Onofre Soratorio v. Tesoro Refining And Marketing Company, Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.March 3, 2017

87422774.8 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 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 Jared R. Zeidman (SBN #292383) Email: jzeidman@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 Attorneys for Defendants TESORO REFINING & MARKETING COMPANY, LLC, and BP PIPELINES (NORTH AMERICA) INC. 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] DEFENDANTS TESORO REFINING & MARKETING COMPANY, LLC’S 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): (1) NOTICE OF MOTION (2) REQUEST FOR JUDICIAL NOTICE (3) MEMORANDUM OF POINTS AND AUTHORITIES Filed Under Separate Cover: (4) [PROPOSED] ORDER Date: Monday, April 3, 2017 Time: 10:00 a.m. Crtrm.: 5A Judge: Hon. Michael W. Fitzgerald Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 1 of 42 Page ID #:319 87422774.8 i 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 TABLE OF CONTENTS Page NOTICE OF MOTION .............................................................................................. ix REQUEST FOR JUDICIAL NOTICE .................................................................... xiv MEMORANDUM OF POINTS AND AUTHORITIES ............................................ 1 I. INTRODUCTION ............................................................................................ 1 II. STATEMENT OF FACTS ............................................................................... 1 A. PLAINTIFF’S EMPLOYMENT WITH DEFENDANTS ....................................... 1 B. PLAINTIFF FILES THIS PUTATIVE WAGE AND HOUR CLASS ACTION ........ 2 III. LEGAL ARGUMENT ..................................................................................... 3 A. PLAINTIFF’S EMPLOYMENT WITH DEFENDANTS .................... 3 1. Fed. R. Civ. P. 12(b)(6) and 12(f) ............................................... 3 2. The Twombly And Iqbal Pleading Standards .............................. 3 B. PLAINTIFF’S PURPORTED FIRST CAUSE OF ACTION FOR FAILURE TO PAY OVERTIME WAGES STATES NOTHING MORE THAN CONCLUSORY ALLEGATIONS AND SHOULD BE DISMISSED ..................... 4 C. SIMILARLY, PLAINTIFF’S PURPORTED SECOND CAUSE OF ACTION FOR FAILURE TO PROVIDE MEAL BREAKS STATES ONLY CONCLUSORY ALLEGATIONS AND SHOULD BE DISMISSED ..................... 6 D. PLAINTIFF’S PURPORTED THIRD CAUSE OF ACTION FOR FAILURE TO AUTHORIZE AND PERMIT REST BREAKS FAILS AS A MATTER OF LAW ................................................................................................... 8 E. PLAINTIFF’S PURPORTED FOURTH CAUSE OF ACTION FOR FAILURE TO PAY ALL WAGES DUE AT TERMINATION AND/OR WAITING TIME PENALTIES FAILS AS A MATTER OF LAW ...................... 9 1. The Claim Fails To Comply With Rule 8 ................................... 9 2. Section 226.7 Payments Are Not “Wages Earned,” And Do Not Trigger Liability For Waiting Time Penalties .............. 11 F. PLAINTIFF’S PURPORTED FIFTH CAUSE OF ACTION FOR FAILURE TO TIMELY PAY WAGES FAILS AS A MATTER OF LAW ........................ 14 G. PLAINTIFF’S PURPORTED SIXTH CAUSE OF ACTION FOR FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS FAILS AS A MATTER OF LAW .............................................................................. 15 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 2 of 42 Page ID #:320 87422774.8 ii 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 1. The Claim Fails To Comply With The Rule 8 Requirements ............................................................................. 15 2. The Wage Statements Accurately Reported All Wages Paid .... 16 3. The Claim Fails To Allege The Requisite Injury ...................... 16 4. Section 226.7 Payments Are Not Subject To Reporting ........... 18 H. PLAINTIFF’S PURPORTED SEVENTH CAUSE OF ACTION FOR UCL VIOLATIONS FAILS AS A MATTER OF LAW .......................................... 20 1. The Claim Fails To Satisfy Rule 8’s Requirements .................. 20 2. Plaintiff’s UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL ...... 21 3. Section 203 and Section 226 Penalties Are Not Subject to Restitution under the UCL .................................................... 22 I. PLAINTIFF’S CLAIM FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED OR STRICKEN BECAUSE HE LACKS STANDING TO SEEK SUCH RELIEF AS A FORMER EMPLOYEE ............................................... 22 J. PLAINTIFF’S PRAYER FOR ATTORNEYS’ FEES UNDER CAL. CODE CIV. PROC. § 1021.5 SHOULD BE DISMISSED OR STRICKEN .................. 23 K. PLAINTIFF’S PRAYER FOR “ACTUAL, CONSEQUENTIAL AND INCIDENTAL LOSSES AND DAMAGES” SHOULD BE DISMISSED OR STRICKEN BECAUSE THEY ARE NOT RECOVERABLE HERE ................... 23 IV. CONCLUSION .............................................................................................. 25 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 3 of 42 Page ID #:321 87422774.8 iii 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 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Anderson v. Blockbuster, Inc., 2010 WL 1797249 (E.D. Cal. May 4, 2010) ........................................................ 10 Angeles v. U.S. Airways, Inc., 2013 WL 622032 (N.D. Cal. Feb. 19, 2013) ........................................................ 17 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................. 3, 4, 7, 10 Balisteri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) .................................................................................. 3 Barrera v. The Home Depot U.S.A., Inc., N.D. Cal. Case No. 5:12-cv-05199-LHK (May 20, 2015) ............................ xvi, 24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 3, 4, 7, 8, 9, 10 Boon v. Canon Business Solutions, Inc., 592 Fed.App’x. 631 (9th Cir. 2015) ....................................................................... 4 Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581 (N.D. Cal. Apr. 18, 2013)................................................ 11, 15 Byrd v. Masonite Corp., 2016 WL 756523 (C.D. Cal. Feb. 25, 2016) ...................................................... 5, 8 Campbell v. PriceWaterhouseCoopers, 2008 WL 3836972 (E.D. Cal. Aug. 14, 2008) ..................................................... 22 Carranza v. Nordstrom, Inc., 2014 U.S. Dist. LEXIS 172307 (C.D. Cal. Dec. 12, 2014) .................................... 6 Clark v. Lakewood, 259 F.3d 996 (9th Cir. 2001) ................................................................................ 22 Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205 (C.D. Cal. 2006) .................................................................. 12 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 4 of 42 Page ID #:322 87422774.8 iv 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 Dawson v. HITCO Carbon Composites, Inc., C.D. Cal. Case No. 2:16-cv-07337 (Jan. 20, 2017) ....... 5, 8, 10, 15, 16, 18, 20, 23 De La Torre v. American Red Cross, 2013 WL 5573101 (C.D. Cal. Oct. 9, 2013) ............................................ 14, 16, 17 Deleon v. Time Warner Cable LLC, 2009 WL 9426145 (C.D. Cal. July 17, 2009) ........................................................ 7 DeLodder v. Aerotek, Inc., 2009 WL 3770670 (C.D. Cal. Nov. 9, 2009) ....................................................... 23 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................ 22 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, 8, 9 Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116 (D.P.R. 1972) .................................................................................. 3 Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141 (E.D. Cal. Nov. 2, 2016) ............... 5, 8, 10, 13, 17 Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738 (E.D. Cal. Feb. 3, 2017) ...................... 8, 21, 22, 23 Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383 (C.D. Cal. Sept. 22, 2010) ..................................................... 14 Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114 (N.D. Cal. 2011) .................................................................. 14 Jones v. Spherion Staffing, LLC, 2012 WL 3264081 (C.D. Cal. Aug 7, 2012) ........................................................ 13 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 5 of 42 Page ID #:323 87422774.8 v 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 Landers v. Quality Comm., Inc., 771 F.3d 638 (9th Cir. 2014) ...................................................................... 4, 5, 8, 9 Lefevere v. Pacific Bell Directory, 2014 WL 5810530 (N.D. Cal. Nov. 17, 2014) ....................................................... 7 Lopez v. Aerotek, Inc., 2015 WL 4504691 (C.D. Cal. July 23, 2015) ...................................................... 10 Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379 (E.D. Cal. May 31, 2013) ...................................................... 20 Myers v. Winn Law Group, APC, 2012 WL 5187771 (E.D. Cal. Oct. 17, 2012) ...................................................... 20 Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal. Nov. 28, 2011) ......................................... 12, 19, 21 Parson v. Golden State FC, LLC, 2016 WL 1734010 (N.D. Cal. May 2, 2016) ....................................................... 21 Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983 (S.D. Cal. 2012) .................................................................... 20 Pulido v. Coca Cola Enters., Inc., 2006 WL 1699328 (C.D. Cal. May 25, 2006) ...................................................... 12 Ramirez v. Manpower, Inc., 2014 WL 116531 (N.D. Cal. Jan. 13, 2014) ........................................................ 15 Raphael v. Tesoro Ref. and Mktg. Co. LLC, 2015 WL 4127905 (C.D. Cal. July 8, 2015) ...................................................... 5, 8 Richards v. Ernst & Young LLP, 2010 WL 682314 (N.D. Cal. Feb. 24, 2010) ........................................................ 23 Robles v. Schneider National Carriers, Inc., C.D. Cal. Case No. 5:16-cv-02482-JGB-KK (Feb. 10, 2017) ....... 8, 10, 15, 20, 23 Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv-00891-DSF-RZx (June 18, 2013) .............................. 13 Rubin v. Wal-Mart Stores, Inc., 599 F.Supp.2d 1176 (N.D. Cal. 2009) .................................................................. 22 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 6 of 42 Page ID #:324 87422774.8 vi 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 Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166 (N.D. Cal. May 8, 2013) ....................................................... 11 Sanchez v. The Ritz Carlton, 2015 WL 5009659. (C.D. Cal. Aug. 17, 2015) .............................................. 5, 7, 8 Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011) ....................................................... 7 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983) .................................................................................. 3 Silva v. AvalonBay Cmtys, Inc., 2015 WL 11422302 (C.D. Cal. Oct. 8, 2015) .................................................. 5, 18 Singer v. Becton, Dickinson & Co., Med-Safe Sys., 2008 WL 2899825 (S.D. Cal. July 23, 2008) ................................................. 14, 16 Singletary v. Teavana Corporation, 2014 WL 1760884 (N.D. Cal. Apr. 2, 2014) ........................................................ 13 Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128 (C.D. Cal. Mar. 25, 2015) ................................................. 7, 9 Sollberger v. Wachovia Securities, LLC, 2010 WL 2674456 (C.D. Cal. June 30, 2010) ...................................................... 20 Stevens v. Datascan Field Servs. LLC, 2015 WL 5245002 (E.D. Cal. Sept. 8, 2015) ......................................................... 5 In re Wal-Mart Stores, Inc., 505 F.Supp.2d 609 (N.D. Cal. 2007) .............................................................. 22, 24 Walsh v. Nev. Dep’t Human Res., 471 F.3d 1033 (9th Cir. 2006) .............................................................................. 22 Willner v. Manpower Inc., 2012 WL 1570789 (N.D. Cal. May 3, 2012) ....................................................... 18 Woo v. Home Loan Group, L.P., 2007 WL 6624925 (S.D. Cal. July 27, 2007) ....................................................... 21 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 7 of 42 Page ID #:325 87422774.8 vii 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 CALIFORNIA CASES In re Application of Moffett, 19 Cal.App.2d 7 (1937) ........................................................................................ 14 Brewer v. Premier Golf Prop., LP, 168 Cal.App.4th 1243 (2008) ......................................................................... 12, 24 Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012) .......................................................................................... 19 Clark v. Sup. Ct., 50 Cal.4th 605 (2010) ..................................................................................... 21, 22 Cornelius v. L.A. Cnty. Etc. Auth., 49 Cal.App.4th 1761 (1996) ................................................................................. 22 DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007) ................................................................................. 23 Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426 (Sept. 20, 2011) ................ 11, 19 Flannery v. Cal. Highway Patrol, 61 Cal.App.4th 629 (1998) ................................................................................... 23 Gentry v. Superior Court, 42 Cal.4th 443 (2007) ............................................................................................. 6 Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012) ....................................................................... 12, 13, 19, 21 Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134 (2003) ................................................................................... 20, 24 Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242 (2016) ............................................................................... 14 Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) ..................................................................... 8, 9, 12, 16, 19 Pineda v. Bank of America, N.A., 50 Cal.4th 1389 (2010) ................................................................................... 11, 22 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 8 of 42 Page ID #:326 87422774.8 viii 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 Price v. Starbucks Corp., 192 Cal.App.4th 1136 (2011) ............................................................................... 23 See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889 (2012) ................................................................................. 14 FEDERAL AUTHORITIES Fed. R. Civ. P. 8 ............................................................... 1, 3, 4, 5, 7, 9, 11, 15, 16, 20 Fed. R. Civ. P. 12(b)(6) ............................................................................................... 3 Fed. R. Civ. P. 12(f) ..................................................................................................... 3 CALIFORNIA STATUTES Cal. Bus. & Prof. Code § 17200. .................................................................................................................. 2 Cal. Code Civ. Proc. § 338 ....................................................................................................................... 6 § 1021.5................................................................................................................. 23 Cal. Lab. Code § 201 ................................................................................................................. 2, 24 § 202 ................................................................................................................. 2, 24 § 203 ................................................................................................. 2, 9, 10, 13, 24 § 204 ........................................................................................................... 2, 14, 15 § 204(a) ........................................................................................................... 14, 15 § 226 ................................................................................... 2, 15, 16, 17, 18, 19, 22 § 226(a) ............................................................................................... 15, 17, 18, 19 § 226(e) ............................................................................................... 15, 16, 17, 18 § 226(e)(1) ............................................................................................................ 17 § 226(e)(2)(B) ....................................................................................................... 17 § 226(e)(2)(B)(i)-(ii) ............................................................................................. 16 § 226.7 ............................................................ 2, 6, 8, 11, 12, 13, 14, 18, 19, 21, 24 § 226.7(b) .............................................................................................................. 12 § 510 ....................................................................................................................... 2 § 512(a) ............................................................................................................... 