any facts that could show he was not exempt from the overtime provisions under . . . the FLSA.” (ODFL’s Mot. to Dismiss 7 (citations omitted)). “An employer who claims an exemption from the FLSA has the burden of showing that the exemption applies.” Reich v. Am. Driver Serv., Inc., 33 F.3d 1153, 1156 (9th Cir. 1994) (citation and quotation marks omitted). Rodriguez has pleaded that ODFL’s business “consists of intrastate transportation, wholly within the State of California . . . .” (FAC ¶ 11.) He has adequately pleaded that the FLSA applies and that ODFL is subject to the FLSA’s regulations and overtime provisions. See Reich, 33 F.3d at 1155 (footnote omitted) (“Any motor carrier that engages in wholly intrastate commerce . . . is subject to the Secretary of Labor’s jurisdiction, and consequently, to the maximum hours provisions of the FLSA”). While ODFL may ultimately be exempt from the FLSA’s requirements, any exemption inquiry is necessarily fact-intensive. See id. at 1155-56. Such an inquiry is ill-suited to a motion to dismiss. The FLSA requires that “no employer shall employ any of his employees who in a workweek is engaged in commerce . . . or is employed in an enterprise engaged in commerce . . . for a workweek longer than forty hours unless such employee receives CV-90 (12/02) MEMORANDUM Page 4 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 4 of 14 Page ID #:720 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 102 of 149 Page ID #:724 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM compensation” for hours worked beyond forty hours “at a rate not less than one and one half times the rate at which he or she is regularly employed.” 29 U.S.C. § 207(a)(1). “To establish a claim for failure to pay overtime under the FLSA, the plaintiff must aver that: (1) defendant was plaintiff's employer; (2) plaintiff worked more than forty hours in a week; and (3) plaintiff did not receive compensation for his employment in excess of the forty hours.” McKeen-Chaplin v. Franklin Am. Mortg. Co., No. C 10-5243 SBA, 2011 WL 4082543, at *3 (N.D. Cal. Sept. 13, 2011) (citation and quotation marks omitted). Rodriguez has alleged that he worked more than 40 hours per week without adequate overtime compensation. (FAC ¶¶ 13, 24, 40.) He has adequately pleaded a violation of the FLSA and satisfied the requirements of Federal Rule of Civil Procedure 8(a)(2). In addition to his allegations regarding working 50 hours per week on average, Rodriguez specifically points to nine wage statements in which he alleges he was paid overtime for shifts of 13 hours or more only. (FAC ¶ 14.) This is more than enough to satisfy the pleading requirements of Rule 8(a)(2). 2. Meal and Rest Break Violations Rodriguez also bases his UCL claim on ODFL’s alleged violation of California Labor Code § 226.7. (See FAC ¶¶ 17, 18, 41.) “State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1018 (citations omitted). “Labor Code section 226.7, subdivision (a) prohibits an employer from requiring an employee ‘to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission [(IWC)].’” Id. (footnote omitted). ODFL argues that Rodriguez’s UCL claim based on a § 226.7 violation is deficient because Rodriguez’s UCL claim is inadequately pleaded under Rule 8 and because § 226.7 violation payments are not subject to restitution under the UCL. Rodriguez’s UCL claim is adequately pleaded with respect to § 226.7. He specifically alleges that he was not provided a lawful meal period or rest break. (FAC ¶¶ 17, 41.) He further alleges that he was not provided the pay required by § 226.7 in lieu of a rest break. (Id. ¶ 18.) Rodriguez details specific practices, (e.g. id. ¶ 17), and instances, (e.g. id. ¶ 19), in the FAC. These allegations are plainly sufficient under Rule 8(a)(2) to support Rodriguez’s UCL claims with respect to the alleged § 226.7 violations. Claims for § 226.7 violations are actionable as UCL claims. Under relevant California law, payments owed for § 226.7 violations are restitutionary in nature and are therefore actionable under the UCL. See Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1099-1100 (“We conclude that the remedy provided in Labor Code section 226.7 constitutes a wage or premium pay and is governed by a three-year statute of limitations . . .”); Brinker, 53 Cal. 4th at 1018 (citations omitted) (“Employers who CV-90 (12/02) MEMORANDUM Page 5 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 5 of 14 Page ID #:721 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 103 of 149 Page ID #:725 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM violate these requirements must pay premium wages”); see also Brandon v. Nat’l R.R. Passenger Corp. Amtrak, No. CV 12-5796 PSG (VBKx), 2013 WL 800265, at *4 (C.D. Cal. Mar. 1, 2013) (citations omitted) (“Plaintiff seeks restitution for unpaid meal and rest periods and unreimbursed business expenses. These expenses are restitutionary and therefore recoverable under the UCL”); Ordonez v. Radio Shack, No. CV 10-7060 CAS (MANx), 2011 WL 499279, at *6 (C.D. Cal. Feb. 7, 2011) (citations omitted) (“The Court concludes that plaintiff’s UCL claim can be maintained to the extent it is based on allegations of section 226.7”). ODFL argues that Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244 (2012) stands for the proposition that a UCL restitution claim cannot be maintained when the basis for the UCL claim is an alleged §226.7 violation. Kirby held that “section 226.7 claims do not constitute ‘action[s] brought for the nonpayment of wages’ within the meaning of section 218.5.” Id. at 1259. However, Kirby also reaffirmed that “the remedy for a violation of the statutory obligation to provide IWC-mandated meal and rest periods is ‘one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.’” Id. at 1256 (quoting § 226.7(b)). Thus, if, as Rodriguez alleges, ODFL failed to provide him the required meal and rest breaks, he is entitled to one additional hour of pay for each work day in which he was not provided the required breaks. In a UCL claim, “restitution means the return of money to those persons from whom it was taken or who had an ownership interest in it.” Shersher v. Super. Ct., 154 Cal. App. 4th 1491, 1497 (2007) (citation and quotation marks omitted). Regardless of whether ODFL’s failure to pay Rodriguez what he was owed under § 226.7 is considered a wage, he has alleged that he is owed money and may thus maintain a UCL restitution claim to obtain the money he is owed. Rodriguez has adequately pleaded an actionable UCL claim for violation of § 226.7. 