Sanders v. Old Dominion Freight Line, Inc. et al

MOTION to Dismiss for Failure to State a Claim and/or to Strike Complaint Pursuant to Fed. R. Civ. P. 12

S.D. Cal.November 25, 2016

84304703.1 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MCGUIREWOODS LLP Matthew C. Kane (SBN 171829) Email: mkane@mcguirewoods.com Sabrina A. Beldner (SBN 221918) Email: sbeldner@mcguirewoods.com Sylvia J. Kim (SBN 258363) Email: skim@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 Attorneys for OLD DOMINION FREIGHT LINE, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA EUGENE SANDERS, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiff, vs. OLD DOMINION FREIGHT LINE, INC., a Corporation; and Does 1 through 50, Inclusive, Defendants. CASE NO. 3:16-cv-02837-CAB-NLS DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f): Filed Under Separate Cover: (1) REQUEST FOR JUDICIAL NOTICE (2) MEMORANDUM OF POINTS AND AUTHORITIES Date: December 23, 2016 PER CHAMBERS, NO ORAL ARGUMENT UNLESS ORDERED BY THE COURT Crtrm.: 4C Judge: Hon. Cathy Ann Bencivengo Case 3:16-cv-02837-CAB-NLS Document 4 Filed 11/25/16 Page 1 of 5 84304703.1 1 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION TO PLAINTIFF EUGENE SANDERS AND HIS COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that, on December 23, 2016, in Courtroom 4C of the United States District Court, Southern District of California, located at 221 West Broadway, San Diego, CA 92101, Defendant Old Dominion Freight Line, Inc. (“ODFL” or “Defendant”) will and hereby does move the Court to dismiss and/or strike Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(f) on the grounds that: 1. Plaintiff’s purported First Cause of Action for violation of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., fails as a matter of law because: a. It is derivative of factually and legally insufficient allegations that do not satisfy the pleading requirements of Fed. R. Civ. P. 8 (“Rule 8”); and/or b. Meal and rest break payments under Cal. Lab. Code § 226.7 (“Section 226.7”) are not subject to restitution under the UCL; and 2. Plaintiff’s purported Second Cause of Action for failure to pay minimum wages fails as a matter of law because, instead of pleading facts, the Complaint proffers nothing more than conclusory allegations that ODFL violated the law, which fail to satisfy the pleading requirements of Rule 8; and 3. Plaintiff’s purported Third Cause of Action for failure to provide Case 3:16-cv-02837-CAB-NLS Document 4 Filed 11/25/16 Page 2 of 5 84304703.1 2 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accurate itemized wage statements in violation of Cal. Lab. Code § 226 (“Section 226”) fails as a matter of law because: a. The claim fails to comply with the pleading requirements of Rule 8; and/or b. The Complaint is devoid of any factual allegation whatsoever that Plaintiff in fact suffered any cognizable injury; and/or c. Plaintiff fails to allege that his wage statements were inaccurate as to the payment of wages actually paid to him; and/or d. Meal and rest break payments pursuant to Section 226.7 are not “wages” that are subject to reporting under Section 226; and 4. Plaintiff’s purported Fourth Cause of Action for failure to timely pay final wages at separation pursuant to Cal. Lab. Code § 203 (“Section 203”) fails as a matter of law because: a. The claim fails to comply with the pleading requirements of Rule 8; and/or b. The claim fails to set forth sufficient facts regarding a willful failure to pay wages due; and 5. Plaintiff’s purported Fifth Cause of Action for failure to reimburse business-related expenses in violation of Cal. Lab. Code § 2802 (“Section 2802”) fails as a matter of law because it fails to comply with Case 3:16-cv-02837-CAB-NLS Document 4 Filed 11/25/16 Page 3 of 5 84304703.1 3 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Rule 8 pleading requirements; and 6. Plaintiff’s allegation regarding ODFL’s alleged violation of Cal. Lab. Code § 204 (“Section 204”) in connection with his UCL claim should be stricken from Paragraph 39 of the Complaint because: a. Plaintiff alleges no facts which would suggest that ODFL failed to comply with the pay timing requirements of Section 204; and/or b. Section 204 penalties are not recoverable as restitution under the UCL; and 7. Plaintiff’s request for injunctive relief should be dismissed or stricken because he lacks standing to seek such relief as a former employee. This Motion is based upon this Notice, the accompanying Memorandum of Points and Authorities and Request for Judicial Notice filed concurrently herewith, and all matters which may be judicially noticed pursuant to Rule 201 of the Federal Rules of Evidence, the Court’s files and records in this action, and such other evidence and arguments as may be made or presented at or before the hearing on the Motion. DATED: November 25, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Attorneys for Defendant Old Dominion Freight Line, Inc. Case 3:16-cv-02837-CAB-NLS Document 4 Filed 11/25/16 Page 4 of 5 84177177.1 1 CERTIFICATE OF SERVICE 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 CERTIFICATE OF SERVICE I hereby certify that on November 25, 2016, I electronically transmitted the foregoing document to the Clerk’s Office using the CM/ECF System for filing and service via transmittal of a Notice of Electronic Filing. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 25, 2016, at Los Angeles, California. /s/ Matthew C. Kane MATTHEW C. KANE Case 3:16-cv-02837-CAB-NLS Document 4 Filed 11/25/16 Page 5 of 5 84177177.3 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MCGUIREWOODS LLP Matthew C. Kane (SBN #171829) Email: mkane@mcguirewoods.com Sabrina A. Beldner (SBN #221918) Email: sbeldner@mcguirewoods.com Sylvia J. Kim (SBN #258363) Email: skim@mcguirewoods.com 1800 Century Park East 8th Floor Los Angeles, CA 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 Attorneys for OLD DOMINION FREIGHT LINE, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA EUGENE SANDERS, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiff, vs. OLD DOMINION FREIGHT LINE, INC., a Corporation; and Does 1 through 50, Inclusive, Defendants. CASE NO. 3:16-cv-02837-CAB-NLS DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) Date: December 23, 2016 PER CHAMBERS, NO ORAL ARGUMENT UNLESS ORDERED BY THE COURT Crtrm.: 4C Judge: Hon. Cathy Ann Bencivengo Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 1 of 34 84177177.3 i DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..................................................................................... iii MEMORANDUM OF POINTS AND AUTHORITIES ............................................ 1 I. INTRODUCTION ............................................................................................ 1 II. STATEMENT OF FACTS ............................................................................... 1 III. LEGAL ARGUMENT ..................................................................................... 2 A. APPLICABLE LEGAL STANDARDS ............................................................ 2 1. Fed. R. Civ. P. 12(b)(6) And 12(f) .............................................. 2 2. The Twombly And Iqbal Pleading Standards .............................. 2 B. PLAINTIFF’S PURPORTED SECOND CAUSE OF ACTION FOR FAILURE TO PAY MINIMUM WAGES FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED ................................................................... 4 C. PLAINTIFF’S PURPORTED THIRD CAUSE OF ACTION FOR FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED ................................... 5 1. The Claim Fails To Comply With The Rule 8 Requirements ............................................................................... 5 2. The Claim Fails To Allege The Requisite Injury ........................ 6 3. The Wage Statements Accurately Reported All Wages Paid .............................................................................................. 7 4. Section 226.7 Payments Are Not Subject To Reporting ............. 7 D. PLAINTIFF’S PURPORTED FOURTH CAUSE OF ACTION FOR FAILURE TO TIMELY PAY FINAL WAGES AND/OR FOR WAITING TIME PENALTIES FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED ............................................................................................. 11 1. The Claim Fails To Comply With The Rule 8 Requirements ............................................................................. 11 2. Because Section 226.7 Payments Are Not “Wages Earned,” The Non-Payment Thereof At Termination Does Not Trigger Liability For Waiting Time Penalties .................... 13 E. PLAINTIFF’S PURPORTED FIFTH CAUSE OF ACTION FOR FAILURE TO REIMBURSE BUSINESS-RELATED EXPENSES FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED .................................... 15 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 2 of 34 84177177.3 ii DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. PLAINTIFFS’ PURPORTED FIRST CAUSE OF ACTION FOR UCL VIOLATIONS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED ............................................................................................. 17 1. The Claim Fails To Satisfy The Rule 8 Requirements .............. 18 2. Plaintiff’s UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL ...... 21 G. PLAINTIFF’S ALLEGATION IN PARAGRAPH 39 OF THE COMPLAINT REGARDING ODFL’S ALLEGED VIOLATION OF CAL. LAB. CODE § 204 SHOULD BE STRICKEN FROM THE COMPLAINT .............................. 22 H. PLAINTIFF’S CLAIMS FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED OR STRICKEN BECAUSE HE LACKS STANDING TO SEEK SUCH RELIEF AS A FORMER EMPLOYEE ............................................... 23 IV. CONCLUSION .............................................................................................. 24 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 3 of 34 84177177.3 iii DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Anderson v. Blockbuster Inc., 2010 WL 1797249 (E.D. Cal. May 4, 2010) .................................................. 12, 20 Angeles v. U.S. Airways, Inc., 2013 WL 622032 (N.D. Cal. Feb. 19, 2013) .......................................................... 6 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) ............................................................ 2, 3, 4, 11, 19, 20, 21 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) .................................................................................. 2 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................................... 2, 3, 4, 11, 19, 20 Boon v. Canon Business Solutions, Inc., 592 Fed.Appx. 631 (9th Cir. 2015) ........................................................................ 4 Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581 (N.D. Cal. Apr. 18, 2013).................................................. 6, 12 Clark v. Lakewood, 259 F.3d 996 (9th Cir. 2001) ................................................................................ 24 Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205 (C.D. Cal. 2006) .................................................................... 9 De La Torre v. American Red Cross, 2013 WL 5573101 (C.D. Cal. Oct. 9, 2013) .......................................................... 7 Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345 (C.D. Cal. July 17, 2009) .................................... 20 DeLodder v. Aerotek, Inc., 2009 WL 3770670 (C.D. Cal. Nov. 9, 2009) ....................................................... 24 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................ 24 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 4 of 34 84177177.3 iv DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) ................................................................................ 2 Farm Credit Svcs. v. Am. State Bank, 339 F.3d 764 (8th Cir. 2003) .................................................................................. 3 Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116 (D.P.R. 1972) .................................................................................. 2 Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296 (E.D. Cal. Nov. 2, 2016) ..................................... 4, 5, 6, 12, 14 Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383 (C.D. Cal. Sept. 22, 2010) ..................................................... 22 Jacobsen v. Katzer, 609 F.Supp.2d 925 (N.D. Cal. 2009) ...................................................................... 2 Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114 (N.D. Cal. 2011) .................................................................. 23 Jones v. Spherion Staffing LLC, 2012 WL 3264081 (C.D. Cal. Aug. 7, 2012) ................................................. 10, 14 Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014) .............................................................................. 4, 5 Lefevere v. Pacific Bell Directory, 2014 WL 5810530 (N.D. Cal. Nov. 17, 2014) ..................................................... 19 Lopez v. Aerotek, Inc., 2015 WL 4504691 (C.D. Cal. July 23, 2015) ...................................................... 12 Lopez v. Wendy’s International, Inc., 2011 WL 6967932 (C.D. Cal. Sept. 19, 2011) ..................................................... 16 Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379 (E.D. Cal. May 31, 2013) ...................................................... 18 Makaneole v. Solarworld Indus. Am., Inc., 2014 WL 8102530 (D. Or. Dec. 8, 2014) ............................................................... 4 Morgan v. Napolitano, 2010 WL 3749260 (E.D. Cal. Sep. 23, 2010) ........................................................ 3 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 5 of 34 84177177.3 v DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498 (E.D. Cal. Aug. 15, 2011) ............................................... 16, 17 Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal. Nov. 28, 2011) ....................................... 8, 9, 10, 13 Parson v. Golden State FC, LLC, 2016 WL 1734010 (N.D. Cal. May 2, 2016) ....................................................... 21 Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983 (S.D. Cal. 2012) .................................................................... 18 Perez v. Wells Fargo and Co., 75 F.Supp.3d 1184 (N.D. Cal. 2014) ...................................................................... 4 Pulido v. Coca Cola Enters., Inc., 2006 WL 1699328 (C.D. Cal. May 25, 2006) ........................................................ 9 Ramirez v. Manpower, Inc., 2014 WL 116531 (N.D. Cal. Jan. 13, 2014) .......................................................... 6 Richards v. Ernst & Young LLP, 2010 WL 682314 (N.D. Cal. Feb. 24, 2010) ........................................................ 24 Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv-00891 DSF ................................................................. 14 Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166 (N.D. Cal. May 8, 2013) ....................................................... 13 Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011) ..................................................... 20 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983) .................................................................................. 2 Singer v. Becton, Dickinson & Co., Med-Safe Sys., 2008 WL 2899825 (S.D. Cal. July 23, 2008) ................................................. 22, 23 Singletary v. Teavana Corporation, 2014 WL 1760884 (N.D. Cal. Apr. 2, 2014) ........................................................ 14 Slay v. CVS Caremark Corp., 2015 WL 2081642 (E.D. Cal. May 4, 2015) ........................................................ 23 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 6 of 34 84177177.3 vi DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tapley v. Lockwood Green Eng’rs, 502 F.2d 559 (8th Cir. 1974) .................................................................................. 2 Titus v. McLane Foodservice, Inc., 2016 WL 4797497 (E.D. Cal. Sept. 14, 2016) ..................................................... 24 Tomlinson v. Indymac Bank, F.S.B., 359 F.Supp.2d 891 (C.D. Cal. 2005) .................................................................... 23 Wells v. Bd. of Trustees of Cal. State Univ., 393 F.Supp.2d 990 (N.D. Cal. 2005) ...................................................................... 2 Woo v. Home Loan Group, L.P., 2007 WL 6624925 (S.D. Cal. July 27, 2007) ....................................................... 21 CALIFORNIA CASES In re Application of Moffett, 19 Cal.App.2d 7 (1937) ........................................................................................ 23 Brewer v. Premier Golf Prop., LP, 168 Cal.App.4th 1243 (2008) ................................................................................. 9 Brinker v. Sup. Ct., 53 Cal.4th 1004 (2012) ................................................................................... 10, 19 Clark v. Sup. Ct., 50 Cal.4th 605 (2010) ........................................................................................... 21 Cornelius v. L.A. Cnty. Etc. Auth., 49 Cal.App.4th 1761 (1996) ................................................................................. 24 Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426 (Sept. 20, 2011) .................. 8, 13 Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012) ................................................................... 9, 10, 11, 14, 21 Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134 (2003) ......................................................................................... 