Ricardo Lara v. Sugar Foods Corporation et al

NOTICE OF MOTION AND MOTION to Dismiss Case or to Strike Portions of Plaintiff's Complaint

C.D. Cal.June 28, 2017

Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael S. Kun (State Bar No. 208684) Kevin D. Sullivan (State Bar No. 270343) EPSTEIN BECKER & GREEN, P.C. 1925 Century Park East, Suite 500 Los Angeles, CA 90067 Telephone: 310.556.8861 Facsimile: 310.553.2165 mkun@ebglaw.com ksullivan@ebglaw.com Attorneys for Defendant SUGAR FOODS CORPORATION UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA RICARDO LARA, as an individual and on behalf of all others similarly situated, Plaintiffs, v. SUGAR FOODS CORPORATION, a New York Corporation; and DOES 1 to 100, inclusive. Defendants. Case No.: 2:17-cv-04590-SVW-RAO CLASS ACTION DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS OR TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT DATE: July 31, 2017 TIME: 1:30 p.m. CTRM: 10A JUDGE: Hon. Stephen V. Wilson Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 1 of 38 Page ID #:235 - 2 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, PLAINTIFF, AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 31, 2017 at 1:30 p.m., in Courtroom 10A of the United States District Court for the Central District of California, located at 350 West 1st Street, Los Angeles, California 90012, Defendant Sugar Foods Corporation (“Defendant”) will and hereby does move to dismiss Plaintiff Ricardo Lara’s Complaint (“Plaintiff”) pursuant to Fed. R. Civ. P. 12(b)(6). Alternatively, Defendant moves to strike portions of Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(f). For the reasons set forth in the supporting memorandum submitted herewith, Defendant moves to dismiss Plaintiff’s Complaint on the grounds that Plaintiff fails to allege sufficient facts to support his claims or to otherwise satisfy the basic pleading requirements set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“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”), Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (non-conclusory allegations must “plausibly give rise to an entitlement too relief”), and Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014). As more specifically set forth below, Defendant moves to strike portions of Plaintiff’s Complaint as they are immaterial and/or impertinent to his claims. The following putative class definitions should be stricken because they are not limited to Defendant’s California employees, even though Plaintiff only brings claims arising out of California law: Page 5, lines 15–18 (“The Minimum Wage Class consists of all of Defendants’ current and former non-exempt employees who were subject to Defendants’ timekeeping practices during the four years immediately preceding the filing of the Complaint through the present”); page 5, lines 19–26 (“The Meal Period Class consists of all of Defendants’ current and former non- Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 2 of 38 Page ID #:236 - 3 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exempt employees who: (i) worked at least one shift in excess of 5.0 hours without a meal period of at least 30 minutes commencing prior to the end of the fifth hour of work as reflected from their timekeeping records; and/or (ii) worked at least one shift in excess of 10 hours without a second meal period of at least 30 minutes commencing prior to the end of the tenth hour of work as reflected from their timekeeping records, during the four years immediately preceding the filing of the Complaint through the present.”); page 5, line 27 to page 6, line 28 (“The Rest Period Class consists of all of Defendants’ current and former non-exempt employees who worked at least one shift in excess of 10.0 hours during the four years immediately preceding the filing of the Complaint through the present.”); and page 6, lines 2–4 (“The Wage Statement Class consists of all members of the Minimum Wage Class, Meal Period Class, and Rest Period Class during the one year immediately preceding the filing of the Complaint through the present.”). The following reference to the alleged failure to pay rest period premiums based upon the “regular rate of pay” – as that term is used for purposes of paying overtime compensation – should be stricken because it is not a legally cognizable theory to support a rest period claim: Page 10, lines 5–7 (“Despite Defendants’ violations, Defendants have not paid an additional hour of pay to Plaintiff and the Rest Period Class at their respective regular rates of pay for each violation in accordance with California Labor Code § 226.7.”). The following reference to alleged meal and rest period violations should be stricken from the wage statement claim because such claims would result in an improper, multiple recovery: Page 10, lines 19–20 (“and meal and rest period premium wages earned”). The following reference to alleged meal and rest period violations should be stricken from Plaintiff’s cause of action under the Unfair Competition Law (“UCL”) because meal and rest period premiums are not restitution, and only Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 3 of 38 Page ID #:237 - 4 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 restitution may be recovered under the UCL: Page 11, lines 8–9 (“meal and rest period premium wages”). The following reference to alleged wage statement violations should be stricken from the UCL cause of action because the remedies for wage statement violations – penalties or damages – are not restitution recoverable under the UCL: Page 11, lines 9–10 (“and knowingly failing to furnish accurate and complete itemized wage statements in violation of Labor Code § 226.”). The following references to alleged class claims should be stricken from the Complaint because Plaintiff has failed to comply with L.R. 23-2.2(f), which requires that when “proceeding under F.R.Civ.P. 23(b)(3), [a complaint must set forth] allegations to support the findings required by that subdivision”: Page 1, line 13 (“and on behalf of all others similarly situated”); page 1, line 14 (“CLASS ACTION”); page 2, lines 1–2 (“and all others similarly situated”); page 2, line 2 (“Class Action”); page 2, line 6 (“and all others similarly situated”); page 3, lines 15–16 (“and the Classes (as defined in Paragraph 15)”); page 3, lines 19–20 (“and all members of the Classes.”); page 4, line 4 (“and all members of the Classes.”); page 4, line 18 (“and other non-exempt employees”); page 4, line 21 (“and other non-exempt employees”); page 5, line 6 (“during at least a portion of the putative class period”); page 5, line 12 (“CLASS ACTION ALLEGATIONS”); ¶¶ 15–21; page 8, lines 20–21 (“and the Minimum Wage Class”); page 9, line 2 (“and the Minimum Wage Class”); page 9, lines 7–8 (“and members of the Minimum Wage Class”); page 9, line 18 (“and members of the Minimum Wage Class”); page 9, line 20 (“and Class definitions sections of this Complaint”); page 10, lines 3–5 (“Due to their unlawful rest period policies and/or practices, Defendants did not authorize and permit members of the Rest Period Class to all rest periods to which they were legally entitled.”); page 10, line 6 (“and the Rest Period Class”); page 10, lines 8–9 (“and members of the Rest Period Class”); page 10, line 18 (“and the Wage Statement Class”); page 10, lines 21–22 (“and members of the Wage Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 4 of 38 Page ID #:238 - 5 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statement Class”); page 10, lines 26–27 (“and members of the Wage Statement Class”); page 11, line 8 (“and the Classes”); page 11, line 12 (“and continues to deprive members of the Classes”); page 11, line 17 (“and on behalf of the members of the Classes”); page 11, line 24 (“and those of the Classes”); page 12, lines 2–3 (“and for all others on whose behalf this suit is brought against Defendants”); page 12, line 4 (“For an order certifying the proposed Classes”); page 12, line 5 (“For an order appointing Plaintiff as representative of the Classes”); page 12, line 6 (“For an order appointing counsel for Plaintiff as counsel for the Classes”); and page 12, lines 16–17 (“and members of the Classes”). This motion is made following Defendant’s counsel’s unsuccessful attempt to conduct a L.R. 7-3 conference with Plaintiff’s counsel.1 On June 22, 2017, the same day that the case was removed to federal court, Defendant’s counsel sent a letter to Plaintiff’s counsel requesting that they attend a L.R. 7-3 conference. (Kun decl., ¶ 2, Ex. A.) After counsel agreed on a date and time for the conference, Plaintiff’s counsel suddenly insisted that the conference – and every conference of counsel – be transcribed by a court reporter. When Defendant’s counsel would not agree to that, Plaintiff’s counsel stated that they would not participate in a L.R. 7-3 conference until the Court ruled on an ex parte application they would be filing, asking the Court to require that all conferences and communications between counsel be transcribed by a court reporter. (Id. at ¶¶ 3, Ex. B) (“ . . . I am unwilling to participate in a conference until the Judge rules on the issue”). 1 At least one court has noted the tension between Fed. R. Civ. P. 81(c)(2)(C), which requires a responsive pleading to be filed within 7 days after removal, and L.R. 7-3, which requires parties to meet and confer at least 7 days before a motion is filed. Carlos v. Easter Seals Southern California Inc., Case No. SACV 14- 01685 JVS (RNBx), Dkt. No. 37 at p. 11 (C.D. Cal. Dec. 23, 2014). Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 5 of 38 Page ID #:239 - 6 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion is based upon this notice of motion, the accompanying memorandum of points and authorities, the request for judicial notice filed herewith, all pleadings on file in this action, and on such further written or oral argument as may be permitted by this Court. DATED: June 28, 2017 By: EPSTEIN BECKER & GREEN, P.C. /s/ Michael S. Kun Michael S. Kun Kevin D. Sullivan Attorneys for Defendant SUGAR FOODS CORPORATION Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 6 of 38 Page ID #:240 - 7 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION.........................................................................................14 II. FACTUAL BACKGROUND .......................................................................15 A. Plaintiff’s Complaint...........................................................................15 1. Plaintiff’s Overbroad Putative Class Definitions, Seeking To Bring Claims On Behalf Of All Non-Exempt Employees, Regardless Of Their State Of Residence. .............15 2. Plaintiff’s Conclusory Class Allegations Of Predominance And Superiority Fail To Comply With L.R. 23-2.2(f). ............16 3. The Minimum Wage Claim......................................................17 4. The Meal Period Claim.............................................................18 5. The Rest Period Claim..............................................................18 6. The Wage Statement Claim......................................................19 7. The UCL Claim. .......................................................................19 B. Defendant’s Removal..........................................................................19 III. ARGUMENT ................................................................................................19 A. The Standards For Motions To Dismiss And Motions To Strike.......19 B. Plaintiff’s Proposed Class Definitions Should Be Stricken Because He Seeks To Bring Claims Under The California Labor Code Without Limiting The Putative Classes To Employees Who Worked In California. .............................................21 C. Plaintiff’s First Cause Of Action Fails To Plead A Minimum Wage Claim.........................................................................................22 1. Plaintiff Has Failed To Allege Facts To Support His Minimum Wage Claim. ............................................................22 2. Plaintiff Has Failed To Identify A Single Day When He Suffered A Minimum Wage Violation. ..............................24 D. Plaintiff’s Second Cause Of Action Fails To Plead A Meal Period Claim. ......................................................................................24 3. Plaintiff Has Failed To Allege Facts To Support His Meal Period Claim....................................................................24 4. Plaintiff Has Failed To Identify A Single Day When He Suffered A Meal Period Violation. .....................................27 E. Plaintiff’s Third Cause Of Action Fails To Plead A Rest Period Claim. ......................................................................................28 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 7 of 38 Page ID #:241 - 8 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Plaintiff Has Failed To Allege Facts To Support His Rest Period Claim. ....................................................................28 2. Plaintiff Has Failed To Identify A Single Day When He Suffered A Rest Period Violation.............................................29 F. Plaintiff’s Fourth Cause Of Action Fails To Plead A Wage Statement Claim..................................................................................29 3. Plaintiff Has Failed To Allege Facts To Support His Wage Statement Claim. ............................................................29 4. Plaintiff Has Failed To Identify A Single Pay Period When He Was Not Provided A Compliant Wage Statement. ..30 G. Plaintiff’s Fifth Cause Of Action Fails To Plead A UCL Claim........30 1. Plaintiff’s UCL Claim Fails Because It Is Derivative Of His Defective Labor Code Claims. .....................................30 H. Even If the Complaint is Not Dismissed, Multiple Theories and Allegations Should Be Stricken. ..................................................31 1. Plaintiff’s Theory That Rest Period Premiums Were Not Paid At The “Regular Rate Of Pay” Should Be Stricken. ....................................................................................31 2. Plaintiff’s Theory That Meal And Rest Period Premiums Were Not Included In Wage Statements Should Be Stricken. .34 3. Plaintiff’s UCL Cannot Be Based On Alleged Meal Or Rest Period Violations Because Meal And Rest Period Premiums Are Not Restitutionary. ...........................................34 4. Plaintiff’s UCL Claim Cannot Be Based On Alleged Wage Statement Violations Because The Potential Remedies Are Not Restitutionary.............................................37 5. Plaintiff’s Class Allegations Should Be Stricken Because They Fail To Comply With L.R. 23-2.2(f), Which Requires That The Complaint Contain Appropriate Allegations To Support The Findings Required By Fed. R. Civ. P. 23(b)(3)...38 IV. CONCLUSION .............................................................................................38 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 8 of 38 Page ID #:242 - 9 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Anderson v. Blockbuster Inc., 2010 U.S. Dist. LEXIS 53854 (E.D. Cal. May 4, 2010)........................24, 26, 28 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................passim Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................................passim Bell v. Home Depot U.S.A., Inc., Case No. 2:12-cv-02499-JAM-CKD (E.D. Cal. June 7, 2016).......................... 32 Bellinghausen v. Tractor Supply Co., 2013 U.S. Dist. LEXIS 131384 (N.D. Cal. Sept. 13, 2013).........................25, 26 Bradescu v. Hillstone Restaurant Group, Inc., 2014 U.S. Dist. LEXIS 150978 (C.D. Cal. Sept. 18, 2014).........................32, 33 Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930 (N.D. Cal. Apr. 18, 2013) ................................. 26 Brum v. MarketSource, Inc., 2017 U.S. Dist. LEXIS 94079 (E.D. Cal. June 19, 2017).................................. 33 Campagna v. Language Line Servs., Inc., 2012 U.S. Dist. LEXIS 61591 (N.D. Cal. May 2, 2012) ................................... 22 Carrasco v. C.H. Robinson Worldwide, Inc., 2014 U.S. Dist. LEXIS 169515 (E.D. Cal. Nov. 27, 2013) ............................... 25 Cotter v. Lyft, Inc., 60 F. Supp. 3d 1059, 1063 (N.D. Cal. 2014) ..................................................... 22 Frieri v. Sysco Corp., 2016 U.S. Dist. LEXIS 172405 (S.D. Cal. Dec. 12, 2016)................................ 34 Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141 (E.D. Cal. Nov. 2, 2016) ...........................28, 29 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 9 of 38 Page ID #:243 - 10 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738 (E.D. Cal. Feb. 2, 2017) .................................... 37 Harding v. Time Warner, 2009 U.S. Dist. LEXIS 72851 (S.D. Cal. Aug. 18, 2009) ................................. 23 Jones v. Spherion Staffing LLC, 2012 U.S. Dist. LEXIS 112396 (C.D. Cal. Aug. 7, 2012) .....................34, 35, 36 Kimoto v. McDonald’s Corp., 2008 U.S. Dist. LEXIS 86203 (C.D. Cal. July 23, 2008) .................................. 28 Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014).......................................................................passim Lopez v. Wendy’s Int’l, Inc., 2011 U.S. Dist. LEXIS 151513 (C.D. Cal. Sept. 19, 2011)............................... 29 Miranda v. Coach, Inc., 2015 U.S. Dist. LEXIS 18278 (N.D. Cal. Feb. 13, 2015).................................. 30 Nakahata v. New York-Presbyterian Healthcare System, Inc., 723 F.3d 192 (2d Cir. 2013) ............................................................................... 20 Nguyen v. Baxter Healthcare Corp., 2011 U.S. Dist. LEXIS 141135 (C.D. Cal. Nov. 28, 2011) ............................... 34 O’Connor v. Uber Technologies, Inc., 58 F. Supp. 3d 989 (N.D. Cal. 2014).................................................................. 21 Ovieda v. Sodexo Operations, LLC, 2012 U.S. Dist. LEXIS 173844 (C.D. Cal. May 7, 2012).................................. 29 Parson v. Golden State FC, LLC, 2016 U.S. Dist. LEXIS 58299 (N.D. Cal. May 2, 2016) .............................36, 37 Perez v. Performance Food Group, Inc., 2016 U.S. Dist. LEXIS 38043 (N.D. Cal. Mar. 23, 2016) ...........................27, 29 Perez v. Safety-Kleen Systems, Inc., 253 F.R.D. 508 (N.D. Cal. 2008) ....................................................................... 25 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 10 of 38 Page ID #:244 - 11 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pyara v. Sysco Corp., 2016 U.S. Dist. LEXIS 94892 (E.D. Cal. July 20, 2016) .................................. 34 Sarviss v. General Dynamics Info. Tech., Inc., 663 F. Supp. 2d 883 (C.D. Cal. 2009)................................................................ 22 Shann v. Durham School Services, L.P., 182 F. Supp. 3d 1044, 1048 (C.D. Cal. 2016).................................................... 20 Silva v. AvalonBay Communities, Inc., 2015 U.S. Dist. LEXIS 140673 (C.D. Cal. Oct. 5, 2015) ............................24, 31 Singletary v. Teavana Corp., 2014 U.S. Dist. LEXIS 62073 (N.D. Cal. Apr. 2, 2014) .............................35, 36 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011)............................................................................ 20 Studley v. Alliance Healthcare Services, Inc., 2012 WL 12286522 (C.D. Cal. Jul. 26, 2012) ................................................... 33 Van v. Language Line Servs., 2016 U.S. Dist. LEXIS 73510 (N.D. Cal. June 6, 2016) ................................... 32 Varsam v. Laboratory Corp. of America, 120 F. Supp. 3d 1173, 1179 (S.D. Cal. 2015) .................................................... 30 In re Wal-Mart Stores, Inc. Wage and Hour Lit., 505 F. Supp. 2d 609 (N.D. Cal. 2007) ............................................................... 38 Weigele v. FedEx Ground Package Sys., 2010 U.S. Dist. LEXIS 120475 (S.D. Cal. Nov. 15, 2010) ............................... 27 Wert v. U.S. Bancorp, 2014 U.S. Dist. LEXIS 175735 (S.D. Cal. Dec. 18, 2014)....................31, 32, 33 Wert v. U.S. Bancorp, 2014 U.S. Dist. LEXIS 85936 (S.D. Cal. June 23, 2014) .................................. 25 White v. Starbucks Corp., 497 F. Supp. 2d 1080 (N.D. Cal. 2007) ............................................................. 29 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 11 of 38 Page ID #:245 - 12 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Cases Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012)..........................................................................25, 26, 28 Cortez v. Purolator Air Filtration Products Co., 23 Cal. 4th 163 (2000)..................................................................................36, 37 Pineda v. Bank of America, N.A., 50 Cal. 4th 1389 .....................................................................................36, 37, 38 Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244 (2012)................................................................................35, 36 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003)................................................................................35, 37 Krantz v. BT Visual Images, LLC, 89 Cal. App. 4th 164 (2001)............................................................................... 