3. Labor Code §§ 201 For the reasons below, Rodriguez may maintain a UCL claim for Labor Code § 201 violations only for unpaid overtime compensation. He may not maintain a UCL claim for money owed for required meal period and rest breaks that were not provided as Labor Code sections 201 and 202 do not permit recovery for unpaid meal and rest breaks. The portion of his UCL claim based on violations of Labor Code § 201 is dismissed with prejudice. 4. Labor Code § 226(a) As explained below, Rodriguez may not maintain a claim for the provision of CV-90 (12/02) MEMORANDUM Page 6 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 6 of 14 Page ID #:722 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 104 of 149 Page ID #:726 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM inaccurate wage statements in violation of California Labor Code § 226(a). Accordingly, he may also not maintain a UCL claim on this basis. This portion of his UCL claim is dismissed without prejudice. B. Individual Labor Code §§ 201 and 203 Claims Rodriguez claims that ODFL failed to timely pay all wages owed to him on his termination, including all overtime, meal period, and rest break pay. (FAC ¶¶ 52-53.) California Labor Code § 201(1) requires that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Under California law, “‘[w]ages’ includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” Cal. Labor Code § 200(a). California Labor Code § 203 provides: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201 . . . any wages of an employee who is discharged . . . 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 therefor is commenced; but the wages shall not continue for more than 30 days . . . . As explained above, Rodriguez has adequately pleaded an FLSA claim and, as such, has stated a claim for unpaid overtime wages. He may pursue a § 201(a) claim to recover those unpaid wages. Section 203 entitles a terminated employee to “waiting time penalties” of up to 30 days’ wages if the employer “willfully fails to pay” the employee any outstanding wages immediately upon termination. Choate v. Celite Corp., 215 Cal. App. 4th 1460, 155 Cal. Rptr. 3d 915, 922 (2013) (citing Cal. Labor Code § 201). “To act willfully, an employer need not act with a deliberate evil purpose.” Id. (citation and quotation marks omitted). “Rather, the employer need only intentionally fail or refuse to perform an act which was required to be done.” Id. (citation and quotation marks omitted). “However, an employer’s reasonable, good faith belief that wages are not owed may negate a finding of willfulness.” Id. (quoting Cal. Code Regs. tit. 8, § 13520(a)). Rodriguez has alleged that he complained to ODFL’s plant manager, his direct supervisor, regarding ODFL’s allegedly unlawful overtime policy. (FAC ¶ 19.) He has also alleged that several wage statements indicate that he was not paid the proper overtime amounts. (Id. ¶ 14.) Rodriguez has sufficiently pleaded that ODFL intentionally failed or refused to pay him what he was due. He has adequately pleaded a § 203 violation with respect to unpaid overtime compensation. CV-90 (12/02) MEMORANDUM Page 7 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 7 of 14 Page ID #:723 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 105 of 149 Page ID #:727 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM Rodriguez may not, however, pursue section 201 and 203 claims for the non- payment of premium wages due as a result of ODFL failing to provide required meal periods and rest breaks. Kirby forecloses the possibility of an action under sections 201 and 203 for the nonpayment of wages. When an employee sues for a violation of section 226.7, he or she is suing because an employer has allegedly “require[d] [the] employee to work during [a] meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” (§ 226.7, subd. (a).) In other words, a section 226.7 action is brought for the nonprovision of meal and rest periods, not for the “nonpayment of wages.” Sections 201 and 202 provide a useful contrast to section 226.7. Section 201 provides that when “an employer discharges an employee, the wages earned and unpaid at the time of the discharge are due and payable immediately” (§ 201, subd. (a)), and section 202 provides that when an “employee has given 72 hours previous notice of his or her intention to quit, . . . the employee is entitled to his or her wages at the time of quitting” (§ 202, subd. (a)). When an employee sues on the ground that his or her former employer has violated one of these provisions, the suit is an “action brought for the nonpayment of wages.” In other words, the employer’s nonpayment of wages is the basis for the lawsuit. By contrast, when an employee sues on the ground that his or her employer has violated section 226.7, the basis for the lawsuit is the employer’s nonprovision of statutorily required rest breaks or meal breaks. . . . The failure to provide required meal and rest breaks is what triggers a violation of section 226.7. Accordingly, a section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for non-provision of meal or rest breaks. 53 Cal. 4th at 1255-57. Kirby makes clear that an employer who owes an employee a premium wage under § 226.7 is not also liable for a violation of § 203. See Jones v. Spherion Staffing LLC, No. LA CV11-06462 JAK (JCx), 2012 WL 3264081, at *8-*9 (C.D. Cal. Aug. 7, 2012) (“For several reasons, the Court finds that Plaintiff cannot advance a claim for . . . failure to pay wages due upon termination pursuant to section 203 based solely on alleged violations of section 226.7”). As Rodriguez cannot maintain a § 203 claim on the basis of unpaid compensation due under § 226.7 as a matter of law, this portion of his § 203 claim is dismissed with prejudice. CV-90 (12/02) MEMORANDUM Page 8 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 8 of 14 Page ID #:724 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 106 of 149 Page ID #:728 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM C. Individual Labor Code § 226(a) Claims Rodriguez has failed to adequately plead a Labor Code § 226(a) claim. Labor Code § 226(a) “sets forth nine itemized requirements for a wage statement.” Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1142 n.4 (2011).1 “To recover damages under section 226, subdivision (e), an employee must suffer injury as a result of a knowing and intentional failure by an employer to comply with the statute.” Id. at 1142 (footnote omitted). “The injury requirement in section 226, subdivision (e), cannot be satisfied simply because one of the nine itemized requirements in section 226, subdivision (a) is missing from a wage statement.” Id. As currently pleaded, Rodriguez’s alleged injury, the non-payment of overtime wages owed, did not arise “as a result of a knowing and intentional failure” of ODFL to list the proper hourly rate for overtime. In fact, Rodriguez alleges that he was able to determine that he was not properly compensated for all hours he considered to be overtime hours because the wage statements were “accurate” in the sense that they listed the hourly rate that ODFL actually applied to hours worked. (See FAC ¶ 14.) By contrast, Price held that a cognizable injury in fact arises from, for example, cases in which plaintiffs “sufficiently alleged (and presented evidence) of an injury arising from inaccurate or incomplete wage statements, which required those plaintiffs to engage in discovery and mathematical computations to reconstruct time records to determine if they were correctly paid.” 192 Cal. App. 4th at 1143 (citations omitted). Rodriguez pleads that he “independently knew that [ODFL’s] overtime policy was unlawful” and specifies that he was paid overtime in “similar position[s] with similar duties . . . for shifts over 8 hours per day and/or 40 hours per week.” (FAC ¶ 16.) Rodriguez has failed to state a claim for a § 226(a) violation. While it appears Rodriguez is unable to state a § 226(a) claim as a matter of law, he may amend the FAC as it is not certain that any amendment would be futile. D. Wrongful Termination in Violation of Public Policy As explained above, Federal Rule of Civil Procedure 15(a)(2) dictates that Rodriguez be permitted to amend his complaint to include a wrongful termination claim. This claim will not be dismissed. 1 The relevant § 226(a) requirement is that a wage statement lists “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. . . .” CV-90 (12/02) MEMORANDUM Page 9 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 9 of 14 Page ID #:725 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 107 of 149 Page ID #:729 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM E. Retaliation in Violation of Public Policy Rodriguez has sufficiently pleaded his retaliation in violation of public policy claim. (See FAC ¶¶ 69-75.) He has alleged sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In any event, ODFL’s arguments regarding temporal proximity and admissibility are more properly addressed in a motion for summary judgment. F. Intentional Infliction of Emotional Distress (IIED) “A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009) (citations and quotation marks omitted). Taking his allegations as true, Rodriguez has done enough under California law to survive a motion to dismiss as to his IIED claim as he has alleged that ODFL had knowledge of the falsity of its conduct, including making allegedly false representations to the California Employment Development Department, (FAC ¶¶ 22-27), and retaliating against him, which allegedly constitutes outrageous conduct, (id. ¶¶ 69-71, 75), and that such conduct could cause the “severe emotional distress, anxiety” and other injuries Rodriguez claims, (id. ¶¶ 88). See Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 288 (2009) (reversing a grant of summary judgment on an IIED claim and explaining that “[a] claim for distress arising out of employment is not barred where the distress is engendered by an employer’s illegal discrimination practices . . . [n]either discrimination nor harassment is a normal incident of employment” (citations and quotation marks omitted)). Rodriguez has done enough to provide ODFL with fair notice of the scope and substance of his IIED claim and questions as to admissibility and applicable evidence supporting the claim are best addressed in a motion for summary judgment. G. Defamation “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999) (citations omitted). “Publication means communication to some third person who understands the defamatory meaning of the statement and its application CV-90 (12/02) MEMORANDUM Page 10 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 10 of 14 Page ID #:726 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 108 of 149 Page ID #:730 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM to the person to whom reference is made.” Id. “ Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” Id. (quotation marks omitted) (citing Cunningham v. Simpson, 1 Cal. 3d 301, 306 (1969)). “Under the ‘common-interest privilege,’ codified in California in Civil Code section 47, subdivision (c) . . . a defendant who makes a statement to others on a matter of common interest is immunized from liability for defamation so long as the statement is made ‘without malice.’” Lundquist v. Reusser, 7 Cal. 4th 1193, 1279 (1994) (footnote omitted). [I]n enacting section 47(c), the Legislature intended to codify without change the common law common-interest privilege. At common law, that privilege embodied a two-step analysis, under which the defendant bore the initial burden of demonstrating that the allegedly defamatory communication was made upon a privileged occasion, and the plaintiff then bore the burden of proving that defendant had made the statement with malice. Id. at 1208. “Courts have consistently interpreted section 47, subdivision (c) to apply in the employment context.” Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1369 (2003) (citation omitted). Further, the plain text of § 47(c) makes clear that it “applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.” As currently pleaded, Rodriguez’s defamation claim concerns statements regarding “poor performance” made to a prospective employer. (FAC ¶ 93.) Section 47(c) clearly applies to his defamation claim. As he has failed to allege that the statements were made with malice, his claim is deficient. Rodriguez’s defamation claim is dismissed without prejudice. H. Class Claims Motions to dismiss class allegations are rarely granted. See, e.g. In re Wal-Mart Stores, Inc. Wage and Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007) (explaining that “dismissal of class allegations at the pleading stage should be done rarely and . . . the better course is to deny such a motion because the shape and form of a class action evolves only through the process of discovery”) (citations and quotation marks omitted). The Ninth Circuit has explained that “[a]lthough a party seeking class certification is not always entitled to discovery on the class certification issue, the propriety of a class action cannot be determined in some cases without discovery [and] the better and more CV-90 (12/02) MEMORANDUM Page 11 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 11 of 14 Page ID #:727 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 109 of 149 Page ID #:731 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (citations and quotation marks omitted). “District courts have broad discretion to control the class certification process, and whether or not discovery will be permitted lies within the sound discretion of the trial court.” Id. (citations and quotation marks omitted). ODFL’s motion is premature and the Court declines to consider its substantive arguments at this time. I. Injunctive Relief Former employees may not seek injunctive relief because they “would not stand to benefit from an injunction . . . at [their] former place of work.” Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006). Rodriguez is a former employee. (See FAC ¶ 3.) Rodriguez seeks “injunctive relief to ensure compliance with this section, pursuant to California Business & Professions Code § 17200 . . . .” (FAC Prayer ¶ 8.) His legal basis for injunctive relief is unclear, however, as he argues only that he “seeks injunctive relief only as is necessary to enforce the restitution, including, if necessary, the appointment of a receiver.” (Pl.’s Opp’n 23.) He cites no cases or statutory support for the propriety of his injunction request and the scope or effect of his requested injunctive relief is entirely unclear from the FAC. The injunctive relief request is dismissed without prejudice. J. Damage Claims Rodriguez seeks punitive damages for his wrongful termination, retaliation, IIED, and defamation claims. As noted above, his wrongful termination, retaliation, and IIED claims will not be dismissed. “California law long has recognized that discharges in violation of public policy may be actionable torts for which punitive damages can be recovered under Civil Code section 3294.” Commodore Home Sys., Inc. v. Super. Ct., 32 Cal. 3d 211, 220 (1982) (citations omitted). California Civil Code § 3294 provides “that punitive damages are available in all noncontractual civil actions unless otherwise limited.” Id. at 217. Rodriguez brings claims directly against his employer. (See, e.g., FAC ¶¶ 68, 72, 75-76). An action for wrongful discharge in violation of public policy “can only be asserted against an employer.” Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008). A corporation such as ODFL “is a legal fiction that cannot act except through its employees or agents, a corporation and its employees generally function as a single legal unit and are the same legal person for purposes of applying various tort, agency, and jurisdiction principles.” Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 1392 (2011) CV-90 (12/02) MEMORANDUM Page 12 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 12 of 14 Page ID #:728 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 110 of 149 Page ID #:732 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM (citations omitted). Civil Code § 3294(b) applies because it states that “[a]n employer shall not be liable” for punitive damages “unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” As ODFL is a corporate employer, in order to maintain his punitive damage claims, Rodriguez must allege that the relevant “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” See Miklosy, 44 Cal. 4th at 900 (“An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort”). He fails to do so. For example, he does not plead any facts about the knowledge or intentions of any “officer, director, or managing agent of” ODFL. As Rodriguez’s IIED and retaliation claims are brought directly against ODFL, they are also subject to the § 3294(b) limitation. Rodriguez’s punitive damage claims are dismissed without prejudice. Rodriguez brings Labor Code §§ 201 and 203 claims for “actual, consequential, and incidental losses and damages.” ODFL properly points out that the statutory language of sections 201 and 203 provide only for the payment of wages due, § 201, and penalty wages, § 203. There is no provision for “consequential, and incidental losses and damages.” Rodriguez’s “consequential, and incidental losses and damages” claim is dismissed without prejudice. K. Attorneys’ Fees under California Code of Civil Procedure § 1021.5 “Section 1021.5 codifies California’s version of the private attorney general doctrine, which is an exception to the usual rule that each party bears its own attorney fees.” Robinson v. City of Chowchilla, 202 Cal. App. 4th 382, 390 (2011) (citing Olson v. Auto. Club of S. Cal., 42 Cal. 4th 1142, 1147 (2008)). “The purpose of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” Id. (citing Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 565 (2004)). A court may award attorneys fees under § 1021.5 to: (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest if (3) a significant benefit has been conferred on the general public or a large class of persons, (4) private enforcement is necessary because no public entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement is such as to make a fee award appropriate, and (6) in the interests of justice the CV-90 (12/02) MEMORANDUM Page 13 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 13 of 14 Page ID #:729 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 111 of 149 Page ID #:733 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM fees should not be paid out of the recovery. Id. (footnote omitted). As the class allegations remain, it remains possible for Rodriguez to satisfy the second and third criteria above. The attorneys’ fees request will not be stricken. IV. CONCLUSION The motion to dismiss is GRANTED IN PART and DENIED IN PART. The FAC is dismissed with leave to amend consistent with this order. An amended complaint must be filed and served no later than July 9, 2013. Failure to file by that date will waive the right to do so. The Court does not grant leave to add new defendants or new claims. Leave to add defendants or