Belen Torrez v. Freedom Mortgage Corporation, et al

NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Complaint ; Memorandum of Points and Authorities in Support Thereof

C.D. Cal.June 9, 2017

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 103718.00203/105622276v.1 DEFENDANT FREEDOM MORTGAGE CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT BLANK ROME LLP Michael L. Ludwig (SBN 173850) Ludwig@BlankRome.com Caroline P. Donelan (SBN 268762) CDonelan@BlankRome.com 2029 Century Park East, 6th Floor Los Angeles, CA 90067 Telephone: 424.239.3400 Facsimile: 424.239.3434 Attorneys for Defendant FREEDOM MORTGAGE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION BELEN TORREZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, vs. FREEDOM MORTGAGE CORPORATION, a New Jersey corporation; and DOES 1 through 100, inclusive, Defendants. Case No. 5:17-CV-00867-JGB-KK Hon. Jesus G. Bernal DEFENDANT FREEDOM MORTGAGE CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Fed. R. Civ. P. 12(b)(6)] [Filed concurrently with [Proposed] Order] Date: July 10, 2017 Time: 9:00 a.m. Location: Courtroom 1 Complaint Filed: April 3, 2017 Removal Filed: May 4, 2017 Trial Date: None Set Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 1 of 21 Page ID #:143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105622276v.1 i DEFENDANT FREEDOM MORTGAGE CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on July 10, 2017 at 9:00 a.m., in Courtroom 1, of the above-entitled Court, located at 3470 Twelfth Street, Riverside, California 92501 before the Honorable Jesus G. Bernal, Defendant FREEDOM MORTGAGE CORPORATION (“Freedom”), by and through its undersigned counsel, will, and hereby does, move this Court for an Order, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissing the claims against it (“Motion”) as alleged in the complaint (“Complaint”) filed by Plaintiff BELEN TORREZ (“Plaintiff”). This Motion is made on the ground that the Complaint fails to allege facts sufficient to state a claim against Freedom upon which relief can be granted. This Motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, all of the papers on file with this Court, and upon such oral argument and/or documentary matters as may be presented to this Court at or before the hearing on this Motion. DATED: June 9, 2017 BLANK ROME LLP By: /s/ Michael L. Ludwig Michael L. Ludwig Caroline P. Donelan Attorneys for Defendant FREEDOM MORTGAGE CORPORATION Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 2 of 21 Page ID #:144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105622276v.1 ii TABLE OF CONTENTS TABLE OF CONTENTS Page I. INTRODUCTION ................................................................................................ 1 II. PROCEDURAL AND FACTUAL BACKGROUND ......................................... 2 A. Plaintiff Filed A Generic Wage And Hour Class Action Complaint In State Court And Freedom Removed It Under CAFA. .......................... 2 B. Factual Background ................................................................................... 2 1. Plaintiff Alleges That She Briefly Worked For Freedom As An Hourly Employee In 2015 and 2016. ......................................... 2 2. The Complaint Includes Only Generic Allegations of Wage And Hour Violations. ....................................................................... 3 III. TWOMBLY AND IQBAL MANDATE DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE SUFFICIENT FACTS. .................. 4 A. A 12(b)(6) Motion To Dismiss Should Be Granted Where, As Here, A Plaintiff Fails To Allege Enough Facts To State A Claim For Relief That Is Plausible On Its Face. ................................................... 4 B. The First And Fourth Causes Of Action For Failure To Pay Overtime And Minimum Wages Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. .......................... 6 C. The Second And Third Causes Of Action For Failure To Provide Meal And Rest Periods Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief.......................................... 9 D. The Fifth Cause Of Action For Failure To Pay Wages Upon Termination Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. .......................................................... 11 E. The Sixth Cause Of Action For Failure To Provide Accurate Wage Statements Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. .......................................................... 12 F. The Seventh Cause Of Action For Failure To Reimburse Business- Related Expenses Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. .................................................... 13 G. The Eighth Cause Of Action For Unfair Competition Should Be Dismissed Because It Is Derivative Of Plaintiff’s Defective Wage And Hour Claims. .................................................................................... 14 IV. CONCLUSION .................................................................................................. 15 Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 3 of 21 Page ID #:145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105622276v.1 iii TABLE OF AUTHORITIES TABLE OF AUTHORITIES Page(s) Cases Albrecht v. Lund, 845 F.2d 193 (9th Cir. 1988) ..................................................................................... 5 Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................... 1, 2, 4, 5, 7, 8 Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007)................................................................................... 1, 2, 4, 5, 7 Bellinghausen v. Tractor Supply Co., 2013 U.S. Dist. LEXIS 131384 (N.D. Cal. Sept. 13, 2013) .................................... 10 Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930(N.D. Cal. Apr. 18, 2013) ........................................ 