2, 6 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 9 of 42 Page ID #:327 87422774.8 ix 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 NOTICE OF MOTION TO PLAINTIFF ONOFRE SORATORIO AND HIS COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that, on April 3, 2017, at 10:00 a.m., in Courtroom 5A of the United States District Court, Central District of California, located at 350 West First Street, Los Angeles, CA 90012, Defendants TESORO REFINING & MARKETING COMPANY, LLC (“Tesoro”) and BP PIPELINES (NORTH AMERICA) INC. (“BP”) (collectively, “Defendants”) will and hereby do move the Court for an order dismissing and/or striking Plaintiff’s Complaint 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 unpaid overtime under Cal. Lab. Code § 510 fails as a matter of law because: a. The claim alleges nothing more than conclusory allegations against Defendants which do not satisfy the pleading requirements of Fed. R. Civ. P. 8 (“Rule 8”); and/or b. The claim is time-barred with respect to BP. 2. Plaintiff’s purported Second Cause of Action for missed meal break premiums pursuant to Cal. Lab. Code § 226.7 fails as a matter of law because: a. The claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8; and/or Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 10 of 42 Page ID #:328 87422774.8 x 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 b. The claim is time-barred with respect to BP. 3. Plaintiff’s purported Third Cause of Action for rest break premiums pursuant to Cal. Lab. Code § 226.7 (“Section 226.7”) fails as a matter of law because: a. The claim alleges nothing more than conclusory allegations, which do not satisfy the pleading requirements of Rule 8; and/or b. The claim is time-barred with respect to BP. 4. Plaintiff’s purported Fourth Cause of Action for failure to timely pay wages at separation and/or waiting time penalties pursuant to Cal. Lab. Code §§ 201-203 fails as a matter of law because: a. The claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8; and/or b. The Complaint is devoid of any factual allegation of a willful failure to pay all wages due; and/or c. Section 226.7 payments for missed or noncompliant meal and rest breaks do not constitute “wages earned” for purposes of triggering the final pay requirements; and/or d. The claim is time-barred with respect to BP. 5. Plaintiff’s purported Fifth Cause of Action for the late payment of Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 11 of 42 Page ID #:329 87422774.8 xi 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 regular wages pursuant to Cal. Lab. Code § 204 (“Section 204”) fails as a matter of law because the claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8. 6. 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)”) fails as a matter of law because: a. The claim alleges nothing more than conclusory allegations against Defendants, which do not satisfy the pleading requirements of Rule 8; and/or b. Plaintiff fails to allege that his wage statements were inaccurate as to the payment of wages actually paid to him; and/or c. The Complaint is devoid of any factual allegation of a cognizable injury; and/or d. Section 226.7 payments are not subject to itemization under Section 226(a)’s reporting requirements; and/or e. The claim is time-barred with respect to BP. 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: Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 12 of 42 Page ID #:330 87422774.8 xii 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 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/or b. The claims is deficient to the extent that it purports to seek recovery of amounts for penalties for purported meal and rest break violations, inaccurate wage statements, and waiting time penalties, which are not recoverable under the UCL. 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 9. Plaintiff’s request for attorneys’ fees and costs pursuant to Cal. Code Civ. Proc. § 1021.5 should be dismissed or stricken because such fees are not available where, as here, Plaintiff primarily seeks to vindicate his own personal financial interests; and 10. Plaintiff’s prayers for punitive damages, consequential damages, incidental damages, and emotional distress damages (including both mental pain and anguish) are defective and should be dismissed or stricken because such remedies are not recoverable under the Labor Code sections that Plaintiff invokes. 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. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 13 of 42 Page ID #:331 87422774.8 xiii 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 On February 24, 2017, Tesoro and BP initiated the meet and confer process with Plaintiff regarding the grounds for this Motion in accordance with the requirements of Local Rule 7-3. Since the parties were unable to resolve the defects in Plaintiff’s claims, Defendants have filed this Motion. DATED: March 3, 2017 MCGUIREWOODS LLP By: /s/ Sabrina A. Beldner Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Jared R. Zeidman, Esq. Attorneys for Defendant TESORO REFINING & MARKETING COMPANY, LLC and BP PIPELINES (NORTH AMERICA) INC. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 14 of 42 Page ID #:332 87422774.8 xiv 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 REQUEST FOR JUDICIAL NOTICE TO THE HONORABLE MICHAEL W. FITZGERALD, UNITED STATES DISTRICT JUDGE, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: Pursuant to Fed. R. Evid. 201(b) and (d), Defendants TESORO REFINING & MARKETING COMPANY, LLC (“Tesoro”) and BP PIPELINES (NORTH AMERICA) INC. (“BP”) (collectively, “Defendants”) hereby request that the Court take judicial notice of the following documents attached hereto in support of their Motion to Dismiss and/or Strike Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. Rule 12(b)(6) and/or 12(f) (the “Motion”): Exhibit A: Plaintiff’s Complaint, which was filed in the Superior Court of California, County of Los Angeles on November 29, 2016 in Case No. BC642295 herein, and removed to this Court on February 24, 2017. See Dkt. #1-1 (Exh. A thereto). Exhibit B: The Declaration of Karen Kawano filed in support of Tesoro’s Notice of Removal to Federal Court on February 24, 2017. See Dkt # 1-7. Exhibit C: The Order entered on January 20, 2017 in Dawson v. HITCO Carbon Composites, Inc., United States District Court, Central District of California Case No. 2:16-cv-07337-PSG-FFMx. Exhibit D: The Order entered on February 10, 2017 in Robles v. Schneider National Carriers, Inc., United States District Court, Central District of California Case No. 5:16-cv-02482-JGB-KKx. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 15 of 42 Page ID #:333 87422774.8 xv 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 Exhibit E: The Order entered on June 18, 2013 in Rodriguez v. Old Dominion Freight Line, Inc., United States District Court, Central District of California Case No. 13-cv-00891-DSF-RZx. Exhibit F: 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. Exhibit G: 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 H: The Assembly Committee on Labor Relations, Analysis of A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. Exhibit I: The California Department of Industrial Relations Division of Labor Standards Enforcement (“DLSE”) Opinion Letter Re: Electronic Itemized Wage Statements (July 6, 2006). Exhibit J: 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 K: The Order entered on May 20, 2015 in Barrera v. The Home Depot U.S.A., Inc., United States District Court, Northern District of California Case No. 5:12-cv-05199-LHK. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 16 of 42 Page ID #:334 87422774.8 xvi 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 Defendants’ 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/or the Superior Court of the State of California, the California Legislature, the California Department of Industrial Relations and the California Division of Labor Standards Enforcement, 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 3, 2017 MCGUIREWOODS LLP By: /s/ Sabrina A. Beldner Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Jared R. Zeidman, Esq. Attorneys for Defendant TESORO REFINING & MARKETING COMPANY, LLC and BP PIPELINES (NORTH AMERICA) INC. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 17 of 42 Page ID #:335 87422774.8 1 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Onofre Soratorio (“Plaintiff”) is a former employee of Defendants TESORO REFINING & MARKETING COMPANY, LLC (“Tesoro”) and BP PIPELINES (NORTH AMERICA) INC., (“BP”) (collectively, “Defendants”). He purports to allege various putative wage and hour class action claims against Defendants, rooted primarily in bald, conclusory allegations of unpaid overtime and meal and rest breaks claims and wholly derivative statutory claims based thereon. As discussed below, Plaintiff’s boilerplate claims in the Complaint fail as a matter of law because in contravention of Fed. R. Civ. P. 8 (“Rule 8”), they allege no facts to support a cognizable legal theory and/or they suffer from a multitude of substantive defects. Plaintiff has pled nothing more than conclusions, which are insufficient and do not state a plausible claim for relief Additionally, Plaintiff has not been employed by BP since before June 1, 2013, more than three years prior to the commencement of this action. Accordingly, all of Plaintiff’s direct statutory violation claims against BP are time-barred and fail as a matter of law. Therefore, Plaintiff’s claims should be dismissed and/or stricken. II. STATEMENT OF FACTS A. PLAINTIFF’S EMPLOYMENT WITH DEFENDANTS Plaintiff initially worked for BP at one of its Long Beach Marine Terminals. See Exh. B (Declaration of Karen Kawano filed in support of Tesoro’s Notice of Removal to Federal Court [“Kawano Decl.”]), ¶ 10. However, on June 1, 2013, BP sold this Long Beach Marine Terminal and several other assets to Tesoro. Id. at ¶ 10.1 1 See also URL: http://www.bp.com/en/global/corporate/press/press- releases/bp-completes-sale-of-carson-refinery-and-southwest-u-s--retail-a.html. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 18 of 42 Page ID #:336 87422774.8 2 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 Upon the closing of that transaction, Plaintiff’s employment with BP ended, and on June 1, 2013, Plaintiff commenced employment as an employee of Tesoro at the same Long Beach Marine Terminal. Id. at ¶¶ 10-16. Accordingly, Plaintiff has performed no worked for and received no compensation from BP since before his employment with Tesoro commenced on June 1, 2013. Id. at ¶ 10. B. PLAINTIFF FILES THIS PUTATIVE WAGE AND HOUR CLASS ACTION On November 29, 2016, Plaintiff filed a Complaint against Defendants alleging the following seven claims (the “Complaint”): (1) Failure to pay overtime wages in violation of Cal. Lab. Code § 510; (2) Failure to provide or pay for missed or noncompliant meal breaks in violation of Cal. Lab. Code §§ 226.7 & 512; (3) Failure to provide or pay for missed or noncompliant rest breaks in violation of Cal. Lab. Code §§ 226.7; (4) Failure to pay all wages upon separation and/or waiting time penalties, in violation of Cal. Lab. Code §§ 201-203; (5) Failure to pay regular wages in a timely manner in violation of Cal. Lab. Code § 204; (6) Failure to furnish accurate itemized wage statements in violation of Cal. Lab. Code § 226 and/or pay inaccurate wage statement penalties; (7) Violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (the “UCL”). See Exh. A (Complaint). These seven claims purport to seek unpaid overtime, missed meal/rest break payments, inaccurate wage statement penalties, waiting time penalties, punitive damages, consequential damages, incidental damages, emotional distress damages (including both mental pain and anguish), restitution, injunctive relief, pre-judgment interest, attorney’s fees and costs. Id. The claims are alleged to be asserted on behalf of Plaintiff and a putative class defined as “non-exempt warehouse workers . . . who were employed at Tesoro and BP’s Long Beach facility at any time beginning four (4) years preceding the filing of the Complaint in this action through final judgment in this action” including “non- exempt Yardmen, Lineup Workers, Carmen, and other similarly situated employees Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 19 of 42 Page ID #:337 87422774.8 3 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 of Defendants” and “all non-exempt workers at Tesoro’s Long Beach location” (hereafter, the “PCMs”). See Exh. A (Complaint), ¶¶ 9, 12, 34, 35. III. LEGAL ARGUMENT A. APPLICABLE LEGAL STANDARDS 1. Fed. R. Civ. P. 12(b)(6) and 12(f) Courts may dismiss any claim that fails to state facts sufficient to constitute a cause of action. See Fed. R. Civ. P. 12(b)(6); Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts may also strike any “redundant, immaterial, impertinent, or scandalous matter,” Fed. R. Civ. P. 12(f) (“Rule 12(f)”), and may also strike matters to reduce complication or “avoid the expenditure of time and money … from litigating spurious issues …” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).2 2. The Twombly And Iqbal Pleading Standards Under Fed. R. Civ. P. 8 (“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 2 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 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 20 of 42 Page ID #:338 87422774.8 4 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 of factual allegations.” Farm Credit Svcs. v. Am. State Bank, 339 F.3d 764, 767 (8th Cir. 2003) (cit. omitted) (emph. added). 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. PLAINTIFF’S PURPORTED FIRST CAUSE OF ACTION FOR FAILURE TO PAY OVERTIME WAGES STATES NOTHING MORE THAN CONCLUSORY ALLEGATIONS AND SHOULD BE DISMISSED Plaintiff’s First Cause of Action fails to comply with the Rule 8 pleading standards because it alleges nothing more than the bare conclusion that Plaintiff and the PCMs are owed allegedly unpaid overtime wages, which is insufficient to state a plausible claim for relief. The Ninth Circuit has held that in order to state a plausible claim for unpaid wages, a plaintiff must plead the dates of a specific workweek with overtime violations, as well as the total number of work hours and alleged unpaid wages for the chosen seven-day period. See Landers v. Quality Comm., Inc., 771 F.3d 638, 644-45 (9th Cir. 2014); accord Boon v. Canon Business Solutions, Inc., 592 Fed.App’x. 631, 632 (9th Cir. 2015) (noting that Landers “articulated [the Ninth Circuit’s] requirements for stating a wage claim under Twombly and Iqbal, namely “that plaintiffs in these types of cases must allege facts demonstrating that there was at least one workweek in which they” were not properly paid). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 21 of 42 Page ID #:339 87422774.8 5 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 Here, the Complaint fails to comply with the standards enunciated in Landers and is devoid of any allegation regarding the specific workweeks when Plaintiff was not paid overtime wages. Instead, Plaintiff just alleges that:  “ALL NON-EXEMPT WORKERS of Defendants were hired to work exclusively for eight (8) hours or more, receiving oil shipments, working oil transportation lines, and doing "line-ups," among many other things, while not being compensated for all overtime hours worked . . . .” See Exh. A (Complaint), ¶ 13;  “ALL NON-EXEMPT WORKERS were required to work after their scheduled shifts ended, in order to finish large work orders for major clients, and were not accurately accounted for or compensated.” Id. at ¶ 16;  “Plaintiff and the Plaintiff Class actually worked, in excess of eight (8) hours in one (1) workday and in excess of forty (40) hours in one (1) workweek. On such occasions, Defendants failed to pay Plaintiff and Plaintiff Class at least one and one-half times their regular rate of pay for overtime hours worked. Id. at ¶ 39. Such conclusory allegations are far too abstract to demonstrate any plausible inference of an entitlement to relief. They are nothing more than hollow assertions that track the language of the pertinent provisions of California’s Labor Code, which do not satisfy Rule 8 under binding Supreme Court and Ninth Circuit precedent, as numerous district courts throughout California have held.3 Accordingly, Plaintiff’s 3 See, e.g., Dawson v. HITCO Carbon Composites, Inc., C.D. Cal. Case No. 2:16-cv-07337 (Jan. 20, 2017), Dkt. #27 (Request for Judicial Notice [“RJN”], Exh. C) (“Dawson”) at p. 7 (Gutierrez. J.) (applying Landers and dismissing claims when the dates of a specific workweek with overtime violations were not alleged); Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141, at *9-14 (E.D. Cal. Nov. 2, 2016) (same); Raphael v. Tesoro Ref. and Mktg. Co. LLC, 2015 WL 4127905, *3 (C.D. Cal. July 8, 2015) (Wright, J.) (applying Landers and dismissing claims where no dates of violations identified); Silva v. AvalonBay Cmtys, Inc., 2015 WL 11422302, *8 (C.D. Cal. Oct. 8, 2015) (Kronstadt, J.) (same); Byrd v. Masonite Corp., 2016 WL 756523, *3 (C.D. Cal. Feb. 25, 2016) (Bernal, J.) (allegations that plaintiff and class members worked in excess of eight hours in a day and/or in excess of 40 hours in a week were too conclusory to state a claim for overtime violations); Sanchez v. The Ritz Carlton, 2015 WL 5009659. *3 (C.D. Cal. Aug. 17, 2015) (Gutierrez, J.) (requiring “something beyond conclusory allegations that ‘ties the alleged labor-code violation to Plaintiffs’ such as ‘allegations about either Plaintiff's schedules to substantiate that they worked double/overtime shifts that would trigger overtime pay[.]’”); Stevens v. Datascan Field Servs. LLC, 2015 WL 5245002, *1 (E.D. Cal. Sept. 8, 2015) (finding insufficient allegation that Defendant “had a consistent policy Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 22 of 42 Page ID #:340 87422774.8 6 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 First Cause of Action is devoid of sufficient facts to state a claim for relief and should be dismissed or stricken. Additionally, as pled against BP, this cause of action is time-barred, as a claim for overtime wages under the California Labor Code is subject to a three-year statute of limitations. See, e.g., Gentry v. Superior Court, 42 Cal.4th 443, 470-71 (2007) (holding that the three-year statute of limitations in Cal. Code Civ. P. Section 338 applies to claims for overtime wages); Carranza v. Nordstrom, Inc., 2014 U.S. Dist. LEXIS 172307, at *20 n.37 (C.D. Cal. Dec. 12, 2014) (Morrow, J.) (same). Here, Plaintiff cannot dispute that he has not been employed by BP at any time during the three-year period preceding the filing of this action. Accordingly, this claim is time- barred as pled against BP and must be dismissed without leave to amend. C. SIMILARLY, PLAINTIFF’S PURPORTED SECOND CAUSE OF ACTION FOR FAILURE TO PROVIDE MEAL BREAKS STATES ONLY CONCLUSORY ALLEGATIONS AND SHOULD BE DISMISSED Plaintiff’s Second Cause of Action for meal break violations pursuant to Cal. Lab. Code §§ 226.7 and 512(a) fails to satisfy Rule 8’s pleading requirements and is based on nothing but factually devoid and conclusory allegations, as follows:  “If an order or shipment were to come into DEFENDANTS' Long Beach port location, then ALL NON-EXEMPT WORKERS were required to work through . . . meal breaks … until the full amount of work related to the order or shipment was completed.” See Exh. A (Complaint), ¶ 14;  “DEFENDANTS did not provide . . . a thirty (30) minute meal period for every five (5) hours worked and never sought a written waiver from the employees prior to depriving them of the meal breaks due under the law.” Id. at ¶¶ 10, 23;  “DEFENDANTS suffered and permitted its employees to work without the meal periods prescribed by California Labor Law for more than four (4) years.” Id. at ¶ 23. of requiring [Plaintiff] and the [putative c]lass [m]embers to work in excess of eight (8) hours per day and/or forty (40) hours per week without paying them full and proper overtime compensation”). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 23 of 42 Page ID #:341 87422774.8 7 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 These allegations merely parrot the statutory language and conclude that Defendants violated the law, which does not satisfy Rule 8. See Iqbal, 556 U.S. at 663 (holding that a court should not accept “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”). Indeed, there are no facts whatsoever alleged in the Complaint that would plausibly suggest that Plaintiff and the PCMs were somehow prevented from taking meal breaks or otherwise were not permitted to take legally-complaint meal breaks.4 At a minimum, Plaintiff must allege facts as to how he was personally deprived of such meal breaks, but his Complaint fails to do so.5 Twombly, 550 U.S. at 556, n.3. Given that facts about Plaintiff’s own alleged non-compliant meal breaks would be 4 See, e.g., Sanchez, 2015 WL 5009659, *2 (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”); Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128, *2 (C.D. Cal. Mar. 25, 2015) (Staton, J.) (allegations that, inter alia, class members “consistently worked over five (5) hours per work period” and “were not provided required meal periods” were too conclusory to state a claim for relief). 5 See Sanchez, 2015 WL 5009659 at *2 (“The Court is persuaded that, at a minimum, a complaint must include plausible factual allegations that the plaintiff was a victim of the defendant’s alleged violations of the labor laws.”); 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”); Deleon v. Time Warner Cable LLC, 2009 WL 9426145, *3 (C.D. Cal. July 17, 2009) (Guilford, J.) (dismissing meal break claims and holding that a complaint “should allege more specific facts about Plaintiff himself, if not about the entire class”); see also Lefevere v. Pacific Bell Directory, 2014 WL 5810530, *1, 3 (N.D. Cal. Nov. 17, 2014) (dismissing meal break claim because the complaint did not “indicate how the defendants prevented the meal . . . breaks, or . . . that plaintiff did not in fact take [such] breaks). Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011) (dismissing meal break allegations containing “only bare assertions untethered to any facts about [the plaintiff’s] particular employment history.” Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 24 of 42 Page ID #:342 87422774.8 8 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 within his first-hand knowledge, he must allege specific “circumstances, occurrences, and events” as to how he was allegedly deprived of his own meal breaks. Twombly, 550 U.S. at 556, n.3. Here, Plaintiff fails to allege any facts to plausibly suggest that he himself ever experienced a non-compliant meal break, and his conclusory and factually unsupported claim should be dismissed or stricken.6 Additionally, a Section 226.7 claim is subject to a three-year limitations period. Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1099 (2007). Since Plaintiff last worked for BP more than three years before this action was filed, his claim against BP for alleged meal period violations is time-barred and should be dismissed without leave to amend. D. PLAINTIFF’S PURPORTED THIRD CAUSE OF ACTION FOR FAILURE TO AUTHORIZE AND PERMIT REST BREAKS FAILS AS A MATTER OF LAW Plaintiff’s Third Cause of Action for rest break violations contains essentially the same factually devoid and conclusory statements that are alleged in the Second Cause of Action for meal break violations. For example, Plaintiff alleges that:  “If an order or shipment were to come into DEFENDANTS' Long Beach port location, then ALL NON-EXEMPT WORKERS were required to work through rest . . .breaks … until the full amount of work related to the order or shipment was completed.” See Exh. A (Complaint), ¶ 14;  “Plaintiff and Plaintiff Class are entitled to an uninterrupted rest period of not less than ten (10) minutes for each consecutive four (4) hour shift worked or major fraction thereof. Id. at ¶ 52; 6 See, e.g., Guerrero, 2016 U.S. Dist. LEXIS 152141, at *16 (applying Landers to meal and rest break claims and dismissing such claims in light of their conclusory allegations); Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738, at *15-17 (E.D. Cal. Feb. 3, 2017) (O’Neill, J.) (“holding that plaintiff’s allegations were “too vague and conclusory for the Court to infer that Defendants may be held liable” for failing to meet their break obligations); Dawson (RJN, Exh. D) at. pp. 4-5 (same); Robles v. Schneider National Carriers, Inc., C.D. Cal. Case No. 5:16-cv- 02482-JGB-KK (RJN, Exh. D) (“Robles”) at pp. 4-5 (Bernal, J.) (dismissing break violation allegations where plaintiff failed to plead facts asserting that defendant interfered with breaks or that he experienced a violation); Raphael, 2015 WL 4127905, at *2-3 (same); Byrd, 2016 WL 756523, at *3; Sanchez, 2015 WL 5009659, at *2-3; Freeman, 2015 WL 5179511, at *5 (granting motion to dismiss where plaintiff failed to “allege a given instance where Defendant failed to provide him with a meal or rest break in compliance with state law”). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 25 of 42 Page ID #:343 87422774.8 9 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  “Defendants failed to provide Plaintiff and Plaintiff Class with either timely uninterrupted rest breaks of not less than ten (10) minutes, or to provide Plaintiff and Plaintiff Class with an additional hour of compensation for each rest period missed as required during the time that Plaintiff and Plaintiff Class were employed with Defendants.” Id. at ¶ 53. Plaintiff again merely alleges legal conclusions that do nothing more than track the statutory language, without alleging any specific facts regarding his own missed rest breaks. Freeman, 2015 WL 5179511 at *5; Sinohui, 2015 WL 11072128 at *2. Such boilerplate allegations fail to “nudge [Plaintiff’s] claims across the line from conceivable to plausible” as is required to survive a Rule 12 motion to dismiss. Twombly, 550 U.S. at 547. Indeed, the mere allegation that breaks were impermissible until shipments were complete is insufficient insofar as it is too ambiguous and does not describe a particular, definitive rest break violation committed against Plaintiff, as required per Landers and the persuasive district court authorities discussed herein. See fn.6, supra. Therefore, Plaintiff’s Complaint fails to state a plausible claim for relief for rest break violations, and his Third Cause of Action should be dismissed or stricken. Additionally, Plaintiff’s claim for rest break violations is subject to a three-year limitations period. Murphy, 40 Cal.4th at 1113. Since Plaintiff did not work for BP in the three-year limitations period preceding the filing of this action, his claim against BP for purported missed rest breaks is time-barred and should be dismissed without leave to amend. E. PLAINTIFF’S PURPORTED FOURTH CAUSE OF ACTION FOR FAILURE TO PAY ALL WAGES DUE AT TERMINATION AND/OR WAITING TIME PENALTIES FAILS AS A MATTER OF LAW 1. The Claim Fails To Comply With Rule 8 Plaintiff’s purported Fourth Cause of Action fails to allege facts sufficient to support a claim for failure to pay final wages at separation. Cal. Labor Code § 203 (“Section 203”) 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 [no] more than Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 26 of 42 Page ID #:344 87422774.8 10 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 30 days.” As such, to state a claim for waiting time penalties under Section 203, Plaintiff must allege facts demonstrating that Defendants willfully failed to timely pay final wages. Here, Plaintiff’s claim alleges nothing more than a formulaic recitation of the statutory language, which is impermissible under Twombly and Iqbal:  “Defendants' failure to pay wages . . . was willful in that Defendants, and each of them, knew wages to be due but failed to pay them, thus entitling Plaintiff and Plaintiff Class to penalties under California Labor Code § 203 . . . .” Exh. A (Complaint), ¶ 57;  “Defendants have failed to pay Plaintiff and Plaintiff Class in a sum certain at the time of termination and have failed to pay these sums for thirty (30) days thereafter.” Id. at ¶ 58;  “Plaintiff and Plaintiff Class members that have been terminated at any time four years prior to the filing of this complaint are entitled to penalties in the amount of Plaintiff's and Plaintiff Class' daily wages, multiplied by thirty (30) days.” Id. at ¶ 58. These allegations constitute nothing more than recitations of the statutory elements of a claim for Section 203 violations and fail to allege any facts demonstrating that Defendants refused to pay final wages in a timely manner. Indeed, Plaintiff alleges no facts as to the date of his own purported termination, the date he received his own final paycheck, its amount, and the amount he purportedly should have received, thus rendering his claim subject to dismissal.7 Plaintiff also fails to allege facts to support the requisite element that 7 See, e.g., Lopez v. Aerotek, Inc., 2015 WL 4504691, *2 (C.D. Cal. July 23, 2015) (Carney, J.) (dismissing claims for waiting time penalties that asserted that “Defendants willfully failed to pay their workers accrued wages due promptly upon separation” because the plaintiff did “not even generally allege what wages were earned and paid at the time of termination, nor [did] she allege how and in what manner any final wage payment was untimely”); Dawson (RJN at Exh. C) pp. 7-8 (dismissing Section 203 claim that merely “repeats the language of the statute … without any supporting facts”); Robles,(RJN, Exh. D) at p. 11 (affirmatively citing Lopez and Guerrero and dismissing Section 203 claim where plaintiff failed to allege facts to support conclusory allegations of a violation); Guerrero, 2016 U.S. Dist. LEXIS 152141, at *22-25 (dismissing Section 203 claim because “Plaintiff did not allege “when his employment with Defendant ended, nor has he alleged exactly what wages were earned and unpaid.”); Anderson v. Blockbuster, Inc., 2010 WL 1797249, *2-4 (E.D. Cal. May 4, 2010) (dismissing Section 203 claim where plaintiff “fail[ed] to state when or how Defendant failed to pay the required wages.”). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 27 of 42 Page ID #:345 87422774.8 11 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 Defendants committed a “willful” violation to impose waiting time penalties under Section 203. Although the Complaint states that the conduct was “willful[],” Plaintiff “fails to support this conclusory allegation with factual support.” Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581, *8 (N.D. Cal. Apr. 18, 2013).8 Indeed, the mere failure to make payments at termination-the right to which is the subject of a good faith dispute-cannot, as a matter of law, establish a “willful” failure to timely pay all terminal wages. See Exh. F, Statement of Decision in Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426, p. 23 (Sept. 20, 2011) (“Driscoll Stmt. of Dec.”) (“[P]roof of violation of one statute does not prove a knowing and intentional violation of another.”). Accordingly, Plaintiff’s claim for waiting time penalties fails to satisfy the pleading requirements of Rule 8 and should be dismissed on this basis. Additionally a claim for waiting time penalties under Section 203 is subject to a three-year limitations period. Pineda v. Bank of America, N.A., 50 Cal.4th 1389, 1304 (2010). Plaintiff undisputedly was not employed by BP during the three-year period preceding the filing of this action and, therefore, this claim is time-barred with respect to BP and should be dismissed without leave to amend. 2. Section 226.7 Payments Are Not “Wages Earned,” And Do Not Trigger Liability For Waiting Time Penalties The Complaint purports to seek “all applicable” penalties for the alleged meal and rest break violation claims. See Exh. A (Complaint), ¶¶ 21, 23. To the extent Plaintiff’s Section 203 claim is based on an alleged failure to timely make Section 226.7 meal and rest break payments following separation, it fails, as such payments do not constitute “wages earned” under Section 201 for purposes of incurring waiting 8 See also Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166, *14 (N.D. Cal. May 8, 2013) (“Plaintiff has, in essence, just restated the language of Section 203. Plaintiff has not alleged facts showing that [Defendant] willfully refused to pay Plaintiff her wages after she was discharged or quit. Consequently, Plaintiff’s Section 203 claim must be dismissed ....”) (emph. added). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 28 of 42 Page ID #:346 87422774.8 12 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 time penalties. Rather, they are actually liquidated damages intended to “compensate[] the employee for events other than time spent working.” Murphy, 40 Cal.4th at 1113 (emph. added). Accord Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, *8 (C.D. Cal. Nov. 28, 2011) (Carney, J.). 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” as the payments do no correlate to the amount of time that an employee works through a meal or rest break. Murphy, 40 Cal.4th at 1113.9 Indeed, Section 226.7 payments are the same, fixed one hour of pay regardless of how many minutes of a meal or rest break are missed.10 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.) (a Section 226.7 payment “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 payments are “punitive” with “no correlation to the employee’s actual labor”). In Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012), 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. The Kirby court held that the Section 226.7 payment is intended to 9 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). 10 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. J (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 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 29 of 42 Page ID #:347 87422774.8 13 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 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 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). Post-Kirby, several district courts have held that outstanding Section 226.7 payments cannot trigger waiting time penalties under Section 203.11 As one court in this district explicitly 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 (RJN Exh. E) (“Rodriguez”) at pp. 7-8 (dismissing Section 203 claim based on Section 226.7 payments with prejudice, holding that plaintiff “cannot maintain a § 203 claim on the basis of unpaid compensation due under § 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. 11 See, e.g. Jones v. Spherion Staffing, LLC, 2012 WL 3264081, *8-9 (C.D. Cal. Aug 7, 2012) (Kronstadt, J.) (affirmatively citing Kirby and holding that Section 226.7 payments cannot be pursued under Section 203); Guerrero, 2016 U.S. Dist. LEXIS 152141 at *21-24 (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 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 30 of 42 Page ID #:348 87422774.8 14 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 Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242, 1261 (2016). Accordingly, Plaintiff’s Section 203 claim should be dismissed or stricken to the extent that it is based on the alleged non-payment of Section 226.7 payments. F. PLAINTIFF’S PURPORTED FIFTH CAUSE OF ACTION FOR FAILURE TO TIMELY PAY WAGES FAILS AS A MATTER OF LAW Plaintiff’s purported Fifth Cause of Action for a failure to timely pay wages fails because the Complaint does not allege any facts that plausibly support a pay timing violation. In particular, the claim is predicated on the alleged nonpayment of wages. Section 204 is inapplicable, as it only regulates the timing of wage payments, but does not provide relief for the failure to pay such wages altogether. See Singer v. Becton, Dickinson & Co., Med-Safe Sys., 2008 WL 2899825, *3 (S.D. Cal. July 23, 2008) (discussing Section 204 and holding that “[t]he only right furthered by the section is the timely payment of wages.”) (Emph. added). Indeed, Section 204 “deals solely with the timing of wages and not whether these wages were paid.” Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383, *2 (C.D. Cal. Sept. 22, 2010) (Otero, J.).12 To that end, Plaintiff’s Complaint alleges only that “Defendants failed to pay Plaintiff and Plaintiff Class all wages owed for all hours worked, per pay period, in a timely manner.” See Complaint (Exh. A) at ¶ 61. It is devoid of any allegations which would plausibly suggest that Defendants failed to pay wages consistent with Section 204’s timing requirement that wages for work performed between the 1st and 15th day of the month be paid “between the 16th and the 26th day of the month during which the labor was performed” and that wages for work performed between the 16th and 12 See also Cal. Lab. Code § 204(a); De La Torre v. American Red Cross, 2013 WL 5573101, *15, n.13 (C.D. Cal. Oct. 9, 2013) (Pregerson, J.) (dismissing Section 204 claim where plaintiff failed to plead allegations that the timing of wages did not comport with the statute); Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114, 1136 (N.D. Cal. 2011) (“Section 204 requires the payment of wages in a timely manner; it does not provide a right to wages.”); See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889, 905 (2012) (same); In re Application of Moffett, 19 Cal.App.2d 7, 13 (1937) (“[S]ole purpose of [Section 204] ... is to require an employer of labor who comes within its terms to maintain two regular pay days each month.”). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 31 of 42 Page ID #:349 87422774.8 15 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 last day of the month be paid “between the 1st and 10th day of the following month.” Cal. Lab. Code § 204(a). Therefore, Plaintiff has failed to state a cognizable claim for relief under Section 204. G. PLAINTIFF’S PURPORTED SIXTH CAUSE OF ACTION FOR FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS FAILS AS A MATTER OF LAW 1. The Claim Fails To Comply With The Rule 8 Requirements To seek statutory penalties for any alleged violation of the itemized wage statement requirements of Section 226(a), Plaintiff must allege facts supporting the essential element that Defendants committed “knowing and intentional failure[s] … to comply” with Section 226(a). Cal. Lab. Code § 226(e) (emph. added). Here, Plaintiff alleges no facts to plausibly suggest that Defendants provided inaccurate wage statements or that they did so knowingly and intentionally. Indeed, Plaintiff’s Complaint does not allege a single factual exemplar of any allegedly inaccurate wage statement he or any PCM received from Defendants. Instead, Plaintiff merely recites the statutory language of the California Labor Code and then asserts factually devoid and conclusory allegations that they intentionally violated Section 226(a) by failing to provide “an itemized statement accurately showing the total hours worked.” See Exh. A (Complaint), ¶ 64. But such conclusions have been held insufficient under Rule 8.13 Therefore, this claim fails to allege any facts that 13 See, e.g. Dawson (RJN Exh. C) at pp. 9-11 (dismissing Section 226 claim based on alleged inaccuracy of total hours worked where plaintiff failed to plead facts showing that inaccuracy was knowing and/or intentional); Robles (RJN Exh. D) 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 Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 32 of 42 Page ID #:350 87422774.8 16 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 satisfy the Rule 8 pleading requirements, and it should be dismissed on this basis. Moreover, under California law, a claim for inaccurate wage statement penalties is subject to a one-year limitations period. Murphy, 40 Cal.4th at 1108; Dawson, RJN Exh. C at p. 10. Here, Plaintiff undisputedly was not employed by BP since 2013 and, therefore, his claim for Section 226 penalties against BP is time- barred as a matter of law and should be dismissed without leave to amend.14 2. The Wage Statements Accurately Reported All Wages Paid Plaintiff’s inaccurate wage statement claim also 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. Indeed, Section 226(e) provides that penalties are not available unless the employee cannot determine from the wage statement alone the amount of gross and net wages actually “paid . . . during the pay period” and the amount of deductions actually “made . . . during the pay period.” See Cal. Lab. Code § 226(e)(2)(B)(i)-(ii) (emph. added). See also 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”). Here, Plaintiff does not allege that the wage statements he received from Defendants were inaccurate in reporting the wages actually paid to him and the deductions actually made during the applicable pay period. Accordingly, Plaintiff’s claim fails as a matter of law on this basis as well. 3. The Claim Fails To Allege The Requisite Injury Even assuming arguendo that Plaintiff properly alleged a knowing and ‘violations of the law were committed knowingly and willfully’ [sic] … plaintiffs fail to support this conclusory allegation with factual support.”). 14 Plaintiff also cannot seek actual damages from BP for allegedly inaccurate wage statements, since a three-year limitations period applies to such claims and it would still be time-barred to the extent it is pled against BP. See, e.g., Dawson (RJN Exh. C) at p. 10; Singer, 2008 WL 2899825, at *5. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 33 of 42 Page ID #:351 87422774.8 17 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 intentional failure to comply with Section 226(a), his Complaint still fails to properly allege the other required element to impose penalties: that Plaintiff “suffer[ed] injury as a result of” any such violation. Cal. Lab. Code § 226(e)(1) (emph. added). Merely failing to receive a compliant itemized wage statement is not enough. See Angeles v. U.S. Airways, Inc., 2013 WL 622032, *10 (N.D. Cal. 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). A cognizable injury is deemed to exist 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); De La Torre, 2013 WL 5573101, *6. In De La Torre, the court dismissed the plaintiff’s Cal. Lab. Code § 226 claims for failure to sufficiently allege a cognizable injury under Section 226(e) because, while the plaintiff alleged that the failure to include her bonus payments on her paychecks constituted an inaccuracy, 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). As a result, the 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 here must allege that his wage statements were inaccurate as to the wages actually paid to him. Plaintiff’s Complaint alleges no facts that even suggest any such cognizable injury. As discussed above, it conclusorily alleges only that the time of the Plaintiff and the PCMs were not accurately reported on their wage statements, which caused Plaintiff and the PCMs to be “unable to properly account for the true and accurate Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 34 of 42 Page ID #:352 87422774.8 18 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 compensation owed for work performed for DEFENDANTS.” See Exh. A (Complaint), ¶ 17. Plaintiff does not allege that he or the PCMs were unable to determine from the wage statements alone the amount of wages actually paid to them. Therefore, Plaintiff has failed to properly allege this required element for seeking penalties under Section 226(e) and his claim should be dismissed.15 4. Section 226.7 Payments Are Not Subject To Reporting Plaintiff’s inaccurate wage statement claim also fails in part for the separate and independent reason that, to the extent it is predicated on the non-itemization of meal and rest break payments under Section 226.7, such payments are not required to be itemized on wage statements under Section 226(a). First, neither the plain language nor the legislative history of Section 226(a) requires that wage statements itemize such payments for missed meal periods. Section 226(a) requires employers to list only nine specific items on an employee’s wage statement, none of which include Section 226.7 payments.16 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 15 See, e.g., Dawson (RJN Exh. C) at pp. 9-10 (dismissing Section 226 claim based on conclusory allegation that “Plaintiff and other class members have suffered injury” where it was unsupported by facts); Silva, 2015 WL 11422302, at *10 (dismissing Section 226 claim where complaint alleged failure to include total number of hours worked but failed to sufficiently allege any resulting cognizable injury); Willner v. Manpower Inc., 2012 WL 1570789, *3 (N.D. Cal. May 3, 2012) (dismissing inaccurate wage statement penalties claims based on plaintiff’s failure to allege how she was “injured” by the employer’s failure to include pay period dates). 16 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). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 35 of 42 Page ID #:353 87422774.8 19 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 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.”17 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. F (Driscoll Stmt. of Dec.) at p. 22 (emph. added). 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 discussed in Section III.E.2. above, the California Supreme Court acknowledged in Murphy, Brinker and Kirby that Section 226.7 payments are akin to damages and not compensation for work performed. Murphy, 40 Cal.4th at 1113; Brinker Restaurant Corp. v. Super. Ct., 53 Cal. 4th 1004, 1040 n. 19 (2012); 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. Accordingly, for all of the foregoing reasons, Plaintiff’s Sixth Cause of Action 17 See Exh. F, (Driscoll Stmt. of Dec.) at p. 21 (emph. added). See also Exh. G (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. H (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. I (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). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 36 of 42 Page ID #:354 87422774.8 20 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 fails as a matter of law and should be dismissed and/or stricken as set forth above. H. PLAINTIFF’S PURPORTED SEVENTH CAUSE OF ACTION FOR UCL VIOLATIONS FAILS AS A MATTER OF LAW 1. The Claim Fails To Satisfy Rule 8’s Requirements The UCL does not proscribe any particular conduct; it purely borrows from other laws by making them independently actionable as unfair competitive practices. See Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134, 1143 (2003).18 Here, Plaintiff’s UCL claim is based entirely on claims for relief that fail to satisfy the Rule 8 pleading requirements for the reasons discussed above. Additionally, Plaintiff’s allegations fail to satisfy Rule 8’s pleading standards because the Complaint merely lumps the two Defendants together in a “shotgun” pleading that fails to identify any specific conduct each defendant purportedly committed to allegedly violate statutes and public policies. As this district has recognized, such “shotgun pleadings” are unacceptable as they “make it difficult or impossible for defendants to make informed responses to the plaintiff’s allegations.” See, e.g., Sollberger v. Wachovia Securities, LLC, 2010 WL 2674456, *4-5 (C.D. Cal. June 30, 2010) (Guilford, J.) (dismissing claims pled against multiple defendants where plaintiff “group[ed] defendants together without identifying what the particular defendants specifically did wrong”); Myers v. Winn Law Group, APC, 2012 WL 5187771, *2-3 (E.D. Cal. Oct. 17, 2012) (dismissing complaint which failed to specifically identify wrongs purportedly committed against each defendant on the grounds that “each defendant is entitled to notice of the bases for the claim(s) against him or her.”). Accordingly, Plaintiff’s Seventh Cause of Action should be dismissed or 18Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379, *25 (E.D. Cal. May 31, 2013) (“Where a plaintiff cannot state a claim under the ‘borrowed’ law, she cannot state a UCL claim either.”). See also Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983, 992 (S.D. Cal. 2012) (same); Dawson (RJN, Exh. C) at pp. 12-13 (same); Robles (RJN, Exh. D) at pp. 3-5 (same). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 37 of 42 Page ID #:355 87422774.8 21 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 stricken as it is based upon Plaintiff’s omnibus and legally deficient claims for allegedly unpaid overtime wages, meal and rest break violations, final pay violations, pay timing violations or wage statement violations. 2. Plaintiff’s UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL 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. See Sections III.E.2 and III.G.4, supra. 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, and “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, Section 226.7 payments 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. Dist. LEXIS 15738, *19-20 (affirmatively citing Kirby and dismissing UCL claim based on Section 226.7 payments on the grounds that such payments are not restitutionary). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 38 of 42 Page ID #:356 87422774.8 22 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 3. Section 203 and Section 226 Penalties Are Not Subject to Restitution under the UCL It is also 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.19 Accordingly, for all of the foregoing reasons, Plaintiff’s UCL claim fails as a matter of law and should be dismissed or stricken without leave to amend. I. PLAINTIFF’S CLAIM FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED OR STRICKEN BECAUSE HE LACKS STANDING TO SEEK SUCH RELIEF AS A FORMER EMPLOYEE To seek injunctive relief, a threatened injury must be “certainly impending” and “concrete and particularized.” Cornelius v. L.A. Cnty. Etc. Auth., 49 Cal.App.4th 1761, 1768-69 (1996) (emph. added); see also Clark v. Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001). Since former employees have only a “conjectural or hypothetical” threat of future injury, they lack standing for injunctive relief. See Walsh v. Nev. Dep't Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (holding that former employee lacked standing to pursue claims); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011) (“Plaintiffs not employed by Costco throughout this case do not have standing to seek injunctive relief.”). As a former employee, Plaintiff cannot establish that he will suffer any threat of real and immediate future harm as a result of the conduct alleged in the Complaint because he no longer works for Defendant. Thus, Plaintiff lacks standing to pursue 19 See, e.g., Pineda, 50 Cal.4th at 1304 (“[S]ection 203 penalties cannot be recovered as restitution under the UCL); Campbell v. PriceWaterhouseCoopers, 2008 WL 3836972, *6 (E.D. Cal. Aug. 14, 2008) (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 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 39 of 42 Page ID #:357 87422774.8 23 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 his claims for injunctive relief, and they should be dismissed or stricken.20 J. PLAINTIFF’S PRAYER FOR ATTORNEYS’ FEES UNDER CAL. CODE CIV. PROC. § 1021.5 SHOULD BE DISMISSED OR STRICKEN “‘[I]t has been repeatedly held that an award of attorney fees is not justified under section 1021.5 if the public benefit gained from the lawsuit and the important public right enforced by the suit are coincidental’ to the monetary or other personal gain realized by the party seeking fees.” DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007) (cit. omitted). See also Flannery v. Cal. Highway Patrol, 61 Cal.App.4th 629, 636 (1998) (reversing fee award in gender discrimination and retaliation action; “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.”) Here, the primary purpose and effect of Plaintiff’s lawsuit is to advance his individual economic interests and recover alleged monetary penalties for himself. Indeed, as a former employee, Plaintiff cannot even obtain any form of injunctive relief. Therefore, Section 1021.5 provides no legally tenable basis for an award of attorneys’ fees, and his Prayer for such attorneys’ fees should be dismissed or stricken. K. PLAINTIFF’S PRAYER FOR “ACTUAL, CONSEQUENTIAL AND INCIDENTAL LOSSES AND DAMAGES” SHOULD BE DISMISSED OR STRICKEN BECAUSE THEY ARE NOT RECOVERABLE HERE Plaintiff’s prayer for punitive damages, consequential damages, incidental damages, and emotional distress damages (including both mental pain and anguish) 20 See, e.g., Guerrero, 2017 U.S. Dist. LEXIS 15738, at *21-24; Dawson (RJN Exh. C) at p. 13 (dismissing former employee’s prayer for injunctive relief due to lack of standing); Robles (RJN Exh. D) at p.5, n.3 (dismissing prayer for injunctive relief on standing grounds, noting plaintiff did not allege any “continuing employment relationship … and therefore cannot establish that he will suffer any threat of real and immediate future harm”); Richards v. Ernst & Young LLP, 2010 WL 682314, *3 (N.D. Cal. Feb. 24, 2010) (“[A] former employee lacks standing to seek prospective injunctive relief on behalf of a putative class containing both former and current employees.”); DeLodder v. Aerotek, Inc., 2009 WL 3770670, *3 (C.D. Cal. Nov. 9, 2009) (Snyder, J.) (“[P]laintiffs lack standing to seek prospective relief under the UCL because plaintiffs do not dispute that they are no longer employees of defendant.”); Price v. Starbucks Corp., 192 Cal.App.4th 1136, 1142 n. 5 (2011) (same). Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 40 of 42 Page ID #:358 87422774.8 24 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 should be dismissed or stricken because such remedies are not recoverable under the Labor Code sections Plaintiff invokes for his purported claims. See Exh. A (Complaint) at ¶ 41 and Prayer for Relief at ¶¶ 1, 2, 8. Indeed, the plain language of Labor Code Sections 201-204, 226.7 and the UCL demonstrates that such damages are not among the remedies available for break violations, late wage payments, or untimely final wage payments. See, e.g., Brewer, 168 Cal.App.4th at 1252 (“[P]unitive damages are not recoverable when liability is premised solely on the employer’s violation of Labor Code statutes that regulate meal and rest breaks, pay stubs, and minimum wage laws.”) (Emph. added); In re Wal-Mart Stores, Inc., 505 F.Supp.2d at 620-621 (dismissing prayer for punitive damages in putative wage and hour class action, holding that such damages are not available under where a right is created by statute and the statute does not expressly permit punitive damages); Korea Supply, 29 Cal.4th at 1148 (punitive damages not available under UCL); Barrera v. The Home Depot U.S.A., Inc., N.D. Cal. Case No. 5:12-cv-05199-LHK (May 20, 2015), Dkt. #124 (RJN Exh. K) at p. 2 (dismissing objection to wage and hour class action settlement where objector claimed it would not compensate him for emotional distress caused by employer on the grounds that “class members cannot recover emotional distress under either of the [Labor Code] class claims alleged in this action”). Therefore, Plaintiff’s Prayer for such damages should be dismissed or stricken without leave to amend. /// /// /// /// /// /// /// /// Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 41 of 42 Page ID #:359 87422774.8 25 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 IV. CONCLUSION For all of the foregoing reasons, Tesoro and BP respectfully request that the Court dismiss and/or strike Plaintiff’s Complaint as set forth herein. DATED: March 3, 2017 MCGUIREWOODS LLP By: /s/ Sabrina A. Beldner Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Jared R. Zeidman, Esq. Attorneys for Defendants TESORO REFINING & MARKETING COMPANY, LLC and BP PIPELINES (NORTH AMERICA) INC. Case 2:17-cv-01554-MWF-AFM Document 11 Filed 03/03/17 Page 42 of 42 Page ID #:360 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 1 of 139 Page ID #:361 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 2 of 139 Page ID #:362 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 3 of 139 Page ID #:363 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 4 of 139 Page ID #:364 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 5 of 139 Page ID #:365 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 6 of 139 Page ID #:366 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 7 of 139 Page ID #:367 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 8 of 139 Page ID #:368 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 9 of 139 Page ID #:369 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 10 of 139 Page ID #:370 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 11 of 139 Page ID #:371 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 12 of 139 Page ID #:372 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 13 of 139 Page ID #:373 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 14 of 139 Page ID #:374 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 15 of 139 Page ID #:375 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 16 of 139 Page ID #:376 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 17 of 139 Page ID #:377 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 18 of 139 Page ID #:378 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 19 of 139 Page ID #:379 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 20 of 139 Page ID #:380 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 21 of 139 Page ID #:381 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 22 of 139 Page ID #:382 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 23 of 139 Page ID #:383 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 24 of 139 Page ID #:384 Exhibit A Exhibit A Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 25 of 139 Page ID #:385 86944872.12 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 Jared R. Zeidman (SBN #292383) Email: jzeidman@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 Attorneys for Defendant TESORO REFINING & MARKETING COMPANY, LLC 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. [Los Angeles County Superior Court Case No. BC642295] DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 1 of 10 Page ID #:104 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 26 of 139 Page ID #:386 86944872.12 1 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 DECLARATION OF KAREN KAWANO I, Karen Kawano, declare as follows: 1. I have personal knowledge of the facts and matters set forth in this declaration and could and would testify competently and truthfully to the same if called as a witness and placed under oath. I am over eighteen years of age. 2. I am currently Labor Specialist for Tesoro Refining & Marketing Company, LLC and Tesoro Logistics GP, LLC (collectively referred to herein as “Tesoro”). As a Labor Specialist for Tesoro, I serve as the chief spokesperson for Tesoro with the different unions that represent Tesoro employees in Southern California including, without limitation, the United Steel Workers A.F.L.