Juan Garcia v. Wal-Mart Stores, Inc., et al

NOTICE OF MOTION AND MOTION to Dismiss Case - Plaintiff's Third Amended Complaint

C.D. Cal.May 8, 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 NOTICE OF MOTION AND MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx LTL ATTORNEYS LLP Steven C. Gonzalez (SBN 191756) steven.gonzalez@ltlattorneys.com Anthony D. Sbardellati (SBN 246431) anthony.sbardellati@ltlattorneys.com Anthony William Gomez (SBN 280720) anthony.gomez@ltlattorneys.com 300 South Grand Avenue, 14th Floor Los Angeles, CA 90071 Tel: (213) 612-8900 Facsimile: (213) 612-3773 Attorneys for Defendant Wal-Mart Stores, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JUAN GARCIA, on behalf of himself and all others similarly situated and the general public, Plaintiff, v. WAL-MART STORES, INC., a Delaware corporation; and DOES 1 to 100, inclusive, Defendants. CASE NO.: 5:16-CV-01645 BRO (RAOx) DEFENDANT WAL-MART STORES, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF JUAN GARCIA’S THIRD AMENDED COMPLAINT [Mem. of P. & A. Filed Concurrently] Date: June 5, 2017 Time: 1:30 p.m. Courtroom: 7C Action Filed: May 17, 2016 Removal Date: July 28, 2016 Trial Date: April 3, 2018 Case 5:16-cv-01645-BRO-RAO Document 50 Filed 05/08/17 Page 1 of 2 Page ID #:862 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 1 NOTICE OF MOTION AND MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 5, 2017, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 7C of the above-referenced Court, located at 350 West 1st Street, Los Angeles, California 90012, Defendant Wal-Mart Stores, Inc. (“Wal-Mart”) will and hereby does move this Court for an order dismissing Plaintiff Juan Garcia’s Third Amended Complaint (“SAC”) dated April 24, 2017, pursuant to Federal Rule of Civil Procedure 12(b)(6). This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on April 21 and May 2, 2017. The Motion to Dismiss will be made on the ground that even if taken as true, the allegations set forth in the TAC do not state a meal break claim upon which relief can be granted because the TAC does not satisfy the pleading requirements for its meal break claims as mandated in Federal Rule of Civil Procedure 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Wal-Mart’s Motion is based on this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities in Support of the Motion to Dismiss Plaintiff’s TAC; the pleadings, records, and papers already on file in this action and those filed herein; and such other evidence as may be presented in connection with this Motion. DATED: May 8, 2017 LTL ATTORNEYS LLP /s/ Anthony D. Sbardellati Steven C. Gonzalez Anthony D. Sbardellati Anthony William Gomez Attorneys for Defendant Wal-Mart Stores, Inc. Case 5:16-cv-01645-BRO-RAO Document 50 Filed 05/08/17 Page 2 of 2 Page ID #:863 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 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx LTL ATTORNEYS LLP Steven C. Gonzalez (SBN 191756) steven.gonzalez@ltlattorneys.com Anthony D. Sbardellati (SBN 246431) anthony.sbardellati@ltlattorneys.com Anthony William Gomez (SBN 280720) anthony.gomez@ltlattorneys.com 300 South Grand Avenue, 14th Floor Los Angeles, CA 90071 Tel: (213) 612-8900 Facsimile: (213) 612-3773 Attorneys for Defendant Wal-Mart Stores, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JUAN GARCIA, on behalf of himself and all others similarly situated and the general public, Plaintiff, v. WAL-MART STORES, INC., a Delaware corporation; and DOES 1 to 100, inclusive, Defendants. CASE NO.: 5:16-CV-01645 BRO (RAOx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT WAL-MART STORES, INC.’S MOTION TO DISMISS PLAINTIFF JUAN GARCIA’S THIRD AMENDED COMPLAINT [Notice of Mot. & Mot. to Dismiss Filed Concurrently] Date: June 5, 2017 Time: 1:30 p.m. Courtroom: 7C Action Filed: May 17, 2016 Removal Date: July 28, 2016 Trial Date: April 3, 2018 Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 1 of 15 Page ID #:864 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 i MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx TABLE OF CONTENTS I. INTRODUCTION ............................................................................................. 1 II. FACTUAL BACKGROUND ........................................................................... 