10 Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb. 25, 2016) ................. 7, 10, 11, 12, 14 Clark v. EmCare, Inc., 2017 U.S. Dist. LEXIS 40687 (N.D. Cal. Mar. 21, 2017) ...................................... 10 Daughtery v. Solarcity Corp., 2017 U.S. Dist. LEXIS 11838 (N.D. Cal. Jan. 26, 2017) ................................. 10, 11 Gonzalez v. Fallanghina, LLC, 2016 U.S. Dist. LEXIS 96121 (N.D. Cal. July 22, 2016) .............................. 10 Guerrero v. Halliburton Energy Services, 2017 U.S. Dist. LEXIS 15738 (E.D. Cal. Feb. 3, 2017) ................................... 10, 11 Henningham v. Insphere Ins. Solutions, Inc., 2013 U.S. Dist. LEXIS 5888 (N.D. Cal. Apr. 24, 2013) ......................................... 14 In re Gilead Scis. Sec. Litig., 536 F. 3d 1049 (9th Cir. 2008) .................................................................................. 5 Landers v. Quality Comm’ns., Inc., 771 F.3d 638 (9th Cir. 2014) (substituted opinion at 2015 U.S. App. LEXIS 1290 (9th Cir. Jan. 26, 2015) ......................................................................... 7 Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 4 of 21 Page ID #:146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105622276v.1 iv TABLE OF AUTHORITIES Lopez v. Aerotek, Inc., 2015 WL 4504691 (C.D. Cal. July 23, 2015) ......................................................... 11 Navarro v. Block, 250 F. 3d 729 (9th Cir. 2001) .................................................................................... 5 Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184, 1192 (N.D. Cal. 2014) ............................................................. 7 Rubin v. Wal-Mart Stores, Inc., 599 F. Supp. 2d 1176 (N.D. Cal. Feb. 25, 2009) ..................................................... 15 Sanchez v. Ritz Carlton, 2015 U.S. Dist. LEXIS 119770 (C.D. Cal. Aug. 17, 2015) .................... 6, 11, 13, 14 Schneider v. Space Sys./Loral, Inc., 2012 U.S. Dist. LEXIS 19001 (N.D. Cal. Feb. 14, 2012) ......................................... 7 Soratorio v. Tesoro Refining & Marketing Co., LLC, 2017 U.S. Dist. LEXIS 63627 (C.D. Cal. Apr. 26, 2017) ............................. 7, 12, 15 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ..................................................................................... 5 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ..................................................................................... 5 Tan v. GrubHub, Inc., 171 F. Supp. 3d 998 (N.D. Cal. Mar. 21, 2016) .................................................. 6, 14 Statutes Cal. Bus. & Prof. Code § 17200 ................................................................................... 15 Cal. Lab. Code § 201 .................................................................................................... 11 Cal. Lab. Code § 203 .................................................................................................... 11 Cal. Lab. Code § 203(a) ................................................................................................ 11 Cal. Lab. Code § 226 .................................................................................................... 12 Cal. Lab. Code § 226(a) .......................................................................................... 12, 13 Cal. Lab. Code § 226.7 ................................................................................................... 9 Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 5 of 21 Page ID #:147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105622276v.1 v TABLE OF AUTHORITIES Cal. Lab. Code § 510 ...................................................................................................... 6 Cal. Lab. Code § 512(a) .................................................................................................. 9 Cal. Lab. Code § 512(a) .................................................................................................. 9 Cal. Lab. Code § 1194 .................................................................................................... 6 Cal. Lab. Code § 1197 .................................................................................................... 6 Cal. Lab. Code § 1197.1 ................................................................................................. 6 Cal. Lab. Code § 1198 .................................................................................................... 6 Cal. Lab. Code § 2800 .................................................................................................. 13 Cal. Lab. Code § 2802 ............................................................................................ 13, 14 Other Authorities Fed. R. Civ. P. 8(a) ......................................................................................................... 4 Fed. R. Civ. P. 8(a)(2) ..................................................................................................... 4 Fed. R. Civ. P. 12(b)(6) .................................................................................................. 4 IWC Wage Order § 12(a) ................................................................................................ 