-C.I.O. Southern California Local 675 (the “USW Local 675”). In addition, I handle the grievance processing and administer the applicable collective bargaining agreements setting forth the terms and conditions (including, without limitation, wages and employment benefits) between Tesoro and the unions representing employees at various Tesoro facilities in Southern California including, without limitation, its Long Beach, California facilities. I have knowledge of Tesoro Refining & Marketing Company, LLC’s and Tesoro Corporation’s (“Tesoro Corp.”) business entity structures and operations based on my review of their business records. 3. Tesoro Refining & Marketing Company, LLC is a limited liability company formed and operated under the laws of the State of Delaware, and it is a wholly-owned, direct subsidiary of Tesoro Corp. 4. At the time of commencement of this civil action and at present, Tesoro Corp. is a corporation incorporated in the State of Delaware with its corporate headquarters and principal place of business in San Antonio, Texas. Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 2 of 10 Page ID #:105 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 27 of 139 Page ID #:387 86944872.12 2 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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. All of Tesoro Corp.’s corporate executive and administrative operations are managed from its headquarters in San Antonio, Texas. These operations include final decision-making and oversight of the following Tesoro Corp. operations and divisions: financial; legal, capital and special projects; business development; environmental, health and safety; technology; facility maintenance; pipelines, terminal, trucking and retail; product supply and trading; business development and logistics; marketing; marine; and refining. 6. Tesoro Corp.’s corporate policies and procedures in connection with these operations and divisions are primarily formulated in Texas. 7. Tesoro Corp.’s corporate executive officers are entirely based in Texas, including its President and Chief Executive Officer; Executive Vice-President and Chief Financial Officer and Corporate Development; Executive Vice President, Operations; Executive Vice President, Marketing and Commercial; Executive Vice President, General Counsel and Secretary; Vice President and Treasurer and Credit and Vice President and Controller. 8. Tesoro Corp.’s corporate financial records are also maintained in Texas. 9. In my capacity as Tesoro’s Labor Specialist, I am familiar with and have access to personnel records and information concerning the employment of Plaintiff Onofre Soratorio (“Plaintiff’), the personnel policies and practices of Tesoro, rates of employee pay and collective bargaining agreements between Tesoro and the different unions that represent Tesoro employees in Southern California. Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 3 of 10 Page ID #:106 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 28 of 139 Page ID #:388 86944872.12 3 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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. Plaintiff worked at one of Tesoro’s Long Beach Marine Terminals from June 1, 2013 through April 12, 2016. Prior to June 1, 2013, Plaintiff worked at the same Long Beach Marine Terminal for BP Pipelines North America, Inc. (“BP”), until Tesoro acquired the Long Beach facility from BP on or about June 1, 2013. 11. As of June 1, 2013, Tesoro Refining & Marketing Company, LLC assumed a collective bargaining agreement that BP had entered into with USW Local 675 for a term of February 1, 2012 through January 31, 2015 (the “BP 2012- 2015 CBA”), which applied to employees at several locations, including the Long Beach Marine Terminal at which Plaintiff worked. Attached as Exhibit 1 is a true and correct copy of the BP 2012-2015 CBA. 12. Effective February 1, 2015, Tesoro Logistics G.P., LLC and USW Local 675 entered into a new collective bargaining agreement covering employees at several locations, including the Long Beach Marine Terminal at which Plaintiff worked, which is effective through January 31, 2019 (the “2015-2019 Tesoro CBA”). Attached as Exhibit 2 is a true and correct copy of the 2015-2019 Tesoro CBA. 13. At all times during his employment with Defendants, Plaintiff was a member of USW Local 675 and was subject to the terms and conditions set forth in the BP 2012-2015 CBA and the 2015-2019 Tesoro CBA, respectively (“collectively, the “CBAs”). 14. Each of the CBAs contains separate and distinct provisions relating to hours of work, meal periods, rest periods, alternative workweek schedules, shift differentials and rates of pay which apply to the represented employees, including Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 4 of 10 Page ID #:107 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 29 of 139 Page ID #:389 86944872.12 4 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff. 15. All employees covered by the BP 2012-2015 CBA who worked at the Long Beach Marine Terminal earned a contractual hourly rate of more than 30% above the state’s eight and nine dollar minimum wages ($10.40 and $11.70, respectively). The BP 2012-2015 CBA provides for contractual hourly wage rates based on position and years of service, and the minimum hourly rate during the term of the contract was $25.20 in 2012, $25.96 in 2013 and $26.74 in 2014. 16. All employees covered by the 2015-2019 Tesoro CBA who worked at the Long Beach Marine Terminal earned a contractual hourly rate of more than 30% above the state’s nine and ten dollar minimum wages ($11.70 and $13,00, respectively). The 2015-2019 Tesoro CBA provides for contractual hourly wage rates based on position and years with Tesoro, and the minimum hourly rate for positions at the Long Beach Marine Terminal during the term of the contract was $27.41 in 2015 and $28.23 in 2016. 17. Both of the CBAs set forth specific provisions addressing the working conditions, entitlement to and rates of pay, and final and binding arbitration for alleged violations of the CBAs. As to employees like Plaintiff, the CBAs also address the entitlement to meal and rest periods, require employees to identify any non-compliant meal breaks on their daily time record and contain provisions for when and how much additional daily compensation will be paid to an employee for non-compliant meal and/or rest breaks. The CBAs further provide that disputes pertaining to compliance with the meal and rest break provisions are subject to the contractual grievance procedure, and employees must exhaust the grievance procedure regarding such disputes before seeking other remedies. Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 5 of 10 Page ID #:108 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 30 of 139 Page ID #:390 86944872.12 5 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 18. Tesoro’s records related to Plaintiff reflect that at all times during his employment with Tesoro, through and including Plaintiff’s separation from that employment, Plaintiff’s home address of record was and is located in California, and he maintained a California drivers’ license. 19. Plaintiff’s Complaint in this action describes the proposed class as “ALL NON-EXEMPT WAREHOUSE WORKERS who were employed at TESORO and BP’s Long Beach facility at any time beginning four (4) years preceding the filing of the Complaint in this action through final judgment,” including without limitation as “non-exempt Yardmen, Lineup Workers, Carmen, and other similarly situated employees of Defendants” and “all non-exempt workers at Tesoro’s Long Beach location.” Under these descriptions, the number of members of all proposed plaintiff classes in the aggregate is not less than 100 (consistent with the allegations in Paragraph 14.a of Plaintiff’s Complaint) and there are other employees who were and/or are subject to additional collective-bargaining agreements between Tesoro and/or BP, on the one hand, and USW Local 675 or other labor unions, on the other hand, during the four-year limitations period and which similarly address hours of work, meal periods, rest periods, alternative work schedules, shift differentials and rates of pay. 20. In my above-described position, I have access to and have reviewed Tesoro’s personnel, payroll and wage records for Plaintiff and other current and former non-exempt employees who work or worked for Tesoro at its Long Beach facilities (the “Putative Class Members” or “PCMs”) during the time period of November 29, 2012 through November 29, 2016 (but not any such records of employees who were employed by BP at those facilities prior to June 1, 2013). The business records of Tesoro referred to in this declaration are prepared and maintained by employees of Tesoro who have a business duty to do so, and they are Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 6 of 10 Page ID #:109 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 31 of 139 Page ID #:391 86944872.12 6 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 kept in the ordinary course of Tesoro’s business. The entries made in such business records were made at or near the time of the occurrence of the events recorded in such records. In addition, the business records are kept in a safe and secure location. 21. I have obtained, retrieved and reviewed Tesoro’s business information and records containing payroll and employment data related to Plaintiff and the other PCMs working from November 29, 2012 through November 29, 2016 (but not any such information and records of employees who were employed by BP at those facilities prior to June 1, 2013), including without limitation number of days worked, dates of employment, hourly rates of pay in effect and paychecks issued during the one-year, three-year and four-year periods ending on November 29, 2016, and/or I have caused such data to be retrieved and reviewed by individuals responsible for maintaining such information and records. That voluminous data was analyzed at my direction and under my supervision to calculate and/or test for the following: (i) the total number of PCMs who worked during the one-year, three- year and four-year time periods ending on November 29, 2016, (ii) the total number of PCMs who left their employment during the three-year time period ending on November 29, 2016 based on their last date of employment; (iii) the number of days each of the PCMs worked during the one-year, three-year and four-year time periods ending on November 29, 2016, and the total number of workdays for all such PCMs during each such period, (iv) the recorded hours worked per workday by each PCM during the three-year and four-year time periods ending on November 29, 2016, and the total number of recorded hours worked per workday by all such PCMs during each such period, (v) the number of wage statements issued to each of the PCMs during the one-year, three-year and four-year time periods ending on November 29, 2016, and the total number of wage statements issued to all such PCMs during such period, and (vi) the average hourly rate of pay in effect for each of the current and formerly employed PCMs during the three-year and four-year time periods ending Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 7 of 10 Page ID #:110 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 32 of 139 Page ID #:392 86944872.12 7 DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 on November 29, 2016. The results of that analysis of that voluminous data for the time period between November 29, 2012 and November 29, 2016 is summarized as follows: a. The PCMs who worked for Tesoro during the four-year time period ending on the date of the filing of the Complaint in this action (November 29, 2012 through November 29, 2016) worked an aggregate of 54,175 days during that timeframe. b. 20 of the PCMs left their employment with Tesoro during the three-year time period ending on the date of the filing of the Complaint in this action (November 29, 2013 through November 29, 2016). c. There are at least 87 PCMs who worked for Tesoro during the one-year time period ending on the date of the filing of the Complaint in this action (November 29, 2015 through November 29, 2016). These PCMs received at least 2,246 wage statements during that timeframe, or an average of approximately 26 wage statements per PCM. d. The PCMs were paid an average effective hourly rate of $36.78 during the four-year time period ending on the date of the filing of the Complaint (November 29, 2012 through November 29, 2016). e. The PCMs worked the following average recorded hours per workday during each of the following time periods: Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 8 of 10 Page ID #:111 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 33 of 139 Page ID #:393 Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 9 of 10 Page ID #:112 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 34 of 139 Page ID #:394 86853122.11 DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT 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 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 1800 Century Park East, 8th Floor, Los Angeles, CA 90067-1501. On February 24, 2017, I served the following document(s) described as: DECLARATION OF KAREN KAWANO IN SUPPORT OF DEFENDANT TESORO REFINING & MARKETING COMPANY, LLC’S NOTICE OF REMOVAL OF CIVIL ACTION FROM STATE COURT on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: Grant Joseph Savoy Lindsay Veronika Salk Shoham J. Solouki Solouki Savoy LLP 316 W. 2nd Street, Suite 1200 Los Angeles, California 90012 Tel.: 213.814.4940/Fax. 213.814.2550 Attorneys for Plaintiff Debra Nahrstadt BP Pipelines (by E-mail only) Debra.Nahrstadt@bp.com BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereon fully prepaid at Los Angeles, CA, on that same day following ordinary business practices. (C.C.P. § 1013 (a) and 1013a(3)) BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) served hereunder. (C.C.P. § 1013(d)(e)) BY HAND DELIVERY: I delivered such envelope(s) by hand to the office of the addressee(s). (C.C.P. § 1011(a)(b)) BY PERSONAL SERVICE: I personally delivered such envelope(s) to the addressee(s). BY ELECTRONIC TRANSMISSION - I transmitted a PDF version of this document by electronic mail to the party(s) identified on the attached service list using the e-mail address(es) indicated. (As to BP Pipelines) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 24, 2017, at Los Angeles, CA. Jeri Bachelis-Asher Case 2:17-cv-01554 Document 1-7 Filed 02/24/17 Page 10 of 10 Page ID #:113 Exhibit B Exhibit B Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 35 of 139 Page ID #:395 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. 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): Order GRANTING Defendant’s Motion to Dismiss Before the Court is Defendant HITCO Carbon Composites, Inc.’s motion to dismiss and/or strike Plaintiff Andrew Dawson’s complaint. Dkt. #10. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15. After considering the moving, opposing, and reply papers, the Court GRANTS the motion to dismiss and DENIES the motion to strike. I. Background Plaintiff Andrew Dawson (“Plaintiff”) was employed by Defendant HITCO Carbon Composites, Inc. (“Defendant”) as an hourly, non-exempt employee in California from January 2013 until June 2014. Dkt. #1, Ex. A (“Complaint” or “Compl.”) ¶ 18. On August 29, 2016, Plaintiff filed a wage and hour putative class action complaint against Defendant in the Superior Court for the County of Los Angeles on behalf of “[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.” Compl. ¶ 13. Plaintiff asserts that Defendant “engaged in a uniform policy/practice of wage abuse against their hourly-paid or non-exempt employees.” Compl. ¶ 25. The Complaint includes the following general allegations: Defendants hired Plaintiff and the other class members and classified them as hourly-paid or non-exempt employees, but failed to compensate them for all hours worked, missed meal periods and/or rest breaks. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 1 of 16 Page ID #:538 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 36 of 139 Page ID #:396 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. 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 activities. 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. Defendants directly hired and paid wages and benefits to Plaintiff and the other class members. Defendants continue to employ hourly-paid or non-exempt employees within the State of California. 