William Robles v. Schneider National Carriers, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case and/or Strike Complaint Pursuant To Fed. R. Civ. P. 12

C.D. Cal.December 22, 2016

84876215.5 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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, Esq. (SBN 171829) Email: mkane@mcguirewoods.com Sabrina A. Beldner, Esq. (SBN 221918) Email: sbeldner@mcguirewoods.com Karen W. Luh, Esq. (SBN 243256) Email: kluh@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067 Tel: (310) 315-8200 Fax: (310) 315-8210 Attorneys for Defendant SCHNEIDER NATIONAL CARRIERS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WILLIAM ROBLES, on behalf of himself, on behalf of all persons similarly situated, Plaintiff, vs. SCHNEIDER NATIONAL CARRIERS, INC., a Corporation; DOES 1 through 50, inclusive, Defendant. CASE NO. 5:16-cv-02482-JGB-KK DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) (1) NOTICE OF MOTION (2) REQUEST FOR JUDICIAL NOTICE (3) MEMORANDUM OF POINTS AND AUTHORITIES Filed Under Separate Covers: (4) APPENDIX OF EXHIBITS (5) [PROPOSED] ORDER Date: February 13, 2017 Time: 9:00 a.m. Crtrm.: 1 Judge: Hon. Jesus G. Bernal Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 1 of 42 Page ID #:128 84876215.5 i DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 NOTICE OF MOTION ................................................................................................ x REQUEST FOR JUDICIAL NOTICE ...................................................................... xv 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 .................................................................... 3 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 .................................... 6 1. The Claim Fails To Comply With The Rule 8 Requirements ................................................................................ 6 2. The Claim Fails To Allege The Requisite Injury ......................... 7 3. Wage Statements Need Only Report Wages Actually Paid ......... 7 4. Section 226.7 Payments Are Not Subject To Reporting .............. 8 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 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 2 of 42 Page ID #:129 58562131.3 ii DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 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 F. PLAINTIFF’S PURPORTED SIXTH CAUSE OF ACTION FOR UNLAWFUL WAGE DEDUCTIONS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED .................................................................. 17 1. Plaintiff Fails To Allege A Viable Claim For Relief ................. 17 2. The Claim Fails To Satisfy The Rule 8 Requirements ............... 18 G. PLAINTIFFS’ PURPORTED FIRST CAUSE OF ACTION FOR UCL VIOLATIONS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED .............................................................................................. 18 1. The Claim Fails To Satisfy The Rule 8 Requirements ............... 19 2. Plaintiff’s UCL Claim Also Fails Because Section 226.7 Damages Are Not Subject To Restitution Under The UCL ....... 22 H. PLAINTIFF’S ALLEGATION IN PARAGRAPH 47 OF THE COMPLAINT REGARDING SNC’S ALLEGED VIOLATION OF CAL. LAB. CODE § 204 SHOULD BE STRICKEN ..................................................................... 23 I. PLAINTIFF’S ALLEGATION IN PARAGRAPH 47 OF THE COMPLAINT REGARDING SNC’S ALLEGED VIOLATION OF CAL. LAB. CODE § 226.8 SHOULD BE STRICKEN .................................................................. 24 J. PLAINTIFF’S CLAIMS FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED .............................................................................................. 25 IV. CONCLUSION ............................................................................................... 25 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 3 of 42 Page ID #:130 84876215.5 iii DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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, 21 Angeles v. U.S. Airways, Inc., 2013 WL 622032 (N.D. Cal. Feb. 19, 2013) .......................................................... 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................... 3, 6, 11 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, 11, 21 Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581 (N.D. Cal. Apr. 18, 2013).................................................. 7, 12 Byrd v. Masonite Corp., 2016 WL 756523 (C.D. Cal. Feb. 25, 2016) .......................................................... 6 Clark v. Lakewood, 259 F.3d 996 (9th Cir. 2001) ................................................................................ 25 Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205 (C.D. Cal. 2006) .................................................................... 9 De La Torre v. Am. 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) .................................... 21 DeLodder v. Aerotek, Inc., 2009 WL 3770670 (C.D. Cal. Nov. 9, 2009) ....................................................... 25 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................ 25 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 4 of 42 Page ID #:131 58562131.3 iv DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Freeman v. Zillow, Inc., 2015 WL 5179511 (C.D. Cal. Mar. 19, 2015) ..................................................... 21 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) ......................................... 5, 6, 12, 14 Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383 (C.D. Cal. Sept. 22, 2010) ..................................................... 24 Jacobsen v. Katzer, 609 F.Supp.2d 925 (N.D. Cal. 2009) ...................................................................... 2 Jeske v. Maxim Healthcare Servs., Inc., 2012 WL 78242 (E.D. Cal. Jan. 10, 2012) ........................................................... 17 Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114 (N.D. Cal. 2011) ............................................................ 17, 24 Jones v. Spherion Staffing LLC, 2012 WL 3264081 (C.D. Cal. Aug. 7, 2012) ................................................. 11, 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) ..................................................... 20 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, 18 Madlaing v. JPMorgan Chase Bank, N.A., 2013 WL 2403379 (E.D. Cal. May 31, 2013) ...................................................... 19 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 5 of 42 Page ID #:132 58562131.3 v DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Makaneole v. Solarworld Indus. Am., Inc., 2014 WL 8102530 (D. Or. Dec. 8, 2014) ............................................................... 5 Milligan v. Am. Airlines, Inc., 577 F. App’x 718 (9th Cir. 2014) ........................................................................... 7 Mouchati v. Bonnie Plants, Inc., 2014 WL 1661245 (C.D. Cal. Mar. 6, 2014) ....................................................... 17 Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498 (E.D. Cal. Aug. 15, 2011) ..................................................... 16 Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal. Nov. 28, 2011) ..................................... 9, 10, 11, 13 Parson v. Golden State FC, LLC, 2016 WL 1734010 (N.D. Cal. May 2, 2016) ....................................................... 23 Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983 (S.D. Cal. 2012) .................................................................... 19 Perez v. Wells Fargo and Co., 2014 WL 6997618 (N.D. Cal. Dec. 11, 2014) ....................................................... 5 Pulido v. Coca Cola Enters., Inc., 2006 WL 1699328 (C.D. Cal. May 25, 2006) ...................................................... 10 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) ........................................................ 25 Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv-00891 DSF (June 18, 2013) ....................................... 