9 Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 6 of 21 Page ID #:148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105622276v.1 1 MEMORANDUM OF POINTS AND AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On April 3, 2017, Plaintiff Belen Torrez (“Plaintiff”) filed a generic wage and hour class action complaint against her former employer, Defendant Freedom Mortgage Corporation (“Freedom”), on behalf of herself and each and every “hourly paid” or “non-exempt” employee who worked for Freedom in California since April 2013. Plaintiff alleges in a conclusory fashion that Freedom violated a laundry list of California Labor Code provisions by purportedly failing to pay regular and overtime wages, provide meal and rest periods, timely pay final wages, provide accurate wage statements, and reimburse reasonable and necessary business expenses. The Complaint, however, contains nothing more than threadbare recitals of the elements of Plaintiff’s claims, generic class action allegations, and mere legal conclusions. The Complaint does not include any facts specific to Plaintiff, her work at Freedom, the putative class, Freedom’s business, or Freedom’s alleged California Labor Code violations. For example, while Plaintiff alleges generally that she and the putative class members were not paid regular and overtime wages, the Complaint provides no information concerning when, how, or why she and the putative class members were not paid such wages nor does the Complaint allege the amount of such wages purportedly owed. The Complaint also wholly fails to allege or describe any company-wide policy or practice by which Freedom allegedly failed to pay regular and overtime wages. Thus, Plaintiff’s boilerplate allegations are insufficient to show any individual or class-wide harm, and they also are wholly inadequate to enable Freedom to formulate a meaningful defense. Put simply, the Complaint, constructed entirely of formulaic recitations of legal elements and conclusions of law, does not meet the minimum pleading requirements established by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter…to ‘state a claim to Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 7 of 21 Page ID #:149 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 103718.00203/105622276v.1 2 MEMORANDUM OF POINTS AND AUTHORITIES relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Accordingly, because the Complaint is devoid of any substantive factual allegations to state a claim for relief, the Court should grant Freedom’s Motion to Dismiss and dismiss the Complaint in its entirety. II. PROCEDURAL AND FACTUAL BACKGROUND A. Plaintiff Filed A Generic Wage And Hour Class Action Complaint In State Court And Freedom Removed It Under CAFA. On April 3, 2017, Plaintiff filed this putative wage and hour class action, individually and on behalf of similarly situated individuals,1 against Freedom in the San Bernardino County Superior Court, asserting an array of violations of California labor law, in the case entitled Belen Torrez, individually, and on behalf of other members of the general public similarly situated v. Freedom Mortgage Corporation, a New Jersey Corporation; and, DOES 1 through 100, inclusive, San Bernardino Superior Court Case No. CIVDS 1705761 (the “Complaint”). Freedom subsequently removed this action on May 4, 2017, under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). (ECF 1.) On May 24, Plaintiff filed a Motion to Remand this action to the San Bernardino County Superior Court, arguing only that the $5 million “amount in controversy” element is not met. (ECF 10.) While Freedom vehemently denies that it owes any of the amounts alleged in the Complaint, it filed an Opposition to the Motion to Remand which showed and confirmed that, based on the allegations in the Complaint, the $5 million amount in controversy requirements is easily satisfied. The hearing on the Motion to Remand is set for June 27, 2017. B. Factual Background 1. Plaintiff Alleges That She Briefly Worked For Freedom As An Hourly Employee In 2015 and 2016. 1 Plaintiff seeks to represent “[a]ll current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of this Complaint to final judgment.” (Complaint, ¶ 13.) Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 8 of 21 Page ID #:150 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 103718.00203/105622276v.1 3 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff alleges that she was employed by Freedom as an “hourly-paid, non- exempt employee” in California from approximately July 2015 to September 2016. (Complaint, ¶ 18.) The Complaint does not allege any other facts specific to Plaintiff, such as the position she held at Freedom, her job duties, or in what unit or department she worked at Freedom. The Complaint likewise does not allege any facts concerning the length of her average workweek, the number of hours she worked, or the average hourly rate at which she was paid. As for Freedom, the Complaint merely alleges that Freedom is a New Jersey corporation which employs employees “throughout the State of California, including the County of San Bernardino.” (Complaint, ¶ 6.) The Complaint does not allege any other facts concerning Freedom’s business, policies, or practices, including its wage and hour policies or practices. 2. The Complaint Includes Only Generic Allegations of Wage And Hour Violations. Based on nothing more than the allegation that Plaintiff formerly worked for Freedom as a non-exempt employee, Plaintiff seeks to litigate this wage and hour class action on behalf of every non-exempt Freedom employee in California for alleged violations of California wage and hour laws. Specifically, the Complaint purports to assert the following eight causes of action against Freedom: (1) failure to pay overtime wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to pay minimum wages; (5) failure to timely pay final wages; (6) failure to furnish accurate wage statements; (7) failure to reimburse business expenses; and (8) violation of California’s unfair competition law (“UCL”). The Complaint, however, provides nothing more than formulaic recitations of the law and naked assertions of liability. Plaintiff fails to allege any substantive facts in support of her class action claims for minimum and overtime wages, failure to provide meal or rest breaks, failure to reimburse business expenses, failure to provide accurate wage statements, and failure to timely pay final wages. Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 9 of 21 Page ID #:151 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 103718.00203/105622276v.1 4 MEMORANDUM OF POINTS AND AUTHORITIES For example, the first and fourth causes of action are for failure to pay overtime and minimum wages, respectively. (Complaint, ¶¶ 43-51, 72-77.) Plaintiff alleges that she and the putative class members performed work for Freedom for which they were not compensated and, accordingly, they are entitled to unpaid minimum and overtime wages. (Complaint, ¶¶ 48-51, 74-75.) However, Plaintiff does not explain when she allegedly performed work for which she was not paid or how much she allegedly is owed (or even how she was paid). Indeed, Plaintiff fails to allege any facts concerning her rate of pay or the number of hours she typically worked. Nor does she identify any work allegedly performed by the putative class members that went unpaid. The Complaint also fails to allege any company-wide policy or practice that deprived the putative class of all wages due. Similarly, the seventh cause of action for failure to reimburse business-related expenses merely alleges that she and the other class members “incurred necessary business-related expenses and costs that were not fully reimbursed by Defendants.” (Complaint, ¶ 93.) Plaintiff does not identify a single business-related cost or expense that Freedom allegedly failed to reimburse. Nor does Plaintiff allege any facts showing a company-wide policy or practice to justify class treatment of a claim for failure to reimburse business expenses. The other causes of action similarly fail to assert any substantive allegations concerning Freedom’s purported wage and hour violations. III. TWOMBLY AND IQBAL MANDATE DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE SUFFICIENT FACTS. A. A 12(b)(6) Motion To Dismiss Should Be Granted Where, As Here, A Plaintiff Fails To Allege Enough Facts To State A Claim For Relief That Is Plausible On Its Face. Federal Rule of Civil Procedure 8(a) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must therefore provide a defendant with “fair notice” of Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 10 of 21 Page ID #:152 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 103718.00203/105622276v.1 5 MEMORANDUM OF POINTS AND AUTHORITIES the claims against it and the grounds for relief. Bell Atlantic Corp. v. Twombly (“Twombly”), 550 U.S. 544, 555 (2007) (internal quotations and citations omitted). “[I]t demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal (“Iqbal”), 556 U.S. 662, 678 (2009) (citations omitted). A complaint can survive a motion to dismiss under Rule 12(b)(6) only where the plaintiff alleges “enough facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). If the Court “can only infer the mere possibility of misconduct, the complaint must be dismissed because it has alleged-but has failed to show-that the pleader is entitled to relief.” Id. In considering a motion to dismiss, the Court must accept as true all factual allegations contained in the complaint.2 Id. at 550; Navarro v. Block, 250 F. 3d 729, 732 (9th Cir. 2001). However, the Court need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable references.” In re Gilead Scis. Sec. Litig., 536 F. 3d 1049, 1055 (9th Cir. 2008). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions.” Twombly, 550 U.S. at 555 (internal citations omitted). “[A] formulaic recitation of the elements of a cause of action will not do.” Id.; see also, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (A court should not accept “threadbare recitals of a cause of action’s elements, supported by merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”). Further, the 2 As discussed above, the Complaint contains only two factual allegations relevant to her claims: (1) “Plaintiff commenced her employment as an hourly-paid, non-exempt employee for Defendants in the State of California on or about July 2015 and resigned on or about September 2016.” (Complaint, ¶ 18.); (2) Freedom is “an employer whose employees are engaged throughout the State of California, including the County of San Bernardino.” (Complaint, ¶ 6.) Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 11 of 21 Page ID #:153 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 103718.00203/105622276v.1 6 MEMORANDUM OF POINTS AND AUTHORITIES Court may properly dismiss a claim with prejudice if “amendment would be futile.” Swartz v. KPMG LLP, 476 F.3d 756, 761 (9th Cir. 2007) (citing Albrecht v. Lund, 845 F.2d 193, 197 (9th Cir. 1988)). As demonstrated below, rather than pleading any facts to state a plausible claim for relief, the Complaint amounts to nothing more than a recitation of legal elements, conclusions of law, and class action allegations. Accordingly, the Court should grant Freedom’s Motion to Dismiss and dismiss the Complaint in its entirety. B. The First And Fourth Causes Of Action For Failure To Pay Overtime And Minimum Wages Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. The first and fourth causes of action allege in a conclusory and generic manner that Freedom violated California’s wage and hour laws by failing to pay Plaintiff and the putative class members minimum and overtime wages for all hours worked. Indeed, California law requires that employers pay overtime wages to non-exempt employees at a rate of one and one half time their regular rate of pay for hours worked in excess of eight hours in a day and/or 40 hours in a week. Cal. Labor Code § 510. California law also requires that employers pay at least the minimum wage to employees for all hours