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. 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 meal periods and rest breaks in violation of California law. Id. ¶¶ 19-25. The Complaint also alleges that, “[a]t all material times,” Defendants failed to: Provide the requisite uninterrupted meal and rest periods to Plaintiff and the other class members. Pay Plaintiff and the other class members at least minimum wages for all hours worked. Pay Plaintiff and the other class members all wages owed to them upon discharge or resignation. Pay Plaintiff and the other class members all wages within any time permissible under California law, including, inter alia, California Labor Code section 204. Provide complete or accurate wage statements to Plaintiff and the other class members. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 2 of 16 Page ID #:539 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 37 of 139 Page ID #:397 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. Keep complete or accurate payroll records for Plaintiff and the other class members. Reimburse Plaintiff and the other class members for necessary business-related expenses and costs. Properly compensate Plaintiff and the other class members pursuant to California law in order to increase defendants’ profits. Id. ¶¶ 36-43. Plaintiff brings nine causes of action for violations of: (1) Cal. Labor Code §§ 226.7 and 512(a) (unpaid meal period premiums); (2) Cal. Labor Code § 226.7 (unpaid rest period premiums); (3) Cal. Labor Code §§ 1194, 1197, and 1197.1 (unpaid minimum wages); (4) Cal. Labor Code §§ 201 and 202 (final wages not timely paid); (5) Cal. Labor Code § 204 (wages not timely paid during employment); (6) Cal. Labor Code § 226(a) (non-compliant wage statements); (7) Cal. Labor Code § 1174(d) (failure to keep requisite payroll records); (8) Cal. Labor Code §§ 2800 and 2802 (unreimbursed business expenses), and (9) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus & Prof. Code §§17200 et seq. Defendant removed the case to this Court on September 29, 2016 pursuant to the Class Action Fairness Act of 2005 (“CAFA”). Dkt. #1. On October 21, 2016, Defendant filed this motion to dismiss the case and/or strike Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(f). Dkt. #10 (“Mot.”). II. Legal Standard A. Fed. R. Civ. P. 12(b)(6) A motion to dismiss under Federal Rule of Civil Procedure 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When deciding a Rule 12(b)(6) motion, 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 CV-90 (10/08) CIVIL MINUTES - GENERAL Page 3 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 3 of 16 Page ID #:540 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 38 of 139 Page ID #:398 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. “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. After accepting all non-conclusory allegations as true and drawing all reasonable inferences in favor of the plaintiff, the court must determine whether the complaint alleges 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. B. Fed. R. Civ. P. 12(f) Federal Rule of Civil Procedure 12(f) provides that a court “may order stricken from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “‘Redundant’ matter consists of allegations that constitute a needless repetition of other averments.” Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1079 (C.D. Cal. 1994). “‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158, 1162 (C.D. Cal. 2010) (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)). “‘[I]mpertinent’ matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. Finally, “scandalous” matter “includes allegations that cast a cruelly derogatory light on a party or other person.” In re 2TheMart.com Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000) (citation omitted). Federal courts generally disfavor motions to strike “unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” See Shabaz v. Polo Ralph Lauren Corp.,586 F. Supp. 2d 1205, 1209 (C.D. Cal. 2008) (citation omitted). III. Motion to Dismiss 1. First and Second Causes of Action: Unpaid Meal and Rest Period Premiums 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. Lab. Code § 512(a); see also Cal. Lab. Code § 226.7(c) (an employer who “fails to provide” an employee a due meal period must pay an additional hour of CV-90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 4 of 16 Page ID #:541 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 39 of 139 Page ID #:399 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. pay). An employer need not “police” meal breaks and “ensure” that employees actually take them. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012). As with meal periods, California law requires only that employers “authorize and permit all employees to take rest periods . . . at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” Industrial Welfare Comm'n, Wage Order § 12(A). Regarding meal periods, the Complaint alleges that, 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. 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. 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. Compl. ¶¶ 50-52. As to rest periods, the Complaint similarly alleges that, during the relevant time period: “Defendants required Plaintiff and other class members to work four (4) or more hours without authorizing or permitting a ten (10) minute rest period per each four (4) hour period worked,” and that “Defendants willfully required Plaintiff and the other class members to work during rest periods and failed to pay Plaintiff and the other class members the full rest period premium for work performed during rest periods.” Id. ¶¶ 59-61. These broad conclusory allegations are insufficient to state a plausible claim that Plaintiff was a victim of Defendant’s alleged violations of the labor laws. “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., No. C-13-02377 JSC, 2013 WL 5090869, at * (N.D. Cal. Sept. 13, 2013); Finder v. Leprino Foods Co., No. 1:13-CV-2059 AWI-BAM, 2015 CV-90 (10/08) CIVIL MINUTES - GENERAL Page 5 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 5 of 16 Page ID #:542 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 40 of 139 Page ID #:400 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. WL 1137151, at *3 (E.D. Cal. Mar. 12, 2015). Moreover, Plaintiff’s allegations merely recite the statutory language, without providing any factual support. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively”). Plaintiff argues in his opposition that “[a] plaintiff alleging [wage-and-hour] violations need only plead that he was employed by the defendant and worked compensable time for which he was not paid.” Dkt. #23 (“Opp.”), at 1. While the Court agrees that a plaintiff need not plead a wealth of factual allegations to state a plausible claim for relief under the California Labor Code, the Court disagrees with Plaintiff that his mere allegation that Defendant has violated the law defeats a Rule 12(b)(6) motion. In fact, the 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. See generally Compl. Without identifying any factual allegations supporting the alleged violation, the Court cannot draw a reasonable inference that Defendant is liable. See Iqbal, 556 U.S. at 663 (Court cannot accept “threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”); Ovieda v. Sodexo Operations, LLC, No. CV 12-1750 GHK (SSx), 2012 WL 1627237, at *2 (C.D. Cal. May 7, 2012) (“Plaintiff fails to allege that she even once worked a shift long enough to obligate Defendant to provide her with a rest period . . . .”). As the Ninth Circuit explained in Landers v. Quality Communications, Federal Rule of Civil Procedure 8 does not require “mathematical precision,” but it does require allegations indicating that a plaintiff worked shifts during which she was harmed. 771 F.3d 638, 644-46 (9th Cir. 2014), cert. denied, 135 S. Ct. 1845. Allegations that speak only to class members generally are insufficient to state a claim. Id. at 646; see also Anderson v. Blockbuster Inc., No. CV 10-158 MCE (GGH), 2010 WL 1797249, at *2-4 (E.D. Cal. May 4, 2010) (finding insufficient an allegation that “Plaintiff and class members consistently worked in excess of eight hours in a day, in excess of 12 hours in a day and/or in excess of 40 hours in a week”); Raphael v. Tesoro Ref. & Mktg. Co. LLC, No. CV 15-2862 ODW (Ex), 2015 WL 4127905, at *2-3 (C.D. Cal. July 8, 2015) (“Looking to Raphael's Complaint, it is readily ascertainable that the language of the allegations falls well within the scope of what Landers and other cases have shown to be insufficient. Raphael includes no relevant facts or dates during which these alleged violations occurred, instead he claims that ‘at all relevant times’ Tesoro failed to comply with a laundry list of regulations.”). For the foregoing reasons, Defendant’s motion to dismiss the first and second causes of action is GRANTED, with leave to amend. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 6 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 6 of 16 Page ID #:543 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 41 of 139 Page ID #:401 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. 2. Third Cause of Action: Unpaid Minimum Wages California law requires that an employer pay at least minimum wage to its employees. Cal. Lab. Code §§ 1194, 1197. In support of this cause of action, the Complaint 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. Compl. ¶ 29. 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 section 1194, 1197, and 1197.1.” Id. ¶ 67. As above, these allegations provide nothing beyond generalized and conclusory statements to tie the alleged labor-code violations to Defendant. In Landers, the Ninth Circuit addressed a similar situation in the context of the Fair Labor Standards Act, where the complaint alleged that the defendant’s policies denied the plaintiff the minimum wage pay. 771 F.3d 638, 645-46 (9th Cir. 2014). The plaintiff, however, did not include “any detail regarding a given workweek when [he] worked in excess of forty hours and . . . was not paid minimum wages.” Id. at 646. The court held that the complaint failed to state a claim because it did not include specific allegations about such a workweek. Id. at 644-45. The Complaint here fares no better. Plaintiff’s generalized allegations, devoid of any factual detail, are insufficient to state a plausible claim. Therefore, Defendant’s motion to dismiss Plaintiff’s third cause of action is GRANTED, with leave to amend. 3. Fourth Cause of Action: Final Wages Not Timely Paid California law controls the manner of the payment of final wages upon the discharge or resignation of an employee. Cal. Lab. Code §§ 201, 202. If an employer “willfully fails to pay” in accordance with Sections 201 or 202, the employer is subject to statutory penalties; known as “waiting time” penalties. Id. § 203(a). The Complaint alleges that “[d]uring the relevant time period, Defendants intentionally and willfully failed 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 CV-90 (10/08) CIVIL MINUTES - GENERAL Page 7 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 7 of 16 Page ID #:544 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 42 of 139 Page ID #:402 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. Defendants' employ.” Compl. ¶ 73. There are no other allegations made in support of this claim. This claim fails for the same reasons as the causes of action discussed above. Plaintiff's sole allegation repeats the language of the statute, see § 203(a), without any supporting facts. See Miranda v. Coach, Inc., No. 14-CV-02031-JD, 2015 WL 636373, at *2 (N.D. Cal. Feb. 13, 2015) (“The problem with these allegations is that they merely parrot the statute without stating facts sufficient to make out a plausible claim.”); Lopez v. Aerotek, Inc., No. SACV1400803-CJC-JCGX, 2015 WL 4504691, at *2 (C.D. Cal. July 23, 2015) (dismissing Plaintiff’s § 203 claim where the complaint merely alleged that “Defendants willfully failed to pay their workers accrued wages due promptly upon separation, as required by Code sections 201 and 202,” and failed to even generally allege what wages were earned and paid at the time of termination, or how and in what manner any final wage payment was untimely under the Labor Code). For these reasons, Defendant’s motion to dismiss Plaintiff’s fourth cause of action is GRANTED, with leave to amend. 4. Fifth Cause of Action: Wages Not Timely Paid During Employment California law requires that “[a]ll wages ... earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays.” Cal. Lab. Code § 204. The remedy for violation of § 204 is found in § 210, which provides that “every person who fails to pay the wages of each employee as provided in Section 204 . . . shall be subject to a civil penalty.” Cal. Labor Code § 210(a). Section 210 goes on to say that “[t]he penalty shall be recovered by the Labor Commissioner as part of a hearing held to recover unpaid wages and penalties pursuant to this chapter or in an independent civil action ... brought in the name of the people of the State of California and the Labor Commissioner and the attorneys thereof may proceed and act for and on behalf of the people in bringing these actions.” § 210(b). Pursuant to this language, courts regularly hold that there is no private right of action under § 204. Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114, 1136 (N.D. Cal. 2011) (“There is nothing in section 204 or 210 that indicates, in ‘clear understandable, unmistakable terms' that a private right of action exists for violations of section 204.”); Young v. ABM Sec. Servs., 905 F.2d 1541, at *5 (9th Cir. 1990) (“[California Labor Code] statute does not grant employees a private right of action against employers who violate section 204.”); Silva v. AvalonBay Communities, Inc., No. LACV-15-04157-JAK-PLAX, 2015 WL 11422302, at *9 CV-90 (10/08) CIVIL MINUTES - GENERAL Page 8 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 8 of 16 Page ID #:545 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 43 of 139 Page ID #:403 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. (C.D. Cal. Oct. 8, 2015) (“[T]here is no private right of action under [§ 204].”); Slay v. CVS Caremark Corp., No. 1:14-CV-01416-TLN, 2015 WL 2081642, at *7 (E.D. Cal. May 4, 2015) (“Plaintiff cannot state a claim because Section 204 does not offer a private right of action.”). Because Section 204 does not provide a right of action, Defendant's motion to dismiss Plaintiff's fifth cause of action is GRANTED, without leave to amend. 5. Sixth Cause of Action: Non-Compliant Wage Statements California law requires that employers furnish employees with accurate, itemized wage statements. Cal. Lab. Code § 226(a). To recover damages under this provision, an employee “must suffer injury as a result of a knowing and intentional failure by an employer to comply with the statute.” Price v. Starbucks, Inc., 192 Cal. App. 4th 1136, 1142 (Cal. Ct. App. 2011). The injury requirement “cannot be satisfied simply because one of the nine itemized requirements . . . is missing from a wage statement.” Id. The deprivation of information is not itself sufficient to establish a cognizable injury. Id. at 1143; see also Elliot v. Spherion Pac. Work, LLC, 572 F. Supp. 2d 1169, 1181 (C.D. Cal. 2008), aff'd, 368 F. App'x 761 (9th Cir. 2010) (“By employing the term “suffering injury,” the statute clearly requires that an employee is not eligible to recover for violations of section 226(a) unless he or she demonstrates some injury from the employer's violation.”). The Complaint alleges that “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 total number of hours worked by Plaintiff and the other class members.” Compl. ¶ 85. As a result of this violation, “Plaintiff and the other class members have suffered injury and damage to their statutorily- protected rights.” Id. ¶ 86. Although these allegations mention the failure to include the total number of hours worked, there is no sufficient allegation of a cognizable injury. Price, 192 Cal. App. 4th at 114; Silva, 2015 WL 11422302, at *10 (dismissing Plaintiff’s § 226(a) claim where complaint alleged failure to include total number of hours worked but failed to sufficiently allege any resulting cognizable injury). An employee is deemed to suffer an injury when there is an inaccuracy in any of the required information under Section 226(a) and the employee cannot “promptly and easily determine from the wage statement alone . . . the amount of the gross wages paid to the employee during the pay period.” Cal. Labor Code § 226(e)(2)(B); De La Torre v. Am. Red Cross, No. CV 13-04302 DDP JEMX, 2013 WL 5573101, at *5 (C.D. Cal. Oct. 9, 2013) (finding insufficient Plaintiff’s mere allegation that her paycheck was inaccurate because she did CV-90 (10/08) CIVIL MINUTES - GENERAL Page 9 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 9 of 16 Page ID #:546 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 44 of 139 Page ID #:404 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. not “properly allege that her paycheck was such that she could not ‘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.”). Thus, Plaintiff’s general statement that he and other class members “suffered injury,” without more, fails to sufficiently allege an injury resulting from the inaccuracy of their wage statements. Furthermore, Plaintiff’s conclusory allegation that Defendant violated § 226(a) “intentionally and willfully,” without any factual support, is insufficient to state a plausible claim. Therefore, as alleged, Plaintiff’s §226(a) claim must be dismissed. Defendant however, also argues that insofar as Plaintiff seeks to recover statutory penalties under § 226(a), his claim is time-barred. Mot. 13-14. Section 226(e)(1) provides that “[a]n employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period.” Cal. Lab. Code § 226(e)(1). Paragraph 88 of the Complaint indicates that Plaintiff and other class members are entitled to the greater of either actual damages or statutory penalties. Compl. ¶ 88. Plaintiff confirms in his opposition that he “is seeking actual damages, in addition to penalties,” for the alleged violation of § 226(a). Opp. 18. California has a one-year statute of limitations for “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual, [ ... ] except if the statute imposing it prescribes a different limitation.” Cal. Civ. Proc. Code § 340. However, California provides for a three-year statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture.” Cal. Civ. Proc. Code § 338. Because Plaintiff terminated his employment in “approximately June 2014,” but filed his Complaint in August of 2016, Plaintiff’s claim falls outside of the scope of the one-year statute of limitations applicable to statutory penalties. Reinhardt v. Gemini Motor Transport, 869 F. Supp. 2d 1158, 1169-70 (E.D. Cal. 2012) (“[I]f a plaintiff attempts to obtain the statutory penalties provided by Labor Code § 226(e), then the one year statute of limitations of California Code of Civil Procedure § 340(a) applies.”). Plaintiff is therefore time-barred from recovering statutory penalties under § 226(a). However, Plaintiff’s claim for actual damages is timely because it has been brought within the three-year statute of limitations and constitutes “liability created by statute, other than a penalty or forfeiture.” § 380; Singer v. Becton, Dickinson & Co., No. 08CV821 IEG (BLM), 2008 WL 2899825, at *5 (S.D. Cal. July 25, 2008). CV-90 (10/08) CIVIL MINUTES - GENERAL Page 10 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 10 of 16 Page ID #:547 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 45 of 139 Page ID #:405 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. In light of the foregoing, Defendant’s motion to dismiss Plaintiff’s sixth cause of action is GRANTED, with leave to amend. When amending the Complaint, Plaintiff may seek recovery of his alleged actual damages only, in accordance with this order. 