14 Rosset v. Hunter Eng’g Co., 2014 WL 3569332 (N.D. Cal. July 17, 2014) ...................................................... 25 Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166 (N.D. Cal. May 8, 2013) ....................................................... 12 Sanchez v. Ritz Carlton, 2015 WL 5009659 (C.D. Cal. Aug. 17, 2015) ..................................................... 21 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 6 of 42 Page ID #:133 58562131.3 vi DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011) ............................................... 21, 22 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) ....................................................... 24 Singletary v. Teavana Corporation, 2014 WL 1760884 (N.D. Cal. Apr. 2, 2014) ........................................................ 14 Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128 (C.D. Cal. Mar. 25, 2015) ................................................... 21 Slay v. CVS Caremark Corp., 2015 WL 2081642 (E.D. Cal. May 4, 2015) ........................................................ 24 Tan v. GrubHub, Inc., 171 F.Supp.3d 998 (N.D. Cal. Mar. 22, 2016) ....................................................... 5 Tapley v. Lockwood Green Eng’rs, 502 F.2d 559 (8th Cir. 1974) .................................................................................. 2 Tomlinson v. Indymac Bank, F.S.B., 359 F.Supp.2d 891 (C.D. Cal. 2005) .................................................................... 24 Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) .......................................................................................... 25 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) ....................................................... 22 CALIFORNIA CASES In re Application of Moffett, 19 Cal.App.2d 7 (1937) ........................................................................................ 24 Brewer v. Premier Golf Prop., LP, 168 Cal.App.4th 1243 (2008) ................................................................................. 9 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 7 of 42 Page ID #:134 58562131.3 vii DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Brinker v. Sup. Ct., 53 Cal.4th 1004 (2012) ................................................................................... 10, 20 Clark v. Sup. Ct., 50 Cal.4th 605 (2010) ........................................................................................... 22 Driscoll v. Graniterock Company, ___ Cal.App.4th ___, 2016 WL 6994923 (Nov. 30, 2016) .................................. 20 Driscoll v. Granite Rock Co., Santa Clara Sup. Ct. Case No. 1-08-CV-103426 (Sept. 20, 2011) .............. 8, 9, 13 Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244 (2012) ................................................................. 10, 11, 13, 14, 23 Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134 (2003) ................................................................................... 19, 22 Ling v. P.F. Chang’s China Bistro, Inc., 245 Cal.App.4th 1242 (2016) ............................................................................... 14 Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007) ............................................................................... 9, 10, 13 Noe v. Sup. Ct., 237 Cal.App.4th 316 (2015) ................................................................................. 25 Pineda v. Bank of Am., N.A., 50 Cal.4th 1389 (2010) ......................................................................................... 24 See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889 (2012) ................................................................................. 24 FEDERAL STATUTES 29 U.S.C. § 201. ........................................................................................................... 5 CALIFORNIA STATUTES Cal. Bus. & Prof. Code § 17200 .................................................................................. 1 Cal. Lab. Code § 201 ....................................................................................... 1, 13, 15 Cal. Lab. Code § 202 ................................................................................................... 1 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 8 of 42 Page ID #:135 58562131.3 viii DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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. Lab. Code § 203 ..................................................................... 1, 11, 12, 13, 14, 24 Cal. Lab. Code § 204 ........................................................................................... 23, 24 Cal. Lab. Code § 204(a) ............................................................................................. 23 Cal. Lab. Code § 210 ................................................................................................. 24 Cal. Lab. Code § 221 ................................................................................. 1, 11, 17, 18 Cal. Lab. Code § 225 ................................................................................................. 17 Cal. Lab. Code § 225.5 .............................................................................................. 17 Cal. Lab. Code § 226 ....................................................................... 1, 6, 7, 8, 9, 11, 14 Cal. Lab. Code § 226(a) ............................................................................. 6, 7, 8, 9, 11 Cal. Lab. Code § 226(e) ........................................................................................... 6, 7 Cal. Lab. Code § 226(e)(1) .......................................................................................... 7 Cal. Lab. Code § 226(e)(2)(B)(i) ................................................................................. 7 Cal. Lab. Code § 226(e)(2)(B)(ii) ................................................................................ 7 Cal. Lab. Code § 226.7 ............................................ 8, 9, 10, 11, 13, 14, 19, 20, 22, 23 Cal. Lab. Code § 226.7(b) ........................................................................................... 9 Cal. Lab. Code § 226.8 ........................................................................................ 24, 25 Cal. Lab. Code § 512 ................................................................................................. 20 Cal. Lab. Code § 1194 ................................................................................................. 1 Cal. Lab. Code § 1197 ................................................................................................. 1 Cal. Lab. Code § 1197.1 .............................................................................................. 1 Cal. Lab. Code § 2802 ............................................................................... 1, 15, 16, 17 OTHER FEDERAL AUTHORITIES Fed. R. Civ. P. 8 ........................................... 1, 2, 3, 4, 6, 11, 13, 15, 16, 18, 19, 20, 21 Fed. R. Civ. P. 8(a)(2) .................................................................................................. 3 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 9 of 42 Page ID #:136 58562131.3 ix DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Fed. R. Civ. P. 12(b)(6) ............................................................................................... 2 Fed. R. Civ. P. 12(f) ..................................................................................................... 