18 Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242 (2016) ............................................................................... 15 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 7 of 34 84177177.3 vii DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) ............................................................................... 9, 10, 13 Pineda v. Bank of Am., N.A., 50 Cal.4th 1389 (2010) ......................................................................................... 23 Price v. Starbucks Corp., 192 Cal.App.4th 1136 (2011) ............................................................................... 24 See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889 (2012) ................................................................................. 23 Stonehouse Homes v. Sierra Madre, 167 Cal.App.4th 531 (2008) ................................................................................. 24 FEDERAL STATUTES 29 U.S.C. § 201 ............................................................................................................ 4 CALIFORNIA STATUTES Cal. Bus. & Prof. Code § 17200 .................................................................................. 1 Cal. Labor Code § 201 ............................................................................... 1, 11, 13, 15 Cal. Labor Code § 202 ................................................................................................. 1 Cal. Labor Code § 203 ............................................................. 1, 11, 12, 13, 14, 15, 23 Cal. Labor Code § 204 ......................................................................................... 22, 23 Cal. Labor Code § 204(a) .......................................................................................... 22 Cal. Labor Code § 210 ............................................................................................... 23 Cal. Labor Code § 226 ............................................................................. 1, 7, 8, 11, 14 Cal. Labor Code § 226(a) .......................................................................... 5, 6, 7, 8, 10 Cal. Labor Code § 226(e) ............................................................................................ 7 Cal. Labor Code § 226.7 .................................. 1, 7, 8, 9, 10, 11, 13, 14, 15, 18, 21, 22 Cal. Labor Code § 512 ................................................................................................. 1 Cal. Labor Code § 1194 ............................................................................................... 1 Cal. Labor Code § 1197 ............................................................................................... 1 Cal. Labor Code § 1197.1 ............................................................................................ 1 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 8 of 34 84177177.3 viii DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Labor Code § 2802 ............................................................................. 1, 15, 16, 17 OTHER FEDERAL AUTHORITIES Fed. R. Civ. P. 8 ................................................... 1, 2, 3, 4, 5, 6, 11, 13, 15, 16, 18, 19 Fed. R. Civ. P. 8(a)(2) .................................................................................................. 3 Fed. R. Civ. P. 12(b)(6) ............................................................................................... 2 Fed. R. Civ. P. 12(f) ..................................................................................................... 2 Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 9 of 34 84177177.3 1 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION According to his Complaint, Plaintiff Eugene Sanders is a former California employee of Defendant Old Dominion Freight Line, Inc. (“Defendant” or “ODFL”). His Complaint purports to allege various putative wage and hour class action claims against ODFL, rooted primarily in bald, conclusory allegations of minimum wage and meal and rest break violations, failure to reimburse business expenses and wholly derivative statutory claims based thereon. As ODFL discusses below, Plaintiff’s asserted claims fail as a matter of law because, in contravention of Fed. R. Civ. P. 8, they allege no facts to support a cognizable legal theory and/or they suffer from a multitude of substantive defects as well. Therefore, Plaintiff’s claims should be dismissed and/or stricken as set forth below. II. STATEMENT OF FACTS Plaintiff is alleged to have “worked for [ODFL] in California from September of 2014 through October of 2015 as a Truck Driver.” See Dkt. #1, Exh. A (Complaint) at ¶ 1. On September 2, 2016, Plaintiff filed his Complaint against ODFL purporting to allege the following five putative class action claims on behalf of himself and other putative class members (“PCMs”): (1) Violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (the “UCL”). (2) Failure to pay minimum wages in violation of Cal. Labor Code §§ 1194, 1197 and 1197.1; (2) Failure to furnish accurate itemized wage statements in violation of Cal. Labor Code § 226; (3) Failure to provide or pay for missed or non-compliant meal breaks in violation of Cal. Labor Code § § 226.7 & 512, and IWC Wage Order 9; (4) Failure to pay all wages upon termination and/or waiting time penalties, in violation of Cal. Labor Code §§ 201-203; (5) Failure to reimburse employees for business expenses in violation of Cal. Labor Code § 2802. Plaintiff seeks recovery for purported unpaid wages, missed meal and rest break payments, inaccurate wage statement penalties, waiting time penalties, Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 10 of 34 84177177.3 2 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expense reimbursements, compensatory damages, restitution, injunctive relief, pre- judgment interest, attorneys’ fees and costs. Id. at ¶¶ 44, 45, 48, 49, 64, 68, 76, 80; Prayer for Relief, ¶¶ 1.B., 1.C., 1.D., 2.B., 2.C., 2.D., 2.E., 3.A., 3.C. III. LEGAL ARGUMENT A. APPLICABLE LEGAL STANDARDS 1. Fed. R. Civ. P. 12(b)(6) And 12(f) Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory; or (2) the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Fed. R. Civ. P. 12(f) empowers the Court to “order stricken from any pleading ... any redundant, immaterial, impertinent, or scandalous matter.”1 Matters may also be stricken to reduce trial complication and “to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Further, “[u]nder Rule 12(f), courts have authority to strike a prayer for relief seeking damages that are not recoverable as a matter of law.” Jacobsen v. Katzer, 609 F.Supp.2d 925, 935 (N.D. Cal. 2009). See also Wells v. Bd. of Trustees of Cal. State Univ., 393 F.Supp.2d 990, 994 (N.D. Cal. 2005) (same); Tapley v. Lockwood Green Eng’rs, 502 F.2d 559, 560 (8th Cir. 1974) (same). 2. The Twombly And Iqbal Pleading Standards In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (“Twombly”), the Supreme Court held that, under Fed. R. Civ. P. 8 (“Rule 8”), “a plaintiff’s obligation 1 Matter is “immaterial” if it has no essential or important relationship to the claim for relief or defenses pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). An “impertinent” allegation is neither responsive nor relevant to the issues involved in the action and which could not be put in issue or given in evidence between the parties. Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116, 120 n. 6 (D.P.R. 1972). Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 11 of 34 84177177.3 3 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (emph. added). Thus, “[b]lanket general allegations are not sufficient to allege facts from which the Court can infer causation.” Morgan v. Napolitano, 2010 WL 3749260, *6 (E.D. Cal. Sep. 23, 2010). Indeed, the Court is “free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.” Farm Credit Svcs. v. Am. State Bank, 339 F.3d 764, 767 (8th Cir. 2003) (cit. omitted) (emph. added). The Supreme Court further held that a plaintiff’s “bare averment that he wants relief and is entitled to it” does not satisfy the requirement under Fed. R. Civ. P. 8(a)(2) that a complaint contain a “short and plain statement of claim showing that the pleader is entitled to relief.” Twombly, 550 U.S. at 556, n.3. Rather, a complaint must allege “enough facts to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Id. In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (“Iqbal”), the Supreme Court held that Twombly applies to “all civil actions,” and explained that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Id. (emph. added). Following Twombly and Iqbal, a two-pronged approach is used to analyze the sufficiency of the allegations of a complaint: (1) the Court should first identify and disregard conclusory allegations which are not entitled to the assumption of truth; and (2) the Court should then determine whether the remaining allegations, if taken as true, present a plausible claim for relief. Iqbal, 129 S.Ct. at 1950. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (emph. added). As we discuss below, the purported claims and allegations in the Complaint should be dismissed because they do not comply with Rule 8 and/or are Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 12 of 34 84177177.3 4 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 substantively defective. B. PLAINTIFF’S PURPORTED SECOND CAUSE OF ACTION FOR FAILURE TO PAY MINIMUM WAGES FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED Plaintiff is seeking relief in the form of unpaid minimum wages based on an off-the-clock theory, but his claim fails to comply with the pleading requirements of Rule 8 because he fails to allege any facts from which the Court could infer that there was a specific week in which he was entitled to but not paid minimum wages. In Landers v. Quality Communications, Inc., 771 F.3d 638, 645 (9th Cir. 2014), the Ninth Circuit held that, in order to state a plausible claim for relief for minimum wage violations under the analogous Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), a plaintiff must allege “facts showing that there was a specific week in which he was entitled to but denied minimum wages…” Accord Boon v. Canon Business Solutions, Inc., 592 Fed.Appx. 631, 632 (9th Cir. 2015) (noting that Landers “articulated [the Ninth Circuit’s] requirements for stating a wage claim under Twombly and Iqbal, namely “that plaintiffs in these types of cases must allege facts demonstrating that there was at least one workweek in which they” were not properly paid); Perez v. Wells Fargo and Co., 75 F.Supp.3d 1184, 1191 (N.D. Cal. 2014) (following Landers and dismissing factually devoid minimum wage claim); Makaneole v. Solarworld Indus. Am., Inc., 2014 WL 8102530, *11 (D. Or. Dec. 8, 2014), report and recommendation adopted as modified, 2015 WL 1021446 (D. Or. Mar. 9, 2015) (same as to both minimum and overtime wages). Here, while Plaintiff alleges that ODFL failed to pay him minimum wages for time spent working off- the-clock, he does not provide any details “as to one specific workweek when this occurred.” Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296, *5 (E.D. Cal. Nov. 2, 2016). Further, the Complaint fails to allege the subminimum and/or sub-regular hourly wage that Plaintiff contends he or the PCMs received. In Guerrero, the court dismissed claims for straight time wages based on allegations that the employer implemented an auto-meal deduct practice and payroll Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 13 of 34 84177177.3 5 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 system to edit the actual hours reported by the plaintiff and putative class members, thus deducting a portion of the hours shown as work hours when a meal and/or rest period was not taken during the work day or when they were not relieved of all duties. Id. at *3; Request for Judicial Notice (“RJN”), Exh. A (Guerrero Complaint). The plaintiff had further alleged that the employer failed to make reasonable efforts to determine whether the time deducted was actually time worked as had been recorded by the employees. 2016 WL 6494296 at *3. However, aside from generally alleging that the employer had engaged in unlawful conduct for at least four years prior to the filing of the complaint, the plaintiff failed to provide any dates as to when the purported violations occurred. Id. The court held that such allegations were insufficient to state a claim for straight time wages because they were “overly general and therefore preclude[d] the Court from making a plausible inference that Defendants engaged in the alleged conduct during at least one workweek.” Id. at *4. Similarly, here, Plaintiff’s allegations fail to contain the level of factual specificity required to state a claim for unpaid minimum wages under the standards articulated in Landers because they fail to identify even one specific workweek in which the purported violations occurred. Therefore, Plaintiff’s purported Second Cause of Action fails as a matter of law and should be dismissed. C. PLAINTIFF’S PURPORTED THIRD CAUSE OF ACTION FOR FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED 1. The Claim Fails To Comply With The Rule 8 Requirements To seek statutory damages or penalties for any alleged violation of the itemized wage statement requirements of Cal. Labor Code § 226(a) (“Section 226(a)”), Plaintiff must allege facts supporting the essential element that ODFL committed “knowing and intentional failure[s] … to comply” with Section 226(a). Cal. Lab. Code § 226(e) (emph. added). Here, Plaintiff alleges no facts to plausibly suggest that ODFL provided Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 14 of 34 84177177.3 6 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inaccurate wage statements or that it did so knowingly and intentionally. Indeed, Plaintiff’s Complaint does not allege a single factual exemplar of any allegedly inaccurate wage statement he or any of the PCMs received from ODFL. Instead, Plaintiff merely recites the statutory language of the California Labor Code and then asserts the factually devoid and conclusory allegation that ODFL “knowingly and intentionally failed to comply with [Section] 226(a)….” See Dkt. #1, Exh. A (Complaint) at ¶ 68. But such conclusory allegations have been held insufficient under Rule 8.2 Therefore, this claim fails to satisfy the Rule 8 pleading requirements, and it should be dismissed. 2. The Claim Fails To Allege The Requisite Injury Even assuming arguendo that Plaintiff properly alleged a knowing and intentional failure to comply with Section 226(a), his Complaint still fails to properly allege the other required element to impose penalties: that Plaintiff “suffer[ed] injury as a result of” any such violation. Cal. Lab. Code § 226(e)(1) (emph. added). Plaintiff must allege facts to show that he has suffered a “cognizable injury” amounting to something more than not receiving a compliant itemized wage statement. See Angeles v. U.S. Airways, Inc., 2013 WL 622032, *10 (N.D. Cal. Feb. 19, 2013) (“A plaintiff must adequately plead an injury arising from an employer’s failure to provide full and accurate wage statements, and the omission of the required information alone is not sufficient.”). 2 See, e.g., Guerrero, 2016 WL 6494296 at *7; Ramirez v. Manpower, Inc., 2014 WL 116531, *5 (N.D. Cal. Jan. 13, 2014) (dismissing Cal. Lab. Code § 226 claims as merely “parrot[ing] the language of the statute” by alleging that defendant “knowingly and intentionally” failed to “include the total number of hours worked by Plaintiff and the Non-Compliant Wage Statement Subclass members, . . . list all applicable hourly rates, . . . include the inclusive dates for the period worked by the Plaintiff and the Non-Compliant Wage Statement Subclass members, and . . . accurately report the gross and net earnings of the Plaintiff and the Non-Compliant Wage Statement Subclass members”); Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581, *8 (N.D. Cal. Apr. 18, 2013) (“Although the [operative complaint] generally alleges that ‘violations of the law were committed knowingly and wilfully’ [sic] … plaintiffs fail to support this conclusory allegation with factual support.”). Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 15 of 34 84177177.3 7 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Complaint is devoid of any allegation, much less a factual one, that he or any other PCMs suffered any injury. Therefore, Plaintiff also has failed to properly allege this required element for seeking penalties under Cal. Labor Code § 226(e) (“Section 226(e)”). 