new claims must be sought by a separate, properly noticed motion. Defendant’s response will be due July 30, 2013. IT IS SO ORDERED. CV-90 (12/02) MEMORANDUM Page 14 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 14 of 14 Page ID #:730 Exhibit G Exhibit G Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 112 of 149 Page ID #:734 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 113 of 149 Page ID #:735 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 114 of 149 Page ID #:736 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 115 of 149 Page ID #:737 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 116 of 149 Page ID #:738 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 117 of 149 Page ID #:739 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 118 of 149 Page ID #:740 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 119 of 149 Page ID #:741 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 120 of 149 Page ID #:742 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 121 of 149 Page ID #:743 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 122 of 149 Page ID #:744 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 123 of 149 Page ID #:745 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 124 of 149 Page ID #:746 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 125 of 149 Page ID #:747 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 126 of 149 Page ID #:748 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 127 of 149 Page ID #:749 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 128 of 149 Page ID #:750 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 129 of 149 Page ID #:751 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 130 of 149 Page ID #:752 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 131 of 149 Page ID #:753 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 132 of 149 Page ID #:754 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 133 of 149 Page ID #:755 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 134 of 149 Page ID #:756 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 135 of 149 Page ID #:757 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 136 of 149 Page ID #:758 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 137 of 149 Page ID #:759 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 138 of 149 Page ID #:760 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 139 of 149 Page ID #:761 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 140 of 149 Page ID #:762 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 141 of 149 Page ID #:763 Exhibit H Exhibit H Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 142 of 149 Page ID #:764 Exhibit I Exhibit I Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 143 of 149 Page ID #:765 Exhibit J Exhibit J Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 144 of 149 Page ID #:766 Exhibit J Exhibit J Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 145 of 149 Page ID #:767 STATE OF CALIFORNIA Arnold Schwarzenegger, Governor DEPARTMENT OF INDUSTRIAL RELATIONS Headquarters P.O. Box 420603 San Francisco, CA 94142 Tel: (415) 703-4810 Fax: (415) 703-4807 Robert A. Jones Acting State Labor Commissioner and Chief Counsel Division of Labor Standards Enforcement 2006.07.06 July 6, 2006 Colette Wolf Boise Cascade LLC Legal Department 11111 West Jefferson Street P.O. Box 50 Boise, Id. 83728 Re: Electronic Itemized Wage Statements Dear Ms. Wolf: Thank you for your inquiry concerning the application of Labor Code section 226(a). Specifically, you have requested an opinion as to whether under certain circumstances an employer’s obligation to provide an employee with a “wage statement” may be met by providing an employee with such a record in electronic form, as an alternative to a “hard copy” paper document. The requirement for an employer to provide employees with wage statements is contained in Labor Code section 226(a). Section 226(a) provides: Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or an applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any applicable piece rate if Exhibit K Exhibit K Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 146 of 149 Page ID #:768 2006.07.06 2 the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates1 in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. The purpose of the wage statement requirement is to provide transparency as to the calculation of wages. A complying wage statement accurately reports most of the information necessary for an employee to verify if he or she is being properly paid in accordance with the law and that deductions from wages are proper.1 Section 226(a) makes it possible for an employee to retain a copy of his/her own pay records which are not subject to alteration. Labor Code section 226(a) indicates that a wage statement may be in the form of an “accurate itemized statement in writing” when the employee is paid by personal check or cash. Labor Code section 8 states in pertinent part: “Writing includes any form of recorded message capable of comprehension by ordinary visual means.” As an electronically stored wage statement which is accessible by an employee may be read on a screen or printed and read as a hard copy, it appears to qualify as a “statement in writing.” Section 226(a) provides that an employee being paid with a payroll check be provided a wage statement as a “detachable part of the check.” While the reference to “detachable part of the check” is susceptible to an interpretation that a “hard copy” may be required, in the context of the entire subsection it appears to allow for the continued use of the convenient and traditional “pay stub” alternative to a separate statement in writing. The apparent intent of both forms of wage statements described in Section 226(a) is to allow employees to maintain their own records of wages earned, deductions, and pay received. The Division in recent years has sought to harmonize the “detachable part of the check” provision and the “accurate itemized statement in writing” provision of Labor Code section 226(a) by allowing for electronic wage statements so long as each employee retains the right to elect to receive a written paper stub or record and that those who are provided with electronic wage statements retain the ability to easily access the information and convert the electronic statements into hard copies at 1 Whether an employee is properly