2 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 10 of 42 Page ID #:137 84876215.5 x DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 WILLIAM ROBLES AND HIS COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN that, on February 13, 2017, at 9:00 a.m., in Courtroom 1 of the United States District Court, Central District of California, located at 3470 Twelfth Street, Riverside, California 92501, Defendant Schneider National Carriers, Inc. (“SNC” or “Defendant”) will and hereby does move the Court to dismiss and/or strike Plaintiff’s Complaint (“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 of Plaintiff’s Second through Sixth Causes of Action 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 SNC violated the law, which fail to satisfy the pleading requirements of Rule 8; and Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 11 of 42 Page ID #:138 84876215.5 xi DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 3. Plaintiff’s purported Third Cause of Action for failure to provide 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/or c. Payments for missed or non-compliant meal and rest breaks do not constitute “wages earned” for purposes of triggering the final Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 12 of 42 Page ID #:139 84876215.5 xii DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 pay requirements of Cal. Lab. Code § 201; and 5. Plaintiff’s purported Fifth Cause of Action for failure to reimburse business-related expenses in violation of Cal. Lab. Code § 2802 fails as a matter of law because it fails to comply with the Rule 8 pleading requirements; and 6. Plaintiff’s purported Sixth Cause of Action for unlawful wage deductions pursuant to Cal. Lab. Code § 221 (“Section 221”) fails as a matter of law because: a. There is no private right to action to sue for violations of Section 221; and/or b. The claim fails to comply with the pleading requirements of Rule 8; and 7. Plaintiff’s allegation regarding SNC’s alleged violation of Cal. Lab. Code § 204 (“Section 204”) in connection with Plaintiff’s purported UCL claim should be stricken from Paragraph 47 of the Complaint because: a. Plaintiff alleges no facts which would suggest that SNC 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 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 13 of 42 Page ID #:140 84876215.5 xiii DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 8. Plaintiff’s allegation regarding SNC’s alleged violation of Cal. Lab. Code § 226.8 (“Section 226.8”) in connection with Plaintiff’s purported UCL claim should be stricken from Paragraph 47 of the Complaint because: a. There is no private right of action to sue for violations of Section 226.8; and/or b. Section 226.8 penalties are not recoverable as restitution under the UCL; and 9. Plaintiff’s request for injunctive relief should be dismissed or stricken because he lacks standing to seek such relief as a former putative employee who is neither presently employed by nor performing work or providing services to SNC. This Motion is based upon this Notice, the attached Memorandum of Points and Authorities and Request for Judicial Notice, the accompanying Appendix of Exhibits 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. /// /// /// /// /// /// Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 14 of 42 Page ID #:141 84876215.5 xiv DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 On December 1, 2016, SNC initiated the meet and confer process with Plaintiff regarding the grounds for this motion in accordance with the requirements of Local Rule 7-3. However, the parties were unable to resolve the defects in Plaintiff’s claims, thus necessitating the filing of this Motion. DATED: December 22, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Attorneys for Defendant SCHNEIDER NATIONAL CARRIERS, INC. Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 15 of 42 Page ID #:142 84876215.5 xv DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: Pursuant to Fed. R. Evid. 201(b) and (d), Defendant Schneider National Carriers, Inc. (“SNC” or “Defendant”), hereby requests that the Court take judicial notice of the following documents attached as the exhibits identified below to the accompanying Appendix of Exhibits filed concurrently herewith 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”): Exhibit A: Plaintiff’s Complaint captioned as William Robles, on behalf of himself, on behalf of all persons similarly situated v. Schneider National Carriers, Inc., a Corporation; and DOES 1 through 50, inclusive, which was filed in the Superior Court of California, County of Riverside, on September 22, 2016, in Case No. RIC 1612222 therein, and removed to this Court on December 1, 2016, commencing this case. See Dkt. #1, Exh. A thereto. Exhibit B: Statement of Decision filed in the Superior Court of California, County of Santa Clara, on September 20, 2011 in Case No.: 1- 08-CV-103426 therein, entitled Brian Driscoll, et. al. v. Graniterock Company. Exhibit C: The California Department of Industrial Relations, Enrolled Bill Rep. on A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 16 of 42 Page ID #:143 84876215.5 xvi DEFENDANT SCHNEIDER NATIONAL CARRIER, INC.’S MOTION TO DISMISS AND/OR STRIKE PLAINTIFF’S 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 Exhibit D: The Assembly Committee on Labor Relations, Analysis of A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. Exhibit E: The California Department of Industrial Relations Division of Labor Standards Enforcement (“DLSE”) Opinion Letter Re: Electronic Itemized Wage Statements (July 6, 2006). Exhibit F: Excerpts of the transcript of the Industrial Welfare Commission (“IWC”) Public Hearing of June 30, 2000, available at the URL http://www.dir.ca.gov/IWC/PUBHRG6302000.pdf. Exhibit G: 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). SNC’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: December 22, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Attorneys for Defendant SCHNEIDER NATIONAL CARRIERS, INC. Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 17 of 42 Page ID #:144 84876215.5 1 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Plaintiff William Robles alleges that he worked as a truck driver for Defendant Schneider National Carriers, Inc. (“Defendant” or “SNC”), and that SNC misclassified him and similarly situated putative class members (“PCMs”) as independent contractors. He purports to allege various putative wage and hour class action claims against SNC, rooted primarily in bald, conclusory allegations of minimum wage and meal and rest break violations, failure to reimburse business expenses, illegal wage deductions and wholly derivative statutory claims based thereon. As SNC discusses below, Plaintiff’s asserted claims fail as a matter of law because, in contravention of Fed. R. Civ. P. 8 (“Rule 8”), they allege no facts to support a cognizable legal theory and/or they suffer from a multitude of substantive defects as well. Therefore, Plaintiff’s claims should be dismissed and/or stricken. II. STATEMENT OF FACTS Plaintiff, an independent contractor whose business, W&R Trucking, provided transportation services to SNC under its own U.S.D.O.T. operating authority, has filed a Complaint against SNC alleging purported claims for: (1) Unfair Competition in 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. Lab. Code §§ 1194, 1197 and 1197.1, et seq.; (3) Failure to Provide Accurate Itemized Wage Statements in violation of Cal. Lab. Code § 226; (4) Failure to Provide Wages When Due in violation of Cal. Lab. Code §§ 201, 202, and 203; (5) Failure to Reimburse Employees for Required Expenses in violation of Cal. Lab. Code § 2802; and (6) Illegal Deductions from Wages in violation of Cal. Lab. Code § 221. See Appendix of Exhibits (“Appx.”), Exh. A (Complaint). Plaintiff purports to seek recovery of unpaid minimum wages, missed meal and rest break payments, Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 18 of 42 Page ID #:145 84876215.5 2 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 statement penalties, waiting time penalties, restitution, compensatory damages, expense reimbursements, injunctive relief, interest and attorneys’ fees and costs. See generally id. 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.”2 2. The Twombly And Iqbal Pleading Standards In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”), the Supreme Court held that, under Rule 8, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 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). 2 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). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 19 of 42 Page ID #:146 84876215.5 3 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 and a formulaic recitation of the elements of a cause of action will not do.” (Emph. added). Thus, 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.” Id. at 556, n.3. 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). A complaint must allege “enough facts to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556, n.3. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“Iqbal”) (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, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663 (emph. added). Plaintiff’s claims are premised on the erroneous notion that SNC misclassified him and PCMs as independent contractors. Even assuming arguendo that an employment relationship is sufficiently alleged, Plaintiff’s purported claims still fail because they do not comply with Rule 8 and/or are 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’s purported Second Cause of Action for minimum wage violations is Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 20 of 42 Page ID #:147 84876215.5 4 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 predicated solely on conclusory allegations of legal violations and, thus, fails to satisfy the pleading requirements of Rule 8. Plaintiff’s conclusory legal allegations include:  SNC “suffered and permitted PLAINTIFF and other [PCMs] to work and required these employees to remain under [SNC’s] control without paying them, which resulted in PLAINTIFF and other [PCMs] earning less than the legal minimum wage in the State of California.” See Appx., Exh. A (Complaint), ¶ 7;  “The finite set of tasks required to be performed by the Truck Drivers was to arrive at [SNC’s] assigned locations to wait for and pick-up loads assigned by [SNC] and to transport goods provided by [SNC] to locations given to PLAINTIFF and the other [PCMs] by [SNC]….” Id.;  “As a result of [SNC’s] classification of these [PCMs] as independent contractors, PLAINTIFF and the other [PCMs] were therefore not paid for all of their time worked for [SNC].” Id.;  “PLAINTIFF was not compensated for any of his time spent working other than the flat rate for loads delivered for [SNC’s] benefit.” Id. at ¶ 22;  “PLAINTIFF … was classified by [SNC] as an independent contractor and paid under [SNC’s] piece-rate-system only for his loads delivered for [SNC] and thus did not receive pay for all time worked, including but not limited to, time spent waiting for [SNC’s] loads to be ready for transport Here, PLAINTIFF is entitled to separate hourly compensation for time spent performing other non-driving tasks directed by [SNC] during his work shifts. As a result of [SNC’s] misclassification of PLAINTIFF as an independent contractor, PLAINTIFF was not compensated by DEFENDANT for all his time worked at the applicable minimum wage rates.” Id.;  SNC “failed to pay the PLAINTIFF and the [PCMs], minimum wages, for all time worked …, even though PLAINTIFF and the [PCMs] were regularly required to work, and did in fact work, uncompensated time, time compensated at less than the minimum wage that [SNC] never recorded as evidenced by [SNC’s] business records and witnessed by [SNC’s] employees.” Id. at ¶ 63;  SNC “knew or should have known that the PLAINTIFF and the [PCMs] were misclassified as independent contractors and [SNC] systematically elected, either through intentional malfeasance or gross nonfeasance, not to pay them for their labor as a matter of uniform corporate policy, practice and procedure.” Id. at ¶ 65; Plaintiff’s allegations fail to provide the level of factual specificity required to state a claim for unpaid minimum wages under the standards articulated in Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014), because they fail to identify even one specific workweek in which the purported violations occurred. In Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 21 of 42 Page ID #:148 84876215.5 5 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Landers, 771 F.3d at 645, 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…”3 While Plaintiff alleges that SNC failed to pay him minimum wages, 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). Furthermore, Plaintiff’s Complaint contains no facts from which the Court can reasonably infer that he actually worked any uncompensated hours because the Complaint is devoid of allegations about “what period of time or type of conduct Plaintiffs are counting as hours worked.” Tan v. GrubHub, Inc., 171 F.Supp.3d 998, 1008 (N.D. Cal. Mar. 22, 2016). Although his claim may be based on a legal theory that, if misclassified as an independent contractor (“IC”), piece-rate pay does not compensate for all time worked and does not comply with the California Labor Code, Plaintiff fails to identify any time that was supposedly worked by him and the PCMs that SNC ostensibly failed to compensate under its piece-rate formula. To that end, Plaintiff alleges that he and the PCMs were compensated on the basis of a piece-rate formula that paid by the load transported, and purports to seek minimum wages for time they spent waiting for a load to be ready for transport. However, the Complaint lacks any allegations to explain how or why the load-based piece-rate formula compensation he received failed to compensate him for the alleged load waiting time, what that load-based compensation was otherwise intended to cover and/or how he was otherwise undercompensated. Thus, the Complaint fails to give 3 See also Perez v. Wells Fargo and Co., 2014 WL 6997618, *7 (N.D. Cal. Dec. 11, 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). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 22 of 42 Page ID #:149 84876215.5 6 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 SNC sufficient notice of the factual bases for his claimed entitlement to minimum wages and does not permit the Court to “infer more than the mere possibility of misconduct,” which is insufficient to state a claim in compliance with Rule 8. Iqbal, 556 U.S. at 679. 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 SNC 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 SNC provided inaccurate wage statements or that it did so knowingly and intentionally. Indeed, his Complaint does not allege a single factual exemplar of any allegedly inaccurate wage statement he or any of the PCMs received from SNC. See, e.g., Byrd v. Masonite Corp., 2016 WL 756523, *3 (C.D. Cal. Feb. 25, 2016) (Bernal, J.) (dismissing Cal. Lab. Code § 226 claims based on allegations that the defendant “intentionally and willfully” failed to provide accurate itemized wage statement where plaintiff did not even “identify a single deficient wage statement”). Instead, Plaintiff asserts the factually devoid and conclusory allegations that SNC “knowingly and intentionally failed to comply with Labor Code § 226….” See Appx., Exh. A (Complaint) at ¶¶ 20, 70-71. But such conclusory allegations have been held insufficient under Rule 8.4 4 See, e.g., Guerrero, 2016 WL 6494296 at *7; Ramirez v. Manpower, Inc., 2014 WL 116531, *5 (N.D. Cal. Jan. 13, 2014) (dismissing claims alleging that defendant “knowingly and intentionally” failed to “include the total number of hours worked ... list all applicable hourly rates,... include the inclusive dates for the period worked … and ... accurately report the gross and net earnings….” as merely Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 23 of 42 Page ID #:150 84876215.5 7 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 2. The Claim Fails To Allege The Requisite Injury In addition to failing to allege a knowing and intentional failure to comply with Section 226(a), Plaintiff’s Complaint fails to properly allege the other required element of such a claim: 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.5 However, 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). 