worked. Cal. Labor Code §§ 1194, 1197. Here, the Complaint provides only a formulaic recitation of the elements of a claim for unpaid overtime and minimum wages. With respect to Plaintiff’s claim for failure to pay overtime wages, the Complaint merely alleges that “[d]uring the relevant time period, Plaintiff and the other class members worked in excess of eight (8) hours in a day, and/or in excess of forty (40) hours in a week” and that Freedom “intentionally and willfully failed to pay [such] overtime wages.” (Complaint, ¶ 48 and 49.) The Complaint contains no other factual allegations to support her overtime claim. With respect to Plaintiff’s claim for unpaid minimum wages, the Complaint merely alleges that during the relevant time period, Freedom “failed to pay minimum Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 12 of 21 Page ID #:154 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 103718.00203/105622276v.1 7 MEMORANDUM OF POINTS AND AUTHORITIES wages to Plaintiff and the other class members as required [by] California Labor Code sections 1194, 1197, 1197.1.” (Complaint ¶ 74.) Again, the Complaint contains no other factual allegations to support her claim for unpaid minimum wages. Plaintiff’s generic and conclusory allegations are insufficient as a matter of law. See, Sanchez v. Ritz Carlton, 2015 U.S. Dist. LEXIS 119770, *7 (C.D. Cal. Aug. 17, 2015) (holding that something “beyond conclusory allegations [that] ties the alleged labor-code violation to Plaintiffs” is required); Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1007 (N.D. Cal. Mar. 21, 2016) (“[M]ere conclusory allegations that class members ‘regularly’ or ‘regularly and consistently’ worked more than 40 hours per week-without any further detail-fall short of Twombly/Iqbal.”); see also, Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184, 1192 (N.D. Cal. 2014); Schneider v. Space Sys./Loral, Inc., 2012 U.S. Dist. LEXIS 19001 (N.D. Cal. Feb. 14, 2012). To state a plausible claim, and thus to survive a motion to dismiss, Plaintiff, at a minimum, must “allege facts showing that there was a given week in which [s]he was entitled to but denied minimum or overtime wages.” Landers v. Quality Comm’ns., Inc., 771 F.3d 638 (9th Cir. 2014) (substituted opinion at No. 12-15890, 2015 U.S. App. LEXIS 1290 (9th Cir. Jan. 26, 2015)); see, Soratorio v. Tesoro Refining & Marketing Co., LLC, 2017 U.S. Dist. LEXIS 63627, *16-17 (C.D. Cal. Apr. 26, 2017) (applying Landers to California Labor Code claims). For example, in Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb. 25, 2016), the Court rejected nearly identical allegations of overtime violations as those alleged by Plaintiff here as insufficient to state a “plausible” claim for relief: With respect to Plaintiff’s overtime pay claim, he fails to identify a single workweek in which he worked in excess of eight hours in a day or forty hours in a week such that he was entitled to overtime pay. Plaintiff does not allege his rate of pay, estimate how much overtime he was entitled to but did not receive, nor allege whether this occurred on a consistent basis. Moreover, he does not allege the basis for his knowledge and belief that other [] employees worked shifts in excess of eight hours and/or forty hours without adequate compensation. Indeed, the Complaint does not identify the length of any shift worked by Plaintiff to show that Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 13 of 21 Page ID #:155 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 103718.00203/105622276v.1 8 MEMORANDUM OF POINTS AND AUTHORITIES Defendants’ various obligations under the [California] Labor Code were triggered. Under Landers, Plaintiff fails to state a claim for unpaid overtime. Byrd, 2016 U.S. Dist. LEXIS 23435, *7-9 (emphasis added). “A plaintiff may establish a plausible claim by estimating the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility.” Landers, 2015 U.S. App. LEXIS 1290, *16-17 Here, the Complaint is similarly deficient. The Complaint only alleges in a conclusory fashion that Freedom failed to pay Plaintiff and the putative class members all minimum and overtime wages purportedly due to them. (Complaint, ¶¶ 48-49, 74.) The Complaint is devoid of any actual facts to support her claims. The Complaint fails to identify a single workweek in which she (or any putative class member for that matter) supposedly worked in excess of eight hours in a day or 40 hours in a week and was not paid overtime. Indeed, the Complaint does not contain a single allegation specific to Plaintiff-not her rate of pay, not the length of her average workweek, not the number of hours she was typically scheduled to work, not an estimate of the amount of regular or overtime wages she believes she is owed, not the circumstances under which she allegedly was not paid wages, and not any other fact that will permit the Court to find plausibility. Similarly, the Complaint also neglects to allege any circumstances to support her assertion that Freedom purportedly “engaged in a pattern and practice of wage abuse” against the putative class members. (Complaint, ¶ 25.) Plaintiff does not allege any facts showing her supposed knowledge that “other class members” were not paid minimum and overtime wages. Nor does Plaintiff allege any facts detailing a uniform policy or practice by Freedom of not paying all wages owed. Simply, the Complaint amounts to nothing more than a recitation of legal elements and conclusions, which the Court should not accept as true. See, Iqbal, 556 U.S. at 678. “The tenet that a court must accept as true all of the allegations contained Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 14 of 21 Page ID #:156 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 103718.00203/105622276v.1 9 MEMORANDUM OF