35 Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal. App. 4th 1242 (2016)........................................................................... 36 Price v. Starbucks Corp., 192 Cal. App. 4th 1136 (2011)........................................................................... 31 Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011)...................................................................................... 21 Federal Statutes Fair Labor Standards Act (“FLSA”)........................................................................ 20 Federal Rules of Civil Procedure 12(f) .................................................................................................................... 31 23(b)(3)........................................................................................................passim Local Rules 23-2.2(f)..................................................................................................15, 16, 38 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 12 of 38 Page ID #:246 - 13 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Statutes 8 Cal. Code Regs. § 11040, ¶ 12(A)................................................................................................. 28 California Labor Code § 203(a).........................................................................................................36, 37 § 226(e).........................................................................................................30, 37 § 226.7(a)............................................................................................................ 24 § 226.7 .........................................................................................................passim § 203 .......................................................................................................35, 36, 37 § 226 ............................................................................................................passim § 512 .................................................................................................................. 27 § 512(a)............................................................................................................... 24 Other State Statutes Unfair Competition Law...................................................................................passim Other Authorities 29 C.F.R. § 785.48(b) .............................................................................................. 23 Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 13 of 38 Page ID #:247 - 14 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Ricardo Lara’s (“Plaintiff”) Complaint against Defendant Sugar Foods Corporation (“Defendant”) contends without any factual allegations that Defendant violated various wage-hour laws as to him and other non-exempt employees throughout the country. In so doing, Plaintiff has failed to comply with basic pleading requirements. Indeed, Plaintiff fails to provide a single factual allegation in support of his claims. Instead, he merely alleges in conclusory fashion that Defendant violated the law. As Plaintiff’s Complaint lacks the requisite factual allegations, it should be dismissed in its entirety. As discussed more fully below, although Plaintiff seeks to bring claims arising solely under the Labor Code, Plaintiff seeks to represent “all of” Defendant’s non-exempt employees. In other words, Plaintiff has not limited his putative classes to those employees who worked in California. Because California’s wage-hour laws do not apply extraterritorially, Plaintiff’s putative class definitions should be stricken. Additionally, putting aside the other deficiencies in the Complaint, Plaintiff has failed to satisfy the pleading standards for wage-hour claims set forth by the Ninth Circuit in Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014). He has failed to identify a single workday when he suffered a minimum wage, meal period, or rest period violation, and he has failed to identify a single pay period when he suffered a wage statement violation. Even if that were not so, Plaintiff bases many of his claims on legally incognizable theories. For example, Plaintiff has brought a legally incognizable theory to support his rest period claims. Plaintiff contends that rest period premiums were not properly calculated because they were not based on the “regular rate of pay” – as that term is used for purposes of paying overtime compensation. But there is no basis in the law for such a claim. A rest period Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 14 of 38 Page ID #:248 - 15 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 premium need only be compensated at the employee’s base hourly rate. As such, Plaintiff’s allegations should be stricken. Plaintiff’s Unfair Competition Law (“UCL”) claim is based upon alleged meal period, rest period, and wage statement violations. But none of these alleged violations may support a UCL claim because their remedies are not restitutionary. Nor can Plaintiff base his wage statement claim on alleged meal or rest period violations because such claims would result in an improper, double recovery. Such allegations should be stricken. Finally, Plaintiff’s class allegations should be stricken from the Complaint because Plaintiff has failed to comply with L.R. 23-2.2(f), which requires him to set forth “allegations supporting the findings required by” Fed. R. Civ. P. 23(b)(3) – i.e., predominance and superiority. For these reasons and those set forth below, Plaintiff’s Complaint should be dismissed or portions of it should be stricken. II. FACTUAL BACKGROUND A. Plaintiff’s Complaint. On April 28, 2017, Plaintiff filed his Complaint in Los Angeles County Superior Court, seeking to represent a class of all of Defendant’s non-exempt employees on a variety of wage-hour claims. (Dkt. No. 1-1.) Plaintiff’s Complaint alleges claims for (1) unpaid minimum wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) non- compliant wage statements; and (5) violation of the UCL. (Id. at ¶¶ 23–43.) 1. Plaintiff’s Overbroad Putative Class Definitions, Seeking To Bring Claims On Behalf Of All Non-Exempt Employees, Regardless Of Their State Of Residence. Instead of seeking to represent Defendant’s employees who worked in California, Plaintiff seeks to represent “all of Defendants’ current and former non- exempt employees” in each of the four putative classes he seeks to represent. (Id. at 5:15–16, 5:19–20, 5:27–28, 6:2–3.) Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 15 of 38 Page ID #:249 - 16 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff’s Conclusory Class Allegations Of Predominance And Superiority Fail To Comply With L.R. 23-2.2(f). L.R. 23-2.2(f) requires that “[i]f proceeding under F.R.Civ.P. 23(b)(3), [the complaint must contain appropriate] allegations to support the findings required by that subdivision . . . .” To wit, subdivision (b)(3) requires that a class action may be maintained only when, inter alia, “the court finds [1] that the questions of law or fact common to class members predominate over any questions affecting only individual members, and [2] that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (brackets added). In a purported effort to satisfy the predominance requirement, Plaintiff has asserted in his Complaint the following conclusory allegations: Common questions of law and fact predominate over questions that affect only individual members of the Classes. The common questions of law set forth above are numerous and substantial and stem from Defendants’ policies and/or practices applicable to each individual class member, such as Defendants’ rounding policies, and meal and rest period policies/practices. As such, the common questions predominate over individual questions concerning each individual class member’s showing as to his or her eligibility for recovery or as to the amount of his or her damages. (Dkt. No. 1-1 at ¶ 18.) As explained above and below, Plaintiff has failed to identify any method of common proof demonstrating that the proffered common questions of law or fact would predominate over individualized inquiries. (See id.) Indeed, the Complaint has not identified a single policy or practice that purportedly resulted in wage-hour violations to the putative class. (See id.) In a purported effort to satisfy the superiority requirement of Fed. R. Civ. P. 23(b)(3), Plaintiff has asserted the following conclusory allegations: If each employee were required to file an individual lawsuit, Defendants would necessarily gain an unconscionable advantage since they would be able to exploit and overwhelm the limited resources of each Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 16 of 38 Page ID #:250 - 17 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individual plaintiff with their vastly superior financial and legal resources. Moreover, requiring each member of the Class(es) to pursue an individual remedy would also discourage the assertion of lawful claims by employees who would be disinclined to file an action against their former and/or current employer for real and justifiable fear of retaliation and permanent damages to their careers at subsequent employment. Further, the prosecution of separate actions by the individual class members, even if possible, would create a substantial risk of inconsistent or varying verdicts or adjudications with respect to the individual class members against Defendants herein; and which would establish potentially incompatible standards of conduct for Defendants; and/or legal determinations with respect to individual class members which would, as a practical matter, be dispositive of the interest of the other class members not parties to adjudications or which would substantially impair or impede the ability of the class members to protect their interests. Further, the claims of the individual members of the Classes are not sufficiently large to warrant vigorous individual prosecution considering all of the concomitant costs and expenses attending thereto. (Dkt. No. 1-1 at 78:20–8:8.) As explained below, these assertions merely parrot the language of Fed. R. Civ. P. 23(b)(3), which provides that “[t]he matters pertinent to the[] findings [of predominance and superiority] include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” And, again, the Complaint has not identified a single policy or practice that purportedly resulted in wage-hour violations to the putative class. (See id. at ¶ 18.) 