3. Wage Statements Need Only Report Wages Actually 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 Cal. Lab. Code § 226(e) (“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. Lab. Code § 226(e)(2)(B)(i)-(ii) (emph. added). See also De La Torre v. Am. Red Cross, 2013 WL 5573101, *6 (C.D. Cal. Oct. 9, 2013) (Pregerson, J.) (dismissing claim for Section 226(e) penalties where plaintiff did not allege she was unable to determine “parrot[ing] the language of the statute”); Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581, *8 (N.D. Cal. Apr. 18, 2013) (“Although the [complaint] generally alleges that ‘violations of the law were committed knowingly and wilfully’ [sic] … plaintiffs fail to support this conclusory allegation with factual support.”). 5 See Milligan v. Am. Airlines, Inc., 577 F. App’x 718, 719 (9th Cir. 2014) (“The injury requirement ... cannot be satisfied simply because one of the nine itemized requirements in [Section 226(a)] is missing from a wage statement.”) (cit. omitted); 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.”). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 24 of 42 Page ID #:151 84876215.5 8 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 amount of wages actually paid to her during “the pay periods at issue”). Here, Plaintiff does not allege that he received any wage statements from SNC that were inaccurate in reporting wages actually paid to him and the deductions actually made during the applicable pay period. 4. Section 226.7 Payments Are Not Subject To Reporting Plaintiff’s 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. 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 wage statement, none of which include Section 226.7 payments.6 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.”7 Thus, Section 226(a) 6 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). 7 See Appx., Exh. B, Stmt. 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 Appx., 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); Appx., Exh. D (Assem. Com. on Lab. Rels., Analysis of A.B. 3731 (1976)), p. 1 (“The purpose of requiring greater wage stub Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 25 of 42 Page ID #:152 84876215.5 9 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 “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 Appx., 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) (Carney, J.) (emph. added). As first 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.8 Indeed, Section 226.7’s remedy 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.9 See Cal. Lab. Code § 226.7(b); Corder v. Houston’s Restaurants, Inc., 424 F.Supp.2d 1205, 1208 (C.D. 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., Appx., 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). 8 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) (Section 226.7 provides for “an award in the nature of liquidated damages”) (emph. added). 9 Section 226.7 payments have also been characterized as “penalties.” See Appx., Exh. F (Cal. IWC Public Hearing Transcript (June 30, 2000)), at p. 30 ()IWC Commissioner Barry Broad clarifying that meal break violation payments are “penalties” intended to “encourage employers not to” deprive employees of meal breaks). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 26 of 42 Page ID #:153 84876215.5 10 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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. 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 has since 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 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 v. Sup. Ct., 53 Cal.4th 1004, 1040 n. 19 (2012): 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. 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 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 27 of 42 Page ID #:154 84876215.5 11 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 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) (Kronstadt, J.), 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 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 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 In order to state a claim for waiting time penalties under Cal. Labor Code § 203 (“Section 203”), Plaintiff must allege facts demonstrating that SNC willfully failed to timely pay final wages. Cal. Labor Code § 203. However, Plaintiff’s claim alleges nothing more than the following formulaic recitation of the statutory language, which is impermissible under Twombly and Iqbal:  “PLAINTIFF worked for [SNC] as a Truck Driver from March 2009 to October of 2015….” See Appx., Exh. A (Complaint) at ¶ 4;  “During the CALIFORNIA CLASS PERIOD, [SNC] uniformly violated the rights of the PLAINTIFF and the [PCMs] under California law, without limitation, in the following manners: … (f) Committing an act of unfair competition in violation of the California Unfair Competition Laws, Cal. Bus. & Prof. Code § 221 by making unlawful deductions from compensation payable to PLAINTIFF and other [PCMs] and thereby failed to pay these employees all wages due at each applicable pay period or Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 28 of 42 Page ID #:155 84876215.5 12 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 upon termination.” Id. at ¶ 27;  “To the extent minimum wage compensation is determined to be owed to the [PCMs] who have terminated their employment, these employees would also be entitled to waiting time penalties under Cal. Lab. Code § 203, which penalties are sought herein.” Id. at ¶ 66;  “The employment of PLAINTIFF and many other CALIFORNIA LABOR SUB-CLASS Members has terminated, yet as to those individuals whose employment terminated, [SNC] did not timely tender payment of all wages owed as required by law.” Id. at ¶ 78;  “Therefore, as provided by Cal. Lab. Code § 203, on behalf of himself and the members of the CALIFORNIA LABOR SUB-CLASS whose employment terminated, PLAINTIFF demands thirty days of pay as penalty for not paying all wages due at time of termination for all individuals in the CALIFORNIA LABOR SUB-CLASS who terminated employment during the CALIFORNIA LABOR SUB-CLASS PERIOD plus interest and statutory costs allowed.” Id. at ¶ 79. 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 SNC refused to pay final wages in a timely manner. Indeed, Plaintiff alleges no facts as to the date his own putative employment supposedly was actually “terminated” and when he received his own putative final paycheck, its amount, and the amount he purportedly should have received.10 Plaintiff also fails to allege facts to support the requisite element that SNC committed a “willful” violation to impose waiting time penalties under Section 203. Although the Complaint states that SNC’s conduct was “intentional,” Plaintiff “fails to support this conclusory allegation with factual support.”11 Indeed, the mere 10 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) (Carney, J.) (dismissing claims for waiting time penalties that asserted that “Defendants willfully failed to pay their workers accrued wages due promptly upon separation” because plaintiff did not “even generally allege what wages were earned and paid at the time of termination, nor [did] she allege how and in what manner any final wage payment was untimely”). 11 Brown, 2013 WL 1701581 at *8; see also id. at n.4 (“conclusory allegations of willfulness, without further factual support, are insufficient.”); Sanchez v. Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 29 of 42 Page ID #:156 84876215.5 13 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 failure to make payments at termination-the right to which is the subject of a good faith dispute-cannot, as a matter of law, establish a “willful” failure to timely pay all terminal wages. See Appx., 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.”). 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 203.12 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 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,” not work performed during such periods. 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). 