3. The Wage Statements Accurately Reported All Wages Paid Plaintiff’s inaccurate wage statement claim also fails for the separate and independent reason that, under Cal. Lab. Code § 226 (“Section 226”), employers are only required to accurately report wages that the employee is actually being paid. Indeed, penalties under Section 226(e) are not available unless the employee cannot determine from the wage statement alone the amount of gross and net wages actually “paid … during the pay period” and the amount of deductions actually “made … during the pay period.” See Cal. Labor Code § 226(e)(2)(B)(i)-(ii) (emph. added). See also De La Torre v. American Red Cross, 2013 WL 5573101, *6 (C.D. Cal. Oct. 9, 2013) (finding plaintiff failed to state a claim for Section 226(e) penalties where there was no allegation that she was unable to determine the amount of wages actually paid to her during “the pay periods at issue”). Here, Plaintiff does not allege that the wage statements he received from ODFL were inaccurate in reporting the wages actually paid to him and the deductions actually made during the applicable pay period. Accordingly, his claim fails as a matter of law on this basis as well. 4. Section 226.7 Payments Are Not Subject To Reporting Plaintiff’s Cal. Lab. Code § 226 (“Section 226”) claim also fails, in part, for the separate and independent reason that meal and rest break payments under Cal. Lab. Code § 226.7 (“Section 226.7”) are not required to be itemized on wage statements under Section 226(a). First, neither the plain language nor the legislative history of Section 226(a) requires that wage statements itemize such payments for missed meal or rest breaks. Section 226(a) requires employers to list only nine specific items on an employee’s Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 16 of 34 84177177.3 8 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wage statement, none of which include Section 226.7 payments.3 Indeed, if Section 226.7 payments were included in that list, an employee would be further incentivized to forgo his meal and reset breaks in order to obtain a double recovery, one in the form of a missed meal and rest break payment under Section 226.7 and another in the form of an inaccurate wage statement penalty under Section 226. However, this is not the result intended by the California Legislature in enacting Section 226(a). As the legislative history of Section 226(a) indicates, “the purpose of Section 226 was for transparency, not double recovery.”4 Thus, Section 226(a) “is intended to ensure that employers provide accurate itemized wage statements to employees, not to govern employers’ obligations with respect to meal [or rest] periods.” See Exh. B (Driscoll Stmt. of Dec.) at p. 22 (emph. added). Second, Plaintiff’s claim also fails because Section 226.7 payments “are not wages earned for the purposes of Section 226(a)” in that they are actually liquidated damages. Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, *8 (C.D. Cal. Nov. 28, 2011) (emph. added). As the California Supreme Court first 3 Section 226(a) requires employers to itemize: (1) gross wages earned; (2) total hours worked; (3) piece-rate units earned; (4) deductions; (5) net wages earned; (6) inclusive dates of pay period; (7) employee’s name and social security number or employee identification number; (8) employer’s name and address; and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate. Cal. Labor Code § 226(a). 4 See RJN, Exh. B, Statement of Decision in Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426 (Sept. 20, 2011) (“Driscoll Stmt. of Dec.”) at p. 21 (emph. added). See also RJN, Exh. C (Cal. Dept. of Indus. Rels., Enrolled Bill Rep. on A.B. 3731 (1976)) (“Employees would benefit by having an itemized statement of deductions which would include both the gross and net wages so that they will be in a better position to evaluate the effect of payroll deductions and their accuracy.”) (emph. added); RJN, Exh. D (Assem. Com. on Lab. Rels., Analysis of A.B. 3731 (1976)), p. 1 (“The purpose of requiring greater wage stub information is to insure that employees are adequately informed of compensation received and are not shortchanged by their employers.”) (emph. added). Moreover, although the opinion letters of the California Division of Labor Standards Enforcement (“DLSE”) are not binding on this Court, they have nevertheless expressed agreement that transparency is the goal of Section 226. See, e.g., RJN, Exh. E (DLSE Op. Ltr. Re: Electronic Itemized Wage Stmts. (July 6, 2006)), p. 2 (“The purpose of the wage statement requirement is to provide transparency as to the calculation of wages.”) (emph. added). Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 17 of 34 84177177.3 9 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acknowledged in Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1113 (2007), “the Section 226.7 payment[ ] … compensates the employee for events other than time spent working.” (Emph. added). Although Murphy held that the measure of the remedy provided under Section 226.7 is a “premium wage” for statute of limitations purposes, the California Supreme Court concurrently recognized that it is “an amount of compensation” for “noneconomic injuries.” Id.5 Indeed, the Section 226.7 payment does not in any way correlate to the amount of time that an employee actually works through a meal or rest break. Rather, the same fixed sum of one full hour of pay is owed, regardless of whether the employee works through only a portion of the meal or rest break or through the entire break.6 See Cal. Lab. Code § 226.7(b); Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205, 1208 (C.D. Cal. 2006) (A Section 226.7 payment “does not compensate an employee for additional services rendered”); Pulido v. Coca Cola Enters., Inc., 2006 WL 1699328, *8 (C.D. Cal. May 25, 2006) (Section 226.7 payments are “punitive” with “no correlation to the employee’s actual labor”). The California Supreme Court spoke to this issue and expressly acknowledged that Section 226.7 payments are more properly characterized exclusively as damages and not wages for work performed. Specifically, in Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012), the court held that the Section 5 See also Nguyen, 2011 WL 6018284, at *8 (A Section 226.7 payment “is properly considered liquidated damages, not wages earned ….”) (emph. added); Brewer v. Premier Golf Prop., LP, 168 Cal.App.4th 1243, 1254 (2008) (remedies for missed meal break “include an award in the nature of liquidated damages under section 226.7”) (emph. added). 6 Section 226.7 payments have also been characterized as “penalties.” During the June 30, 2000 hearing at which the California Industrial Welfare Commission (“IWC”) adopted the “hour of pay” remedy for meal break violations, IWC Commissioner Barry Broad clarified that the meal break violation payments are “penalties” intended to “encourage employers not to” deprive employees of meal breaks. See RJN, Exh. F (IWC Public Hearing Transcript (June 30, 2000)), at p. 30. Indeed, “penalty” (as opposed to “wage”) was the only term used throughout the hearing to describe the payments. Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 18 of 34 84177177.3 10 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 226.7 payment is intended to pay employees for the “nonprovision of meal and rest periods,” as distinguished from work performed during the meal period: “Section 226.7 is not aimed at protecting or providing employees’ wages. Instead, the statute is primarily concerned with ensuring the health and welfare of employees by requiring that employers provide meal and rest periods as mandated by the IWC. [Citation] When an employee sues for a violation of section 226.7, he or she is suing because an employer has allegedly ‘require[d] [the] employee to work during [a] meal or rest period mandated by an applicable order of the Industrial Welfare Commission.’ [Citation] In other words, a section 226.7 action is brought for the nonprovision of meal and rest periods, not for the ‘nonpayment of wages.’” Id. at 1255 (brackets in orig.) (emph. added). The foundation for distinguishing between “wages” that an employee earns for performing work, on the one hand, and the “premium pay” under Section 226.7 that compensates for a non-compliant meal and rest break, on the other, as set out in Kirby, was laid in Brinker: “The employer that refuses to relinquish control over employees during an owed meal period violates the duty to provide the meal period and owes compensation [and a Section 226.7 payment] for hours worked. The employer that relinquishes control but nonetheless knows or has reason to know that the employee is performing work during the meal period, has not violated its meal period obligations [and owes no Section 226.7 payment], but nonetheless owes regular compensation to its employees for time worked.” Brinker, 54 Cal.4th at 1040 n. 19. Thus, Murphy, Brinker and Kirby found that Section 226.7 payments are akin to damages and not compensation for work performed. To that end, the Nguyen court explicitly held that Section 226.7 payments are “properly considered liquidated damages, not wages earned for the purposes of Section 226(a)” and are not subject to the reporting requirements in Section 226(a). Nguyen, 2011 WL 6018284 at *8 (emph. added). Similarly, in Jones v. Spherion Staffing LLC, 2012 WL 3264081 at *8-9 (C.D. Cal. Aug. 7, 2012), the court held that “Plaintiff cannot advance a claim for noncompliant wage statements pursuant to [S]ection 226(a) … based solely on alleged violations of [S]ection 226.7” because (1) the legal violation underlying a Section 226.7 claim is the “non-provision of meal and rest periods and the corresponding failure to ‘ensur[e] the health and welfare of employees,’ not the Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 19 of 34 84177177.3 11 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 nonpayment of wages”; (2) “a finding that [Section 226.7] wages can form the basis for claims under [S]ection 226” could result in an “improper, multiple recovery by the employee”; and (3) the Kirby decision demonstrates that Murphy’s holding that the Section 226.7 payment is calculated as a wage was limited to the specific issue of determining which statute of limitations applies. Therefore, Plaintiff’s Section 226 claim fails to the extent it is predicated on an alleged failure to itemize Section 226.7 payments. D. PLAINTIFF’S PURPORTED FOURTH CAUSE OF ACTION FOR FAILURE TO TIMELY PAY FINAL WAGES AND/OR FOR WAITING TIME PENALTIES FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED 1. The Claim Fails To Comply With The Rule 8 Requirements Plaintiff’s purported Fourth Cause of Action fails to allege facts sufficient to support a claim for failure to pay final wages at separation. Cal. Labor Code § 203 (“Section 203”) provides that “[i]f an employer willfully fails to pay ... any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid ... for [no] more than 30 days.” As such, in order to state a claim for waiting time penalties under Section 203, Plaintiff must allege facts demonstrating that ODFL willfully failed to timely pay final wages. However, Plaintiff’s claim alleges nothing more than a formulaic recitation of the statutory language, which is impermissible under Twombly and Iqbal:  “Plaintiff Eugene Sanders worked for [ODFL] in California from September 2014 through October of 2015 as a Truck Driver.” Dkt. #1, Exh. A (Complaint) at ¶ 1;  “To the extent minimum wage compensation is determined to be owed to the CALIFORNIA LABOR SUB-CLASS Members who have terminated their employment, [ODFL’s] conduct also violates Labor Code §§ 201 and/or 202, and therefore these individuals are also be [sic] entitled to waiting time penalties under [Section 203], which penalties are sought herein on behalf of these CALIFORNIA LABOR-SUB-CLASS Members.” Id. at ¶ 64;  “[ODFL’s] conduct as alleged herein was willful, intentional and not in good faith.” Id.; Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 20 of 34 84177177.3 12 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  “The employment of PLAINTIFF and many CALIFORNIA LABOR SUB-CLASS Members has terminated and DEFENDANT has not tendered payment of all wages owed as required by law.” Id. at ¶ 75;  “Therefore, as provided by [Section 203], on behalf of himself and the [PCMs] whose employment has terminated and who have not been fully paid their wages due to them, PLAINTIFF demands thirty days of pay as penalty for not paying all wages due at time of termination for all employees who terminated employment during the CALIFORNIA LABOR SUB-CLASS PERIOD and demands an accounting and payment of all wages due, plus interest and statutory costs as allowed by law.” Id. at ¶ 76. These allegations constitute nothing more than recitations of the statutory elements of a claim for Section 203 violations and fail to allege any facts demonstrating that ODFL refused to pay final wages in a timely manner. Indeed, Plaintiff alleges no facts as to the date his own employment supposedly was “terminated” and when he received his own final paycheck, its amount, and the amount he purportedly should have received. See Guerrero, 2016 WL 6494296 at *8 (“Plaintiff has not alleged when his employment with Defendant ended, nor has he alleged exactly what wages were earned and unpaid.”); Anderson v. Blockbuster Inc., 2010 WL 1797249, *2-4 (E.D. Cal. May 4, 2010) (a complaint “should allege more specific facts about Plaintiff himself, if not about the entire class”); Lopez v. Aerotek, Inc., 2015 WL 4504691, *2 (C.D. Cal. July 23, 2015) (dismissing claims for waiting time penalties that asserted that “Defendants willfully failed to pay their workers accrued wages due promptly upon separation” due to plaintiff’s failure to “even generally allege what wages were earned and paid at the time of termination, nor [did] she allege how and in what manner any final wage payment was untimely”). Plaintiff also fails to allege facts to support the requisite element that ODFL committed a “willful” violation to impose waiting time penalties under Section 203. Although the Complaint states that ODFL’s conduct was “willful,” Plaintiff “fails to support this conclusory allegation with factual support.”7 Indeed, the mere failure to 7 Brown, 2013 WL 1701581 at *8; see also id. at n.4 (“conclusory allegations Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 21 of 34 84177177.3 13 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 make payments at termination-the right to which is the subject of a good faith dispute-cannot, as a matter of law, establish a “willful” failure to timely pay all terminal wages. See Exh. B (Driscoll Stmt. of Dec.) at p. 23 (Sept. 20, 2011) (“[P]roof of violation of one statute does not prove a knowing and intentional violation of another.”). Accordingly, Plaintiff’s claim for waiting time penalties fails to satisfy the pleading requirements of Rule 8 and should be dismissed on this basis. 2. Because Section 226.7 Payments Are Not “Wages Earned,” The Non-Payment Thereof At Termination Does Not Trigger Liability For Waiting Time Penalties Plaintiff’s claim also fails in part because Section 226.7 meal and rest break payments do not constitute “wages earned” under Cal. Labor Code § 201 (“Section 201”) for purposes of incurring waiting time penalties under Section 203.8 Section 201 provides, in pertinent part, that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Section 226.7 payments for missed or non-compliant meal and rest breaks are not “wages earned” for purposes of triggering Section 203 liability because, as discussed in Section III.C.4., above, they are actually liquidated damages intended to “compensate[] the employee for events other than time spent working.” Murphy, 40 Cal.4th at 1113 (emph. added). Accord Nguyen, 2011 WL of willfulness, without further factual support, are insufficient.”); Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166, *14 (N.D. Cal. May 8, 2013) (“Plaintiff has, in essence, just restated the language of Section 203. Plaintiff has not alleged facts showing that [Defendant] willfully refused to pay Plaintiff her wages after she was discharged or quit. Consequently, Plaintiff’s Section 203 claim must be dismissed ....”) (emph. added). 8 It is not entirely clear from the allegations of Plaintiff’s Complaint whether his claim for waiting time penalties is predicated on a failure to make meal and rest break payments at termination, further demonstrating that Plaintiff’s Complaint fails to comply with the Rule 8 pleading standards inasmuch as it fails to give ODFL sufficient notice of the claims being alleged therein. Due to that ambiguity, and in an abundance of caution, ODFL addresses the impropriety of attempting to assert a claim for waiting time penalties on the basis of a failure to make Section 226.7 payments at termination. Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 22 of 34 84177177.3 14 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6018284 at *8. Indeed, in Kirby, 53 Cal.4th at 1255, the California Supreme Court held that Section 226.7 payments are intended to compensate employees for the “nonprovision of meal and rest periods,” as distinguished from work performed during the meal period. On this basis, at least four district courts have held that Section 203 waiting time penalties are not available based on a failure to make Section 226.7 payments at termination. As one district court has held, “Kirby forecloses the possibility of an action under [S]ections 201 and 203 for the nonpayment of wages” and “makes clear that an employer who owes an employee a premium wage under [Section] 226.7 is not also liable for a violation of § 203.” See RJN, Exh. G (June 18, 2013 Order entered in Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv-00891 DSF (RZx)) at p. 8. Similarly, in Singletary v. Teavana Corporation, 2014 WL 1760884, *4 (N.D. Cal. Apr. 2, 2014), the court held that “Kirby clarified that the wrong at issue in Section 226.7 is the non-provision of rest breaks, not a denial of wages. As such, this case falls under Kirby’s characterization of Section 226.7’s payment as penalties, not wages, governs here.” Likewise, in Jones, supra, the court held that “Plaintiff cannot advance a claim for … failure to pay wages due upon termination based solely on alleged violations of [S]ection 226.7” for the same reasons it held that Section 226.7 payments could not form the basis for claims under Section 226, as discussed in Section III.C.4., above. 