1 A. Procedural History. ................................................................................. 1 B. Summary of Relevant Allegations in the TAC. ...................................... 2 III. LEGAL STANDARD ....................................................................................... 3 IV. ARGUMENT .................................................................................................... 4 A. The TAC Fails to Allege Facts Sufficient to State a Claim for Failure to Provide A Second Meal Period (Claim 3). ............................................. 4 1. The TAC Fails To Plead the Factual Circumstances Under Which Plaintiff was Prevented from Taking a Second Meal Break. ............................................................................................ 5 2. Plaintiff Fails to Adequately Plead That Wal-Mart Was Required to Obtain A Waiver for the Second Meal Period. ........................ 8 3. Plaintiff Fails to Plead Any Facts That Plausibly Suggest Wal- Mart Obtained Invalid Waivers of Second Meal Periods From Any Putative Class Member. ........................................................ 9 B. Plaintiff’s Derivative Claims Similarly Fail (Claims 1, 4, 5, 6). .......... 10 V. CONCLUSION ............................................................................................... 11 Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 2 of 15 Page ID #:865 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 ii MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx TABLE OF AUTHORITIES Cases Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................... 3, 4, 5 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) .................................................................................... 4, 5, 8 DeLeon v. Time Warner Cable LLC, Case No. 09-CV-2438-AG, 2009 WL 9426145 (C.D. Cal. Jul. 17, 2009) ...... 5, 6, 7 Diamond v. United States, Case No. 14-cv-01922-VBF, 2015 WL 11215851 (C.D. Cal. May 15, 2015) ........ 9 Diunugala v. J.P. Morgan Chase Bank, N.A., 81 F. Supp. 3d 969 (S.D. Cal. 2015) ........................................................................ 9 Gonzalez v. Fallanghina, LLC, Case No. 16-CV-1832-MEJ, 2016 WL 3951655 (N.D. Cal. Jul. 22, 2016) ............ 7 Guerrero v. Halliburton Energy Servs., Inc., Case No. 16-CV-1300-LJO, 2017 WL 1255777 (E.D. Cal. Feb. 3, 2017) .............. 7 Irigaray Dairy v. Dairy Emps. Union Local No. 17 Christian Labor Ass’n of U.S. Pension Tr., 43 F. Supp. 3d 1080 (E.D. Cal. 2014) ...................................................................... 9 Lefevere v. Pacific Bell Directory, Case No. 14-CV-3803-WHO, 2014 WL 5810530 (N.D. Cal. Nov. 7, 2014) .......... 6 Santa Cruz Med. Clinic v. Dominican Santa Cruz Hosp., Case No. 93-CV-20613-RMW, 1995 WL 150089 (N.D. Cal. Mar. 28, 1995) ...... 10 The Sliding Door Co. v. KLS Doors, LLC, Case No. 13-cv-00196-JGB, 2013 WL 2090298 (C.D. Cal. May 1, 2013) ........... 10 Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 3 of 15 Page ID #:866 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 iii MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx Statutes California Business & Professions Code § 17200 ..................................................... 10 Other Authorities California Labor Code § 226 ..................................................................................... 10 California Labor Code § 512 ................................................................................... 4, 8 California Code of Regulations tit. 8, § 11090 ............................................................ 4 Rules Federal Rule of Civil Procedure 8 ......................................................... 1, 4, 5, 6, 7, 10 Federal Rule of Civil Procedure 12(b)(6) ................................................................ 