12 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 SNC sufficient notice of the claims being alleged therein. Due to that ambiguity, and in an abundance of caution, SNC 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 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 30 of 42 Page ID #:157 84876215.5 14 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 On this basis, at least four district courts have held that Section 203 waiting time penalties are not assessable 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 Appx., 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, 2016 WL 6494296 at *8, 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: 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 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 31 of 42 Page ID #:158 84876215.5 15 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 subject to any payment obligation under Section 201. 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 to comply with the Rule 8 pleading requirements. Plaintiff’s factually deficient allegations regarding this claim are limited to:  “As a result of this uniform misclassification practice, policy and procedure … [SNC] … failed to provide reimbursement of business related expenses …” See Appx., Exh. A (Complaint) at ¶ 15;  “[SNC] failed to reimburse PLAINTIFF and the [PCMs]” for “necessary expenses incurred in the performance of their job duties” which included, but were not limited to, “all costs and expenses of owning and/or leasing, repairing, maintaining, and fueling the trucks and vehicles [they drove while conducting work for [SNC]/utilized when driving to their assigned locations….” Id. at ¶¶ 17, 82;  “[SNC] also required PLAINTIFF to personally incur and pay for expenses, including, but not limited to, all costs and expenses of owning and/or leasing, repairing, maintaining, and fueling the trucks and vehicles they drove in the discharge of their employment duties for [SNC], all without reimbursement from [SNC] in violation of California Labor Code Section 2802.” Id. at 22;  “[SNC] violated the rights of the CALIFORNIA LABOR SUB-CLASS under California law by: … (d) Violating Cal. Lab. Code § 2802, by failing to reimburse the PLAINTIFF and the CALIFORNIA LABOR SUBCLASS [sic] members for required expenses incurred in the discharge of their job duties …” Id. at ¶ 38;  “[SNC] … failed to provide reimbursement of business related expenses, … and failed to reimburse these employees for the employer’s share of payroll taxes and mandatory insurance ….” Id. at 57.  “[SNC] violated Cal. Lab. Code § 2802, by failing to indemnify and reimburse the PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members for required expenses incurred in the discharge of their job duties for [SNC’s] benefit.” Id. at 82.  “[SNC’s] uniform policy, practice and procedure was to not reimburse the PLAINTIFF and the CALIFORNIA LABOR SUB-CLASS members for vehicle expenses within the course and scope of their employment.” Id.  “These expenses were necessary to complete their principal job duties. [SNC] is estopped by [SNC’s] conduct to assert any waiver of this expectation. Although these expenses were necessary expenses incurred by the PLAINTIFF and the [PCMs], [SNC] failed to indemnify and reimburse the PLAINTIFF and the [PCMs] for these expenses….” Id. Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 32 of 42 Page ID #:159 84876215.5 16 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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) (Morrow, J.), 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 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 33 of 42 Page ID #:160 84876215.5 17 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 sufficient facts from which the court can reasonably infer that a violation of Section 2802 occurred. Most importantly, the Complaint is devoid of any factual allegation that any of the PCMs ever sought and were refused reimbursement for the alleged business expenses. Therefore, Plaintiff’s Complaint fails to state a plausible claim for relief under Section 2802. F. PLAINTIFF’S PURPORTED SIXTH CAUSE OF ACTION FOR UNLAWFUL WAGE DEDUCTIONS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED 1. Plaintiff Fails To Allege A Viable Claim For Relief There is no private right of action to seek damages for violations of Cal. Lab. Code § 221 (“Section 221”). “Adoption of a regulatory statute does not automatically create a private right of action to sue for damages resulting from violations of the statute. Such a private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right to sue for damages.” Jeske v. Maxim Healthcare Servs., Inc., 2012 WL 78242, *4 (E.D. Cal. Jan. 10, 2012) (quoting Viko Ins. Servs., Inc. v. Ohio Indem. Co., 70 Cal.App.4th 55, 62-63 (1999)). A private right of action therefore only exists “if the statute, in ‘clear and understandable, unmistakable terms,’ indicates an intent to create such a right.” Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114, 1135 n.23 (N.D. Cal. 2011) (quoting Viko Ins. Servs., 70 Cal.App.4th at 62-63)). The explicit remedy for a violation of Section 221 is found in Cal. Lab. Code §§ 225 and 225.5. But Cal. Lab. Code §§ 225 and 225.5 provide for only criminal and agency enforcement of Section 221. Neither statute creates a private right of action for violations of Section 221. Mouchati v. Bonnie Plants, Inc., 2014 WL 1661245, *8 (C.D. Cal. Mar. 6, 2014). Therefore, Plaintiff’s claim for Section 221 violations must be dismissed. Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 34 of 42 Page ID #:161 84876215.5 18 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 2. The Claim Fails To Satisfy The Rule 8 Requirements Plaintiff’s Section 221 claim also fails for the separate and independent reason that his Complaint fails to comply with the Rule 8 pleading standards because it makes nothing more than conclusory allegations that SNC “made unlawful deductions from compensation payable to PLAINTIFF and CALIFORNIA LABOR SUB-CLASS Members, failed to disclose all aspects of the deductions from compensation payable to PLAINTIFF and CALIFORNIA LABOR SUB- CLASS Members, and thereby failed to pay these employees all wages due at each applicable pay period or upon termination.” See Appx., Exh. A (Complaint) at ¶ 92. Indeed, at most, Plaintiff alleges that PCMs “had deductions from their wages for various purposes, including but not limited to, for goods, materials, services, government licenses, repairs, equipment maintenance, and/or fines ….” However, such conclusory allegations are insufficient under the Rule 8 pleading standards. See, e.g., Lopez, 2011 WL 6967932 at *12-13 (granting motion to dismiss unlawful deduction claim based on allegation that the defendant “knowingly and willfully … charged … employees for uniforms and equipment[] required in the discharge of their duties.”). Indeed, the Complaint fails to allege any facts from which SNC could even ascertain the extent of the deductions that Plaintiff claims were unlawfully made. Therefore, Plaintiff’s Sixth Cause of Action fails as a matter of law and should be dismissed. G. PLAINTIFFS’ PURPORTED FIRST CAUSE OF ACTION FOR UCL VIOLATIONS FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED Plaintiff alleges that SNC violated the UCL by, inter alia:  “fail[ing] to provide reimbursement of business related expenses.” Id. (emph. added); See Appx., Exh. A (Complaint) at ¶¶ 15, 57 (emph. added);  “fail[ng] to pay [Plaintiff and PCMs] minimum wages for all time worked….” Id. at ¶ 15 (emph. added); and  “fail[ing] to provide [Plaintiff and PCMs] with meal and rest breaks….” Id. at ¶¶ 15, 57 (emph. added); Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 35 of 42 Page ID #:162 84876215.5 19 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 SNC’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.13 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:  “[SNC] … failed to properly classify PLAINTIFF and the other [PCMs] as employees and thereby … failed to provide them with meal and rest breaks” See Appx., Exh. A (Complaint) at ¶ 15;  “[SNC] failed to provide all the legally required unpaid, off-duty meal periods and all the legally required paid, off-duty rest periods to PLAINTIFF and the [PCMs]….” Id. at ¶ 16;  “[SNC] 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 (rest periods must be separately compensated in a piece-rate system) to PLAINTIFF and the other [PCMs].” Id.;  “PLAINTIFF and the other [PCMs] therefore forefeited meal and rest 13 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). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 36 of 42 Page ID #:163 84876215.5 20 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 breaks without additional compensation and in accordance with [SNC’s] strict corporate policy and practice.” Id. at ¶¶ 16, 22;  SNC “fail[ed] to provide the PLAINTIFF and the other [PCMs] with all legally required meal and rest breaks” Id. at ¶ 27(d); and  “[SNC’s] uniform policies, practices and procedures failed to provide all legally required meal breaks to the PLAINTIFF and other [PCMs] as required by Cal. Lab. Code §§ 226.7 and 512.” Id. at 54. 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, 53 Cal.4th at 1040. But, employers have no obligation to police these meal and rest breaks to ensure no work is being done by a relieved employee. Id. Just last month, in Driscoll v. Graniterock Company, ___ Cal.App.4th ___, 2016 WL 6994923 (Nov. 30, 2016), the California Court of Appeal distinguished the circumstance where an employee is forced to skip a break from that in which an employee does not take a legally-compliant off-duty break simply because he or she does not want one, and reinforced the longstanding principle that an employer is not obligated to affirmatively schedule or ensure the taking of legally-compliant meal breaks. Id. at *2, *5-6. Rather, the court held that employers comply with their obligation to provide meal breaks simply by making them available to employees when requested. Id. at *6. The Court of Appeal acknowledged that such a practice is particularly appropriate in industries where it is nearly impossible to schedule off- duty meal breaks in advance. Consequently, the Court of Appeal held that Graniterock satisfied its obligation to provide meal breaks by providing drivers the opportunity to take such breaks when they want them. Id. Plaintiff’s allegations fail to satisfy the Rule 8 pleading standards because they are “conclusory and do not indicate how [SNC] prevented the [PCMs from taking legally-compliant] meal and rest breaks.” See Lefevere v. Pacific Bell Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 37 of 42 Page ID #:164 84876215.5 21 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Directory, 2014 WL 5810530, *1, 3 (N.D. Cal. Nov. 17, 2014). Without any such factual allegations, there is no basis from which the Court can reasonably infer that any meal or rest break violations have occurred.14 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 SNC, and not just the result of the PCMs’ own choice to skip meal and rest breaks, complete their shifts sooner and go home earlier. To that point, Plaintiff fails to allege any specific facts regarding the circumstances that led to his own purported 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. In fact, Plaintiff does not even allege that he ever putatively worked sufficient hours in a day such that he would even be entitled to a meal or rest break in the first instance. 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 SNC has harmed him but he has failed to do so. See Twombly, 550 U.S. at 556, n.3.15 The 14 See, e.g., See Sanchez v. Ritz Carlton, 2015 WL 5009659, *2 (C.D. Cal. Aug. 17, 2015) (Gutierrez, J.) (dismissing meal break claims for failure to comply with Rule 8 that were based on allegations that Defendants’ policies forced class members to forego their meal breaks when they worked alone because they were required to be on duty at all times); Freeman v. Zillow, Inc., 2015 WL 5179511, *5 (C.D. Cal. Mar. 19, 2015) (Staton, J.) (holding that allegations that the defendant “implemented an automated method of ‘recording’ its employees work hours … regardless of [whether] employees … missed meal and rest breaks,” “‘demanded’ that employees work through their ‘meal and rest breaks while denying them compensation by automatically detracting this time from their previously auto- populated timesheets” and “had a consistent policy or practice” of “failing to provide employees with duty-free meal periods” were conclusory and failed to “raise the possibility of violations”); Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128, *2 (C.D. Cal. Mar. 25, 2015) (Staton, J.) (allegations that, inter alia, class members “consistently worked over five (5) hours per work period” and “were not provided required meal periods” were too conclusory to state a claim for relief). 15 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 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 38 of 42 Page ID #:165 84876215.5 22 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Complaint also is devoid of any factual allegations showing Plaintiff has actual knowledge (rather than speculation) of any class-wide policies or practices. At most, Plaintiff alleges that the failure to take meal and rest breaks resulted from SNC’s alleged misclassification of Plaintiff and PCMs as independent contractors. But “without facts supporting a reasonable inference that [Plaintiff] and others similarly situated actually … were denied breaks, [SNC’s] classification scheme is irrelevant.” Schneider, 2011 WL 4344232 at *3. Therefore, Plaintiff’s Complaint fails to state a plausible claim for meal and rest break violations, and his wholly-derivative UCL claim likewise fails. 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.”16 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 history”). 16 Woo v. Home Loan Group, L.P., 2007 WL 6624925, *3 (S.D. Cal. July 27, 2007) (emph. added). See also Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1144-45 (2003) (holding that “damages cannot be recovered” under the UCL) (emph. added). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 39 of 42 Page ID #:166 84876215.5 23 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 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 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. H. PLAINTIFF’S ALLEGATION IN PARAGRAPH 47 OF THE COMPLAINT REGARDING SNC’S ALLEGED VIOLATION OF CAL. LAB. CODE § 204 SHOULD BE STRICKEN In connection with his UCL claim, Plaintiff alleges that SNC 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); Appx., Exh. A (Complaint) at ¶ 47. However, Plaintiff alleges no facts whatsoever which would plausibly suggest that SNC failed to comply with Section 204’s pay timing requirements. Indeed, there are no allegations in the Complaint that plausibly suggest that SNC 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 Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 40 of 42 Page ID #:167 84876215.5 24 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 create any substantive right to wages.17 Therefore, Plaintiff has failed to allege sufficient facts to plausibly suggest that SNC 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.18 However, civil penalties are not subject to restitutionary relief under the UCL.19 Therefore, Plaintiff’s allegation regarding SNC’s purported violation of Section 204 should be stricken. I. PLAINTIFF’S ALLEGATION IN PARAGRAPH 47 OF THE COMPLAINT REGARDING SNC’S ALLEGED VIOLATION OF CAL. LAB. CODE § 226.8 SHOULD BE STRICKEN Plaintiff also alleges in connection with his UCL claim that SNC violated Cal. Lab. Code § 226.8 (“Section 226.8”), which imposes civil penalties for an employer’s willful misclassification of an individual as an independent contractor. See Cal. Lab. Code § 226.8; Appx., Exh. A (Complaint), ¶ 47. However, Plaintiff’s UCL claim predicated on alleged Section 226.8 violations fails on two grounds. 17 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) (Otero, J.) (holding that Section 204 “deals solely with the timing 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.”). 18 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]….’”); Singer, 2008 WL 2899825 at *3. 