2012 WL 3264081 at *9. More recently, in Guerrero v. Halliburton Energy Services, Inc., 2016 WL 6494296, *8 (E.D. Cal. Sept. 2, 2016), the court similarly held that unpaid Section 226.7 payments do not trigger liability under Section 203. Id. (“[T]his Court is more persuaded by the analysis set forth in Jones” in which “the court found that the plaintiff could not advance a [Section] 203 claim for failure to pay wages due upon termination solely based on alleged violations of [S]ection 226.7….”). Furthermore, as the California Court of Appeal recently observed: Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 23 of 34 84177177.3 15 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We understand that the remedy for a section 226.7 violation is an extra hour of pay, but the fact that the remedy is measured by an employee’s hourly wage does not transmute the remedy into a wage as that term is used in section 203, which authorizes penalties to an employee who has separated from employment without being paid. Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242, 1261 (2016). Accordingly, meal and rest break payments under Section 226.7 are “liquidated damages” that do not constitute “wages earned,” and therefore are not subject to any payment obligation under Section 201. Consequently, Plaintiffs’ Complaint fails to state claims for waiting time penalties under Section 203 on that basis, and the Section 203 claim should be dismissed or stricken to the extent predicated on the alleged failure to make Section 226.7 payments at termination. E. PLAINTIFF’S PURPORTED FIFTH CAUSE OF ACTION FOR FAILURE TO REIMBURSE BUSINESS-RELATED EXPENSES FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED Plaintiff’s Fifth Cause of Action for failure to reimburse business-related expenses in violation of Cal. Lab. Code § 2802 (“Section 2802”) fails because it does not comply with the Rule 8 pleading requirements. Plaintiff’s factually deficient allegations regarding this claim are limited to:  “[ODFL] violated [Section 2802] by failing to indemnify and reimburse the PLAINTIFF and the [PCMs] for required expenses incurred in the discharge of their job duties for [ODFL’s] benefit.” Dkt. #1, Exh. A (Complaint) at ¶ 79;  “[ODFL] failed to reimburse the PLAINTIFF and the [PCMs] for expenses which included, but were not limited to, costs related to using their personal cellular phones all on behalf of and for the benefit of [ODFL.]” Id.;  “[ODFL’s] uniform policy, practice and procedure was to not reimburse the PLAINTIFF and the [PCMs] for expenses resulting from using their personal cellular phones for [ODFL] within the course and scope of their employment for [ODFL].” Id.;  “These expenses were necessary to complete their principal job duties.” Id.;  “Although these expenses were necessary expenses incurred by the PLAINTIFF and the [PCMs], [ODFL] failed to indemnify and reimburse the PLAINTIFF and the [PCMs] for these expenses as an employer is required to do under the laws and regulations of California.” Id. Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 24 of 34 84177177.3 16 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Lopez v. Wendy’s International, Inc., 2011 WL 6967932, *12 (C.D. Cal. Sept. 19, 2011), the plaintiff brought a Section 2802 claim against her employer alleging that it “knowingly and willfully refused to perform [its] obligation[] to provide uniforms and equipment free of charge, and ... instead charged ... employees for uniforms and equipments [sic] required in the discharge of their duties.” The court dismissed the plaintiff’s claim on grounds that, inter alia, she “fail[ed] to allege that she paid for a uniform or equipment or that Defendant did not reimburse its employees for these costs” and “fail[ed] to allege what ‘uniform and equipment’ she and other class members were required to purchase.” Id. at *13. Accordingly, the Court held that Plaintiff’s allegations “fail[ed] to provide Defendant fair notice of a plausible indemnification claim.” Id. Similarly, in Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498, *1 (E.D. Cal. Aug. 15, 2011), the district court dismissed a plaintiff’s Section 2802 claims alleging that the plaintiff and all similarly situated individuals were “not reimbursed for out of pocket expenses for the use of their personal vehicles as a requirement of employment” and that the defendant “willfully failed to properly reimburse expenses relating to the use of personal vehicles to Plaintiff, and to the class, at the time they quit or were discharged.” The court held that the complaint contained “no factual content and [was] limited to threadbare, legal conclusions that merely parrot the statutory requirements of [Section 2802].” Id. at *2. The court even considered and took account of additional allegations in the plaintiff’s opposition to the motion to dismiss that plaintiff and the PCMs “were required to drive money from the day’s sales to the bank using their personal vehicles,” but nevertheless held that such allegations were insufficient to pass muster under Rule 8 because “Plaintiff must allege more specific facts about himself and the purported class he seeks to represent.” Id. at *3. Specifically, the court held that “Plaintiff must explain the precise nature of business related travel he claims Defendant required him to perform without reimbursement, how Defendant acquired the knowledge of such Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 25 of 34 84177177.3 17 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 use, and how Defendant willfully failed to reimburse Plaintiff, or any other class member, for such expense.” Id. Here, Plaintiff’s Complaint fails to plead any of these requisite facts, without which there is no basis from which the court can reasonably infer that a violation of Section 2802 occurred. To that point, it contains nothing more than conclusions and lacks basic facts such as the extent or amount of business expenses Plaintiff claims to have incurred and the reasons why they were incurred. Plaintiff also fails to describe how ODFL required the business-related expenditures as a condition of employment. And perhaps most importantly, the Complaint is devoid of any allegation that any of the PCMs ever sought and were refused reimbursement for such expenses. Therefore, Plaintiff’s Complaint fails to state a plausible claim for relief pursuant to Section 2802, and his Eighth Cause of Action should be dismissed. F. PLAINTIFFS’ PURPORTED FIRST CAUSE OF ACTION FOR UCL VIOLATIONS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED Plaintiff alleges that ODFL violated the UCL by:  “having in place company policies, practices and procedures that uniformly denied PLAINTIFF and the [PCMs] the correct minimum wages ….” See Dkt. #1, Exh. A (Complaint) at ¶ 20.a. (emph. added);  “having in place company policies, practices and procedures that uniformly and systematically fail to provide and record all the legally required unpaid, off-duty meal periods and all the legally required paid, off-duty rest periods to the PLAINTIFF and the [PCMs]….” Id. at ¶ 20.b. (emph. added); and  “failing to reimburse the PLAINTIFF and the [PCMs] with necessary expenses incurred in the discharge of their job duties.” Id. at ¶ 20.c. (emph. added). See also id. at ¶ 39 (“[ODFL] has engaged and continues to engage in a business practice which violates California and Federal law, including but not limited to, the applicable Industrial Wage Order(s), the California Code of Regulations, the California Labor Code including Sections 204, 226.7, 512, 1194, 1197, 1198 and 2802….”). Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 26 of 34 84177177.3 18 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 But, Plaintiff’s claim fails because: (1) it is predicated on Plaintiff’s legally deficient claims and allegations that do not satisfy the pleading requirements of Rule 8; and (2) Section 226.7 payments for meal and rest break violations are not subject to restitution under the UCL. 1. The Claim Fails To Satisfy The Rule 8 Requirements The UCL does not proscribe any particular conduct; rather, it borrows from other laws by making them independently actionable as unfair competitive practices. See Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134, 1143 (2003). Here, Plaintiff’s UCL claim is based entirely on claims for relief that fail to satisfy the Rule 8 pleading requirements. Indeed, to the extent it is based upon Plaintiff’s legally deficient claims for unpaid minimum wages and/or ODFL’s purported failure to reimburse business expenses, as discussed above, his derivative UCL claim also fails as a matter of law and must be dismissed as well. See Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379, *25 (E.D. Cal. May 31, 2013) (“Where a plaintiff cannot state a claim under the ‘borrowed’ law, she cannot state a UCL claim either.”); Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983, 992 (S.D. Cal. 2012) (same). Similarly, the UCL claim fails to the extent it is based on purported meal and rest break violations because Plaintiff’s Complaint makes the following factually devoid and conclusory allegations from which the Court cannot reasonably infer that a meal or rest break violation has occurred:  “[ODFL] failed to provide all the legally required unpaid, off-duty meal periods and all the legally required paid, off-duty rest periods to the PLAINTIFF and the [PCMs]….” See Dkt. #1, Exh. A (Complaint) at ¶ 9;  “[ODFL] did not have a policy or practice which provided or recorded all the legally required unpaid, off-duty meal periods and all the legally required paid, off-duty rest periods to the PLAINTIFF and the other [PCMs].” Id.  “[ODFL’s] failure to provide the PLAINTIFF and the [PCMs] with all the legally required off-duty, unpaid meal periods and all the legally required off-duty, paid rest periods is evidenced by [ODFL’s] business records.” Id.; Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 27 of 34 84177177.3 19 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  [ODFL] “[v]iolat[ed] the [UCL] by unlawfully, unfairly and/or deceptively having in place company policies, practices and procedures that uniformly and systematically fail to provide and record all the legally required unpaid off-duty meal periods and all the legally required paid, off-duty rest periods to the PLAINTIFF and the [PCMs].” Id. at ¶ 20.b.;  “[ODFL’s] practices were deceptive and fraudulent in that [ODFL’s] policy and practice failed to provide the required amount of compensation for missed meal and rest breaks ….” Id. at ¶ 41; and  “PLAINTIFF demands on behalf of himself and on behalf of each [PCM], one (1) hour of pay for each workday in which an off-duty meal period was not timely provided for each five (5) hours of work, and/or one (1) hour of pay for each workday in which a second off-duty meal period was not timely provided for each ten (10) hours of work.” Id. at ¶ 44. To properly plead and prove a meal or rest break violation claim, a plaintiff must establish that the employer (1) did not relieve the employee of all duty; (2) did not relinquish all control over the employee’s activities and permit them a reasonable opportunity to take a compliant meal or rest break; and (3) impeded or discouraged employees from taking these meal and rest breaks. Brinker v. Sup. Ct., 53 Cal.4th 1004, 1040 (2012). But, employers have no obligation to police these meal and rest breaks to ensure no work is being done by a relieved employee. Id. Further to that point, and applying the Twombly and Iqbal pleading standards, several courts have dismissed purported meal and rest break violation claims for failure to allege sufficient facts to plausibly establish the Brinker elements. Indeed, Plaintiff’s allegations fail to satisfy the Rule 8 pleading standards because they are “conclusory and do not indicate how [ODFL] prevented the [PCMs from taking legally-compliant] meal and rest breaks.” See Lefevere v. Pacific Bell Directory, 2014 WL 5810530, *1, 3 (N.D. Cal. Nov. 17, 2014). These allegations of the Complaint amount to nothing more than conclusions that merely parrot the statutory language because there are no facts whatsoever alleged in the Complaint that would plausibly suggest that Plaintiff and the PCMs were somehow prevented from taking meal and rest breaks or otherwise were not permitted to take legally-compliant meal and rest breaks. Without any such factual allegations, there is no basis from which the Court can reasonably infer that any meal or rest break Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 28 of 34 84177177.3 20 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violations have occurred. Where, as here, the allegations of the Complaint fail to plausibly suggest that ODFL failed to provide Plaintiff and PCMs with meal and rest breaks, Plaintiff must set forth further factual enhancement to show that the failure to take legally- compliant meal and rest breaks was because of some unlawful conduct on the part of ODFL, and not just the result of their own choice to skip meal and rest breaks, complete their shifts early and go home sooner. To that point, Plaintiff fails to allege any specific facts regarding the circumstances that led to his own missed meal and rest breaks. Indeed, the Complaint is devoid of any factual allegations regarding any days that Plaintiff experienced a non-compliant meal or rest break. Given that these are facts that should be within Plaintiff’s own first-hand knowledge, he must allege specific “circumstances, occurrences, and events” as to how ODFL has harmed him but he has failed to do so. See, e.g., Twombly, 550 U.S. at 556, n.3. See also Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345, *7-8 (C.D. Cal. July 17, 2009) (“[T]he [Complaint] should allege more specific facts about Plaintiff himself, if not about the entire class.”); Anderson, 2010 WL 1797249, at *4 (same); Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011) (dismissing meal break allegations containing “only bare assertions untethered to any facts about [the plaintiff’s] particular employment history”). The Complaint also is devoid of any factual allegations establishing that Plaintiff has actual knowledge (and not just speculation) of the policies or practices at other ODFL facilities where he did not work. Accordingly, Plaintiff’s Complaint contains nothing more than legal conclusions masquerading as factual allegations that “do not permit the court to infer more than a mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Thus, the Court cannot conclude that the Complaint raises a “right to relief above the speculative level.” Twombly, 550 U.S. at 555. As the Court stated in Iqbal, “[i]t is Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 29 of 34 84177177.3 21 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the conclusory nature of [Plaintiffs’] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.” Iqbal, 556 U.S. at 681. Therefore, Plaintiff’s Complaint fails to state a plausible claim for meal and rest break violations, and his wholly-derivative UCL claim likewise fails as a matter of law and should be dismissed. 2. Plaintiff’s UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL Under the UCL, a private plaintiff’s “remedies are generally limited to injunctive relief and restitution.” Clark v. Sup. Ct., 50 Cal.4th 605, 610 (2010). “In describing the difference between restitutionary and compensatory relief, California courts have noted that restitution describes relief in which a defendant is asked to return something he wrongfully received, while damages describe relief in which a defendant is asked to compensate a plaintiff for injury suffered as a result of the defendant’s conduct.” Woo v. Home Loan Group, L.P., 2007 WL 6624925, *3 (S.D. Cal. July 27, 2007) (emph. added). Section 226.7 payments are not recoverable as restitution because, as discussed above, they are essentially liquidated damages that are intended to compensate for events other than time spent working. See Sections III.C.4. and III.D.2., supra. Indeed, as noted above, the Section 226.7 payment does not in any way correlate to the amount of time that an employee actually works through a meal or rest period. Instead, “the statute is primarily concerned with ensuring the health and welfare of employees by requiring that employers provide meal periods as mandated by the IWC …. In other words, a section 226.7 action is brought for the nonprovision of meal and rest periods, not for the ‘nonpayment of wages.’” Kirby, 53 Cal.4th at 1255 (emph. in orig). As such, they are intended to compensate for the injury of being deprived of legally-compliant breaks and are not subject to restitution as a matter of law. See Parson v. Golden State FC, LLC, 2016 WL 1734010, *6-7 (N.D. Cal. May 2, 2016) (dismissing UCL claims predicated on Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 30 of 34 84177177.3 22 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged violations of Section 226.7 on grounds that Section 226.7 payments are not subject to restitution under the UCL). Accordingly, for all of the foregoing reasons, Plaintiff’s UCL claim fails as a matter of law and should be dismissed or stricken. G. PLAINTIFF’S ALLEGATION IN PARAGRAPH 39 OF THE COMPLAINT REGARDING ODFL’S ALLEGED VIOLATION OF CAL. LAB. CODE § 204 SHOULD BE STRICKEN FROM THE COMPLAINT In connection with his UCL claim, Plaintiff alleges that ODFL violated Cal. Labor Code § 204 (“Section 204”), which prescribes that wages must generally be paid on a semimonthly schedule. See Cal. Lab. Code § 204(a); Dkt. #1, Exh. A (Complaint) at ¶ 39 (“[ODFL] has engaged and continues to engage in a business practice which violates … the California Labor Code including Sections 204….”). However, Plaintiff alleges no facts whatsoever which would plausibly suggest that ODFL failed to comply with Section 204’s pay timing requirements. Indeed, there are no allegations in the Complaint that plausibly suggest that ODFL failed to pay wages consistent with Section 204’s timing requirement that wages for work performed between the 1st and 15th day of the month be paid “between the 16th and the 26th day of the month during which the labor was performed” and that wages for work performed between the 16th and last