3, 9 Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 4 of 15 Page ID #:867 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 1 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Although this is his fourth attempt to state a viable meal break claim against Defendant Wal-Mart Stores, Inc. (“Wal-Mart”), Plaintiff Juan Garcia’s (“Plaintiff”) Third Amended Complaint (“TAC”) still fails to plead facts sufficient to state a plausible claim as required by Federal Rule of Civil Procedure 8(a).1 In his attempt to cure his deficient Second Amended Complaint (“SAC”), Plaintiff’s TAC adds only conclusory, boilerplate allegations in support of his meal break claims, e.g., that Wal- Mart scheduled shifts “in such a manner that Plaintiff did not have the opportunity to take a second meal break,” that Wal-Mart has “documented a policy essentially stating that Logistics Employees are eligible for only one 30-minute meal break on shifts of 10 or more hours,” and that this affected Plaintiff on approximately eight occasions. (TAC, ECF No. 49, ¶ 32) (emphasis added). These vague, new allegations fail to fix the deficiencies that plagued the SAC, and the Court should dismiss the TAC’s meal break claim (Claim 3), as well as the claims derived therefrom (Claims 1, 4, 5, and 6), with prejudice, for failure to state a claim as required by Rule 8 after four unsuccessful tries. II. FACTUAL BACKGROUND A. Procedural History. On May 17, 2016, Plaintiff filed a purported class action in the Superior Court of California, County of San Bernardino. (See Ex. A to Wal-Mart’s Notice of Removal, ECF No. 1-1, at 3.) Plaintiff filed a First Amended Complaint (“FAC”) in the Superior Court on June 21, 2016, adding a claim under the Labor Code Private Attorneys General Act. (See id., at 39.) Wal-Mart removed this action to the United States District Court on July 28, 2016. (See ECF No. 1.) 1 As used herein, the terms “Rule” and “Rules” refer to the Federal Rules of Civil Procedure. Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 5 of 15 Page ID #:868 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 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx On February 17, 2017, by stipulation of the parties and with the Court’s approval, Plaintiff filed the SAC (ECF No. 40), alleging, in part, that Wal-Mart did not provide a second meal break to Plaintiff when he worked more than 10 hours in a shift (see id., ¶¶ 31, 50, 51). The SAC asserted seven purported claims for relief. On March 10, 2017, Wal-Mart filed a Motion to Dismiss the SAC, in part, on the basis that the SAC contained only conclusory, legal contentions that Wal-Mart failed to provide second meal breaks, without any corresponding factual allegations detailing how Wal-Mart allegedly committed this violation. On April 6, 2017, this Court issued an Order (“April 6, 2017 Order”) granting Wal-Mart’s Motion to Dismiss the SAC. Regarding Plaintiff’s meal break claim, the Court found that “Plaintiff provide[d] no example where he was due a meal period but was discouraged or dissuaded from taking it or instances where Defendant obtained an invalid meal break waiver.” (April 6, 2017 Order, ECF No. 48, at 8-9.) Thus, because the SAC failed to allege facts sufficient to support those claims, the Court held that the SAC was “inadequately pleaded.” (Id.) On April 24, 2017, Plaintiff filed the TAC, alleging the same claims that were set forth in the SAC on behalf of the same putative class. The allegations in support of the TAC’s meal break claim, however, remain deficient as they are devoid of factual allegations necessary to support Plaintiff’s legal conclusions and assertions of law. Accordingly, Wal-Mart now brings this motion to dismiss the TAC’s meal break claim (Claim 3), as well as the claims deriving from it (Claims 1, 4, 5, and 6) to the extent they rely on the meal break claim. B. Summary of Relevant Allegations in the TAC. Just like the SAC, the TAC claims that Wal-Mart failed to provide a second meal break to Plaintiff when he worked more than 10 hours in a shift. (See TAC, ECF No. 49, ¶¶ 32, 50-52.) However, aside from adding the following boilerplate and conclusory statements, the TAC’s meal break claim is substantively identical to the Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 6 of 15 Page ID #:869 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx same claim in the prior pleading, which the Court dismissed: A. Defendant failed to provide Plaintiff and class members any opportunity to take a second meal period on virtually all [Alternative Workweek Schedule] shifts of 10 or more hours. There are approximately 8 shifts Plaintiff worked in excess of 10 hours. On said shifts, Plaintiff was not provided a second 30-minute meal nor did he voluntarily waive it. B. Defendant failed to obtain Plaintiff’s signature on any lawful meal break waivers. C. Defendant scheduled its [Alternative Workweek