3. The Minimum Wage Claim. To support his minimum wage claim, Plaintiff alleges that “Defendants have utilized a computer-based timekeeping system which, upon information and belief, resulted in Plaintiff not being compensated for all hours actually worked, whether Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 17 of 38 Page ID #:251 - 18 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by rounding, time shaving, or otherwise.” (Id. at ¶ 11.) As explained below, “rounding” is a lawful practice. (Id.) Plaintiff does not explain whatever he means by the term “time shaving.” (Id.) Nor does he explain any other basis for which he “otherwise” was allegedly not paid for all hours worked. (Id.) Moreover, Plaintiff has failed to identify a single pay period for which he contends he was not paid all hours worked. (See id. at ¶¶ 11, 23–26.) 4. The Meal Period Claim. To support his meal period claim, Plaintiff alleges that “[d]espite Defendants’ written meal period policy, Plaintiff’s meal periods were often late (i.e., commencing after the fifth hour of work), short in duration (i.e., less than thirty (30) minutes), and/or second meal periods were not provided for shifts over 10 hours.” (Id. at ¶ 12.) As explained below, merely because a meal period was taken late or was shorter than 30 minutes does not mean that an employer committed a meal period violation. Moreover, alleging that a meal period was not “provided” merely parrots the statutory language. As with his minimum wage claim, Plaintiff has failed to identify a single day for which he contends he was not provided a compliant meal period. (See id. at ¶¶ 12, 28, 29.) 5. The Rest Period Claim. To support his rest period claim, Plaintiff alleges that “Defendants have failed to authorize and permit Plaintiff to take a third rest period for shifts over 10 hours in violation of California law.” (Id. at ¶ 13.) As with his minimum wage and meal period claim, Plaintiff has failed to identify a single day for which he contends he was not authorized and permitted to take a compliant rest period. (See id. at ¶¶ 13, 31–33.) To support his rest period claim, Plaintiff also alleges that “Defendants have not paid an additional hour of pay to Plaintiff and the Rest Period Class at their respective regular rates of pay for each violation in accordance with California Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 18 of 38 Page ID #:252 - 19 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Labor Code § 226.7.” (Id. at ¶ 13.) As explained below, a rest period claim may not be based on the theory that premiums were not paid at the “regular rate of pay,” as that phrase is understood for overtime purposes. 6. The Wage Statement Claim. Plaintiff’s fourth cause of action for alleged wage statement violations is derivative of his minimum wage, meal period, and rest period claims. To support his wage statement claim, Plaintiff alleges that “[a]s a result of Defendants’ failure to pay all minimum wages, as well as meal and rest period premium wages, Defendants maintained inaccurate payroll records and issued inaccurate wage statements to Plaintiff in violation of Labor Code § 226.” (Id. at ¶ 14.) As explained below, a wage statement claim cannot be based on the alleged failure to include meal or rest period premiums purportedly owed but not paid. Moreover, Plaintiff has failed to identify a single pay period for which he claims he was not provided an accurate wage statement. (See id. at ¶¶ 14, 35–37.) 7. The UCL Claim. Plaintiff’s UCL claim is derivative of his Labor Code claims, alleging that Defendant violated the UCL by “failing to pay Plaintiff and the Classes all minimum wages, meal and rest period premium wages, and knowingly failing to furnish accurate and complete itemized wage statements in violation of Labor Code § 226.” (Id. at ¶ 39.) As explained below, even if his UCL claim could survive, it cannot be based on alleged meal period, rest period, or wage statement violations. B. Defendant’s Removal. On June 22, 2017, Defendant removed this action to this Court. (Dkt. No. 1.) III. ARGUMENT A. The Standards For Motions To Dismiss And Motions To Strike. As the Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a complaint must allege “more than labels and conclusions, and a Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 19 of 38 Page ID #:253 - 20 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 formulaic recitation of the elements of a cause of action will not do.” Id. The Court subsequently explained in Ashcroft v. Iqbal, 556 U.S. 662 (2009), that a complaint is not sufficient if it merely “tenders naked assertions devoid of further factual enhancement;” it requires more than “unadorned, the-defendant-unlawfully- harmed-me accusation[s].” Id. at 678 (citations omitted). Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (citing Twombly, 550 U.S. at 570). Facts that are “‘merely consistent with’ a defendant’s liability” fall far short of a plausible entitlement to relief. Id. (citing Twombly, 550 U.S. at 557). The Ninth Circuit has clarified that the allegations in a complaint must contain factual allegations that, when taken as true, “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). Federal courts regularly apply these standards to dismiss wage-hour claims pled in conclusory fashion. In Landers, the Ninth Circuit affirmed dismissal of the plaintiff’s FLSA claims where he “‘merely alleged that [he was] not paid for overtime hours worked.’ [Nakahata v. New York-Presbyterian Healthcare System, Inc., 723 F.3d 192, 201 (2d Cir. 2013).] Although these allegations ‘raise the possibility’ of undercompensation in violation of the FLSA, a possibility is not the same as plausibility. [Thus, the plaintiff’s] allegations fail to state a plausible claim under Rule 8.” 771 F.3d at 646 (citation omitted). The Court concluded that “at a minimum the plaintiff must allege at least one workweek when he . . . was not paid minimum wages.” Id. (emphasis added). The “pleading standards set forth in Landers apply equally to Plaintiffs’ state . . . minimum wage, meal period, and rest break allegations” under the California Labor Code. Shann v. Durham School Services, L.P., 182 F. Supp. 3d 1044, 1048 (C.D. Cal. 2016). As discussed more fully below, Plaintiff has failed to allege facts in his Complaint to state a claim to relief that is plausible on its face. As such, his Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 20 of 38 Page ID #:254 - 21 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint should be dismissed or, alternatively, portions of it should be stricken. B. Plaintiff’s Proposed Class Definitions Should Be Stricken Because He Seeks To Bring Claims Under The California Labor Code Without Limiting The Putative Classes To Employees Who Worked In California. Instead of seeking to represent Defendant’s employees who worked in California, Plaintiff seeks to represent “all of Defendants’ current and former non- exempt employees” in each of the putative classes, alleging only Labor Code claims on their behalf. (Dkt. No. 1-1 at 5:15–16, 5:19–20, 5:27–28, 6:2–3, emphasis added.) Plaintiff has failed to provide any reason for applying claims under the California Labor Code to those of Defendant’s non-exempt employees who have been employed outside of California. A strong presumption exists against the extraterritorial application of California law. Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1207 (2011). In O’Connor v. Uber Technologies, Inc., 58 F. Supp. 3d 989 (N.D. Cal. 2014), the plaintiffs sought to apply expense reimbursement claims under California Labor Code to out-of-state drivers. The Court granted the defendant’s motion to dismiss, concluding that “the Labor Code violations upon which Plaintiffs rely do not apply extraterritorially and, therefore, cannot apply to those Plaintiffs or unnamed class members who worked in states other than California.” Id. at 1006. The Court reached the same conclusion regarding the plaintiffs’ derivative UCL claim, relying on the California Supreme Court’s decision in Sullivan that “‘[n]either the language of the UCL nor its legislative history provides any basis for concluding the Legislature intended the UCL to operate extraterritorially. Accordingly, the presumption against extraterritoriality applies to the UCL in full force.’” O’Connor, at 1007 (quoting Sullivan, 51 Cal. 4th at 1207). Because a UCL violation is a state law claim, it only “reaches any unlawful business act or practice committed in California.” Sullivan, at 1207. Like O’Connor, multiple courts have dismissed or stricken a plaintiff’s Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 21 of 38 Page ID #:255 - 22 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims that seek to apply the California Labor Code to employees who never worked in California. E.g., Cotter v. Lyft, Inc., 60 F. Supp. 3d 1059, 1063 (N.D. Cal. 2014) (“[P]laintiffs propose to represent class members who are residents of other states, who drive for Lyft exclusively in those states, and who apparently never set foot in California. . . . The California wage and hour laws at issue here do not create a cause of action for people who fit this description, even if they work for a California-based company that makes all employment-related decisions in California.”); Campagna v. Language Line Servs., Inc., 2012 U.S. Dist. LEXIS 61591, at *11 (N.D. Cal. May 2, 2012) (“None of the cases read California’s wage and hour laws to cover out-of-state work performed by nonresidents who primarily work outside California.”); Sarviss v. General Dynamics Info. Tech., Inc., 663 F. Supp. 2d 883, 900 (C.D. Cal. 2009) (“Although the cases discussing the extraterritorial application of California’s wage and hour law are sparse, those decisions that do discuss it have tended to find that California wage and hour provisions do not apply to non-resident Californians who work primarily outside of California.”). There should be no different result here. Because Plaintiff seeks to represent the entirety of Defendant’s non-exempt employee workforce for California statutory wage-hour claims without any limitation of that workforce to California employees, his putative class definitions should be stricken. C. Plaintiff’s First Cause Of Action Fails To Plead A Minimum Wage Claim. 