day of the month be paid “between the 1st and 10th day of the following month.” Cal. Lab. Code § 204(a). Rather, Plaintiff’s claim appears to be predicated solely on the alleged nonpayment of wages, but Section 204 simply regulates the timing of wage payments and does not provide for the payment of any particular type of wages or create any substantive right to wages. See Singer v. Becton, Dickinson & Co., Med- Safe Sys., 2008 WL 2899825, *3 (S.D. Cal. July 23, 2008) (“Despite section 204’s use of the word ‘wages,’ section 204 does not provide for the payment of any wages nor create any substantive right to wages. The only right furthered by the section is the timely payment of wages.”); Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383, *2 (C.D. Cal. Sept. 22, 2010) (holding that Section 204 “deals solely with the timing Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 31 of 34 84177177.3 23 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of wages and not whether these wages were paid”); Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114, 1136 (N.D. Cal. 2011) (“Section 204 requires the payment of wages in a timely manner; it does not provide a right to wages.”); See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889, 905 (2012) (same); In re Application of Moffett, 19 Cal.App.2d 7, 13 (1937) (“[S]ole purpose of [Section 204] ... is to require an employer of labor who comes within its terms to maintain two regular pay days each month.”). Therefore, Plaintiff has failed to allege sufficient facts to plausibly suggest that ODFL committed a violation of Section 204. Furthermore, Section 204 penalties are not recoverable as restitution under the UCL. To that end, the only remedy for failure to comply with Section 204 is civil penalties under Cal. Labor Code § 210 (“Section 210”), which are recoverable only by the California Labor Commissioner. See Slay v. CVS Caremark Corp., 2015 WL 2081642, *8 (E.D. Cal. May 4, 2015) (“[T]he remedy for a violation of Section 204 is found in California Labor Code section 210, which allows for a recovery of civil penalties.”); Johnson, 809 F.Supp.2d at 1136 (quoting Cal. Lab. Code § 210(a)) (“The remedy for violation of Section 204 is found in [Section 210], which provides that ‘every person who fails to pay the wages of each employee as provided in Section 204 … shall be subject to a civil penalty.’”); Singer, 2008 WL 2899825 at *3. However, civil penalties are not subject to restitutionary relief under the UCL. See Tomlinson v. Indymac Bank, F.S.B., 359 F.Supp.2d 891, 894 (C.D. Cal. 2005) (holding that penalties are not recoverable under the UCL); Pineda v. Bank of Am., N.A., 50 Cal.4th 1389, 1401 (2010) (holding that Section 203 penalties are not recoverable as restitution under the UCL). Therefore, Plaintiff’s allegation regarding ODFL’s purported violation of Section 204 should be stricken. H. PLAINTIFF’S CLAIMS FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED OR STRICKEN BECAUSE HE LACKS STANDING TO SEEK SUCH RELIEF AS A FORMER EMPLOYEE Where a plaintiff seeks prospective injunctive relief, any threatened future injury must be “concrete and particularized” and “actual or imminent, not Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 32 of 34 84177177.3 24 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conjectural or hypothetical.” Cornelius v. L.A. Cnty. Etc. Auth., 49 Cal.App.4th 1761, 1768-69 (1996) (emph. added). See also Clark v. Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001); Stonehouse Homes v. Sierra Madre, 167 Cal.App.4th 531, 542 (2008). Indeed, the injury must be “certainly impending.” Cornelius, 49 Cal.App.4th at 1769. As a former employee, Plaintiff cannot establish that he will suffer any threat of real and immediate future harm as a result of the conduct alleged in the Complaint because he no longer works for ODFL. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011) (“Plaintiffs not employed by Costco throughout this case do not have standing to seek injunctive relief”); Titus v. McLane Foodservice, Inc., 2016 WL 4797497, *6 (E.D. Cal. Sept. 14, 2016) (“[P]laintiff, a former employee, would lack standing to seek injunctive relief.”); Richards v. Ernst & Young LLP, 2010 WL 682314, *3 (N.D. Cal. Feb. 24, 2010) (“[A] former employee lacks standing to seek prospective injunctive relief on behalf of a putative class containing both former and current employees.”); DeLodder v. Aerotek, Inc., 2009 WL 3770670, *3 (C.D. Cal. Nov. 9, 2009) (“[P]laintiffs lack standing to seek prospective relief under the UCL because plaintiffs do not dispute that they are no longer employees of defendant.”) (emph. added); Price v. Starbucks Corp., 192 Cal.App.4th 1136, 1142 n. 5 (2011). Thus, Plaintiff lacks standing to pursue his claims for injunctive relief, and they should be dismissed or stricken. IV. CONCLUSION For all of the foregoing reasons, ODFL respectfully requests that the Court grant this Motion and dismiss or strike Plaintiff’s claims as set forth herein. DATED: November 25, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Attorneys for Defendant Old Dominion Freight Line, Inc. Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 33 of 34 84177177.3 1 CERTIFICATE OF SERVICE 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 CERTIFICATE OF SERVICE I hereby certify that on November 25, 2016, I electronically transmitted the foregoing document to the Clerk’s Office using the CM/ECF System for filing and service via transmittal of a Notice of Electronic Filing. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 25, 2016, at Los Angeles, California. /s/ Matthew C. Kane MATTHEW C. KANE Case 3:16-cv-02837-CAB-NLS Document 4-1 Filed 11/25/16 Page 34 of 34 84305865.1 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MCGUIREWOODS LLP Matthew C. Kane (SBN 171829) Email: mkane@mcguirewoods.com Sabrina A. Beldner (SBN 221918) Email: sbeldner@mcguirewoods.com Sylvia J. Kim (SBN 258363) Email: skim@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067-1501 Telephone: 310.315.8200 Facsimile: 310.315.8210 Attorneys for OLD DOMINION FREIGHT LINE, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA EUGENE SANDERS, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiff, vs. OLD DOMINION FREIGHT LINE, INC., a Corporation; and Does 1 through 50, Inclusive, Defendants. CASE NO. 3:16-cv-02837-CAB-NLS DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) Date: December 23, 2016 PER CHAMBERS, NO ORAL ARGUMENT UNLESS ORDERED BY THE COURT Crtrm.: 4C Judge: Hon. Cathy Ann Bencivengo Case 3:16-cv-02837-CAB-NLS Document 4-2 Filed 11/25/16 Page 1 of 5 84305865.1 1 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR JUDICIAL NOTICE TO THE HONORABLE CATHY ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: Pursuant to Fed. R. Evid. 201(b) and (d), Defendant Old Dominion Freight Line, Inc. (“ODFL”) hereby requests that the Court take judicial notice of the following documents in support of its Motion To Dismiss and/or Strike Plaintiff’s Complaint Pursuant to Fed. R. Civ. P. Rule 12(b)(6) and/or 12(f) (the “Motion”):  Plaintiff’s Complaint, which was filed in the Superior Court of California, County of San Diego on September 2, 2016 in Case No. 37- 2016-00030725-CU-OE-CTL therein, and removed to this Court on November 18, 2016. See Dkt. #1, Exh. A.  The Complaint filed in Guerrero v. Halliburton Energy Services, Inc., United States District Court, Eastern District of California Case No. 1:16-cv-1300-LJO-JLT, a true and correct copy of which is attached hereto as Exhibit A.  The Statement of Decision filed in the Superior Court of California, County of Santa Clara, on September 20, 2011 in Case No.: 1-08-CV- 103426 therein, entitled Brian Driscoll, et. al. v. Graniterock Company, a true and correct copy of which is attached hereto as Exhibit B.  The California Department of Industrial Relations, Enrolled Bill Rep. on A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226, a true and correct copy of which is attached hereto as Exhibit C. Case 3:16-cv-02837-CAB-NLS Document 4-2 Filed 11/25/16 Page 2 of 5 84305865.1 2 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  The Assembly Committee on Labor Relations, Analysis of A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226, a true and correct copy of which is attached hereto as Exhibit D.  The California Department of Industrial Relations Division of Labor Standards Enforcement (“DLSE”) Opinion Letter Re: Electronic Itemized Wage Statements (July 6, 2006), a true and correct copy of which is attached hereto as Exhibit E.  Excerpts of the transcript of the Industrial Welfare Commission (“IWC”) Public Hearing of June 30, 2000, available at URL http://www.dir.ca.gov/IWC/PUBHRG6302000.pdf, a true and correct copy of which is attached hereto as Exhibit F.  June 18, 2013 Order entered in Rodriguez v. Old Dominion Freight Line, Inc., United States District Court, Central District of California Case No. 13-cv-00891 DSF (RZx), a true and correct copy of which is attached hereto as Exhibit G. /// /// /// /// /// /// /// /// /// Case 3:16-cv-02837-CAB-NLS Document 4-2 Filed 11/25/16 Page 3 of 5 84305865.1 3 DEFENDANT OLD DOMINION FREIGHT LINE, INC.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ODFL’s request is made pursuant to Fed. R. Evid. Rule 201(b) and (d) on the grounds that the foregoing documents are proper subjects for judicial notice because they are records of this Court and/or the Superior Court of the State of California, the California Legislature, the California Department of Industrial Relations and the California Division of Labor Standards Enforcement, and/or their contents are not subject to reasonable dispute and they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. DATED: November 25, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Sabrina A. Beldner, Esq. Sylvia J. Kim, Esq. Attorneys for Defendant Old Dominion Freight Line, Inc. Case 3:16-cv-02837-CAB-NLS Document 4-2 Filed 11/25/16 Page 4 of 5 84305865.1 1 CERTIFICATE OF SERVICE 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 CERTIFICATE OF SERVICE I hereby certify that on November 25, 2016, I electronically transmitted the foregoing document to the Clerk’s Office using the CM/ECF System for filing and service via transmittal of a Notice of Electronic Filing. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on November 25, 2016, at Los Angeles, California. /s/ Matthew C. Kane MATTHEW C. KANE Case 3:16-cv-02837-CAB-NLS Document 4-2 Filed 11/25/16 Page 5 of 5 Exh. A EXHIBIT A Case 3:16-cv-02837-CAB-NLS Document 4-3 Filed 11/25/16 Page 1 of 41 Exh. A EXHIBIT A Case 3:16-cv-02837-CAB-NLS Document 4-3 Filed 11/25/16 Page 2 of 41 Exh. A EXHIBIT A Case 3:16-cv-02837-CAB-NLS Document 4-3 Filed 11/25/16 Page 3 of 41 Exh. 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B EXHIBIT B Case 3:16-cv-02837-CAB-NLS Document 4-4 Filed 11/25/16 Page 29 of 30 Exh. B EXHIBIT B Case 3:16-cv-02837-CAB-NLS Document 4-4 Filed 11/25/16 Page 30 of 30 Exh. C EXHIBIT C Case 3:16-cv-02837-CAB-NLS Document 4-5 Filed 11/25/16 Page 1 of 1 Exh. D EXHIBIT D Case 3:16-cv-02837-CAB-NLS Document 4-6 Filed 11/25/16 Page 1 of 2 Exh. D EXHIBIT D Case 3:16-cv-02837-CAB-NLS Document 4-6 Filed 11/25/16 Page 2 of 2 STATE OF CALIFORNIA Arnold Schwarzenegger, Governor DEPARTMENT OF INDUSTRIAL RELATIONS Headquarters P.O. Box 420603 San Francisco, CA 94142 Tel: (415) 703-4810 Fax: (415) 703-4807 Robert A. Jones Acting State Labor Commissioner and Chief Counsel Division of Labor Standards Enforcement 2006.07.06 July 6, 2006 Colette Wolf Boise Cascade LLC Legal Department 11111 West Jefferson Street P.O. Box 50 Boise, Id. 83728 Re: Electronic Itemized Wage Statements Dear Ms. Wolf: Thank you for your inquiry concerning the application of Labor Code section 226(a). Specifically, you have requested an opinion as to whether under certain circumstances an employer’s obligation to provide an employee with a “wage statement” may be met by providing an employee with such a record in electronic form, as an alternative to a “hard copy” paper document. The requirement for an employer to provide employees with wage statements is contained in Labor Code section 226(a). Section 226(a) provides: Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime under subdivision (a) of Section 515 or an applicable order of the Industrial Welfare Commission, (3) the number of piece-rate units earned and any applicable piece rate if Exh. E EXHIBIT E Case 3:16-cv-02837-CAB-NLS Document 4-7 Filed 11/25/16 Page 1 of 4 2006.07.06 2 the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and his or her social security number, except that by January 1, 2008, only the last four digits of his or her social security number or an employee identification number other than a social security number may be shown on the itemized statement, (8) the name and address of the legal entity that is the employer, and (9) all applicable hourly rates1 in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. The purpose of the wage statement requirement is to provide transparency as to the calculation of wages. A complying wage statement accurately reports most of the information necessary for an employee to verify if he or she is being properly paid in accordance with the law and that deductions from wages are proper.1 Section 226(a) makes it possible for an employee to retain a copy of his/her own pay records which are not subject to alteration. Labor Code section 226(a) indicates that a wage statement may be in the form of an “accurate itemized statement in writing” when the employee is paid by personal check or cash. Labor Code section 8 states in pertinent part: “Writing includes any form of recorded message capable of comprehension by ordinary visual means.” As an electronically stored wage statement which is accessible by an employee may be read on a screen or printed and read as a hard copy, it appears to qualify as a “statement in writing.” Section 226(a) provides that an employee being paid with a payroll check be provided a wage statement as a “detachable part of the check.” While the reference to “detachable part of the check” is susceptible to an interpretation that a “hard copy” may be required, in the context of the entire subsection it appears to allow for the continued use of the convenient and traditional “pay stub” alternative to a separate statement in writing. The apparent intent of both forms of wage statements described in Section 226(a) is to allow employees to maintain their own records of wages earned, deductions, and pay received. The Division in recent years has sought to harmonize the “detachable part of the check” provision and the “accurate itemized statement in writing” provision of Labor Code section 226(a) by allowing for electronic wage statements so long as each employee retains the right to elect to receive a written paper stub or record and that those who are provided with electronic wage statements retain the ability to easily access the information and convert the electronic statements into hard copies at 1 Whether an employee is properly classified as exempt from the overtime pay requirements of Labor Code section 510 and the IWC Orders is not susceptible to verification from review of the wage statement alone. However, a wage statement may reveal that an employee is non-exempt if it shows that an employee is paid a salary of less than twice the minimum wage calculated on the basis of a 40 hour week. See Labor Code section 515(a). Exh. E EXHIBIT E Case 3:16-cv-02837-CAB-NLS Document 4-7 Filed 11/25/16 Page 2 of 4 2006.07.06 3 no expense to the employee. Additionally, the Division has indicated that the record keeping requirements of Labor Code section 226 and 1174 must be adhered to and the pay records must be retained by the employer for a period of at least three years and be accessible by employees and former employees. Any electronic wage statement system must incorporate proper safeguards that ensure the confidentiality of the employee’s confidential information. The system envisioned by your client appears to meet the concerns outlined above. Your client indicates that its electronic wage statement procedures will incorporate the following features: 1. An employee may elect to receive paper wage statements at any time; 2. The wage statements will contain all information required under Labor Code section 226(a) and will be available on a secure website no later than pay day; 3. Access to the website will be controlled by unique employee identification numbers and confidential personal identification numbers (PINs). The website will be protected by a firewall and is expected to be available at all times with the exception of downtime caused by system errors or maintenance requirements; 4. Employees will be able to access their records through their own personal computers or by company provided computers. Computer terminals will be available to all employees for accessing these records at work. 5. Employees will be able to print copies of their electronic wage statements at work on printers that are in close proximity to the computer or computer terminal. There will be no charge to the employee for accessing their records or printing them out. Employees may also access their records over the internet and save it electronically and/or print it on their own printer. 6. Wage statements will be maintained electronically for at least three years and will continue to be available to active employees for that entire time. Former employees will be provided paper copies at no charge upon request. There is no requirement for employers to obtain approval from the Division before implementing an electronic wage statement system. Indeed the Legislature has not established such a duty on the part of the DLSE or provided DLSE with such administrative authority. As with most provisions of the Labor Code employers are required to comply without any formal action by the Labor Commissioner.2 Due to both changes in the law and confusion that has resulted from previous Opinion Letters 1999.07.19 and 2002.12.04, this letter supersedes them and they are withdrawn. 