classified as exempt from the overtime pay requirements of Labor Code section 510 and the IWC Orders is not susceptible to verification from review of the wage statement alone. However, a wage statement may reveal that an employee is non-exempt if it shows that an employee is paid a salary of less than twice the minimum wage calculated on the basis of a 40 hour week. See Labor Code section 515(a). Exhibit K Exhibit K Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 147 of 149 Page ID #:769 2006.07.06 3 no expense to the employee. Additionally, the Division has indicated that the record keeping requirements of Labor Code section 226 and 1174 must be adhered to and the pay records must be retained by the employer for a period of at least three years and be accessible by employees and former employees. Any electronic wage statement system must incorporate proper safeguards that ensure the confidentiality of the employee’s confidential information. The system envisioned by your client appears to meet the concerns outlined above. Your client indicates that its electronic wage statement procedures will incorporate the following features: 1. An employee may elect to receive paper wage statements at any time; 2. The wage statements will contain all information required under Labor Code section 226(a) and will be available on a secure website no later than pay day; 3. Access to the website will be controlled by unique employee identification numbers and confidential personal identification numbers (PINs). The website will be protected by a firewall and is expected to be available at all times with the exception of downtime caused by system errors or maintenance requirements; 4. Employees will be able to access their records through their own personal computers or by company provided computers. Computer terminals will be available to all employees for accessing these records at work. 5. Employees will be able to print copies of their electronic wage statements at work on printers that are in close proximity to the computer or computer terminal. There will be no charge to the employee for accessing their records or printing them out. Employees may also access their records over the internet and save it electronically and/or print it on their own printer. 6. Wage statements will be maintained electronically for at least three years and will continue to be available to active employees for that entire time. Former employees will be provided paper copies at no charge upon request. There is no requirement for employers to obtain approval from the Division before implementing an electronic wage statement system. Indeed the Legislature has not established such a duty on the part of the DLSE or provided DLSE with such administrative authority. As with most provisions of the Labor Code employers are required to comply without any formal action by the Labor Commissioner.2 Due to both changes in the law and confusion that has resulted from previous Opinion Letters 1999.07.19 and 2002.12.04, this letter supersedes them and they are withdrawn. 2 Some provisions of the Labor Code and Wage Orders require prior Labor Commissioner action in the form of issuance of a registration, granting of approval, or provision of consent. For example, there are registration requirements in the garment, car wash, and farm labor industries which require employers to obtain a registration from the Labor Commissioner prior to employing workers. Similarly, employers must obtain the “consent” of the Labor Commissioner before a minor may be employed in the entertainment industry. Employers also may apply to the Labor Commissioner for exemptions to certain sections of the Orders of the Industrial Welfare Commission. [These examples are not intended as an exhaustive list of such provisions.] Exhibit K Exhibit K Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 148 of 149 Page ID #:770 2006.07.06 4 This opinion letter sets forth an interpretation of Labor Code section 226(a) which is utilized in our administrative enforcement efforts of the wage statement requirement. This interpretation is based on our understanding as to the current state of the law and, of course, is subject to subsequent interpretations by the courts and/or action of the Legislature. Employers are advised that while the courts may find this opinion of the enforcement agency to be persuasive authority, they are not required to follow this interpretation and that compliance with the guidelines suggested herein do not establish a “safe harbor” in actions brought by private parties under auspices of the Labor Code Private Attorneys General Act of 2004 (PAGA) or other private enforcement actions. This opinion is based exclusively on the facts and circumstances described in your request and is given based on your representation, express or implied, that you have provided a full and fair description of all the facts and circumstances that would be pertinent to our consideration of the questions presented. Existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein. You have represented that this opinion is not sought by a party to pending private litigation concerning the issue addressed herein. You have also represented that this opinion is not sought in connection with an investigation or litigation between a client or firm and the Division of Labor Standards Enforcement. Thank you for your attention to the requirements of the California wage and hour laws and your inquiry. Very Truly Yours, /s/ Robert A. Jones Chief Counsel and Acting Labor Commissioner Exhibit K Exhibit K Case 2:16-cv-07337-PSG-FFM Document 31-1 Filed 03/07/17 Page 149 of 149 Page ID #:771 87581555.2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 ONOFRE SORATORIO, an individual, On Behalf of Himself and All Other Similarly Situated Non-Exempt Former and Current Employees, Plaintiffs, vs. TESORO REFINING & MARKETING COMPANY, LLC, a Delaware Corporation; BP PIPELINES (NORTH AMERICA), INC., a Maine Corporation; and DOES 1 through 10, Defendants. CASE NO. 2:17-cv-01554-MWF-AFM [Los Angeles County Superior Court Case No. BC642295] [PROPOSED] ORDER GRANTING DEFENDANTS TESORO REFINING & MARKETING COMPANY, LLC AND BP PIPELINES (NORTH AMERICA), INC.’S MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f): Date: Monday, April 3, 2017 Time: 10:00 a.m. Crtrm.: 5A Judge: Hon. Michael W. Fitzgerald Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 1 of 10 Page ID #:772 87581555.2 