1. Plaintiff Has Failed To Allege Facts To Support His Minimum Wage Claim. To support his minimum wage claim, Plaintiff alleges that Defendant failed to pay him for all hours worked as a result of “rounding” or “time shaving.” (Dkt. No. 1-1 at ¶ 11.) Because Plaintiff has identified them separately, rounding time and “shaving” time appear to be two entirely different matters. Plaintiff has not specified which allegedly occurred, nor has he explained what he means by “shaving.” (See id.) Of course, merely alleging that an employer rounded or Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 22 of 38 Page ID #:256 - 23 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shaved an employee’s time does not satisfy pleading requirements under Iqbal or Twombly. Thus both theories supporting Plaintiff’s wage claim fail. The courts have addressed the appropriate pleading standard for basing a wage claim on purportedly unlawful rounding. For example, in Harding v. Time Warner, 2009 U.S. Dist. LEXIS 72851 (S.D. Cal. Aug. 18, 2009), the plaintiff sought to bring a wage claim based on unlawful rounding. Specifically, the complaint alleged that “Time Warner violated the California Labor Code by ‘maintain[ing] . . . a practice of paying employees without regard to the number of hours actually worked’” and that this “‘practice included the ‘rounding’ of reported time worked – to the nearest 15 minutes – without ensuring that the employees were paid for all of the time actually worked. In doing so, Time Warner inaccurately under-reported the amount of time worked by Plaintiff, and subsequently underpaid the Class.’” Id. at *10. In granting the defendant’s motion to dismiss, the Harding Court concluded that, “[o]ther than the allegation that Time Warner had a practice of ‘rounding,’ these allegations are too generic and conclusory to satisfy the standard announced in Twombly.” Id. at *10. Because a court must ignore conclusory allegations on a motion to dismiss, the Harding Court found that “the bare factual allegation of a practice of ‘rounding” of reported time worked to the nearest 15 minutes, fails “to raise a reasonable expectation that discovery will reveal evidence of [the claim].’” Id. at *11 (citing Twombly, 550 U.S. at 556; 29 C.F.R. § 785.48(b) (“It has been found that in some industries, . . . there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest . . . quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work.”). The same conclusion should result here. Plaintiff’s theory is that Defendant’s timekeeping system “resulted in Plaintiff not being compensated for all hours actually worked, whether by rounding, time shaving, or otherwise.” (Dkt. Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 23 of 38 Page ID #:257 - 24 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 1-1 at ¶ 11.) Because rounding is presumptively lawful, Plaintiff must do much more than assert in conclusory fashion that the rounding practice resulted in him not being paid for all hours worked. Similarly, Plaintiff has failed to allege any facts to support his claim that Defendant’s timekeeping system somehow “shaved” Plaintiff’s time worked. To withstand a motion to dismiss, Plaintiff “must plead sufficient ‘factual content’ to allow the Court to make a reasonable inference that Defendant is liable for the claims alleged by Plaintiff.” Anderson v. Blockbuster Inc., 2010 U.S. Dist. LEXIS 53854, at *9 (E.D. Cal. May 4, 2010). Here, Plaintiff’s claim is devoid of any facts that would explain how the time rounding or time “shaving” – whatever that means – failed to compensate him for all hours worked. He fails to offer any facts that would “‘state a claim to relief that is plausible on its face,’” as Iqbal requires. Accordingly, Plaintiff’s minimum wage claim should be dismissed. 2. Plaintiff Has Failed To Identify A Single Day When He Suffered A Minimum Wage Violation. Like the plaintiff in Landers, Plaintiff here fails to identify a single workday or workweek in which he contends he was denied minimum wages. (See Dkt. No. 1-1 at ¶¶ 11, 23–26.) As Plaintiff has failed to do so, he has failed to satisfy federal pleading requirements, and his first cause of action must be dismissed. Landers, 771 F.3d at 646; Silva v. AvalonBay Communities, Inc., 2015 U.S. Dist. LEXIS 140673, at *21–22 (C.D. Cal. Oct. 5, 2015) (applying Landers in granting motion to dismiss a minimum wage claim). D. Plaintiff’s Second Cause Of Action Fails To Plead A Meal Period Claim. 3. Plaintiff Has Failed To Allege Facts To Support His Meal Period Claim. Labor Code section 512(a) 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 . . . .” See also Cal. Lab. Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 24 of 38 Page ID #:258 - 25 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code § 226.7(a) (an employer who “fails to provide” an employee a due meal period must pay an additional hour of pay). As explained by the California Supreme Court, an employer need not “police” meal breaks and “ensure” that employees actually take them. Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1040–41 (2012). As a result, Plaintiff must do more than simply allege that a meal period was not taken to establish a violation. Rather, he must plead facts showing that Defendant “impede[d], discourage[d] or prohibit[ed]” them from taking a proper break.” Perez v. Safety-Kleen Systems, Inc., 253 F.R.D. 508, 515 (N.D. Cal. 2008) (emphasis added). “While the requirements for a claim under Section 512 are straightforward – the employer failed to provide the requisite meal period – a plaintiff cannot state such a claim without any factual allegations supporting the claim.” Bellinghausen v. Tractor Supply Co., 2013 U.S. Dist. LEXIS 131384, at *10 (N.D. Cal. Sept. 13, 2013); see also Carrasco v. C.H. Robinson Worldwide, Inc., 2014 U.S. Dist. LEXIS 169515, at *24 (E.D. Cal. Nov. 27, 2013) (“Plaintiff’s allegations are vague and insufficient because it is unclear whether Defendants’ failure to ‘provide’ Plaintiff with meal and rest breaks was due to Defendants’ failure to relieve Plaintiff of all duty for the designated period, or if it was due to Plaintiff not taking meal and rest breaks that were otherwise available to her.”); Wert v. U.S. Bancorp, 2014 U.S. Dist. LEXIS 85936, at *15 (S.D. Cal. June 23, 2014) (“Wert I”) (holding that allegations stating “Defendants . . . did not provide plaintiff with meal breaks” in accordance with section 512 “fail[ed] to adequately allege facts” sufficient to state a claim). In support of his meal period claim, Plaintiff alleges that at times he took his meal period late, or it was less than 30 minutes, or a second meal period was not provided when he worked more than ten hours. (Dkt. No. 1-1 at ¶ 12.) None of these conclusory allegations are sufficient under federal pleading requirements. Non-conclusory allegations must “plausibly give rise to an entitlement too relief.” Iqbal, 556 U.S. at 664. Merely because Plaintiff took his meal period late Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 25 of 38 Page ID #:259 - 26 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or did not take a full 30 minutes for his meal period does not subject Defendant to liability. In Brinker, the California Supreme Court explained that the requirement that an employer “provide” meal periods only obligates employers to make them available; employers need not “ensure” that meal periods are taken. Brinker, 53 Cal. 4th at 1040–41. As the Brinker Court explained, employees may choose to skip meal periods, or to take late or short meal periods – and there is no liability to the employer when that occurs. Id. at 1040. Because Plaintiff’s allegations of taking late and short meal periods do not “plausibly give rise to an entitlement too relief,” the meal period claim based on these theories fails to satisfy Iqbal. Similarly, Plaintiff’s conclusory allegation that he was not provided second meal periods fails to satisfy pleading requirements. “It is not enough to simply parrot the statutory language for each purported claim.” Anderson, 2010 U.S. Dist. LEXIS 53854, *9. Doing so will not survive a motion to dismiss. Id. Numerous courts have rejected meal period claims based upon conclusory allegations, even when significantly more detail was provided than Plaintiff has provided here. See, e.g., Brown v. Wal-Mart Stores, Inc., 2013 U.S. Dist. LEXIS 55930 (N.D. Cal. Apr. 18, 2013) (allegations that Wal-Mart “pressured, incentivized, and discouraged” drivers from taking lunch breaks, that Wal-Mart’s “scheduling policy made it ‘difficult’ for Drivers to take breaks,” and that Wal-Mart did not schedule meal breaks were insufficient to state a claim, because plaintiff “did not provide any facts surrounding these alleged tactics [and failed to] provide any facts describing instances of this ‘difficulty’ as to any Driver”); Bellinghausen, 2013 U.S. Dist. LEXIS 131384, at *2–3, *14 (allegations that Defendants “failed to provide Plaintiff with an uninterrupted meal period of at least thirty (30) minutes on each day that he worked five (5) hours or more . . . [and] maintained a policy or practice of not providing members of the Meal Break Class with uninterrupted meal periods of at least thirty (30) minutes for each five (5) hour work period,” and that “Defendants fail[ed] to appropriately advise Plaintiff and the class of meal Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 26 of 38 Page ID #:260 - 27 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 break rights” does not state a claim); Weigele v. FedEx Ground Package Sys., 2010 U.S. Dist. LEXIS 120475, *9–14 (S.D. Cal. Nov. 15, 2010) (allegations that “Defendant required Plaintiffs to work . . . without being given a 30-minute meal period for shifts of at least five hours and second 30-minute meal periods for shifts of at least ten hours during which Plaintiffs were relieved of all duties and free to leave premises, nor did Plaintiffs one hour’s pay at the employee’s regular rate of pay as premium pay compensation for failure to provide . . . meal periods” amounted to only “‘naked assertions’ of defendant’s liability devoid of ‘further factual enhancement’”). Here, Plaintiff’s theory that “second meal periods were not provided for shifts over 10 hours” is merely a naked assertion devoid of any factual enhancement. Indeed, it merely parrots the statutory language of Labor Code section 512 – i.e., that an “employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes,” absent waiver. Because this theory is devoid of any factual content, Plaintiff’s meal period claim should be dismissed. 