2 Some provisions of the Labor Code and Wage Orders require prior Labor Commissioner action in the form of issuance of a registration, granting of approval, or provision of consent. For example, there are registration requirements in the garment, car wash, and farm labor industries which require employers to obtain a registration from the Labor Commissioner prior to employing workers. Similarly, employers must obtain the “consent” of the Labor Commissioner before a minor may be employed in the entertainment industry. Employers also may apply to the Labor Commissioner for exemptions to certain sections of the Orders of the Industrial Welfare Commission. [These examples are not intended as an exhaustive list of such provisions.] Exh. E EXHIBIT E Case 3:16-cv-02837-CAB-NLS Document 4-7 Filed 11/25/16 Page 3 of 4 2006.07.06 4 This opinion letter sets forth an interpretation of Labor Code section 226(a) which is utilized in our administrative enforcement efforts of the wage statement requirement. This interpretation is based on our understanding as to the current state of the law and, of course, is subject to subsequent interpretations by the courts and/or action of the Legislature. Employers are advised that while the courts may find this opinion of the enforcement agency to be persuasive authority, they are not required to follow this interpretation and that compliance with the guidelines suggested herein do not establish a “safe harbor” in actions brought by private parties under auspices of the Labor Code Private Attorneys General Act of 2004 (PAGA) or other private enforcement actions. This opinion is based exclusively on the facts and circumstances described in your request and is given based on your representation, express or implied, that you have provided a full and fair description of all the facts and circumstances that would be pertinent to our consideration of the questions presented. Existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein. You have represented that this opinion is not sought by a party to pending private litigation concerning the issue addressed herein. You have also represented that this opinion is not sought in connection with an investigation or litigation between a client or firm and the Division of Labor Standards Enforcement. Thank you for your attention to the requirements of the California wage and hour laws and your inquiry. Very Truly Yours, /s/ Robert A. Jones Chief Counsel and Acting Labor Commissioner Exh. E EXHIBIT E Case 3:16-cv-02837-CAB-NLS Document 4-7 Filed 11/25/16 Page 4 of 4 STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS INDUSTRIAL WELFARE COMMISSION Public Hearing June 30, 2000 State capitol, Room 4202 Sacramento, California Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 1 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 2 P A R T I C I P A N T S --o0o-- Industrial Welfare Commission BILL DOMBROWSKI, Chair BARRY BROAD LESLEE COLEMAN DOUG BOSCO HAROLD ROSE Staff ANDREW R. BARON, Executive Officer MARGUERITE STRICKLIN, Legal Counsel RANDALL BORCHERDING, Legal Counsel MICHAEL MORENO, Principal Analyst DONNA SCOTTI, Administrative Analyst NIKKI VERRETT, Analyst Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 2 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 3 I N D E X Page Proceedings 6 Approval of Minutes 6 Amendments to Wage Orders 7 Reconsideration of May 26 Actions re Healthcare 11 TOM RANKIN, California Labor Federation, AFL-CIO 15 ALLEN DAVENPORT, Service Employees International 16 Union BARBARA BLAKE, United Nurses Associations of 17 California, AFSCME RICHARD HOLOBER, California Nurses Association 18 DON MADDY, George Steffes, Inc.; California 19 Healthcare Association Meal and Rest Period Proposals 23 TOM RANKIN, California Labor Federation, AFL-CIO 25 JULIANNE BROYLES, California Chamber of Commerce 26 JAMES ABRAMS, California Hotel and Motel 27 Association SPIKE KAHN, AFSCME Council 57 30 Amendment to Wage Order 5 - Personal Attendants, 33 Resident Managers, 24-Hour Childcare Commercial Fishing Regulations 35 Ski Industry Regulations 38 TOM RANKIN, California Labor Federation, AFL-CIO 39 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 3 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 4 PAM MITCHELL, Mammoth Mountain Ski Area employee 41 BILL CAMP, Sacramento Central Labor Council 43 INDEX (Continued) Page MARCIE BERMAN, California Employment Lawyers 44 Association PATRICIA GATES, Van Bourg, Weinberg, Roger & 45 Rosenfeld BOB ROBERTS, California Ski Industry Associations 47 Executive, Administrative, and Professional Duties 59 BRUCE YOUNG, California Retailers Association 61 LYNN THOMPSON, Law Firm of Bryan Cave, LLP; 63 California Retailers Association ART PULASKI, California Labor Federation, AFL-CIO106 TOM RANKIN, California Labor Federation, AFL-CIO 111 WALLY KNOX, California State Assembly member 113 JUDY PEREZ, Communication Workers of America 117 MARCIE BERMAN, California Employment Lawyers 117 Association LAURA HO, Saperstein, Goldstein, Demchak & 124 Baller PATRICIA GATES, Van Bourg, Weinberg, Roger & 126 Rosenfeld TOM BRANDEN, Machinists Union, District 135 Lodge 190 DON HUNSUCKER, United Food and Commercial 137 Workers Local 1288 WALTER JOHNSON, San Francisco Labor Council 145 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 4 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 5 Summaries and Statements as to the Basis 161 Extension of Interim Wage Order 2000 162 Other Business 163 MARY LOU THOMPSON, Littler, Mendelson, Fastiff, 163 Tichy & Mathiason INDEX (Continued) Page TOM RANKIN, California Labor Federation, AFL-CIO 166 Adjournment 167 Certificate of Reporter/Transcriber 168 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 5 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 25 COMMISSIONER ROSE: Aye.1 COMMISSIONER DOMBROWSKI: Five to nothing. That 2 is adopted.3 Let’s go to Item 4. Commissioner Broad has 4 circulated language concerning meal periods and rest 5 periods for Orders 1 through 13 and 15. Would you like 6 to --7 COMMISSIONER BROAD: Yes, Mr. Chairman. This is 8 a rather -- a relatively small issue, but I think a 9 significant one, and that is we received testimony that 10 despite the fact that employees are entitled to a meal 11 period or rest period, that there really is no incentive 12 as we establish it, for example, in overtime or other 13 areas, for employers to ensure that people are given 14 their rights to a meal period and rest period. At this 15 point, if they are not giving a meal period or rest 16 period, the only remedy is an injunction against the17 employer or -- saying they must give them.18 And what I wanted to do, and I’d to sort of 19 amend the language that’s in there to make it clearer, 20 that what it would require is that on any day that an 21 employer does not provide a meal period or rest period in22 accordance with our regulations, that it shall pay the 23 employee one hour -- one additional hour of pay at the 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 6 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 26 employee’s regular rate of compensation for each workday 1 that the meal or rest period is not provided.2 I believe that this will ensure that people do 3 get proper meal periods and rest periods. And I would --4 COMMISSIONER DOMBROWSKI: Let me ask a question.5 If you’re an employer and you provide for a 30-minute6 meal period a day, and your employee misses that meal 7 period or eats while working through that meal period, I 8 believe you get paid, correct? It’s a paid -- it would 9 then be a paid meal period.10 COMMISSIONER BROAD: Yes, it would be a paid 11 meal period.12 COMMISSIONER DOMBROWSKI: Right.13 COMMISSIONER BROAD: I mean, assuming they pay 14 you for it. I mean --15 COMMISSIONER DOMBROWSKI: Assuming that -- well, 16 okay. Does this say, then, if you had a 30-minute meal 17 period as your standard procedure, you would get -- and 18 you missed that, you get an hour’s worth of pay? Is that 19 what I’m -- additional -- an hour additional pay.20 COMMISSIONER BROAD: If your employer did not 21 let you have your meal period, I think, is what it says.22 So it’s -- it doesn’t involve, you know, waivers of a 23 meal period or time off or anything of that sort. And 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 7 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 27 rest periods, of course, are somewhat different.1 Employers are obligated to provide rest periods --2 COMMISSIONER DOMBROWSKI: Correct.3 COMMISSIONER BROAD: -- duty-free and must pay 4 for them. So if you don’t provide a rest period, then 5 the -- you know, the employee gets their day’s pay, but 6 they don’t get the rest, and so that’s -- with respect to 7 a meal period, it doesn’t have to be compensated.8 COMMISSIONER DOMBROWSKI: Okay.9 COMMISSIONER BROAD: So it’s particularly 10 egregious with regard to rest periods.11 COMMISSIONER DOMBROWSKI: Okay. I don’t -- does 12 anyone wish to testify on this item?13 MR. RANKIN: Tom Rankin, California Labor 14 Federation.15 I would like to express our support for 16 Commissioner Broad’s proposal. As he stated, the problem 17 exists right now that there is no remedy for a missed 18 meal period or a missed rest period. And what his 19 proposal does is provide a remedy.20 And the purpose of the rest period and the meal 21 period is, in the case of rest periods, to have a rest 22 break where an employee is relieved from work duties.23 The same is true for meal periods, to provide a break 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 8 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 28 where people can partake of a meal. It is not sufficient 1 that they -- if they don’t get their meal period, they 2 simply get paid for that half hour. Sure they do; 3 they’re working that half hour. I would hope they would.4 This provision of Mr. Broad’s at least provides 5 a minor disincentive for employers not to deny employees 6 their rights to rest and meal breaks.7 MS. BROYLES: Good morning, commissioners.8 Julianne Broyles, from the California Chamber of 9 Commerce.10 We had not been apprised, of course, of this 11 particular provision early on. Otherwise we probably 12 would have had more extensive comments on it.13 I guess I would have to, first of all, raise the 14 issue of the authority to establish a new crime, which 15 basically this is doing. Additionally, we would also 16 point out that if the employee has missed a meal period, 17 they are going to be paid for the meal period in almost 18 all instances. In terms of setting up a new penalty and 19 a crime for basically missing a rest period, as far as I 20 know there is no statute that would permit that to be 21 done. And we would oppose this particular amendment.22 MR. ABRAMS: Thank you, Mr. Chairman, members of 23 the Commission. My name is Jim Abrams. I’m with the 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 9 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 29 California Hotel and Motel Association.1 And two issues: first of all, we also question 2 the legislative authority of the Commission to, in 3 essence, adopt and impose new penalties with respect to 4 violations of what is, in essence, a statute, and then 5 the statute picking up the regulations of the Industrial 6 Welfare Commission. So, we object to and question the 7 authority of the IWC to adopt this particular provision.8 If, however -- and not conceding the point --9 if, however, this type of language is adopted, I have 10 several questions.11 First of all, Commissioner Broad, is it your 12 intent that the hour of pay that you reference here would 13 be treated as an hour worked for purposes of calculating 14 daily or weekly overtime?15 COMMISSIONER BROAD: No.16 MR. ABRAMS: I think -- and again, not conceding 17 that the Commission has any authority to adopt any such 18 provision as this, but if you decide to do so, I would 19 suggest to you that you need to make that clear.20 Secondly, I -- I’m not sure I understood your 21 comments with regard to on-duty -- agreed upon on-duty22 meal periods. I -- I think, in reading the language 23 here, my understanding was that it was intended that an 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 10 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 30 agreed upon on-duty meal period, for which the employee 1 is, in fact, paid for the half hour that he or she is 2 working, in essence, does not enter into this equation at 3 all. But you made a comment a moment ago that quite --4 with all due respect, confused me. I just want to 5 clarify that.6 COMMISSIONER BROAD: The employer who, under our 7 regulations, lawfully establishes an on-duty meal period 8 would not be affected if the employee then takes the on-9 duty meal period. This is an employer who says, “You do 10 not get lunch today, you do not get your rest break, you 11 must work now.” That is -- that is the intent.12 Let me respond, if I may. Clearly, I don’t 13 intend this to be an hour counted towards hours worked 14 any more than the overtime penalty. And, of course, the 15 courts have long construed overtime as a penalty, in 16 effect, on employers for working people more than full --17 you know, that is how it’s been construed, as more than 18 the -- the daily normal workday. It is viewed as a 19 penalty and a disincentive in order to encourage 20 employers not to. So, it is in the same authority that 21 we provide overtime pay that we provide this extra hour 22 of pay. And that --23 So, now, with regard to creating a new crime, I 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 11 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 31 guess you could argue that anything we do that changes 1 something creates a new crime to the extent that things -2 - that there are certain aspects of our wage orders that, 3 if violated, can be prosecuted criminally. But I don’t 4 believe we have the authority to establish a new crime in 5 the sense that we could say if you -- if you deny someone 6 their meal period or rest period, that you shall spend 7 six months in jail or a year in jail or it will be a 8 felony and so forth. No, we cannot establish new crimes.9 The Legislature, however, can establish crimes for 10 violations of our wage orders, which is their 11 prerogative, not ours.12 MR. ABRAMS: Understood. I -- and on that note, 13 I would -- we -- the California Hotel and Motel 14 Association objects to the proposal on the ground that 15 the -- we submit the Commission does not have the legal 16 authority to adopt such a penalty, also on the ground 17 that if -- to any extent that an employer is required to 18 pay this one hour of pay for a meal period missed, that 19 that has to be offset against whatever penalties the 20 Legislature has established for violation of the 21 Commission’s wage orders. Otherwise you are basically 22 saying to an employer, “You are going to be punished 23 twice.”24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 12 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 32 So we object to the proposed amendment.1 MS. BROYLES: Mr. Commissioner, can I make one 2 final point?3 If this is something that the Commission would 4 like to move forward on and put over -- or at least put 5 out notice so --6 COMMISSIONER DOMBROWSKI: It was noticed. It 7 was in the notice.8 COMMISSIONER BROAD: It has been in our notice 9 for a month. I mean, we did --10 MS. BROYLES: In terms of the full penalty, the 11 hour penalty?12 COMMISSIONER BROAD: No. The language that’s 13 proposed to be adopted has been out there. I think --14 MS. BROYLES: Right.15 COMMISSIONER BROAD: -- you may agree with that 16 substantively --17 MS. BROYLES: The amendment of Mr. -- of 18 Commissioner Broad.19 COMMISSIONER BROAD: -- but there’s no last-20 minute aspect to this at all.21 MS. KAHN: Spike Kahn, AFSCME Council 57.22 I represent quite a few workers in the hospital 23 industry at UCSF that -- just in policy, the clinics are 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 13 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 33 always understaffed and they just never have enough 1 staffing to let that person come out on a break. It’s 2 not every day, it just happens that people, because the 3 clinics are full, the patients are coming, you have to 4 keep the flow going because you don’t want your patients 5 to be waiting while you go out. And day after day,6 people don’t get a break.7 And I would like to support this amendment and 8 explain that, by having it on the books, it would give us 9 quite a bit of incentive to our employers that they would 10 just start following the contracts and following the laws 11 that are already down there, that you have to have a 12 break, just by having it on the books. I don’t think it 13 would come up that often, in the same way that they don’t 14 usually violate any of the -- the overtime laws. It’s 15 just a matter of they would be encouraged much more to 16 not keep on working us through our breaks and our lunch 17 times if it were there.18 So we’re in support of that.19 COMMISSIONER DOMBROWSKI: Thank you.20 Ms. Stricklin, regarding the legal question?21 MS. STRICKLIN: You were asking whether there22 was any legal impediment to such a penalty. And 516 of 23 the Labor Code allows the Commission to adopt or amend 24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 14 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 34 working condition orders with respect to break periods, 1 meal periods, and days of rest.2 And then again, if you look at Section 558, the 3 last section says that civil penalties provided in 558 4 are in addition to any other civil or criminal penalty 5 provided by law, so that a regulation which sets forth a 6 penalty would just be an additional penalty, which the 7 IWC has the power to do.8 COMMISSIONER DOMBROWSKI: Any other questions 9 from the commissioners?10 (No response)11 COMMISSIONER DOMBROWSKI: Okay. Commissioner 12 Broad, I believe you want to make a motion?13 COMMISSIONER BROAD: Yeah. I’ll move it.14 COMMISSIONER DOMBROWSKI: Is there a second?15 COMMISSIONER ROSE: Second.16 COMMISSIONER DOMBROWSKI: Okay. Call the roll.17 MR. BARON: Dombrowski.18 COMMISSIONER DOMBROWSKI: No.19 MR. BARON: Bosco.20 COMMISSIONER BOSCO: Aye.21 MR. BARON: Broad.22 COMMISSIONER BROAD: Aye.23 MR. BARON: Coleman.24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 15 of 16 GOLDEN STATE REPORTING P. O. BOX 5848 Monterey, CA 93944-0848 (831) 663-8851 35 COMMISSIONER COLEMAN: No.1 MR. BARON: Rose.2 COMMISSIONER ROSE: Aye.3 MR. BARON: Three to two.4 (Applause)5 COMMISSIONER DOMBROWSKI: Okay. I’d like to 6 move to Item 5, consideration of --7 COMMISSIONER BOSCO: How about a round of 8 applause for the veterinary?9 COMMISSIONER BROAD: Take care of the dogs and 10 cats right now.11 (Laughter)12 COMMISSIONER DOMBROWSKI: Here we are, moving 13 along so well.14 Item 5, consideration of amendment to Wage Order 15 5 concerning personal attendants. 