POINTS AND AUTHORITIES in a complaint is inapplicable to legal conclusions.” Id. Accordingly, Plaintiff has not advanced sufficient facts in support of these claims, and thus, the Court should dismiss the first and fourth causes of action. C. The Second And Third Causes Of Action For Failure To Provide Meal And Rest Periods Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. The second and third causes of action allege that Freedom failed to provide meal and rest periods in violation of California Labor Code §§ 512(a) and 226.7. California law provides that “[a]n 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.” Cal. Labor Code § 512(a). California law also requires that employers “authorize and permit” a 10-minute rest break for every four hours worked or major fraction thereof. IWC Wage Order § 12(a). Here, the Complaint provides only a formulaic recitation of California’s meal and rest period requirements. Plaintiff has not provided any details surrounding the basis for her claims so as to permit an inference that she or any member of the putative class has a right to relief. With respect to the meal period claim, the Complaint merely alleges that: • Plaintiff and the other class members who were scheduled to work for a period of time no longer than six hours, and who did not waive their legally-mandated meal periods by mutual consent, were required to work for periods longer than five hours without an uninterrupted meal period of not less than 30 minutes. (Complaint, ¶ 57.); • Plaintiff and the other class members who were scheduled to work for a period of time in excess of six hours were required to work for periods longer than five hours without an uninterrupted meal period of not less than 30 minutes. (Complaint, ¶ 58.); and • Defendants intentionally and willfully required Plaintiff and the other class members to work during meal periods. (Complaint, ¶¶ 59.). There are no other factual allegations in support of Plaintiff’s meal period claim. Plaintiff makes similar boilerplate allegations with respect to the rest period claim. Plaintiff alleges only that Freedom willfully required Plaintiff and other class Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 15 of 21 Page ID #:157 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 103718.00203/105622276v.1 10 MEMORANDUM OF POINTS AND AUTHORITIES members to work during mandated rest periods and failed to pay them the rest period premium for work performed during rest periods. (Complaint, ¶¶ 67-68.) There are no other allegations to support Plaintiff’s rest period claim. To avoid dismissal, Plaintiff is required to provide an adequate factual basis for her claim, which she has not done. “While the requirements for a claim under section 512 are straightforward-the employer failed to provide the requisite meal period-a plaintiff cannot state such a claim without any factual allegations supporting the claim.” Bellinghausen v. Tractor Supply Co., 2013 U.S. Dist. LEXIS 131384, *10 (N.D. Cal. Sept. 13, 2013) (emphasis added). Plaintiff’s allegations are merely conclusory statements of law masquerading as factual allegations, which are insufficient as a matter of law. See, e.g., Daughtery v. Solarcity Corp., 2017 U.S. Dist. LEXIS 11838, *17-20 (N.D. Cal. Jan. 26, 2017) (dismissing meal and rest break claim where the complaint failed to set forth any factual allegations showing an entitlement to relief.); Clark v. EmCare, Inc., 2017 U.S. Dist. LEXIS 40687, *9 (N.D. Cal. March 21, 2017) (dismissing meal and rest break claims where the complaint failed to identify or describe a single instance where defendant failed to provide meal and rest periods); Guerrero v. Halliburton Energy Services, 2017 U.S. Dist. LEXIS 15738, *15-18 (E.D. Cal. Feb. 3, 2017) (holding that allegations that plaintiff felt “pressured” by defendants assigning “too much work” “stop[] short of the line between possibility and plausibility of ‘entitlement to relief.’”); Byrd, 2016 U.S. Dist. LEXIS 234435, *9 (holding that a plaintiff “must identify a specific instance in which he was denied…a meal period[] or rest break.”); Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930, *13(N.D. Cal. Apr. 18, 2013) (allegations that defendant “pressured, incentivized, and discouraged” plaintiffs form taking lunch insufficient to survive a 12(b)(6) motion because plaintiffs did not provide any facts surrounding these alleged tactics); Gonzalez v. Fallanghina, LLC, 2016 U.S. Dist. LEXIS 96121, *17 (N.D. Cal. July 22, 2016) (allegations of meal/rest break violations insufficient absent “facts and circumstances that support the elements of his claims….”). Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 16 of 21 Page ID #:158 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 103718.00203/105622276v.1 11 MEMORANDUM OF POINTS AND AUTHORITIES Because Plaintiff has not alleged any factual support for her meal and rest period claims, the Court should dismiss the second and third causes of action. D. The Fifth Cause Of Action For Failure To Pay Wages Upon Termination Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. The insufficiency of Plaintiff’s generalized allegations is underscored by a cursory review of the fifth cause of action for failure to pay wages upon termination and/or for waiting time penalties under California Labor Code §§ 201 to 203. Section 203 of the Labor Code provides that “[i]f an employer willfully fails to pay…any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid…for more than 30 days.” Cal. Labor Code § 203(a). To state a claim, Plaintiff is required to offer some “explanation of what wages remain unpaid after termination.” Daughtery, 2017 U.S. Dist. LEXIS 11838, *17-20 (emphasis in original); see also, Lopez v. Aerotek, Inc., 2015 WL 4504691, *2 (C.D. Cal. July 23, 