4. Plaintiff Has Failed To Identify A Single Day When He Suffered A Meal Period Violation. As with his minimum wage claim, Plaintiff has failed to identify a single occasion when Defendant did not provide him a meal period. (See Dkt. No. 1-1 at ¶¶ 12, 28, 29.) Not one. As such, his meal period claim must be dismissed. Landers, 771 F.3d at 646; Perez v. Performance Food Group, Inc., 2016 U.S. Dist. LEXIS 38043, at *5 (N.D. Cal. Mar. 23, 2016) (dismissing a second meal period claim where “Plaintiff has not alleged specific facts of one instance where she worked a shift of ten or more hours and was deprived a second meal break, and the general allegation that ‘[a]t relevant times during his employment, Defendants employed Plaintiff for shifts of ten (10) or more hours’ is not enough.”); Ritenour, 2017 U.S. Dist. LEXIS 1747, at *16–17 (following Landers: “nowhere in the Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 27 of 38 Page ID #:261 - 28 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint does Plaintiff identify . . . a single instance where Defendant failed to provide such meal and rest periods. . . . Simply put, the Complaint does not provide fair notice of the claims. The Court GRANTS Defendant’s motion to dismiss.”); Guerrero v. Halliburton Energy Servs., 2016 U.S. Dist. LEXIS 152141, at *16 (E.D. Cal. Nov. 2, 2016) (“Guerrero I”) (“The requirement in Landers that a plaintiff must plead a specific instance of alleged wage and hour violations also applies to claims about missed meal and rest periods.”). E. Plaintiff’s Third Cause Of Action Fails To Plead A Rest Period Claim. 1. Plaintiff Has Failed To Allege Facts To Support His Rest Period Claim. Like meal periods, California law requires only that employers “authorize and permit all employees to take rest breaks . . . at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof.” 8 Cal. Code Regs., § 11040, ¶ 12(A). An employer need not ensure that employees take rest periods. See Brinker, 53 Cal. 4th at 1033; Kimoto v. McDonald’s Corp., 2008 U.S. Dist. LEXIS 86203, *4, 6 (C.D. Cal. July 23, 2008). As with his meal period claim, Plaintiff’s rest period claim merely parrots the legal requirements for an employer’s rest period obligation. Plaintiff alleges that “Defendants have failed to authorize and permit Plaintiff to take a third rest period for shifts over 10 hours in violation of California law.” (Dkt. No. 1-1 at ¶ 13.) That is identical to the statutory requirement the California Supreme Court announced in Brinker in construing the relevant wage order: “Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” 53 Cal. 4th at 1029. As discussed above, the courts have explained that “[i]t is not enough to simply parrot the statutory language for each purported claim.” Anderson, 2010 U.S. Dist. LEXIS 53854, *9. Plaintiff’s conclusory allegations of rest period Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 28 of 38 Page ID #:262 - 29 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violations do not comply with Twombly and Iqbal. The courts have not hesitated to dismiss rest period claims under similar circumstances. See, e.g., Ovieda v. Sodexo Operations, LLC, 2012 U.S. Dist. LEXIS 173844, *8–10 (C.D. Cal. May 7, 2012); Lopez v. Wendy’s Int’l, Inc., 2011 U.S. Dist. LEXIS 151513, *20–21 (C.D. Cal. Sept. 19, 2011). Accordingly, Plaintiff’s rest period claim should be dismissed. 2. Plaintiff Has Failed To Identify A Single Day When He Suffered A Rest Period Violation. As with his minimum wage and meal period claims, Plaintiff has failed to identify a single occasion when Defendant did not authorize and permit him a rest period. (See Dkt. No. 1-1 at ¶¶ 13, 31–33.) Not one. As such, his rest period claim must be dismissed. Landers, 771 F.3d at 646; Ritenour, 2017 U.S. Dist. LEXIS 1747, at *16–17; Perez, 2016 U.S. Dist. LEXIS 38043, at *5; Guerrero, 2016 U.S. Dist. LEXIS 152141, at *16. For this reason alone his rest period claim should be dismissed. F. Plaintiff’s Fourth Cause Of Action Fails To Plead A Wage Statement Claim. 3. Plaintiff Has Failed To Allege Facts To Support His Wage Statement Claim. In his fourth cause of action, Plaintiff asserts a claim based on Defendant’s alleged failure to provide accurate itemized wage statements under Labor Code section 226. That claim is premised entirely on Plaintiff’s minimum wage, meal period, and rest period claims.2 (Dkt. No. 1-1 at ¶ 35.) As each of those claims must be dismissed, Plaintiff’s derivative claim under section 226 must also be dismissed. See, e.g., White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1089–90 (N.D. Cal. 2007) (dismissing claims under § 226 as derivative of failed wage claims). Even if that were not so, Plaintiff fails to plead facts to support his wage 2 As explained below, even if Plaintiff’s wage statement claim is not dismissed, it cannot be based upon alleged meal or rest period violations. Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 29 of 38 Page ID #:263 - 30 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statement claim. “To state a claim under California Labor Code § 226, an employee must have ‘suffer[ed] injury as a result of a knowing and intentional failure by an employer’ to provide accurate wage statements.” Varsam v. Laboratory Corp. of America, 120 F. Supp. 3d 1173, 1179 (S.D. Cal. 2015) (citing Cal. Lab. Code § 226(e)). Here, to support the “knowing and intentional” element, Plaintiff merely parrots the language of section 226(e) by alleging in conclusory fashion that “Defendants knowingly and intentionally” failed to provide compliant wage statements. (Dkt. No. 1-1 at ¶ 35.) That allegation plainly fails to meet the Supreme Court’s pleading standard set forth in Twombly. 550 U.S. at 555 (“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”); accord Miranda v. Coach, Inc., 2015 U.S. Dist. LEXIS 18278, at *5 (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.”). 4. Plaintiff Has Failed To Identify A Single Pay Period When He Was Not Provided A Compliant Wage Statement. Plaintiff has failed to identify a single pay period when he allegedly was denied a lawful wage statement. (Dkt. No. 1-1 at ¶¶ 14, 35–37.) Instead, he merely alleges that “Defendants maintained inaccurate payroll records and issued inaccurate wage statements to Plaintiff in violation of Labor Code § 226.” (Id. at ¶ 14.) That allegation does not satisfy Landers standard. Landers, 771 F.3d at 646. As such, his wage statement claim must be dismissed. G. Plaintiff’s Fifth Cause Of Action Fails To Plead A UCL Claim. 1. Plaintiff’s UCL Claim Fails Because It Is Derivative Of His Defective Labor Code Claims. Plaintiff’s fifth cause of action under the UCL is based entirely on his minimum wage, meal period, and rest period claims. (Dkt. No. 1-1 at ¶ 39.) Because he has failed to set forth sufficient factual allegations to support those Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 30 of 38 Page ID #:264 - 31 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims, his derivative UCL claim must fail as well.3 Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1147 (2011) (“Because the underlying causes of action fail, the derivative UCL . . . claims also fail.”). H. Even If the Complaint is Not Dismissed, Multiple Theories and Allegations Should Be Stricken. Fed. R. Civ. P. 12(f) allows the Court to strike any immaterial or impertinent matter in a pleading. See, e.g., Silva, 2015 U.S. Dist. LEXIS 140673, at *34–36 (granting motion to strike injunctive relief). Here, even if Plaintiff’s Complaint is not dismissed or if the Court is inclined to permit leave to amend, multiple allegations and theories in the Complaint should be stricken. 1. Plaintiff’s Theory That Rest Period Premiums Were Not Paid At The “Regular Rate Of Pay” Should Be Stricken. Even if this Court were to conclude that Plaintiff has adequately alleged a rest period claim, Plaintiff’s references to the “regular rate of pay” must be stricken. Specifically, Plaintiff has alleged that even when there was a rest period violation, “Defendants have not paid an additional hour of pay to Plaintiff and the Rest Period Class at their respective regular rates of pay for each violation in accordance with California Labor Code § 226.7.” (Dkt. No. 1-1 at ¶ 32.) Because Labor Code section 226.7 refers to “regular rate of compensation” – and not the “regular rate of pay,” as that phrase is used for overtime purposes – the courts have repeatedly rejected this very theory. It should be rejected here, too. In Wert v. U.S. Bancorp, 2014 U.S. Dist. LEXIS 175735 (S.D. Cal. Dec. 18, 2014) (“Wert II”), the Court denied as futile a plaintiff’s motion for leave to add a meal period claim based on the theory that the defendant did not include all forms of remuneration in calculating the meal period premiums that the defendant had paid. Id. at *11. The plaintiff had alleged that the language in Labor Code section 226.7 – requiring that an “employer shall pay the employee one additional hour of 3 As explained below, even if Plaintiff’s UCL claim is not dismissed, it cannot be based upon alleged meal or rest period violations. Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 31 of 38 Page ID #:265 - 32 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided” (emphasis added) – was synonymous with the language of section 510, requiring that overtime be paid “at the rate of no less than one and one-half times the regular rate of pay for an employee.” Whereas the phrase “‘[r]egular rate of pay’ [in § 510] takes into account compensation beyond the normal hourly rate, including commissions and non-discretionary bonuses,” the Wert II plaintiff asserted “that the ‘regular rate’ language [in § 226.7] requires meal-period pay at the same regular rate upon which overtime is compensated.” Id. at *7. After reviewing the legislative history and case law, the Wert II Court rejected the plaintiff’s theory, holding that the “plain language of §§ 226.7 and 510 does not suggest that the phrases ‘regular rate of compensation’ is synonymous to and may be used interchangeably with ‘regular rate of pay.’” Id. at *10. “The very fact that the awards under §§ 226.7 and 510 are of a different nature for potential plaintiffs – awards being a penalty under § 226.7 and a wage under § 510,” as the Wert II Court explained, “strongly suggests that the definition of the awards – i.e., ‘regular rate of compensation’ versus ‘regular rate of pay’ – are also different.” Id. at *10–11, citing Corder v. Houston’s Rests., Inc., 424 F. Supp. 2d 1205, 1210 (C.D. Cal. 2006). The Wert II Court relied on Bradescu v. Hillstone Restaurant Group, Inc., 2014 U.S. Dist. LEXIS 150978 (C.D. Cal. Sept. 18, 2014), where the latter concluded that “there is no authority supporting the view that ‘regular rate of compensation,’ for purposes of meal period compensation, is to be interpreted the same way as ‘regular rate of pay’ is for purposes of overtime compensation.” Id. at *22; accord Van v. Language Line Servs., 2016 U.S. Dist. LEXIS 73510, at *54 (N.D. Cal. June 6, 2016) (following Bradescu and awarding meal period damages based on the plaintiff’s based hourly rate). Last year in Bell v. Home Depot U.S.A., Inc., Case No. 2:12-cv-02499-JAM- CKD (E.D. Cal. June 7, 2016), the district court granted the defendant’s motion for Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 32 of 38 Page ID #:266 - 33 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 partial summary judgment on this very issue, analyzing the legislative history of Labor Code section 226.7 and concluding that “the legislature’s choice to use the word compensation instead of pay in this Court’s view is meaningful, and in the absence of authority to the contrary, the Court is led to the conclusion that summary judgment in defendant’s favor on this issue should be granted, and the Court does so.” (Request for Judicial Notice, Ex. 1 at 33:25–34:4.) Earlier this month in Brum v. MarketSource, Inc., 2017 U.S. Dist. LEXIS 94079 (E.D. Cal. June 19, 2017), the Court rejected the sole authority supporting the notion that a rest period premium should be paid at the regular rate of pay as that term is used for overtime purposes – Studley v. Alliance Healthcare Services, Inc., 2012 WL 12286522, at *1 (C.D. Cal. Jul. 26, 2012). The Brum Court found that “Studley failed to address the difference in [statutory] language between ‘regular rate of compensation’ and ‘regular rate of pay,’” as those phrases are used in sections 226.7 and 510, respectively. 2017 U.S. Dist. LEXIS 94079, at *14 (citing Studley, at *4). The Brum Court concluded that it “cannot ignore the distinction” because if the “legislature carefully employs a term in one statute and deletes it from another, it must be presumed to have acted deliberately.’” Id. (citing Ferguson v. Workers’ Comp. Appeals Bd., 33 Cal. App. 4th 1613, 1621 (1995); see also Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (different terms in the same statute presumed “intentional[]” and “purposeful”)). Consequently, the Brum Court “agree[d] with Defendants and [found] the legislature’s choice to use the word ‘compensation’ instead of ‘pay’ meaningful in the absence of authority to the contrary,” and, as a result, the court granted “Defendants’ motion to strike Plaintiffs’ allegations regarding miscalculation of meal and rest break premiums . . . without leave to amend.” Id. Based on Wert II, Bradescu, Bell, and Brum, Plaintiff’s theory here must also be rejected. There is no legally cognizable claim that a rest period violation has occurred where one hour of an employee’s “regular rate of pay” was not paid. Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 33 of 38 Page ID #:267 - 34 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consequently, Plaintiff’s “regular rate of pay” theory supporting his rest period claim should be stricken.4 2. Plaintiff’s Theory That Meal And Rest Period Premiums Were Not Included In Wage Statements Should Be Stricken. Even if Plaintiff’s wage statement claim is not dismissed, it cannot be based on alleged meal or rest period violations. Indeed, “several courts have refused to permit a plaintiff to use alleged violations of meal and rest period regulations to form the basis of a section 226 claim because such claims ‘would result in an improper, multiple recovery by the employee.’” Frieri v. Sysco Corp., 2016 U.S. Dist. LEXIS 172405, at *16–17 (S.D. Cal. Dec. 12, 2016) (quoting Jones v. Spherion Staffing LLC, 2012 U.S. Dist. LEXIS 112396, at *21–26 (C.D. Cal. Aug. 7, 2012)); accord Pyara v. Sysco Corp., 2016 U.S. Dist. LEXIS 94892, at *21–22 (E.D. Cal. July 20, 2016); Nguyen v. Baxter Healthcare Corp., 2011 U.S. Dist. LEXIS 141135, at *23–25 (C.D. Cal. Nov. 28, 2011). Here, Plaintiff’s claim for wage statement violations is based in part on his claims for meal and rest period violations. (Dkt. No. 1-1 at ¶ 35.) But the Frieri, Jones, Pyara, and Nguyen Courts have confirmed that meal and rest period violations cannot support a wage statement claim. Accordingly, even if the wage statement claim is not dismissed, this theory should be stricken as it is not legally cognizable. (And, of course, this request to strike will be moot if Plaintiff’s meal and rest period claims are dismissed.) 3. Plaintiff’s UCL Cannot Be Based On Alleged Meal Or Rest Period Violations Because Meal And Rest Period Premiums Are Not Restitutionary. The UCL “borrows” alleged violations from other laws, making them 4 Unlike his rest period claim, it is not clear whether Plaintiff bases his meal period claim on this same theory. To the extent Plaintiff’s meal period claim is based on the theory that Defendant did not pay meal period premiums at employees’ “regular rates of pay,” that theory should be stricken, too. Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 34 of 38 Page ID #:268 - 35 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 independently actionable as unfair practices. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1143 (2003); Krantz v. BT Visual Images, LLC, 89 Cal. App. 4th 164, 178 (2001) (violation under “unlawful” prong of the UCL requires underlying violation of law). It is well established that the UCL provides for only injunctive relief and restitution; “damages are not recoverable.” Korea Supply, 29 Cal. 4th at 1144. Here, Plaintiff’s UCL claim is based in part on alleged meal and rest period violations. (Dkt. No. 1-1 at ¶ 39.) As explained below, because meal and rest period premiums are not restitution, they are not recoverable under the UCL. Thus, these bases for recovery should be stricken from the UCL claim. Plaintiff’s UCL claim seeks to “borrow” meal and rest period violations of Labor Code section 226.7. In Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244 (2012), the California Supreme Court held that “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.” Id. at 1255. The Kirby Court further held that “a section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for nonprovision of meal or rest breaks.” Id. at 1257. Following Kirby, the Court in Jones held that the plaintiff could not advance a claim under Labor Code section 203 based on the alleged failure to pay wages due upon termination based solely on alleged violations of section 226.7, because “under Kirby, the legal violation underlying a section 226.7 claim is the nonprovision of meal and rest periods and the corresponding failure to ‘ensur[e] the health and welfare of employees,’ not the nonpayment of wages.” 2012 U.S. Dist. LEXIS 112396, at *21 (citing Kirby, 53 Cal. 4th at 1255); accord Singletary v. Teavana Corp., 2014 U.S. Dist. LEXIS 62073, at *4 (N.D. Cal. Apr. 2, 2014) (“Kirby clarified that the wrong at issue in Section 226.7 is the non-provision of rest breaks, not a denial of wages.”). Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 35 of 38 Page ID #:269 - 36 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Also following Kirby, the California Court of Appeal in Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal. App. 4th 1242 (2016), held that although “the remedy for a section 226.7 violation is an extra hour of pay, . . . the fact that the [Section 226.7] remedy is measured by an employee’s hourly wage does not transmute the remedy into a wage . . . .” Id. at 1261. The Ling, Jones, and Singletary Courts confirmed the Kirby Court’s holding that section 226.7 claims are not claims brought for the nonpayment of wages that were not paid – i.e., the meal and rest period premiums that may be recovered under section 226.7 are not restitutionary in nature. In Parson v. Golden State FC, LLC, 2016 U.S. Dist. LEXIS 58299 (N.D. Cal. May 2, 2016), the Court addressed the very issue of whether rest period premiums qualify as restitution under the UCL. Answering that question in the negative, the Parson Court dismissed the plaintiff’s UCL claim to the extent it was based on the failure to pay meal and rest period premiums, holding that wages under section 226.7 are not restitutionary: The Court concludes that these wages [under section 226.7 – i.e., rest period premiums] do not constitute restitution for the purposes of the UCL. Though the California Supreme Court does not appear to have addresse[d] this question in relation to section 226.7, it held in Pineda v. Bank of America, N.A., 50 Cal. 4th 1389, 1401 [] (2010) that similar wages awarded pursuant to section 203 were not restitution under the UCL. Section 203(a) provides that if an employer does not timely pay all wages due to an employee who is discharged or quits, “the wages of the employee shall continue as a penalty” for up to 30 days. Id. (quoting Cal. Lab. Code § 203(a)). Contrasting the award of these wages with the unpaid overtime wages discussed in Cortez [v. Purolator Air Filtration Products Co., 23 Cal. 4th 163, 173 (2000)], the court explained that wages awarded under section 203 “would not ‘restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.’” Id. (quoting Korea Supply, 29 Cal. 4th at 1149)). While “it is the employers’ action (or inaction) that gives rise to section 203 penalties,” the Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 36 of 38 Page ID #:270 - 37 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unpaid wages identified in Cortez “arise[] out of the employees’ action, i.e., their labor.” Id. Id. at *19–20 (italics in original). The Pineda Court’s reasoning applies equally to Labor Code section 226.7 because both sections 203(a) and 226.7 impose awards of additional wages if an employer violates the provision. “Much like under section 203(a), wages awarded for failure to provide rest breaks under section 226.7 would not be earned by the ‘employee who has given his or her labor to the employer in exchange for that property.’” Id. at *20 (citing Cortez, 23 Cal. 4th at 173). For this reason, the Parson Court granted the defendants’ motion to dismiss the plaintiffs’ UCL claim to the extent it was based on wages or penalties owed under section 226.7. In Guerrero v. Halliburton Energy Servs., 2017 U.S. Dist. LEXIS 15738 (E.D. Cal. Feb. 2, 2017) (“Guerrero II”), the Court followed Parson. It concluded that Labor Code “§ 226.7 wages do not constitute restitution recoverable under UCL and therefore GRANTS Defendant’s motion to dismiss Plaintiff’s UCL claim insofar as the claim pertains to [Labor Code] § 226.7 wages for meal and rest period violations.” Id. at *20. Given the foregoing, as a UCL claim cannot be based on alleged meal or rest period violations because the remedy under section 226.7 does not constitute restitution, references to alleged meal and rest period violations should be stricken from Plaintiff’s UCL claim. 