16 I’d ask Mr. Baron to brief us.17 MR. BARON: This is an overall issue that has 18 been discussed previously. The background to this is 19 that there had been language in the earlier version of 20 the wage orders, in 5-93, that, when we went -- going 21 back to that -- had been changed in ’98, but then when we 22 went back to, now, the earlier versions, referenced a 54-23 hour workday (sic) for these categories of employees.24 Exh. F EXHIBIT F Case 3:16-cv-02837-CAB-NLS Document 4-8 Filed 11/25/16 Page 16 of 16 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM Case No. CV 13-891 DSF (RZx) Date 6/18/13 Title Marco Rodriguez v. Old Dominion Freight Line, Inc. Present: The Honorable DALE S. FISCHER, United States District Judge Debra Plato Not Present Deputy Clerk Court Reporter Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present Proceedings: (In Chambers) Order GRANTING IN PART and DENYING IN PART Defendant’s Motion to Dismiss (Docket No. 19) The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. I. INTRODUCTION Marco Rodriguez brings claims for violation of California Business and Professions Code § 17200 et seq. (UCL Claims), violation of California Labor Code §§ 201 and 202, Violation of California Labor Code § 226(a), wrongful termination in violation of public policy, retaliation in violation of public policy, intentional infliction of emotional distress (IIED), and defamation against Old Dominion Freight Line, Inc. (ODFL). ODFL moves to dismiss Rodriguez’s First Amended Complaint (FAC). From March 2010 to January 5, 2012, Rodriguez worked as a “Pick-Up and Delivery” driver for ODFL, a non-exempt and hourly position. (FAC ¶ 3.) He earned $18.85 per hour at the time of his termination. (Id.) During his time with ODFL, Rodriguez was employed in ODFL’s “Less than Truckload” (LTL) shipping business. (Id.) This business generally consists of intrastate transportation of relatively small packages and freight. (Id.) From April 2010 to late-2011, Rodriguez worked on a regular route between ODFL’s Montebello terminal to areas in the San Fernando Valley. (Id. ¶ 12.) He thereafter worked as an “on-call” Pick-Up and Delivery driver until he was terminated. Rodriguez alleges that on average he worked 50 hours per week and that he CV-90 (12/02) MEMORANDUM Page 1 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 1 of 14 Page ID #:717 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 1 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM regularly worked 60 hours per week. (Id. ¶ 13.) ODFL classified Rodriguez as “part- time” and did not provide him with benefits such as health insurance. (Id.) Rodriguez alleges that ODFL failed to pay him at the proper overtime rate and that ODFL failed to provide uninterrupted meal periods and rest breaks. (Id. ¶¶ 13, 17.) Rodriguez claims that ODFL required employees to “clock-in” and “clock-out” for meal periods on handheld devices immediately after starting their shifts and that ODFL would require him on occasion to indicate - fraudulently - on his handheld device that he took his meal period from 7:30 a.m. to 8:00 a.m. (Id. ¶ 17.) Rodriguez claims that he was told by ODFL’s dispatcher, “Marty,” that ODFL’s policy was to pay overtime for shifts of 13 hours or more only. (Id. ¶ 14.) He alleges that he has nine wage statements dated between May 7, 2010 and January 6, 2012 that all indicate “small payments of overtime for shifts of 13 hours or more only.” (Id.) Rodriguez was terminated on January 5, 2012 for “poor performance.” (Id. ¶ 21.) He claims the reasons for his dismissal were pretextual and that he was terminated in retaliation for complaining about ODFL’s overtime policy and failure to provide required meal and rest breaks. (Id. ¶¶ 21-22.) He claims that he was denied subsequent employment as a result of ODFL telling his prospective employers that he was terminated for “poor performance.” (Id. ¶ 26.) Specifically, Rodriguez claims that he received an offer of employment on October 1, 2012 with a October 22, 2012 start date that was rescinded due to ODFL’s statements about his performance. (Id.) Rodriguez also brings several class action claims. II. LEGAL STANDARD “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (alteration in original) (internal quotation marks omitted). But Rule 8 “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for failure to state a claim upon which relief can be granted. “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson, 551 U.S. at 94. However, allegations contradicted by matters properly subject to judicial notice or by exhibit need not be accepted as true, Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), and a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “Nor does a complaint suffice CV-90 (12/02) MEMORANDUM Page 2 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 2 of 14 Page ID #:718 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 2 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (alteration in original) (internal quotation marks omitted). A complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. This means that the complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Ruling on a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id. at 1950 (alteration in original) (citation and internal quotation marks omitted). “Normally, when a viable case may be pled, a district court should freely grant leave to amend.” Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011). Leave to amend should be granted even if the plaintiff did not request leave, unless it is clear that the complaint cannot be cured by the allegation of different or additional facts. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). III. DISCUSSION Federal Rule of Civil Procedure 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” The Court dismissed Rodriguez’s Complaint on April 2, 2013 because he failed to respond to ODFL’s motion to dismiss and failed to notify the Court that he had elected to amend his pleading as Rule 15(a)(1) permits. (Docket No. 11.) The Court’s order permitted Rodriguez to file an amended complaint no later than April 24, 2013. (Id.) Rodriguez filed his FAC on April 24, 2013. (Docket No. 16.) As the Court provided Rodriguez until April 24, 2013 to file his amended complaint and did not place restrictions on any amendment, the Court will allow Rodriguez to add the wrongful termination claim and class action claims in his FAC. In any event, as Rule 15(a)(2) provides that, in considering amendments to pleadings, “[t]he court should freely give leave when justice so requires.” This rule should be interpreted and applied with “extreme liberality,” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991), and leave to amend “should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999) (internal quotation marks omitted); see also Foman, 371 U.S. CV-90 (12/02) MEMORANDUM Page 3 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 3 of 14 Page ID #:719 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 3 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM at 182 (identifying these factors). It is far from clear that permitting the amendments here would prejudice ODFL, create undue delay, or that the amendments were sought in bad faith. The new claims and amendments in Rodriguez’s FAC are permissible. A. Individual UCL Claims Rodriguez bases his UCL claims on violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., failure to provide meal and rest breaks as required by California Labor Code § 226.7, failure to timely pay wages on termination in violation of California Labor Code §§ 201 and 202, and failure to provide accurate itemized wage statements in violation of California Labor Code § 226(a). “The UCL ‘borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.’” Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012) (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) (citations and quotation marks omitted)). “Virtually any law - federal, state or local - can serve as a predicate for an action under Business and Professions Code section 17200.” Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1361 (2010) (citations and quotation marks omitted). 1. FLSA Violations ODFL wrongly argues that Rodriguez’s FLSA violation allegation fails because Rodriguez “fails to allege any facts that could show he was not exempt from the overtime provisions under . . . the FLSA.” (ODFL’s Mot. to Dismiss 7 (citations omitted)). “An employer who claims an exemption from the FLSA has the burden of showing that the exemption applies.” Reich v. Am. Driver Serv., Inc., 33 F.3d 1153, 1156 (9th Cir. 1994) (citation and quotation marks omitted). Rodriguez has pleaded that ODFL’s business “consists of intrastate transportation, wholly within the State of California . . . .” (FAC ¶ 11.) He has adequately pleaded that the FLSA applies and that ODFL is subject to the FLSA’s regulations and overtime provisions. See Reich, 33 F.3d at 1155 (footnote omitted) (“Any motor carrier that engages in wholly intrastate commerce . . . is subject to the Secretary of Labor’s jurisdiction, and consequently, to the maximum hours provisions of the FLSA”). While ODFL may ultimately be exempt from the FLSA’s requirements, any exemption inquiry is necessarily fact-intensive. See id. at 1155-56. Such an inquiry is ill-suited to a motion to dismiss. The FLSA requires that “no employer shall employ any of his employees who in a workweek is engaged in commerce . . . or is employed in an enterprise engaged in commerce . . . for a workweek longer than forty hours unless such employee receives CV-90 (12/02) MEMORANDUM Page 4 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 4 of 14 Page ID #:720 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 4 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM compensation” for hours worked beyond forty hours “at a rate not less than one and one half times the rate at which he or she is regularly employed.” 29 U.S.C. § 207(a)(1). “To establish a claim for failure to pay overtime under the FLSA, the plaintiff must aver that: (1) defendant was plaintiff's employer; (2) plaintiff worked more than forty hours in a week; and (3) plaintiff did not receive compensation for his employment in excess of the forty hours.” McKeen-Chaplin v. Franklin Am. Mortg. Co., No. C 10-5243 SBA, 2011 WL 4082543, at *3 (N.D. Cal. Sept. 13, 2011) (citation and quotation marks omitted). Rodriguez has alleged that he worked more than 40 hours per week without adequate overtime compensation. (FAC ¶¶ 13, 24, 40.) He has adequately pleaded a violation of the FLSA and satisfied the requirements of Federal Rule of Civil Procedure 8(a)(2). In addition to his allegations regarding working 50 hours per week on average, Rodriguez specifically points to nine wage statements in which he alleges he was paid overtime for shifts of 13 hours or more only. (FAC ¶ 14.) This is more than enough to satisfy the pleading requirements of Rule 8(a)(2). 2. Meal and Rest Break Violations Rodriguez also bases his UCL claim on ODFL’s alleged violation of California Labor Code § 226.7. (See FAC ¶¶ 17, 18, 41.) “State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday.” Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 1018 (citations omitted). “Labor Code section 226.7, subdivision (a) prohibits an employer from requiring an employee ‘to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission [(IWC)].’” Id. (footnote omitted). ODFL argues that Rodriguez’s UCL claim based on a § 226.7 violation is deficient because Rodriguez’s UCL claim is inadequately pleaded under Rule 8 and because § 226.7 violation payments are not subject to restitution under the UCL. Rodriguez’s UCL claim is adequately pleaded with respect to § 226.7. He specifically alleges that he was not provided a lawful meal period or rest break. (FAC ¶¶ 17, 41.) He further alleges that he was not provided the pay required by § 226.7 in lieu of a rest break. (Id. ¶ 18.) Rodriguez details specific practices, (e.g. id. ¶ 17), and instances, (e.g. id. ¶ 19), in the FAC. These allegations are plainly sufficient under Rule 8(a)(2) to support Rodriguez’s UCL claims with respect to the alleged § 226.7 violations. Claims for § 226.7 violations are actionable as UCL claims. Under relevant California law, payments owed for § 226.7 violations are restitutionary in nature and are therefore actionable under the UCL. See Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1099-1100 (“We conclude that the remedy provided in Labor Code section 226.7 constitutes a wage or premium pay and is governed by a three-year statute of limitations . . .”); Brinker, 53 Cal. 4th at 1018 (citations omitted) (“Employers who CV-90 (12/02) MEMORANDUM Page 5 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 5 of 14 Page ID #:721 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 5 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM violate these requirements must pay premium wages”); see also Brandon v. Nat’l R.R. Passenger Corp. Amtrak, No. CV 12-5796 PSG (VBKx), 2013 WL 800265, at *4 (C.D. Cal. Mar. 1, 2013) (citations omitted) (“Plaintiff seeks restitution for unpaid meal and rest periods and unreimbursed business expenses. These expenses are restitutionary and therefore recoverable under the UCL”); Ordonez v. Radio Shack, No. CV 10-7060 CAS (MANx), 2011 WL 499279, at *6 (C.D. Cal. Feb. 7, 2011) (citations omitted) (“The Court concludes that plaintiff’s UCL claim can be maintained to the extent it is based on allegations of section 226.7”). ODFL argues that Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244 (2012) stands for the proposition that a UCL restitution claim cannot be maintained when the basis for the UCL claim is an alleged §226.7 violation. Kirby held that “section 226.7 claims do not constitute ‘action[s] brought for the nonpayment of wages’ within the meaning of section 218.5.” Id. at 1259. However, Kirby also reaffirmed that “the remedy for a violation of the statutory obligation to provide IWC-mandated meal and rest periods is ‘one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.’” Id. at 1256 (quoting § 226.7(b)). Thus, if, as Rodriguez alleges, ODFL failed to provide him the required meal and rest breaks, he is entitled to one additional hour of pay for each work day in which he was not provided the required breaks. In a UCL claim, “restitution means the return of money to those persons from whom it was taken or who had an ownership interest in it.” Shersher v. Super. Ct., 154 Cal. App. 4th 1491, 1497 (2007) (citation and quotation marks omitted). Regardless of whether ODFL’s failure to pay Rodriguez what he was owed under § 226.7 is considered a wage, he has alleged that he is owed money and may thus maintain a UCL restitution claim to obtain the money he is owed. Rodriguez has adequately pleaded an actionable UCL claim for violation of § 226.7. 3. Labor Code §§ 201 For the reasons below, Rodriguez may maintain a UCL claim for Labor Code § 201 violations only for unpaid overtime compensation. He may not maintain a UCL claim for money owed for required meal period and rest breaks that were not provided as Labor Code sections 201 and 202 do not permit recovery for unpaid meal and rest breaks. The portion of his UCL claim based on violations of Labor Code § 201 is dismissed with prejudice. 