Schedule] shifts in such a manner that Plaintiff and class members did not have the opportunity to take a second meal break when they worked shifts in excess of ten (10) hours. D. Defendant has implemented and documented a policy essentially stating that Logistics Employees are eligible for only one 30-minute meal break on shifts of 10 or more hours. Such policy confirms the corporatewide policy of denying Logistics Employees the opportunity to take a second meal period. (TAC, ECF No. 49, ¶ 32.) As Wal-Mart will discuss below, these statements do not save Plaintiff’s claims. III. LEGAL STANDARD Pursuant to Rule 12(b)(6), a complaint should be dismissed when its allegations fail to state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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 (citation omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quotations and citation omitted). Courts Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 7 of 15 Page ID #:870 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 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx are not bound to accept as true legal conclusions couched as factual allegations. Twombly, 500 U.S. at 555. The determination of whether a complaint satisfies the pleading standard in Rule 8 is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. IV. ARGUMENT A. The TAC Fails to Allege Facts Sufficient to State a Claim for Failure to Provide A Second Meal Period (Claim 3). Plaintiff’s meal break claim fails because the TAC does not adequately allege facts supporting the conclusions that: Plaintiff and the putative class purportedly worked shifts exceeding 10 hours; Wal-Mart prevented Plaintiff and the putative class from taking a second meal break when their shifts exceeded 10 hours; and Wal-Mart was required, but failed, to obtain a waiver from Plaintiff and the putative class for meal breaks that Wal-Mart allegedly prevented them from taking. Under California Labor Code Section 512(a), an employer must provide an employee with an unpaid 30-minute meal period if the employee works more than 5 hours per day, and a second unpaid 30-minute meal period if the employee works more than 10 hours per day. See also Cal. Code Regs. tit. 8, § 11090(11)(A)-(B). An employer satisfies this burden by providing the employee at least 30 minutes of uninterrupted time during which the employee is relieved of all duty. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1036 (2012). The “employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.” Id. at 1034. To state a viable meal break claim, a plaintiff must allege that the employer did not make a compliant meal or rest period available, and further plead facts which, if later proven, would show 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 them a reasonable opportunity to take a compliant break; or (3) impeded or discouraged Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 8 of 15 Page ID #:871 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 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx employees from taking these breaks. See Brinker, 53 Cal. 4th at 1040. Notably, employers have no obligation to police these breaks and the performance of work by a relieved employee during the break period does not subject the employer to liability for a meal period claim. Id. at 1040-41. Here, the TAC fails to meet the pleading standards required to state a meal break claim under Twombly and Iqbal, for the reasons set forth below: 1. The TAC Fails To Plead the Factual Circumstances Under Which Plaintiff was Prevented from Taking a Second Meal Break. Plaintiff’s bare, conclusory statement that he was prevented from taking a second meal break on the “approximately” eight occasions when he worked in excess of 10 hours (TAC, ECF No. 49, ¶ 32), without any further supporting facts, is insufficient to satisfy the pleading requirements of Rule 8(a). And the TAC’s other newly added allegations that Wal-Mart scheduled its shifts “in such a manner that Plaintiff did not have the opportunity to take a second meal break” and has “documented a policy essentially stating that Logistics Employees are eligible for only one 30-minute meal break on shifts of 10 or more hours,” are likewise insufficient to salvage his claim. (TAC, ECF No. 49, ¶ 32) (emphasis added). Indeed, courts dismiss meal