6. Seventh Cause of Action: Failure to Keep Requisite Payroll Records California law provides that employers shall “[k]eep . . . payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments.” Cal. Lab. Code § 1174(d). Defendant argues that the claim fails as a matter of law because § 1174(d) does not contemplate a private cause of action. Mot. 18-19. The Court agrees. The plain language of § 1174 suggests that employers must maintain records for inspection by the Labor Commission, not by individual employees. See Cal. Lab. Code § 1174(a) (“the reports and information shall be verified if required by the commission or any member thereof.”); § 1174(b) (“Allow any member of the commission or the employees of the Division of Labor Standards Enforcement free access to the place of business...”); § 1174(d) (“These records shall be kept in accordance with rules established for this purpose by the commission...”). As with remedies for violation of § 204 discussed above, § 1174.5, which provides the punishment for violations of § 1174(d), imposes “a civil penalty of five hundred dollars.” Cal. Lab. Code § 1174.5. Rights of action for civil penalties under the Labor Code generally arise under the California Private Attorney General Act (“PAGA”), not under the Labor Code directly. See Thomas v. Home Depot USA, Inc., 527 F. Supp. 2d 1003, 1006-07 (N.D. Cal. 2007) (“PAGA . . . permits individuals to bring private actions against an employer for civil penalties under specified sections of the Labor Code.”); Caliber Bodyworks v. Super. Ct., 134 Cal. App. 4th 365, 374-75 (2005) (explaining that PAGA allows private actions for civil penalties). The Court therefore agrees that Plaintiff’s § 1174(d) claim fails as a matter of law because it does not provide for a private cause of action. Cordell v. PICC Lines Plus LLC, No. 16-CV-01814-TEH, 2016 WL 4702654, at *10 (N.D. Cal. Sept. 8, 2016) (“Plaintiff . . . has no private right of action directly under the Labor Code for violation of section 1174(d).”); Cleveland v. Groceryworks.com, LLC, No. 14-CV-00231-JCS, 2016 WL 4140504, at *22 (N.D. Cal. Aug. 4, 2016) (holding there is no private right of action under § 1174(d)). Accordingly, Defendant’s motion to dismiss Plaintiff's seventh cause of action is GRANTED, without leave to amend. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 11 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 11 of 16 Page ID #:548 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 46 of 139 Page ID #:406 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. 7. Eighth Cause of Action: Unreimbursed Business Expenses California law requires that employers reimburse employees for all reasonable and necessary expenditures incurred in discharging their job duties. Cal. Lab. Code §§ 2800, 2802. The Complaint alleges that “Plaintiff and the other class members incurred necessary business- related expenses and costs that were not fully reimbursed by Defendants,” and that “Defendants have intentionally and willfully failed to reimburse Plaintiff and the other class members for all necessary business-related expenses and costs.” Compl. ¶¶ 97-98. There are no other allegations in support of this claim. Plaintiff has not alleged a single specific business-related cost that he or any putative class member incurred that was not fully reimbursed. Yet again, Plaintiff resorts to conclusory boilerplate allegations that merely repeat the language of the statute. See Kemp v. Int'l Bus. Mach. Corp., 2010 WL 4698490, at *6 (N.D. Cal. Nov. 8, 2010) (dismissing claims for failing to allege “any costs that he incurred that were not fully reimbursed”); Silva, 2015 WL 11422302, at *11 (same). For these reasons, Defendant’s motion to dismiss Plaintiff's eighth cause of action is GRANTED, with leave to amend. 8. Ninth Cause of Action: Violation of the UCL In his final cause of action, Plaintiff asserts violation of the UCL, which prohibits “any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. In support, Plaintiff alleges that Defendants’ violations of California wage and hour laws “constitute unlawful business acts and practices in violation of California Business & Professions Code section 17200, et seq.” Compl. ¶ 101. Under the “unlawful” prong of the UCL, which Plaintiff invokes in his allegation, “section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” Velazquez v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049, 1068 (C.D. Cal. 2008); Cel-Tech Commc'ns, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal. 4th 163, 180 (1999). Where a plaintiff cannot state a claim under the “borrowed” law, he cannot state a UCL claim either. See, e.g., Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal. App. 4th 700, 718 (2001); Pellerin v. Honeywell Int'l, Inc., 877 F. Supp. 2d 983, 992 (S.D. Cal. 2012) (“A UCL claim must be dismissed if the plaintiff has not stated a claim for the predicate acts upon which he bases the claim.”). CV-90 (10/08) CIVIL MINUTES - GENERAL Page 12 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 12 of 16 Page ID #:549 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 47 of 139 Page ID #:407 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. As Plaintiff has not adequately pled his wage and hour claims, his UCL claim thus also fails. Moreover, Plaintiff has not alleged anything non-conclusory regarding unfair business practices or conduct likely to deceive members of the public. See Pellerin, 877 F. Supp. 2d at 992-93. Therefore, Defendant’s motion to dismiss Plaintiff’s ninth cause of action is GRANTED, with leave to amend. 9. Dismissal of Plaintiff’s Claim for Injunctive Relief Defendant argues that Plaintiff’s claim for injunctive relief should be dismissed because Plaintiff, as a former employee, lacks standing to seek injunctive relief against his former employer. Mot. 23-24. To establish standing under Article III, a plaintiff must show each of the following: (i) the plaintiff suffered an injury in fact; (ii) the injury in fact was concrete and particularized; and (iii) the injury was actual or imminent rather than conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The “injury-in-fact” prong requires a threatened future injury to be real and immediate. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001) (“In the context of injunctive relief, the plaintiff must demonstrate a real or immediate threat of an irreparable injury.”). The Ninth Circuit has repeatedly held that a former employee lacks standing to seek injunctive relief against a former employer in certain factual settings. For example, in Walsh v. Nev. Dep't Human Res., the Court held that a former employee could not satisfy the injury component of standing because: “[Plaintiff] is no longer an employee of the Department. She admits that her employment ended in 2004. There is no indication in the complaint that [Plaintiff] has any interest in returning to work for the State or the Department. Therefore, she would not stand to benefit from an injunction.” 471 F.3d 1033, 1037 (9th Cir. 2006); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011) (“Plaintiffs not employed by Costco throughout this case do not have standing to seek injunctive relief.”). District courts have also concluded that a former employee lacks standing to seek prospective injunctive relief on behalf of a putative class containing both former and current employees. See, e.g., Ramirez v. Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531, at *7 (N.D. Cal. Jan. 10, 2014) (finding former employee did not face any threat of real and immediate future harm where she did not allege in the complaint that she intended to return to work for defendant in the future); Richards v. Ernst & Young LLP, No. C 08-4988 JF (HRL), 2010 WL 682314, *3 (N.D. Cal. Feb. 24, 2010). CV-90 (10/08) CIVIL MINUTES - GENERAL Page 13 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 13 of 16 Page ID #:550 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 48 of 139 Page ID #:408 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. Plaintiff left his employment with Defendant in June 2014, see Compl. ¶ 18, and alleges no prospect of ever returning to employment there. Consequently, Plaintiff has not shown any likelihood whatsoever of future injury, let alone a real and immediate threat. Accordingly, Defendant’s motion to dismiss Plaintiff’s request for injunctive relief is GRANTED. The Court is skeptical that this deficiency can be cured with further allegations, but grants Plaintiff leave to amend. Any changed circumstances advanced in an amended complaint must be presented in good faith. IV. Motion to Strike Lastly, Defendant moves to strike (1) Plaintiff’s request for attorneys’ fees and costs in connection with his meal break violation claim; (2) Plaintiff’s request for attorneys’ fees under Cal. Code Civ. Proc. § 1021.5; and (3) Plaintiff’s request for “actual, consequential, and incidental losses and damages.” See Mot. 24-25. Rule 12(f) states that a district court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Proc. §12(f); First Nat. Ins. Co. of Am. v. Peralta Cmty. Coll. Dist., No. 12-CV-5943 JSC, 2013 WL 622944, at *7 (N.D. Cal. Feb. 15, 2013). However, Defendant's request to strike the prayer for attorneys’ fees and damages is not the proper subject for a 12(f) motion. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 976 (9th Cir. 2010) (holding that “Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to dismiss a claim for damages on the basis it is precluded as a matter of law”); see also Ferretti v. Pfizer Inc., 855 F.Supp.2d 1017, 1029 (N.D. Cal. 2012) (denying defendant's motion to strike plaintiff's claim for damages since Rule 12(f) is not an appropriate vehicle for such relief); Cardinale v. La Petite Acad., Inc., 207 F. Supp. 2d 1158, 1163 (D. Nev. 2002) (“The inclusion of claims for attorneys' fees in the Complaint does not constitute an ‘insufficient defense or any redundant, immaterial, impertinent, or scandalous matter’ such that a motion to strike pursuant to Rule 12(f) is proper.”); Finuliar v. BAC Home Loans Servicing, L.P., No. 11-02629, 2011 WL 4405659, at *14 (N.D. Cal. Sept. 21, 2011) (denying a Rule 12(f) request to strike a request for attorneys’ fees under Whittlestone). Accordingly, Defendant’s motion to strike is DENIED. V. Leave to Amend Whether to grant leave to amend rests in the sound discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The Court considers whether leave to amend CV-90 (10/08) CIVIL MINUTES - GENERAL Page 14 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 14 of 16 Page ID #:551 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 49 of 139 Page ID #:409 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. would cause undue delay or prejudice to the opposing party, and whether granting leave to amend would be futile. See Sisseton-Wahpeton Sioux Tribe v. United States , 90 F.3d 351, 355 (9th Cir. 1996). As noted above, Plaintiff’s fifth and seventh causes of action are dismissed as a matter of law because no private cause of action exists to enforce § 204 and § 1174(d). See Sections III.4 and III.6, supra. Moreover, while Plaintiff might have been able to pursue these claims on behalf of the State of California Labor and Workforce Development Agency under PAGA, such a claim is, by definition, a claim for civil penalties and therefore barred by the one-year statute of limitations. See Cal. Lab. Code § 2699(a),(f); Cal. Code Civ. Proc. § 340(a) (applicable to all actions upon a statute for a penalty); Thomas, 527 F. Supp. 2d at 1008 (“Plaintiff’s PAGA claims . . . are therefore barred by the CCP § 340(a) one-year statute of limitations.”). As Plaintiff waited more than two years to file his complaint, granting leave to amend in order to seek remedies under PAGA would be futile. Leave to amend Plaintiff’s fifth and seventh causes of action is therefore denied. VI. Conclusion For the reasons stated above, Defendant’s motion to dismiss is GRANTED as follows: Plaintiff’s first cause of action under Cal. Labor Code §§ 226.7 and 512(a) (unpaid meal period premiums) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff’s second cause of action under Cal. Labor Code § 226.7 (unpaid rest period premiums) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff’s third cause of action under Cal. Labor Code §§ 1194, 1197, and 1197.1 (unpaid minimum wages) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff’s fourth cause of action under Cal. Labor Code §§ 201 and 202 (final wages not timely paid) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff’s fifth cause of action under Cal. Labor Code § 204 (wages not timely paid during employment) is DISMISSED, WITHOUT LEAVE TO AMEND; Plaintiff’s sixth cause of action under Cal. Labor Code § 226(a) (non-compliant wage statements) is DISMISSED, WITH LEAVE TO AMEND; CV-90 (10/08) CIVIL MINUTES - GENERAL Page 15 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 15 of 16 Page ID #:552 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 50 of 139 Page ID #:410 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. CV16-7337 PSG FFMx Date January 20, 2017 Title Andrew Dawson, et al. v. HITCO Carbon Composites, Inc. Plaintiff’s seventh cause of action under Cal. Labor Code § 1174(d) (failure to keep requisite payroll records) is DISMISSED, WITHOUT LEAVE TO AMEND; Plaintiff’s eighth cause of action under Cal. Labor Code §§ 2800 and 2802 (unreimbursed business expenses) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff’s ninth cause of action under the UCL is dismissed, with leave to amend; Plaintiff’s request for injunctive relief is DISMISSED, WITH LEAVE TO AMEND. Defendant’s motion to strike Plaintiff’s requests for attorneys’ fees and costs in connection with his meal break violation claim and § 1021.5, as well as Plaintiff’s request for “actual, consequential, and incidental losses and damages” is DENIED. Plaintiff may file a first amended complaint (“FAC”) consistent with this order no later than February 21, 2017. Failure to file a SAC by that date may result in dismissal of the case with prejudice. IT IS SO ORDERED. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 16 of 16 Case 2:16-cv-07337-PSG-FFM Document 27 Filed 01/20/17 Page 16 of 16 Page ID #:553 Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 51 of 139 Page ID #:411 1 Kelly, Daniel A. From: Soto, Diana E. Sent: Wednesday, January 25, 2017 10:26 AM To: Kelly, Daniel A. Cc: Kramer, John R. Subject: FW: Activity in Case 2:16-cv-07337-PSG-FFM Andrew Dawson v. HITCO Carbon Composites, Inc. et al Order on Motion to Dismiss Case Follow Up Flag: Follow up Flag Status: Flagged From DS’s inbox dated 1/20th From: cacd_ecfmail@cacd.uscourts.gov [mailto:cacd_ecfmail@cacd.uscourts.gov] Sent: Friday, January 20, 2017 1:21 PM To: ecfnef@cacd.uscourts.gov Subject: Activity in Case 2:16‐cv‐07337‐PSG‐FFM Andrew Dawson v. HITCO Carbon Composites, Inc. et al Order on Motion to Dismiss Case 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 for the CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered on 1/20/2017 at 1:20 PM PST and filed on 1/20/2017 Case Name: Andrew Dawson v. HITCO Carbon Composites, Inc. et al Case Number: 2:16-cv-07337-PSG-FFM Filer: Document Number: 27 Docket Text: MINUTES (IN CHAMBERS) Order GRANTING Defendant's Motion to Dismiss by Judge Philip S. Gutierrez granting [10] MOTION to Dismiss Case: For the reasons stated above, Defendant's motion to dismiss is GRANTED as follows: Plaintiff's first cause of action under Cal. Labor Code §§ 226.7 and 512(a) (unpaid meal period premiums) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff's second cause of action under Cal. Labor Code § 226.7 (unpaid rest period premiums) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff's third cause of action under Cal. Labor Code §§ 1194, 1197, and 1197.1 (unpaid minimum wages) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff's fourth cause of action under Cal. Labor Code §§ 201 and 202 (final Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 52 of 139 Page ID #:412 2 wages not timely paid) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff's fifth cause of action under Cal. Labor Code § 204 (wages not timely paid during employment) is DISMISSED, WITHOUT LEAVE TO AMEND; Plaintiff's sixth cause of action under Cal. Labor Code § 226(a) (non-compliant wage statements) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff's seventh cause of action under Cal. Labor Code § 1174(d) (failure to keep requisite payroll records) is DISMISSED, WITHOUT LEAVE TO AMEND; Plaintiff's eighth cause of action under Cal. Labor Code §§ 2800 and 2802 (unreimbursed business expenses) is DISMISSED, WITH LEAVE TO AMEND; Plaintiff's ninth cause of action under the UCL is dismissed, with leave to amend; Plaintiff's request for injunctive relief is DISMISSED, WITH LEAVE TO AMEND. Defendant's motion to strike Plaintiff's requests for attorneys' fees and costs in connection with his meal break violation claim and § 1021.5, as well as Plaintiff's request for "actual, consequential, and incidental losses and damages" is DENIED. Plaintiff may file a first amended complaint ("FAC") consistent with this order no later than February 21, 2017. Failure to file a SAC by that date may result in dismissal of the case with prejudice. (bm) 