4. Plaintiff’s UCL Claim Cannot Be Based On Alleged Wage Statement Violations Because The Potential Remedies Are Not Restitutionary. Plaintiff’s claim under the UCL also fails to the extent it is based upon the alleged failure to provide accurate wage statements in violation of Labor Code section 226. The remedies available for a wage statement violation are either penalties or actual damages. Cal. Lab. Code § 226(e). But damages are not recoverable under the UCL. Korea Supply, 29 Cal. 4th at 1144. Nor are penalties Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 37 of 38 Page ID #:271 - 38 - Firm:43653242v1 Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recoverable under the UCL. Pineda, 50 Cal. 4th at 1401–1402. Thus, Plaintiff’s UCL claim fails to the extent it is based upon alleged wage statement violations. In re Wal-Mart Stores, Inc. Wage and Hour Lit., 505 F. Supp. 2d 609, 619 (N.D. Cal. 2007) (granting motion to dismiss because “claims pursuant to Labor Code §§ 203 and 226 cannot support a § 17200 claim”). Accordingly, it should be stricken. 5. Plaintiff’s Class Allegations Should Be Stricken Because They Fail To Comply With L.R. 23-2.2(f), Which Requires That The Complaint Contain Appropriate Allegations To Support The Findings Required By Fed. R. Civ. P. 23(b)(3). L.R. 23-2.2(f) requires that “[i]f proceeding under F.R.Civ.P. 23(b)(3), [the complaint must contain appropriate] allegations to support the findings required by that subdivision . . . .” To wit, subdivision (b)(3) requires that a class action may be maintained only when, inter alia, “the court finds [1] that the questions of law or fact common to class members predominate over any questions affecting only individual members, and [2] that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (brackets added). But Plaintiff has not set forth sufficient, non-conclusory allegations addressing predominance. (See Dkt. No. 1-1 at ¶ 18.) Nor has he set forth sufficient, non-conclusory allegations explaining why a class action would be superior to joinder. (See id. at ¶ 21.) Instead, he has addressed these two requirements in a conclusory fashion that does not satisfy pleading requirements. (See id. at ¶¶ 18, 21.) Thus, Plaintiff’s class allegations should be stricken. IV. CONCLUSION For the foregoing reasons, Plaintiff’s Complaint should be dismissed or the aforementioned portions should be stricken from it. DATED: June 28, 2017 By: EPSTEIN BECKER & GREEN, P.C. /s/ Michael S. Kun Michael S. Kun Attorney for Defendant Case 2:17-cv-04590-SVW-RAO Document 12 Filed 06/28/17 Page 38 of 38 Page ID #:272 Firm:43694890v1 [Proposed] Order Granting Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA RICARDO LARA, as an individual and on behalf of all others similarly situated, Plaintiffs, v. SUGAR FOODS CORPORATION, a New York Corporation; and DOES 1 to 100, inclusive. Defendants. Case No.: 2:17-cv-04590-SVW-RAO CLASS ACTION [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS OR TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT DATE: July 31, 2017 TIME: 1:30 p.m. CTRM: 10A JUDGE: Hon. Stephen V. Wilson Case 2:17-cv-04590-SVW-RAO Document 12-1 Filed 06/28/17 Page 1 of 5 Page ID #:273 - 2 - Firm:43694890v1 [Proposed] Order Granting Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that having considered the parties’ briefing and oral argument on Defendant Sugar Foods Corporation’s (“Defendant”) Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint (“Motion”), the Court hereby ORDERS: (1) Defendant’s Motion be and hereby is GRANTED; and (2) Plaintiff Ricardo Lara’s (“Plaintiff”) Complaint be and hereby is DISMISSED without leave to amend; OR (1) Defendant’s Motion be and hereby is GRANTED; and (2) The Court hereby STRIKES the following from Plaintiff’s Complaint: (a) references to a nationwide putative class of Defendant’s employees should be stricken because Plaintiff brings claims arising under California law only; (b) references to the alleged failure to pay rest period premiums based upon the “regular rate of pay” – as that term is used for purposes of paying overtime compensation – should be stricken because it is not a legally cognizable theory to support a rest period claim; (c) references to alleged meal and rest period violations should be stricken from the wage statement claim because such claims would result in an improper, multiple recovery; (d) references to alleged meal and rest period violations should be stricken from Plaintiff’s cause of action under the Unfair Competition Law (“UCL”) because meal and rest period premiums are not restitution, and only restitution may be recovered under the UCL; (e) references to alleged wage statement violations should be stricken from the UCL cause of action because the remedies for wage statement violations – penalties or damages – are not restitution recoverable under the UCL; and (f) references to alleged class claims should be stricken from the Complaint because Plaintiff has failed to comply with L.R. 23-2.2(f), which requires that when “proceeding under F.R.Civ.P. 23(b)(3), [a complaint must set forth] allegations to support the Case 2:17-cv-04590-SVW-RAO Document 12-1 Filed 06/28/17 Page 2 of 5 Page ID #:274 - 3 - Firm:43694890v1 [Proposed] Order Granting Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 findings required by that subdivision.” Specifically, the Court strikes the following from Plaintiff’s Complaint: (i) Page 5, lines 15–18 (“The Minimum Wage Class consists of all of Defendants’ current and former non-exempt employees who were subject to Defendants’ timekeeping practices during the four years immediately preceding the filing of the Complaint through the present”); page 5, lines 19–26 (“The Meal Period Class consists of all of Defendants’ current and former non-exempt employees who: (i) worked at least one shift in excess of 5.0 hours without a meal period of at least 30 minutes commencing prior to the end of the fifth hour of work as reflected from their timekeeping records; and/or (ii) worked at least one shift in excess of 10 hours without a second meal period of at least 30 minutes commencing prior to the end of the tenth hour of work as reflected from their timekeeping records, during the four years immediately preceding the filing of the Complaint through the present.”); page 5, line 27 to page 6, line 28 (“The Rest Period Class consists of all of Defendants’ current and former non-exempt employees who worked at least one shift in excess of 10.0 hours during the four years immediately preceding the filing of the Complaint through the present.”); and page 6, lines 2–4 (“The Wage Statement Class consists of all members of the Minimum Wage Class, Meal Period Class, and Rest Period Class during the one year immediately preceding the filing of the Complaint through the present.”); (ii) Page 10, lines 5–7 (“Despite Defendants’ violations, Defendants have not paid an additional hour of pay to Plaintiff and the Rest Period Class at their respective regular rates of pay for each violation in accordance with California Labor Code § 226.7.”); (iii) Page 10, lines 19–20 (“and meal and rest period premium wages earned”); (iv) Page 11, lines 8–9 (“meal and rest period premium wages”); Case 2:17-cv-04590-SVW-RAO Document 12-1 Filed 06/28/17 Page 3 of 5 Page ID #:275 - 4 - Firm:43694890v1 [Proposed] Order Granting Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (v) Page 11, lines 9–10 (“and knowingly failing to furnish accurate and complete itemized wage statements in violation of Labor Code § 226.”); and (vi) Page 1, line 13 (“and on behalf of all others similarly situated”); page 1, line 14 (“CLASS ACTION”); page 2, lines 1–2 (“and all others similarly situated”); page 2, line 2 (“Class Action”); page 2, line 6 (“and all others similarly situated”); page 3, lines 15–16 (“and the Classes (as defined in Paragraph 15)”); page 3, lines 19–20 (“and all members of the Classes.”); page 4, line 4 (“and all members of the Classes.”); page 4, line 18 (“and other non-exempt employees”); page 4, line 21 (“and other non-exempt employees”); page 5, line 6 (“during at least a portion of the putative class period”); page 5, line 12 (“CLASS ACTION ALLEGATIONS”); ¶¶ 15–21; page 8, lines 20–21 (“and the Minimum Wage Class”); page 9, line 2 (“and the Minimum Wage Class”); page 9, lines 7–8 (“and members of the Minimum Wage Class”); page 9, line 18 (“and members of the Minimum Wage Class”); page 9, line 20 (“and Class definitions sections of this Complaint”); page 10, lines 3–5 (“Due to their unlawful rest period policies and/or practices, Defendants did not authorize and permit members of the Rest Period Class to all rest periods to which they were legally entitled.”); page 10, line 6 (“and the Rest Period Class”); page 10, lines 8–9 (“and members of the Rest Period Class”); page 10, line 18 (“and the Wage Statement Class”); page 10, lines 21–22 (“and members of the Wage Statement Class”); page 10, lines 26–27 (“and members of the Wage Statement Class”); page 11, line 8 (“and the Classes”); page 11, line 12 (“and continues to deprive members of the Classes”); page 11, line 17 (“and on behalf of the members of the Classes”); page 11, line 24 (“and those of the Classes”); page 12, lines 2–3 (“and for all others on whose behalf this suit is brought against Defendants”); page 12, line 4 (“For an order certifying the proposed Classes”); page 12, line 5 (“For an order appointing Plaintiff as representative of the Classes”); page 12, line 6 (“For an order appointing counsel Case 2:17-cv-04590-SVW-RAO Document 12-1 Filed 06/28/17 Page 4 of 5 Page ID #:276 - 5 - Firm:43694890v1 [Proposed] Order Granting Defendant’s Motion to Dismiss or to Strike Portions of Plaintiff’s Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for Plaintiff as counsel for the Classes”); and page 12, lines 16–17 (“and members of the Classes”). IT IS SO ORDERED. DATED: _______________ _____________________________ Hon. Stephen V. Wilson United States District Judge Case 2:17-cv-04590-SVW-RAO Document 12-1 Filed 06/28/17 Page 5 of 5 Page ID #:277