break claims when a complaint attempts to satisfy the pleading standard through a similar, bare recitation of the elements, as the TAC does here. See DeLeon v. Time Warner Cable LLC, Case No. 09-CV-2438-AG, 2009 WL 9426145 (C.D. Cal. Jul. 17, 2009) (Guilford, J.). DeLeon involved a putative class action alleging claims for unpaid overtime, meal and rest period violations, unfair competition, and related claims. Id. at *1. In that case, the district court held that the allegations in the relevant complaint “amount[e]d to the ‘threadbare recitals of a cause of action’s elements, supported by mere conclusory statements’ that the Iqbal Court warned against.” Id. at *3. The district court specifically found that the Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 9 of 15 Page ID #:872 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 6 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx allegation that “[d]uring the relevant time period, Plaintiff and class members consistently worked in excess of eight (8) hours in a day” (an allegation strikingly similar to that in the TAC), was too conclusory to satisfy Rule 8. See id. The court noted that the complaint “should allege more specific facts about Plaintiff himself, if not about the entire class,” and found that “[i]nstead, the FAC regularly recites the statutory language setting forth the elements of the claim, and then slavishly repeats the statutory language as the purported factual allegations.” Id. The court explained: If Plaintiff wishes to survive a motion to dismiss, Plaintiff must plead sufficient “factual content” to allow the Court to make a reasonable inference that Defendants are liable for the claims alleged by Plaintiff. [Citing Iqbal.] In the FAC, Plaintiff has not pled sufficient factual content. Id. Significantly, meal break claims must plead how the defendant prevented the plaintiff from taking his or her meal break. In Lefevere v. Pacific Bell Directory, Case No. 14-CV-3803-WHO, 2014 WL 5810530, at *1, 3 (N.D. Cal. Nov. 7, 2014) (Orrick, J.), the complaint, like the TAC here, alleged that the employer “failed to provide” him and class members with meal periods as required under California law. Id. at *3. The Court granted the employer’s motion to dismiss concluding that, “[s]uch allegations are conclusory and do not indicate how the defendants prevented the meal … breaks, or even that plaintiff did not in fact take these breaks.” Id. (emphasis added). Other than vaguely stating that Plaintiff worked approximately 8 shifts in excess of 10 hours and, on those occasions, was not provided a second meal break due to unspecified scheduling and policy issues, the TAC contains no other factual allegations supporting Plaintiff’s meal break claim, let alone any facts applicable to the putative class members. (TAC, ECF No. 49, ¶ 32.) For example, the TAC contains no factual allegations discussing when Plaintiff worked his approximately 8 Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 10 of 15 Page ID #:873 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 7 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx shifts exceeding 10 hours, how Wal-Mart allegedly prevented him from taking a second meal break on those occasions, who among his managers allegedly prevented him from taking his second meal break, the manner in which shifts were scheduled and how such scheduling precluded second meal breaks, the supposed policy that “essentially” precluded a second meal break when shifts exceeded 10 hours,2 or any specific allegations whatsoever concerning the alleged failure to provide meal breaks to the other members of the putative class. Such conclusory allegations fail to satisfy the Rule 8(a) notice pleading standard, and Plaintiff’s meal break claim must be dismissed. See, e.g., Guerrero v. Halliburton Energy Servs., Inc., Case No. 16-CV-1300-LJO, 2017 WL 1255777, at *6 (E.D. Cal. Feb. 3, 2017) (O’Neill, J.) (“While Plaintiff has alleged at least four instances where he was allegedly denied meal and rest periods, his mere allegations that he felt ‘pressured’ by Defendants assigning ‘too much work,’ are merely consistent with Defendant’s liability and stop short of the line between possibility and plausibility of entitlement to relief.”) (quotations and citation omitted); Gonzalez v. Fallanghina, LLC, Case No. 16-CV-1832-MEJ, 