2:16-cv-07337-PSG-FFM Notice has been electronically mailed to: Edwin Aiwazian ss@lfjpc.com, edwin@lfjpc.com Romina Keshishyan ss@lfjpc.com, romina.keshishyan@gmail.com, romina@lfjpc.com Sabrina A Beldner mwhitney@mcguirewoods.com, sbeldner@mcguirewoods.com Matthew Charles Kane mkane@mcguirewoods.com, revey@mcguirewoods.com, dsoto@mcguirewoods.com, rmorrissette@mcguirewoods.com Sylvia Jihae Kim skim@mcguirewoods.com, rmorrissette@mcguirewoods.com, dsoto@mcguirewoods.com Andre Sherman asherman@girardikeese.com, kyancey@girardikeese.com, sfujioka@girardikeese.com 2:16-cv-07337-PSG-FFM Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to : This e‐mail from McGuireWoods may contain confidential or privileged information. If you are not the intended recipient, please advise by return e‐mail and delete immediately without reading or forwarding to others. Exhibit C Exhibit C Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 53 of 139 Page ID #:413 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 54 of 139 Page ID #:414 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 55 of 139 Page ID #:415 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 56 of 139 Page ID #:416 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 57 of 139 Page ID #:417 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 58 of 139 Page ID #:418 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 59 of 139 Page ID #:419 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 60 of 139 Page ID #:420 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 61 of 139 Page ID #:421 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 62 of 139 Page ID #:422 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 63 of 139 Page ID #:423 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 64 of 139 Page ID #:424 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 65 of 139 Page ID #:425 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 D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 66 of 139 Page ID #:426 1 Boyd, David A. From: Soto, Diana E. Sent: Monday, February 13, 2017 7:51 AM To: Boyd, David A. Cc: Kramer, John R.; Kelly, Daniel A. Subject: FW: Activity in Case 5:16-cv-02482-JGB-KK William Robles v. Schneider National Carriers, Inc. et al Order on Motion to Dismiss Case From DS’s inbox dated 2/10th John R. Kramer T: +1 310 315 8215 | M: +1 310 925 9091 From: cacd_ecfmail@cacd.uscourts.gov [mailto:cacd_ecfmail@cacd.uscourts.gov] Sent: Friday, February 10, 2017 4:06 PM To: ecfnef@cacd.uscourts.gov Subject: Activity in Case 5:16‐cv‐02482‐JGB‐KK William Robles v. Schneider National Carriers, Inc. et al Order on Motion to Dismiss Case 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 for the CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered on 2/10/2017 at 4:05 PM PST and filed on 2/10/2017 Case Name: William Robles v. Schneider National Carriers, Inc. et al Case Number: 5:16-cv-02482-JGB-KK Filer: Document Number: 17 Docket Text: MINUTE Order: (1) GRANTING in Part and Denying in Part Defendants Motion to Dismiss (Dkt. No. [12]); and (2) VACATING the February 13, 2017Hearing (IN CHAMBERS) by Judge Jesus G. Bernal. (SEE ORDER FOR DETAILS.) (mga) 5:16-cv-02482-JGB-KK Notice has been electronically mailed to: Exhibit D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 67 of 139 Page ID #:427 2 Victoria Bree Rivapalacio victoria@bamlawca.com Karen W Luh kluh@mcguirewoods.com, dsoto@mcguirewoods.com, rmorrissette@mcguirewoods.com Norman B Blumenthal norm@bamlawlj.com Ruchira Piya Mukherjee piya@bamlawca.com Kyle R Nordrehaug kyle@bamlawlj.com Aparajit Bhowmik aj@bamlawlj.com Matthew Charles Kane mkane@mcguirewoods.com, revey@mcguirewoods.com, dsoto@mcguirewoods.com Sabrina A Beldner mwhitney@mcguirewoods.com, sbeldner@mcguirewoods.com David C Parisi ecf-88fc16a14521@ecf.pacerpro.com, dcparisi@parisihavens.com Molly Ann DeSario molly@bamlawca.com, norm@bamlawca.com 5:16-cv-02482-JGB-KK Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to : This e‐mail from McGuireWoods may contain confidential or privileged information. If you are not the intended recipient, please advise by return e‐mail and delete immediately without reading or forwarding to others. Exhibit D Exhibit D Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 68 of 139 Page ID #:428 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 69 of 139 Page ID #:429 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 70 of 139 Page ID #:430 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 71 of 139 Page ID #:431 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 72 of 139 Page ID #:432 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 73 of 139 Page ID #:433 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 74 of 139 Page ID #:434 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 75 of 139 Page ID #:435 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 76 of 139 Page ID #:436 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 77 of 139 Page ID #:437 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 78 of 139 Page ID #:438 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 79 of 139 Page ID #:439 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 80 of 139 Page ID #:440 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 81 of 139 Page ID #:441 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 E Exhibit E Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 82 of 139 Page ID #:442 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 83 of 139 Page ID #:443 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 84 of 139 Page ID #:444 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 85 of 139 Page ID #:445 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 86 of 139 Page ID #:446 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 87 of 139 Page ID #:447 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 88 of 139 Page ID #:448 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 89 of 139 Page ID #:449 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 90 of 139 Page ID #:450 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 91 of 139 Page ID #:451 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 92 of 139 Page ID #:452 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 93 of 139 Page ID #:453 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 94 of 139 Page ID #:454 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 95 of 139 Page ID #:455 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 96 of 139 Page ID #:456 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 97 of 139 Page ID #:457 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 98 of 139 Page ID #:458 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 99 of 139 Page ID #:459 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 100 of 139 Page ID #:460 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 101 of 139 Page ID #:461 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 102 of 139 Page ID #:462 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 103 of 139 Page ID #:463 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 104 of 139 Page ID #:464 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 105 of 139 Page ID #:465 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 106 of 139 Page ID #:466 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 107 of 139 Page ID #:467 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 108 of 139 Page ID #:468 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 109 of 139 Page ID #:469 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 110 of 139 Page ID #:470 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 111 of 139 Page ID #:471 Exhibit F Exhibit F Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 112 of 139 Page ID #:472 Exhibit G Exhibit G Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 113 of 139 Page ID #:473 Exhibit H Exhibit H Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 114 of 139 Page ID #:474 Exhibit H Exhibit H Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 115 of 139 Page ID #:475 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 I Exhibit I Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 116 of 139 Page ID #:476 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 I Exhibit I Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 117 of 139 Page ID #:477 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 I Exhibit I Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 118 of 139 Page ID #:478 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 I Exhibit I Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 119 of 139 Page ID #:479 STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS INDUSTRIAL WELFARE COMMISSION Public Hearing June 30, 2000 State capitol, Room 4202 Sacramento, California Exhibit J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 120 of 139 Page ID #:480 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 121 of 139 Page ID #:481 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 122 of 139 Page ID #:482 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 123 of 139 Page ID #:483 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 124 of 139 Page ID #:484 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 125 of 139 Page ID #:485 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 126 of 139 Page ID #:486 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 127 of 139 Page ID #:487 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 128 of 139 Page ID #:488 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 129 of 139 Page ID #:489 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 130 of 139 Page ID #:490 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 131 of 139 Page ID #:491 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 132 of 139 Page ID #:492 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 133 of 139 Page ID #:493 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 134 of 139 Page ID #:494 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 J Exhibit J Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 135 of 139 Page ID #:495 1 Case No. 12-CV-05199-LHK ORDER GRANTING FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT 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 U ni te d St at es D is tri ct C ou rt N or th er n D is tri ct o f C al ifo rn ia UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JOHN BARRERA, et al., Plaintiffs, v. THE HOME DEPOT U.S.A., INC., Defendant. Case No. 12-CV-05199-LHK ORDER GRANTING FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT This matter came before the Court for hearing on February 19, 2015, on the parties’ Joint Motion for Final Approval of the Class Action Settlement reached in this action. All parties appeared through their counsel of record. The Court has considered the papers submitted in support of the Motion, the terms of the Amended Settlement Agreement, the favorable reaction of the settlement class, and that the settlement was reached through vigorous arms-length negotiation and mediation before an experienced class-action mediator, as well as with input from this Court. Based on the papers and pleadings on file, and the argument presented by counsel, the Court hereby finds as follows: 1. The notice of settlement provided to settlement class members Case 5:12-cv-05199-LHK Document 124 Filed 05/20/15 Page 1 of 4 Exhibit K Exhibit K Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 136 of 139 Page ID #:496 2 Case No. 12-CV-05199-LHK ORDER GRANTING FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT 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 U ni te d St at es D is tri ct C ou rt N or th er n D is tri ct o f C al ifo rn ia adequately informed settlement class members of the terms of the settlement. Since the notice adequately described the release of claims in the settlement, it was not necessary to inform class members of the pendency of Terria Harris v. Home Depot U.S.A., Inc., No. 14-cv-04206-VC, filed August 15, 2014 in Alameda County Superior Court, and removed to the Northern District of California, San Francisco Division, on September 17, 2014, which action includes some overlap of claims and putative class members with this action. 2. In response to the class notice, the claims administrator received three requests to be excluded from the settlement. 3. The claims administrator and the Court received one objection to the settlement filed by Kamal Chafiane, who objected on the ground that the settlement would not adequately compensate him for emotional distress allegedly caused by the defendant. The Court finds this objection is without merit as class members cannot recover emotional distress damages under either of the class claims alleged in this action. See, e.g., Brewer v. Premier Golf Properties, 168 Cal. App. 4th 1243, 1256 (2008) (holding that a plaintiff suing for violation of the Labor Code’s wage and hour provisions is limited to the remedies provided by the Labor Code; “[t]he breach of an obligation arising out of an employment contract, even when the obligation is implied in law, permits contractual damages but does not support tort recoveries”) 4. Defendant provided notice under CAFA on or about February 13, 2015, and the Court has received no comments or objections from the governmental officials who received CAFA notice. 5. The settlement is fair, reasonable, and adequate. The Court therefore makes the following findings and orders: 1. This Court confirms as final its conditional certification for settlement purposes of the settlement class pursuant to Fed. R. Civ. P. 23(b)(3), as defined in the settlement agreement as: “Any person who worked in one or more Home Depot Case 5:12-cv-05199-LHK Document 124 Filed 05/20/15 Page 2 of 4 Exhibit K Exhibit K Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 137 of 139 Page ID #:497 3 Case No. 12-CV-05199-LHK ORDER GRANTING FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT 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 U ni te d St at es D is tri ct C ou rt N or th er n D is tri ct o f C al ifo rn ia retail stores in California and, based on Home Depot’s records, was involuntarily terminated by Home Depot at any time from September 4, 2009 through September 25, 2014, and was paid wages after his or her date of termination.” Agreement, ¶ IV.A.2. 2. The Court confirms the appointment of Edgar Padilla as the representative of the settlement class. 3. The Court confirms the appointment of the Diversity Law Group, APC, Polaris Law Group LLP, and Hyun Legal, APC as class counsel for the settlement class. 4. The class notice was distributed to class members, pursuant to this Court’s orders, and fully met the requirements of Rule 23 of the Federal Rules of Civil Procedure, due process, and any other applicable law. The claims administrator employed reasonable means for distribution of the class notice, including reasonable efforts to locate proper addresses for class members whose notices were returned as undeliverable. All settlement class members who did not timely opt out of the settlement shall be bound by the terms of the settlement agreement whether or not they actually received such notice. 5. Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the Court grants final approval of the settlement agreement. The Court specifically finds that the settlement confers a substantial benefit to settlement class members, considering the strength of plaintiffs’ claims and the risk, expense, complexity, and duration of further litigation. The favorable response of the class to the settlement also supports settlement approval. This Court also finds that the settlement agreement is the result of arms-length negotiations between experienced counsel, after thorough factual and legal investigation, and incorporates input and direction from this Court. This further supports approval of the settlement. 6. The Court approves an allocation of $25,000 from the settlement fund Case 5:12-cv-05199-LHK Document 124 Filed 05/20/15 Page 3 of 4 Exhibit K Exhibit K Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 138 of 139 Page ID #:498 4 Case No. 12-CV-05199-LHK ORDER GRANTING FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT 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 U ni te d St at es D is tri ct C ou rt N or th er n D is tri ct o f C al ifo rn ia to the settlement of plaintiff’s claim brought pursuant to section 2698 of the California Labor Code. In compliance with section 2699(i) of the California Labor Code, 75 percent of that amount (i.e., $18,750) shall be paid to the California Labor Workforce and Development Agency, and the remaining 25 percent (i.e., $6,250) will remain part of the settlement fund to be distributed to settlement class members. 7. The Court finds that the settlement administrator, Gilardi & Co., LLC, is entitled to $35,000 for its administrative fees associated with administering the settlement. 8. The Court directs the parties to effectuate the payments to settlement class members pursuant to the terms of the settlement agreement. 9. Neither the settlement nor any of the terms set forth in the settlement agreement constitute an admission by Home Depot of liability to the plaintiff or any member of the settlement class. 10 The Court hereby dismisses the Fourth and Fifth causes of action in the Second Amended Complaint, alleging violations of California Labor Code § 203 and § 2698, respectively, with prejudice. 11. The Court retains jurisdiction to enforce the terms of the settlement, including the payment of the settlement fund. IT IS SO ORDERED. Dated: May 20, 2015 _____________________________ LUCY H. KOH United States District Judge Case 5:12-cv-05199-LHK Document 124 Filed 05/20/15 Page 4 of 4 Exhibit K Exhibit K Case 2:17-cv-01554-MWF-AFM Document 11-1 Filed 03/03/17 Page 139 of 139 Page ID #:499 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 1 of 10 Page ID #:500 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 2 of 10 Page ID #:501 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 3 of 10 Page ID #:502 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 4 of 10 Page ID #:503 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 5 of 10 Page ID #:504 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 6 of 10 Page ID #:505 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 7 of 10 Page ID #:506 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 8 of 10 Page ID #:507 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 9 of 10 Page ID #:508 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 2:17-cv-01554-MWF-AFM Document 11-2 Filed 03/03/17 Page 10 of 10 Page ID #:509