2015); Guerrero, 2016 U.S. Dist. LEXIS 152141, *22; Sanchez, 2015 U.S. Dist. LEXIS 119770, *9-10. However, Plaintiff’s allegations in the fifth claim merely parrot the statutory language, stating that Freedom “intentionally and willfully failed to pay Plaintiff and the other class members…their wages, earned and unpaid, within seventy-two (72) hours of leaving [Freedom’s] employ.” (Complaint ¶ 80.) These generalized allegations are insufficient to allow Freedom to form any meaningful understanding of Plaintiff’s claim, much less formulate a meaningful defense to such claims. Plaintiff failed to allege what wages were earned and not paid or how or in what manner wages were untimely. Indeed, this Court has dismissed identical allegations as those alleged by Plaintiff here. In Byrd v. Masonite Corp., 2016 U.S. Dist. LEXIS 23435 (C.D. Cal. Feb. 26, 2016), the Court dismissed a claim for waiting time penalties which was based on the following factual allegation: “During the relevant time period, Defendants intentionally and willfully failed to pay Plaintiffs and the other class Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 17 of 21 Page ID #:159 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 103718.00203/105622276v.1 12 MEMORANDUM OF POINTS AND AUTHORITIES members who are n longer employed by Defendants their wages earned and unpaid, within seventy-two (72) hours of leaving Defendants’ employ.” Byrd, 2016 U.S. Dist. LEXIS 23435, *10-11, n. 9. Thus, the Court should dismiss the fifth cause of action for failure to timely pay wages upon termination and/or for waiting time penalties.3 E. The Sixth Cause Of Action For Failure To Provide Accurate Wage Statements Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. The Sixth Cause of Action is for failure to furnish accurate wage statements pursuant to California Labor Code § 226. Section 226 requires employers to provide employees with itemized wage statements. Cal. Labor Code § 226(a). An employee may bring a claim if he or she suffered an injury as a result of a “knowing and intentional failure” by an employer to comply with this requirement. Id. at subd. (e)(1). Here, Plaintiff’s wage statement claim is based on the allegation that Freedom “intentionally and willfully” failed to provide her and the other class members with complete and accurate wage statements. (Complaint, ¶ 86.) Yet, Plaintiff does not allege a single fact showing why or how the purported violations were knowing or intentional. For this reason alone, Plaintiff’s claim should be dismissed. Soratorio, 2017 U.S. Dist. LEXIS 63627, *22 (holding that plaintiff’s conclusory allegation that defendant’s supposed wage statement violations were knowing and intentional fails to state a claim as a matter of law). In addition, Plaintiff does not allege facts demonstrating that she (or any class member) has actually suffered an injury because of Freedom’s purported failure to provide accurate wage statements. The Complaint merely alleges that as a result of Freedom’s purported violations, “Plaintiff and the other class members have been 3 In addition, because Plaintiff’s claim for failure to pay wages upon termination and/or for waiting time penalties is derivative to the defective First, Second, Third, and Fourth Causes of Action, the Court should dismiss this claim for the same reasons set forth above. See, Section IV.A.1-2, supra. Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 18 of 21 Page ID #:160 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 103718.00203/105622276v.1 13 MEMORANDUM OF POINTS AND AUTHORITIES injured…because they were denied both their legal right to receive, and their protected interest in receiving, accurate itemized wage statements pursuant to California Labor Code section 226(a).” (Complaint, ¶ 88.) The deprivation of Plaintiff’s legal right to receive accurate itemized wage statements, without more, is insufficient to state a cognizable injury. While an employee may be deemed to have suffered an injury for certain specific violations of Section 226, for some violations of Section 226 an employee still must allege and show that he or she suffered an injury to recover damages. Unfortunately, Plaintiff’s allegations of violations of Section 226 are so generic and conclusory that it is impossible to ascertain how Freedom allegedly violated the statute. Finally, the sixth cause of action alleges that, due to Freedom’s wage and hour violations, Plaintiff and the class members received inaccurate wage statements that did not include the total number of hours worked. (Complaint, ¶ 86.) Because Plaintiff’s underlying claims for failure to pay minimum and overtime wages and for failure to provide meal and rest periods are deficient, this derivative claim should also be dismissed. Sanchez, 2015 U.S. Dist. LEXIS 119770, *9 (“[B]ecause the underlying claims…were already dismissed, this derivative claim must also be dismissed.”). Accordingly, the Court should dismiss the sixth cause of action. F. The Seventh Cause Of Action For Failure To Reimburse Business- Related Expenses Should Be Dismissed Because Plaintiff Alleges No Facts To State A Claim For Relief. The seventh cause of action alleges that Freedom failed to properly reimburse him and putative class for business-related expenses in accordance with California Labor Code §§ 2800 and 2802. California law requires employers to reimburse employees for all reasonable and necessary expenditures incurred in discharging their duties. Cal. Labor Code § 2800, 2802. “Section 2802 claims are sufficiently pled where the complaint identifies the particular expenses that were not reimbursed and affirmatively alleges that the expenses were part of the Plaintiff’s job duties.” Tan, Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 19 of 21 Page ID #:161 