2016 WL 3951655, at *6 (N.D. Cal. Jul. 22, 2016) (James, J.) (finding that although the plaintiff alleged a specific pay period in which was he denied meal and rest breaks, he failed to allege “who denied him meal and rest breaks” or the factual circumstances of how that occurred); DeLeon, 2009 WL 9426145, at *3 (holding “conclusory” allegation that “[d]uring the relevant time period, [d]efendants willfully required [p]laintiff and class members to work during meal periods and failed to compensate [p]laintiff and class members for work performed during meal periods” insufficient to state claim). Indeed, the TAC’s 2 The TAC provides no factual detail as to the alleged “policy” implemented by Wal- Mart, the particular employees to which the “policy” applied, how the “policy” actually resulted in missed meal periods, or even what the “policy” actually states. Plaintiff does not even allege that Wal-Mart’s purported policy actually prevented employees from taking more than a single meal break after working in excess of 10 hours, only that it “essentially” did so. Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 11 of 15 Page ID #:874 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 8 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx allegations fail to improve upon those stated in the SAC, which the Court previously found provided “no factual basis for his missed meal break claims.” (April 6, 2017 Order, ECF No. 48, at 9.) Thus, for the same reasons that the Court granted Wal-Mart’s motion to dismiss the SAC, it should grant this motion to dismiss the TAC, with prejudice. 2. Plaintiff Fails to Adequately Plead That Wal-Mart Was Required to Obtain A Waiver for the Second Meal Period. Just like the SAC, the TAC fails to adequately allege that Wal-Mart was required to obtain a waiver from Plaintiff regarding a second meal period, for the simple reason that the TAC fails to adequately allege that Wal-Mart declined to satisfy its obligation to provide a second meal period in the first place. Specifically, a waiver is required only when an employer refuses to satisfy its obligation to provide a second meal period under California Labor Code Section 512. The California Supreme Court described that obligation as requiring the provision of an opportunity for a second meal break. See Brinker, 53 Cal. 4th at 1040 (holding that the obligation to “provide” a meal break requires only that the employer authorize the break, and not that it ensure that the break be taken). So, for example, if an employee voluntarily chooses to continue working through a provided meal break, no waiver is required. As stated in Section IV.A.1., above, the TAC does not allege any facts plausibly showing that Plaintiff and the other putative class members were entitled to a second meal break which Wal-Mart refused to allow them to take. Moreover, the TAC does not even allege whether the putative class, in fact, did not take their second meal breaks. Plaintiff’s meal period claim thus falls far short of plausibility and must be dismissed with prejudice. Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 12 of 15 Page ID #:875 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 9 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx 3. Plaintiff Fails to Plead Any Facts That Plausibly Suggest Wal- Mart Obtained Invalid Waivers of Second Meal Periods From Any Putative Class Member. Plaintiff again contests the validity of any and all waivers of a second meal period that Wal-Mart obtained from the putative class members. (See TAC, ECF No. 49, ¶ 51.) But, just like his SAC, he fails to allege any factual contentions that plausibly show the invalidity of those waivers. (Compare SAC, ECF No. 40, ¶ 51 with TAC, ECF No. 49, ¶ 51.) The TAC merely asserts that the waivers were somehow invalid. Cf. Irigaray Dairy v. Dairy Emps. Union Local No. 17 Christian Labor Ass’n of U.S. Pension Tr., 43 F. Supp. 3d 1080, 1087 (E.D. Cal. 2014) (dismissing plaintiff’s claim because, in part, “[i]t bears emphasis that the determination of the validity or invalidity of any agreement that may exist between the parties is a matter for the court . . . Plaintiffs cannot establish that any agreement was invalid by merely alleging that it was . . .”) (emphasis added). Indeed, as Wal-Mart argued in its Motion to Dismiss the SAC, district courts