4. Labor Code § 226(a) As explained below, Rodriguez may not maintain a claim for the provision of CV-90 (12/02) MEMORANDUM Page 6 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 6 of 14 Page ID #:722 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/1 Page 6 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM inaccurate wage statements in violation of California Labor Code § 226(a). Accordingly, he may also not maintain a UCL claim on this basis. This portion of his UCL claim is dismissed without prejudice. B. Individual Labor Code §§ 201 and 203 Claims Rodriguez claims that ODFL failed to timely pay all wages owed to him on his termination, including all overtime, meal period, and rest break pay. (FAC ¶¶ 52-53.) California Labor Code § 201(1) requires that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Under California law, “‘[w]ages’ includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.” Cal. Labor Code § 200(a). California Labor Code § 203 provides: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201 . . . any wages of an employee who is discharged . . . the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days . . . . As explained above, Rodriguez has adequately pleaded an FLSA claim and, as such, has stated a claim for unpaid overtime wages. He may pursue a § 201(a) claim to recover those unpaid wages. Section 203 entitles a terminated employee to “waiting time penalties” of up to 30 days’ wages if the employer “willfully fails to pay” the employee any outstanding wages immediately upon termination. Choate v. Celite Corp., 215 Cal. App. 4th 1460, 155 Cal. Rptr. 3d 915, 922 (2013) (citing Cal. Labor Code § 201). “To act willfully, an employer need not act with a deliberate evil purpose.” Id. (citation and quotation marks omitted). “Rather, the employer need only intentionally fail or refuse to perform an act which was required to be done.” Id. (citation and quotation marks omitted). “However, an employer’s reasonable, good faith belief that wages are not owed may negate a finding of willfulness.” Id. (quoting Cal. Code Regs. tit. 8, § 13520(a)). Rodriguez has alleged that he complained to ODFL’s plant manager, his direct supervisor, regarding ODFL’s allegedly unlawful overtime policy. (FAC ¶ 19.) He has also alleged that several wage statements indicate that he was not paid the proper overtime amounts. (Id. ¶ 14.) Rodriguez has sufficiently pleaded that ODFL intentionally failed or refused to pay him what he was due. He has adequately pleaded a § 203 violation with respect to unpaid overtime compensation. CV-90 (12/02) MEMORANDUM Page 7 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 7 of 14 Page ID #:723 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 7 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM Rodriguez may not, however, pursue section 201 and 203 claims for the non- payment of premium wages due as a result of ODFL failing to provide required meal periods and rest breaks. Kirby forecloses the possibility of an action under sections 201 and 203 for the nonpayment of wages. When an employee sues for a violation of section 226.7, he or she is suing because an employer has allegedly “require[d] [the] employee to work during [a] meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” (§ 226.7, subd. (a).) In other words, a section 226.7 action is brought for the nonprovision of meal and rest periods, not for the “nonpayment of wages.” Sections 201 and 202 provide a useful contrast to section 226.7. Section 201 provides that when “an employer discharges an employee, the wages earned and unpaid at the time of the discharge are due and payable immediately” (§ 201, subd. (a)), and section 202 provides that when an “employee has given 72 hours previous notice of his or her intention to quit, . . . the employee is entitled to his or her wages at the time of quitting” (§ 202, subd. (a)). When an employee sues on the ground that his or her former employer has violated one of these provisions, the suit is an “action brought for the nonpayment of wages.” In other words, the employer’s nonpayment of wages is the basis for the lawsuit. By contrast, when an employee sues on the ground that his or her employer has violated section 226.7, the basis for the lawsuit is the employer’s nonprovision of statutorily required rest breaks or meal breaks. . . . The failure to provide required meal and rest breaks is what triggers a violation of section 226.7. Accordingly, a section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for non-provision of meal or rest breaks. 53 Cal. 4th at 1255-57. Kirby makes clear that an employer who owes an employee a premium wage under § 226.7 is not also liable for a violation of § 203. See Jones v. Spherion Staffing LLC, No. LA CV11-06462 JAK (JCx), 2012 WL 3264081, at *8-*9 (C.D. Cal. Aug. 7, 2012) (“For several reasons, the Court finds that Plaintiff cannot advance a claim for . . . failure to pay wages due upon termination pursuant to section 203 based solely on alleged violations of section 226.7”). As Rodriguez cannot maintain a § 203 claim on the basis of unpaid compensation due under § 226.7 as a matter of law, this portion of his § 203 claim is dismissed with prejudice. CV-90 (12/02) MEMORANDUM Page 8 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 8 of 14 Page ID #:724 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 8 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM C. Individual Labor Code § 226(a) Claims Rodriguez has failed to adequately plead a Labor Code § 226(a) claim. Labor Code § 226(a) “sets forth nine itemized requirements for a wage statement.” Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1142 n.4 (2011).1 “To recover damages under section 226, subdivision (e), an employee must suffer injury as a result of a knowing and intentional failure by an employer to comply with the statute.” Id. at 1142 (footnote omitted). “The injury requirement in section 226, subdivision (e), cannot be satisfied simply because one of the nine itemized requirements in section 226, subdivision (a) is missing from a wage statement.” Id. As currently pleaded, Rodriguez’s alleged injury, the non-payment of overtime wages owed, did not arise “as a result of a knowing and intentional failure” of ODFL to list the proper hourly rate for overtime. In fact, Rodriguez alleges that he was able to determine that he was not properly compensated for all hours he considered to be overtime hours because the wage statements were “accurate” in the sense that they listed the hourly rate that ODFL actually applied to hours worked. (See FAC ¶ 14.) By contrast, Price held that a cognizable injury in fact arises from, for example, cases in which plaintiffs “sufficiently alleged (and presented evidence) of an injury arising from inaccurate or incomplete wage statements, which required those plaintiffs to engage in discovery and mathematical computations to reconstruct time records to determine if they were correctly paid.” 192 Cal. App. 4th at 1143 (citations omitted). Rodriguez pleads that he “independently knew that [ODFL’s] overtime policy was unlawful” and specifies that he was paid overtime in “similar position[s] with similar duties . . . for shifts over 8 hours per day and/or 40 hours per week.” (FAC ¶ 16.) Rodriguez has failed to state a claim for a § 226(a) violation. While it appears Rodriguez is unable to state a § 226(a) claim as a matter of law, he may amend the FAC as it is not certain that any amendment would be futile. D. Wrongful Termination in Violation of Public Policy As explained above, Federal Rule of Civil Procedure 15(a)(2) dictates that Rodriguez be permitted to amend his complaint to include a wrongful termination claim. This claim will not be dismissed. 1 The relevant § 226(a) requirement is that a wage statement lists “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. . . .” CV-90 (12/02) MEMORANDUM Page 9 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 9 of 14 Page ID #:725 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 9 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM E. Retaliation in Violation of Public Policy Rodriguez has sufficiently pleaded his retaliation in violation of public policy claim. (See FAC ¶¶ 69-75.) He has alleged sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In any event, ODFL’s arguments regarding temporal proximity and admissibility are more properly addressed in a motion for summary judgment. F. Intentional Infliction of Emotional Distress (IIED) “A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009) (citations and quotation marks omitted). Taking his allegations as true, Rodriguez has done enough under California law to survive a motion to dismiss as to his IIED claim as he has alleged that ODFL had knowledge of the falsity of its conduct, including making allegedly false representations to the California Employment Development Department, (FAC ¶¶ 22-27), and retaliating against him, which allegedly constitutes outrageous conduct, (id. ¶¶ 69-71, 75), and that such conduct could cause the “severe emotional distress, anxiety” and other injuries Rodriguez claims, (id. ¶¶ 88). See Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 288 (2009) (reversing a grant of summary judgment on an IIED claim and explaining that “[a] claim for distress arising out of employment is not barred where the distress is engendered by an employer’s illegal discrimination practices . . . [n]either discrimination nor harassment is a normal incident of employment” (citations and quotation marks omitted)). Rodriguez has done enough to provide ODFL with fair notice of the scope and substance of his IIED claim and questions as to admissibility and applicable evidence supporting the claim are best addressed in a motion for summary judgment. G. Defamation “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999) (citations omitted). “Publication means communication to some third person who understands the defamatory meaning of the statement and its application CV-90 (12/02) MEMORANDUM Page 10 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 10 of 14 Page ID #:726 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 10 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM to the person to whom reference is made.” Id. “ Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” Id. (quotation marks omitted) (citing Cunningham v. Simpson, 1 Cal. 3d 301, 306 (1969)). “Under the ‘common-interest privilege,’ codified in California in Civil Code section 47, subdivision (c) . . . a defendant who makes a statement to others on a matter of common interest is immunized from liability for defamation so long as the statement is made ‘without malice.’” Lundquist v. Reusser, 7 Cal. 4th 1193, 1279 (1994) (footnote omitted). [I]n enacting section 47(c), the Legislature intended to codify without change the common law common-interest privilege. At common law, that privilege embodied a two-step analysis, under which the defendant bore the initial burden of demonstrating that the allegedly defamatory communication was made upon a privileged occasion, and the plaintiff then bore the burden of proving that defendant had made the statement with malice. Id. at 1208. “Courts have consistently interpreted section 47, subdivision (c) to apply in the employment context.” Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1369 (2003) (citation omitted). Further, the plain text of § 47(c) makes clear that it “applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.” As currently pleaded, Rodriguez’s defamation claim concerns statements regarding “poor performance” made to a prospective employer. (FAC ¶ 93.) Section 47(c) clearly applies to his defamation claim. As he has failed to allege that the statements were made with malice, his claim is deficient. Rodriguez’s defamation claim is dismissed without prejudice. H. Class Claims Motions to dismiss class allegations are rarely granted. See, e.g. In re Wal-Mart Stores, Inc. Wage and Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007) (explaining that “dismissal of class allegations at the pleading stage should be done rarely and . . . the better course is to deny such a motion because the shape and form of a class action evolves only through the process of discovery”) (citations and quotation marks omitted). The Ninth Circuit has explained that “[a]lthough a party seeking class certification is not always entitled to discovery on the class certification issue, the propriety of a class action cannot be determined in some cases without discovery [and] the better and more CV-90 (12/02) MEMORANDUM Page 11 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 11 of 14 Page ID #:727 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 11 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action was maintainable.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (citations and quotation marks omitted). “District courts have broad discretion to control the class certification process, and whether or not discovery will be permitted lies within the sound discretion of the trial court.” Id. (citations and quotation marks omitted). ODFL’s motion is premature and the Court declines to consider its substantive arguments at this time. I. Injunctive Relief Former employees may not seek injunctive relief because they “would not stand to benefit from an injunction . . . at [their] former place of work.” Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006). Rodriguez is a former employee. (See FAC ¶ 3.) Rodriguez seeks “injunctive relief to ensure compliance with this section, pursuant to California Business & Professions Code § 17200 . . . .” (FAC Prayer ¶ 8.) His legal basis for injunctive relief is unclear, however, as he argues only that he “seeks injunctive relief only as is necessary to enforce the restitution, including, if necessary, the appointment of a receiver.” (Pl.’s Opp’n 23.) He cites no cases or statutory support for the propriety of his injunction request and the scope or effect of his requested injunctive relief is entirely unclear from the FAC. The injunctive relief request is dismissed without prejudice. J. Damage Claims Rodriguez seeks punitive damages for his wrongful termination, retaliation, IIED, and defamation claims. As noted above, his wrongful termination, retaliation, and IIED claims will not be dismissed. “California law long has recognized that discharges in violation of public policy may be actionable torts for which punitive damages can be recovered under Civil Code section 3294.” Commodore Home Sys., Inc. v. Super. Ct., 32 Cal. 3d 211, 220 (1982) (citations omitted). California Civil Code § 3294 provides “that punitive damages are available in all noncontractual civil actions unless otherwise limited.” Id. at 217. Rodriguez brings claims directly against his employer. (See, e.g., FAC ¶¶ 68, 72, 75-76). An action for wrongful discharge in violation of public policy “can only be asserted against an employer.” Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008). A corporation such as ODFL “is a legal fiction that cannot act except through its employees or agents, a corporation and its employees generally function as a single legal unit and are the same legal person for purposes of applying various tort, agency, and jurisdiction principles.” Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 1392 (2011) CV-90 (12/02) MEMORANDUM Page 12 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 12 of 14 Page ID #:728 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 12 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM (citations omitted). Civil Code § 3294(b) applies because it states that “[a]n employer shall not be liable” for punitive damages “unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” As ODFL is a corporate employer, in order to maintain his punitive damage claims, Rodriguez must allege that the relevant “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” See Miklosy, 44 Cal. 4th at 900 (“An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort”). He fails to do so. For example, he does not plead any facts about the knowledge or intentions of any “officer, director, or managing agent of” ODFL. As Rodriguez’s IIED and retaliation claims are brought directly against ODFL, they are also subject to the § 3294(b) limitation. Rodriguez’s punitive damage claims are dismissed without prejudice. Rodriguez brings Labor Code §§ 201 and 203 claims for “actual, consequential, and incidental losses and damages.” ODFL properly points out that the statutory language of sections 201 and 203 provide only for the payment of wages due, § 201, and penalty wages, § 203. There is no provision for “consequential, and incidental losses and damages.” Rodriguez’s “consequential, and incidental losses and damages” claim is dismissed without prejudice. K. Attorneys’ Fees under California Code of Civil Procedure § 1021.5 “Section 1021.5 codifies California’s version of the private attorney general doctrine, which is an exception to the usual rule that each party bears its own attorney fees.” Robinson v. City of Chowchilla, 202 Cal. App. 4th 382, 390 (2011) (citing Olson v. Auto. Club of S. Cal., 42 Cal. 4th 1142, 1147 (2008)). “The purpose of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” Id. (citing Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 565 (2004)). A court may award attorneys fees under § 1021.5 to: (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest if (3) a significant benefit has been conferred on the general public or a large class of persons, (4) private enforcement is necessary because no public entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement is such as to make a fee award appropriate, and (6) in the interests of justice the CV-90 (12/02) MEMORANDUM Page 13 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 13 of 14 Page ID #:729 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 13 of 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MEMORANDUM fees should not be paid out of the recovery. Id. (footnote omitted). As the class allegations remain, it remains possible for Rodriguez to satisfy the second and third criteria above. The attorneys’ fees request will not be stricken. IV. CONCLUSION The motion to dismiss is GRANTED IN PART and DENIED IN PART. The FAC is dismissed with leave to amend consistent with this order. An amended complaint must be filed and served no later than July 9, 2013. Failure to file by that date will waive the right to do so. The Court does not grant leave to add new defendants or new claims. Leave to add defendants or new claims must be sought by a separate, properly noticed motion. Defendant’s response will be due July 30, 2013. IT IS SO ORDERED. CV-90 (12/02) MEMORANDUM Page 14 of 14 Case 2:13-cv-00891-DSF-RZ Document 31 Filed 06/18/13 Page 14 of 14 Page ID #:730 Exh. G EXHIBIT G Case 3:16-cv 02837-CAB-NLS Document 4-9 Filed 11/25/16 Page 14 of 14