1 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER The motion of Defendants Tesoro Refining & Marketing Company, LLC (Tesoro) and BP Pipelines (North America), Inc. (collectively, “Defendants”) to dismiss and/or strike Plaintiff Onofre Soratorio’s (“Plaintiff”) Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(f) came on regularly for hearing before this Court on April 3, 2017. The appearances of counsel for the parties were made and noted on the record. After full consideration of the written evidence and arguments submitted by the parties, the Court’s records and files on this action, and the oral arguments of the parties’ counsel, IT IS HEREBY ORDERED AS FOLLOWS: 1. The Motion shall be and hereby is GRANTED. [and] 2. Plaintiff’s purported First Cause of Action for unpaid overtime under Cal. Lab. Code § 510 shall be and hereby is dismissed because: a. Instead of pleading facts, the claim alleges nothing more than conclusory allegations against Defendants, which fail to satisfy the pleading requirements of Fed. R. Civ. P. 8 (“Rule 8”). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Iqbal”); Landers v. Quality Comm., Inc., 771 F.3d 638, 644-45 (9th Cir. 2014); Dawson v. HITCO Carbon Composites, Inc., Case No. 2:16-cv-07337 (C.D. Cal. Jan. 20, 2017) (Dkt. #27) at p. 7 (Gutierrez, J.); Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141, *9-14 (E.D. Cal. Nov. 2, 2016); Raphael v. Tesoro Ref. and Mktg. Co. LLC, Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 2 of 10 Page ID #:773 87581555.2 2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 2015 WL 4127905, *3 (C.D. Cal. July 8, 2015) (Wright, J.); Silva v. AvalonBay Cmtys, Inc., 2015 WL 11422302, *8 (C.D. Cal. Oct. 8, 2015) (Kronstadt, J.); Byrd v. Masonite Corp., 2016 WL 756523, *3 (C.D. Cal. Feb. 25, 2016) (Bernal, J.); Sanchez v. The Ritz Carlton, 2015 WL 5009659. *3 (C.D. Cal. Aug. 17, 2015) (Gutierrez, J.); Stevens v. Datascan Field Servs. LLC, 2015 WL 5245002, *1 (E.D. Cal. Sept. 8, 2015); and/or b. The claim is time-barred by the applicable three-year statute of limitations with respect to BP. See, e.g., Gentry v. Superior Court, 42 Cal.4th 443, 470-71 (2007); Carranza v. Nordstrom, Inc., 2014 U.S. Dist. LEXIS 172307, at *20 n.37 (C.D. Cal. Dec. 12, 2014) (Morrow, J.). [and/or] 3. Plaintiff’s purported Second Cause of Action for meal break premiums pursuant to Cal. Labor Code §§ 226.7 and 512(a) shall be and hereby is dismissed because: a. Instead of pleading facts, the claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; Sanchez, 2015 WL 5009659, *2; Robles v. Schneider National Carriers, Inc., C.D. Cal. Case No. 5:16-cv-02482-JGB-KK (Dkt. #17 thereto) at pp. 4-5 (Bernal, J.); Freeman v. Zillow, Inc., 2015 WL 5179511, *5 (C.D. Cal. Mar. 19, 2015) (Staton, J.); Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128, *2 (C.D. Cal. Mar. 25, 2015) (Staton, J.); Raphael, 2015 WL 4127905, at *2-3; Byrd, 2016 Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 3 of 10 Page ID #:774 87581555.2 3 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 WL 756523, *3; Sanchez, 2015 WL 5009659, at *2-3; Guerrero, 2016 U.S. Dist. LEXIS 152141, *16; Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738, at *15-17 (E.D. Cal. Feb. 3, 2017); Lefevere v. Pacific Bell Directory, 2014 WL 5810530, *1, 3 (N.D. Cal. Nov. 17, 2014); Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011); and/or b. The claim is time-barred by the applicable three-year statute of limitations with respect to BP. Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1099 (2007). [and/or] 4. Plaintiff’s purported Third Cause of Action for rest break premiums pursuant to Cal. Labor Code § 226.7 (“Section 226.7”) shall be and hereby is dismissed because: a. The claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; Freeman, 2015 WL 5179511, *5; Sinohui, 2015 WL 11072128, *2; and/or b. The claim is time-barred by the applicable three-year statute of limitations with respect to BP. Murphy, 40 Cal.4th at 1099. [and/or] Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 4 of 10 Page ID #:775 87581555.2 4 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Plaintiff’s purported Fourth Cause of Action for failure to timely pay wages at separation and/or waiting time penalties pursuant to Cal. Labor Code §§ 201- 203 shall be and hereby is dismissed because: a. The claim fails to set forth sufficient facts to comply with the pleading requirements of Rule 8. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; Lopez v. Aerotek, Inc., 2015 WL 4504691, *2 (C.D. Cal. July 23, 2015) (Carney, J.); Dawson, C.D. Cal. Case No. 2:16-cv-07337 (Dkt. #27) at pp. 7-8; Robles, C.D. Cal. Case No. 5:16-cv-02482- JGB-KK (Dkt. #17) at p. 11; and/or b. Plaintiff’s Complaint is devoid of any factual allegation of a willful failure to pay all wages due. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581, *8 (N.D. Cal. Apr. 18, 2013); Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166, *14 (N.D. Cal. May 8, 2013); Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426, p. 23 (Sept. 20, 2011); and/or c. Section 226.7 payments for missed or non-compliant meal and rest breaks do not constitute “wages earned” for purposes of triggering the final pay requirements. Jones v. Spherion Staffing, LLC, 2012 WL 3264081, *8-9 (C.D. Cal. Aug 7, 2012) (Kronstadt, J.); Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 2:13-cv-00891-DSF-RZx (C.D. Cal. June 18, 2013) (Dkt. #31) at pp.7-8 (Fischer, J.); Guerrero, 2016 U.S. Dist. LEXIS 152141, *21- 24; Singletary v. Teavana Corporation, 2014 WL 1760884, *4 (N.D. Cal. Apr. 2, 2014); Ling v. P.F. Chang’s China Bistro, Inc., 245 Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 5 of 10 Page ID #:776 87581555.2 5 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Cal.App.4th 1242, 1261 (2016); and/or d. The claim is time-barred by the applicable three-year statute of limitations with respect to BP. Pineda v. Bank of America, N.A., 50 Cal.4th 1389, 1304 (2010). [and/or] 6. Plaintiff’s purported Fifth Cause of Action for late payment of regular wages pursuant to Cal. Labor Code § 204 (“Section 204”) shall be and hereby is dismissed because Plaintiff has failed to state a viable claim for relief given that Section 204 simply regulates the timing of wage payments, and Plaintiff does not allege that Defendant failed to comply with the wage payment timing requirements of Section 204. Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383, *2 (C.D. Cal. Sept. 22, 2010) (Otero, J.); De La Torre v. American Red Cross, 2013 WL 5573101, *15, n.13 (C.D. Cal. Oct. 9, 2013) (Pregerson, J.); Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114, 1136 (N.D. Cal. 2011); Singer v. Becton, Dickinson & Co., Med- Safe Sys., 2008 WL 2899825, *3 (S.D. Cal. July 23, 2008); See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889, 905 (2012); In re Application of Moffett, 19 Cal.App.2d 7, 13 (1937). 7. Plaintiff’s purported Sixth Cause of Action for failure to provide accurate, itemized wage statements in violation of Cal. Lab. Code § 226(a) (“Section 226(a)”) shall be and hereby is dismissed because: a. The claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; 50; Dawson, C.D. Cal. Case No. 2:16-cv-07337 (Dkt. #27) at pp. 9-11; Robles, Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 6 of 10 Page ID #:777 87581555.2 6 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 C.D. Cal. Case No. 5:16-cv-02482-JGB-KK (Dkt. #17) at pp. 7-11; Ramirez v. Manpower, Inc., 2014 WL 116531, *5 (N.D. Cal. Jan. 13, 2014); Brown, 2013 WL 1701581, *8; and/or b. Plaintiff fails to allege that his wage statements were inaccurate as to the payment of wages actually paid to him. Cal. Labor Code § 226(e)(2)(B)(i)-(ii); De La Torre, 2013 WL 5573101, *6; and/or c. The Complaint is devoid of any factual allegation whatsoever that Plaintiff in fact suffered any cognizable injury. Cal. Lab. Code § 226(e); Angeles v. U.S. Airways, Inc., 2013 WL 622032, *10 (N.D. Cal. Feb. 19, 2013); De La Torre, 2013 WL 5573101, *6; Dawson, C.D. Cal. Case No. 2:16-cv-07337 (Dkt. #27) at pp. 9-10; Silva, 2015 WL 11422302, *10; Guerrero, 2016 U.S. Dist. LEXIS 152141, *17- 21; Willner v. Manpower Inc., 2012 WL 1570789, *3 (N.D. Cal. May 3, 2012); and/or d. Section 226.7 payments are not subject to reporting under Section 226(a). Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, *8 (C.D. Cal. Nov. 28, 2011); Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426, p. 23 (Sept. 20, 2011); and/or e. The claim is time-barred by the applicable one- and three-year limitations periods with respect to BP. Murphy, 40 Cal.4th at 1108; Dawson, C.D. Cal. Case No. 2:16-cv-07337 (Dkt. #27) at p. 10; Singer, 2008 WL 2899825, at *5. Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 7 of 10 Page ID #:778 87581555.2 7 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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/or] 8. Plaintiff’s purported Seventh Cause of Action for violation of the California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., shall be and hereby is dismissed because: a. The claim is derivative of the factually and legally insufficient allegations of Plaintiff’s First through Sixth Causes of Action that also fail as a matter of law. Dawson, C.D. Cal. Case No. 2:16-cv- 07337 (Dkt. #27) at pp. 12-13; Robles, C.D. Cal. Case No. 5:16-cv- 02482-JGB-KK (Dkt. #17) at pp. 3-5; Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379, *25 (E.D. Cal. May 31, 2013); Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983, 992 (S.D. Cal. 2012); and/or b. To the extent such penalties are being sought based on an alleged failure to provide legally-compliant meal and rest breaks or otherwise pay premiums for non-compliant meal and rest breaks under Section 226.7, such payments are not subject to restitution and, therefore, are not recoverable under the UCL. Murphy, 40 Cal.4th at 1113; Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244, 1255 (2012); Nguyen, 2011 WL 6018284, *8; Parson v. Golden State FC, LLC, 2016 WL 1734010, *6-7 (N.D. Cal. May 2, 2016); Guerrero, 2017 U.S. Dist. LEXIS 15738, *19-20; and/or c. To the extent such penalties are being sought based on an alleged a failure to provide accurate itemized wage payments under Section 226 or a failure to pay waiting time penalties under Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 8 of 10 Page ID #:779 87581555.2 8 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 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 Section 203, such payments are not subject to restitution and, therefore, are not recoverable under the UCL. Pineda, 50 Cal.4th at 1304; Campbell v. PriceWaterhouseCoopers, 2008 WL 3836972, *6 (E.D. Cal. Aug. 14, 2008); Rubin v. Wal-Mart Stores, Inc., 599 F.Supp.2d 1176, 1179 (N.D. Cal. 2009); In re Wal-Mart Stores, Inc., 505 F.Supp.2d 609, 619 (N.D. Cal. 2007). [and/or] 9. Plaintiff’s request for injunctive relief shall be and hereby is dismissed or stricken because he lacks standing to seek such relief as a former employee. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011); Richards v. Ernst & Young LLP, 2010 WL 682314, *3 (N.D. Cal. Feb. 24, 2010); Dawson, C.D. Cal. Case No. 2:16-cv-07337 (Dkt. #27) at p. 13; Robles, C.D. Cal. Case No. 5:16-cv-02482- JGB-KK (Dkt. #17) at p. 5, n.3; DeLodder v. Aerotek, Inc., 2009 WL 3770670, *3 (C.D. Cal. Nov. 9, 2009) (Snyder, J.); Guerrero, 2017 U.S. Dist. LEXIS 15738, *21- 24; Price v. Starbucks Corp., 192 Cal.App.4th 1136, 1142 n. 5 (2011). [and/or] 10. Plaintiff’s request for attorneys’ fees and costs pursuant to Cal. Code Civ. P. § 1021.5 shall be and hereby is stricken because such fees are not available where, as here, Plaintiff primarily seeks to vindicate his own personal financial interests. DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007); Flannery v. Cal. Highway Patrol, 61 Cal.App.4th 629, 636 (1998). [and/or] Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 9 of 10 Page ID #:780 87581555.2 9 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND/OR STRIKE UNDER FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Plaintiff’s prayers for punitive damages, consequential damages, incidental damages, and emotional distress damages (including both mental pain and anguish) shall be and hereby are stricken because such remedies are not recoverable under the Labor Code sections Plaintiff invokes for his purported claims. Brewer, 168 Cal.App.4th at 1252; In re Wal-Mart Stores, Inc., 505 F.Supp.2d at 620-621; Korea Supply, 29 Cal.4th at 1148; Barrera v. The Home Depot U.S.A., Inc., N.D. Cal. Case No. 5:12-cv-05199-LHK (May 20, 2015) Dkt. #124 at p. 2. IS SO ORDERED. DATE: ____________________ ____________________________________ HON. MICHAEL W. FITZGERALD UNITED STATES DISTRICT JUDGE Case 2:16-cv-07337-PSG-FFM Document 31-2 Filed 03/07/17 Page 10 of 10 Page ID #:781