regularly dismiss claims under Rule 12(b)(6) because they failed to plead any facts related to the alleged validity of an agreement or the source of authority at issue. See, e.g., Diamond v. United States, Case No. 14-cv-01922-VBF, 2015 WL 11215851, at *5-6 (C.D. Cal. May 15, 2015) (Fairbank, J.) (dismissing a 42 U.S.C. § 1983 claim for unlawful taking of property because, in part, the plaintiff failed to allege facts “plausibly tending to suggest that the search warrant was not facially valid”); Diunugala v. J.P. Morgan Chase Bank, N.A., 81 F. Supp. 3d 969, 986-87 (S.D. Cal. 2015) (dismissing claim that a trust company lacked authority to foreclose a real property because, in part, the plaintiff failed to allege any facts that would suggest the trust company did not receive a valid assignment of the mortgage loan); Irigaray Dairy, 43 F. Supp. 3d at 1086-87 (dismissing claim for declaratory relief because, in part, the plaintiffs failed to allege facts sufficient to show an agreement that directed Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 13 of 15 Page ID #:876 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 10 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx how they calculated their contributions to a multiemployer benefit fund was invalid); The Sliding Door Co. v. KLS Doors, LLC, Case No. 13-cv-00196-JGB, 2013 WL 2090298, at *4 (C.D. Cal. May 1, 2013) (Bernal, J.) (dismissing defendant’s counterclaim for declaratory judgment for invalidity of a patent because it failed to “allege any facts to support its assertion that the 729 Patent is invalid”). Plaintiff’s meal period claim thus falls short of Rule 8’s pleading requirements because the TAC is devoid of factual contentions regarding the alleged invalidity of the waivers with the putative class members. (See April 6, 2017 Order, ECF No. 48, at 8 (“Plaintiff provides no . . . instances where Defendant obtained an invalid meal break waiver.”).) B. Plaintiff’s Derivative Claims Similarly Fail (Claims 1, 4, 5, 6). Because Plaintiff fails to state a meal break claim upon which relief can be granted, his first, fourth, fifth, and sixth claims must also be dismissed to the extent they are derived therefrom. See Santa Cruz Med. Clinic v. Dominican Santa Cruz Hosp., Case No. 93-CV-20613-RMW, 1995 WL 150089, at *2-3 (N.D. Cal. Mar. 28, 1995) (Whyte, J.) (Courts may grant motions to dismiss “parts of claims, effectively striking portions of a complaint where there is no viable theory or facts supporting recovery under that theory”). Specifically, the TAC’s first claim alleges that Wal- Mart-through its “improper meal policies”-engaged in “unlawful, deceptive, and unfair business practices prohibited by California B&PC § 17200.” (TAC, ECF No. 49, ¶¶ 32-36) (emphasis added). The fourth claim, for purported failure to provide accurate itemized wage statement, alleges that Wal-Mart’s “missed meal period at the correct regular rate are in violation of Labor Code § 226.” (Id., ¶ 56) (emphasis added). Similarly, the fifth claim, for waiting-time penalties, alleges that “this derivative claim is on behalf of all others similarly situated employees who did not timely receive a final pay check from Defendant … based on the wage claims asserted in this action.” (Id., ¶ 61) (emphasis added). The sixth claim, brought under the Private Attorney Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 14 of 15 Page ID #:877 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 MEM. OF P&A IN SUPPORT OF MOTION TO DISMISS THIRD AMENDED COMPLAINT CASE NO. 5:16-CV-01645-BRO-RAOx General Act, is based on Wal-Mart’s alleged failure to pay for “overtime compensation, meal period compensation and penalties, waiting time period penalties, and PAGA penalties.” (Id., ¶ 70) (emphasis added). In light of Plaintiff’s failure to plead his claim for missed meal breaks, the TAC’s derivate claims must likewise be dismissed to the extent they rely on his meal break theory of liability. V. CONCLUSION For all of the foregoing reasons, Wal-Mart respectfully requests that its motion to dismiss be granted with prejudice. DATED: May 8, 2017 LTL ATTORNEYS LLP /s/ Anthony D. Sbardellati Steven C. Gonzalez Anthony D. Sbardellati Anthony William Gomez Attorneys for Defendant Wal-Mart Stores, Inc. Case 5:16-cv-01645-BRO-RAO Document 50-1 Filed 05/08/17 Page 15 of 15 Page ID #:878