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 103718.00203/105622276v.1 14 MEMORANDUM OF POINTS AND AUTHORITIES 171 F. Supp. 3d at 1005 (emphasis added). “Merely alleging failure to reimburse unspecified work-related expenses is not enough to state a Section 2802 claim.” Id.; Henningham v. Insphere Ins. Solutions, Inc., 2013 U.S. Dist. LEXIS 5888, *5 (N.D. Cal. Apr. 24, 2013). Here, Plaintiff again has wholly failed to provide anything more than generic, conclusory allegations to support her claim. The Complaint merely alleges that “Plaintiff and the other class members incurred necessary business-related expenses and costs that were not fully reimbursed by [Freedom].” (Complaint ¶ 93.) Plaintiff further alleges that Freedom’s failure to reimburse her and the class members was intentional and willful. (Complaint ¶ 94.) Again, there are no factual allegations presented to support an inference that Plaintiff (or any putative class member) actually has a plausible claim for relief-namely a description of the specific business-related costs and/or expenses that Plaintiff and the putative class allegedly incurred. See, Sanchez, 2015 U.S. Dist. LEXIS 119770, *6 (“[A]t a minimum, a complaint must include plausible factual allegations that the plaintiff was a victim of the [] alleged violations of the labor laws.”). Plaintiff’s generic and conclusory allegations are insufficient as a matter of law. Indeed, in Byrd, the Court held that the following allegation, without more, was insufficient as a matter of law to state a claim for failure to reimburse business-related expenses: “Plaintiffs and the other class members incurred necessary business-related expenses and costs that were not fully reimbursed by Defendants.” See, Byrd, 2016 U.S. Dist. LEXIS 23435, *11, n. 13. This is almost exactly what Plaintiff alleged here. Accordingly, the Court should dismiss the seventh cause of action. G. The Eighth Cause Of Action For Unfair Competition Should Be Dismissed Because It Is Derivative Of Plaintiff’s Defective Wage And Hour Claims. The eighth cause of action is for violation of California’s Unfair Competition Law (“UCL”) under California Business and Professions Code § 17200. Plaintiff Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 20 of 21 Page ID #:162 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 103718.00203/105622276v.1 15 MEMORANDUM OF POINTS AND AUTHORITIES alleges that Freedom’s purported wage and hour violations constitute unlawful business practices in violation of California Business and Professions Code § 17200, et seq. (Complaint, ¶ 97.) Because Plaintiff’s UCL claim is entirely derivative of her other claims, the UCL claim must be dismissed. See, Rubin v. Wal-Mart Stores, Inc., 599 F. Supp. 2d 1176, 1179 (N.D. Cal. Feb. 25, 2009) (holding that where claims for violations of the California Labor Code failed, the derivative claim for unfair competition also failed); Soratorio, 2017 U.S. Dist. LEXIS 63627, *22-23 (“Because . . . each of Plaintiff’s other claims for relief fail as a matter of law, his UCL claim fails as well.”). Thus, the Court should dismiss the eighth cause of action. IV. CONCLUSION For all the foregoing reasons, Freedom respectfully requests that the Motion be granted in its entirety and the Complaint dismissed without leave to amend. DATED: June 9, 2017 BLANK ROME LLP By: /s/ Michael L. Ludwig Michael L. Ludwig Caroline P. Donelan Attorneys for Defendant FREEDOM MORTGAGE CORPORATION Case 5:17-cv-00867-JGB-KK Document 12 Filed 06/09/17 Page 21 of 21 Page ID #:163 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105799916v.1 [PROPOSED] ORDER GRANTING DEFENDANT FREEDOM MORTGAGE CORPORATION’S MOTION TO DISMISS COMPLAINT BLANK ROME LLP Michael L. Ludwig (SBN 173850) Ludwig@BlankRome.com Caroline P. Donelan (SBN 268762) CDonelan@BlankRome.com 2029 Century Park East, 6th Floor Los Angeles, CA 90067 Telephone: 424.239.3400 Facsimile: 424.239.3434 Attorneys for Defendant FREEDOM MORTGAGE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION BELEN TORREZ, individually, and on behalf of other members of the general public similarly situated, Plaintiff, vs. FREEDOM MORTGAGE CORPORATION, a New Jersey corporation; and DOES 1 through 100, inclusive, Defendants. Case No. 5:17-CV-00867-JGB-KK Hon. Jesus G. Bernal [PROPOSED] ORDER GRANTING DEFENDANT FREEDOM MORTGAGE CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT [Filed concurrently with Defendant’s Motion to Dismiss Complaint, Memorandum of Points and Authorities in Support Thereof] Date: July 10, 2017 Time: 9:00 a.m. Location: Courtroom 1 Complaint Filed: April 3, 2017 Removal Filed: May 4, 2017 Trial Date: None Set Case 5:17-cv-00867-JGB-KK Document 12-1 Filed 06/09/17 Page 1 of 2 Page ID #:164 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 103718.00203/105799916v.1 1 [PROPOSED] ORDER GRANTING DEFENDANT FREEDOM MORTGAGE CORPORATION’S MOTION TO DISMISS COMPLAINT TO THIS HONORABLE COURT, PLAINTIFF AND HER ATTORNEY OF RECORD: WHEREAS Defendant Freedom Mortgage Corporation (“Defendant”) filed a Motion to Dismiss Complaint on June 9, 2017 (“Motion”). WHEREAS on _____________, 2017, Defendant’s Motion came on for hearing before this Court, the Honorable Jesus G. Bernal presiding. The Court, having considered the Motion and all of the papers filed in connection with the Motion, the records and files in this action, and any oral arguments presented by counsel thereon, and Good Cause appearing, the Court issues the following order: IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Complaint is GRANTED. IT IS SO ORDERED. Dated: _________________________ _________________________________ Honorable Jesus G. Bernal Judge of the United States District Court Case 5:17-cv-00867-JGB-KK Document 12-1 Filed 06/09/17 Page 2 of 2 Page ID #:165