19 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). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 41 of 42 Page ID #:168 84876215.5 25 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 First, there is no private right of action to pursue claims for violations of Section 226.8. Noe v. Sup. Ct., 237 Cal.App.4th 316, 337-41 (2015); Rosset v. Hunter Eng’g Co., 2014 WL 3569332, *8 (N.D. Cal. July 17, 2014). Second, the only remedy for Section 226.8 violations are civil penalties, which are not recoverable as restitution under the UCL, as discussed supra. Therefore, Plaintiff’s allegations regarding SNC’s purported violations of Section 226.8 should be stricken. J. PLAINTIFF’S CLAIMS FOR INJUNCTIVE RELIEF SHOULD BE DISMISSED To assert a valid claim for prospective injunctive relief, any threatened future injury must be real and immediate. See Clark v. Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001). Because Plaintiff is no longer putatively employed by or providing services to SNC, he cannot establish that he will suffer any threat of real and immediate future harm as a result of the conduct alleged in the Complaint.20 Therefore, he lacks standing to pursue his claims for injunctive relief, and they should be dismissed or stricken. IV. CONCLUSION For all of the foregoing reasons, SNC respectfully requests that the Court grant this Motion and dismiss or strike Plaintiff’s claims as set forth herein. DATED: December 22, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Attorneys for Defendant SCHNEIDER NATIONAL CARRIERS, INC. 20 See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2560 (2011) (“[P]laintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices.”); 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”); Richards v. Ernst & Young LLP, 2010 WL 682314, *3 (N.D. Cal. Feb. 24, 2010) (“[A] former employee lacks standing to seek prospective injunctive relief on behalf of a putative class containing both former and current employees.”); DeLodder v. Aerotek, Inc., 2009 WL 3770670, *3 (C.D. Cal. Nov. 9, 2009) (Snyder, J.) (“[P]laintiffs lack standing to seek prospective relief under the UCL because plaintiffs do not dispute that they are no longer employees of defendant.”). Case 5:16-cv-02482-JGB-KK Document 12 Filed 12/22/16 Page 42 of 42 Page ID #:169 85460292.1 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S APPENDIX OF EXHIBITS 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, Esq. (SBN 171829) Email: mkane@mcguirewoods.com Sabrina A. Beldner, Esq. (SBN 221918) Email: sbeldner@mcguirewoods.com Karen W. Luh, Esq. (SBN 243256) Email: kluh@mcguirewoods.com 1800 Century Park East, 8th Floor Los Angeles, CA 90067 Tel: (310) 315-8200 Fax: (310) 315-8210 Attorneys for Defendant SCHNEIDER NATIONAL CARRIERS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WILLIAM ROBLES, on behalf of himself, on behalf of all persons similarly situated, Plaintiff, vs. SCHNEIDER NATIONAL CARRIERS, INC., a Corporation; DOES 1 through 50, inclusive, Defendant. CASE NO. 5:16-cv-02482-JGB-KK DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S APPENDIX OF EXHIBITS IN SUPPORT OF MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) Date: February 13, 2017 Time: 9:00 a.m. Crtrm.: 1 Judge: Hon. Jesus G. Bernal Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 1 of 116 Page ID #:170 85460292.1 1 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S APPENDIX OF EXHIBITS 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 THE HONORABLE JESUS G. BERNAL AND TO PLAINTIFF WILLIAM ROBLES AND HIS COUNSEL OF RECORD: Defendant Schneider National Carriers, Inc. (“SNC” or “Defendant”) hereby submits this Appendix Of Exhibits In Support of Motion to Dismiss and/or Strike Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(f): Exhibit Document A Plaintiff’s Complaint captioned as William Robles, on behalf of himself, on behalf of all persons similarly situated v. Schneider National Carriers, Inc., a Corporation; and DOES 1 through 50, inclusive, which was filed in the Superior Court of California, County of Riverside, on September 22, 2016, in Case No. RIC 1612222 therein, and removed to this Court on December 1, 2016, commencing this case. See Dkt. #1, Exh. A thereto. B 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. C The California Department of Industrial Relations, Enrolled Bill Rep. on A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. D The Assembly Committee on Labor Relations, Analysis of A.B. No. 3731 (1976) from the legislative history on Cal. Lab. Code § 226. E The California Department of Industrial Relations Division of Labor Standards Enforcement (“DLSE”) Opinion Letter Re: Electronic Itemized Wage Statements (July 6, 2006). Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 2 of 116 Page ID #:171 85460292.1 2 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S APPENDIX OF EXHIBITS 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 Excerpts of the transcript of the Industrial Welfare Commission (“IWC”) Public Hearing of June 30, 2000, available at the URL http://www.dir.ca.gov/IWC/PUBHRG6302000.pdf. G 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). DATED: December 22, 2016 MCGUIREWOODS LLP By: /s/ Matthew C. Kane Matthew C. Kane, Esq. Attorneys for Defendant SCHNEIDER NATIONAL CARRIERS, INC. Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 3 of 116 Page ID #:172 EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 4 of 116 Page ID #:173 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 5 of 116 Page ID #:174 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 6 of 116 Page ID #:175 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 7 of 116 Page ID #:176 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 8 of 116 Page ID #:177 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 9 of 116 Page ID #:178 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 10 of 116 Page ID #:179 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 11 of 116 Page ID #:180 Exh. 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A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 39 of 116 Page ID #:208 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 40 of 116 Page ID #:209 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 41 of 116 Page ID #:210 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 42 of 116 Page ID #:211 Exh. A EXHIBIT A Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 43 of 116 Page ID #:212 EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 44 of 116 Page ID #:213 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 45 of 116 Page ID #:214 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 46 of 116 Page ID #:215 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 47 of 116 Page ID #:216 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 48 of 116 Page ID #:217 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 49 of 116 Page ID #:218 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 50 of 116 Page ID #:219 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 51 of 116 Page ID #:220 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 52 of 116 Page ID #:221 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 53 of 116 Page ID #:222 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 54 of 116 Page ID #:223 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 55 of 116 Page ID #:224 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 56 of 116 Page ID #:225 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 57 of 116 Page ID #:226 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 58 of 116 Page ID #:227 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 59 of 116 Page ID #:228 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 60 of 116 Page ID #:229 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 61 of 116 Page ID #:230 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 62 of 116 Page ID #:231 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 63 of 116 Page ID #:232 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 64 of 116 Page ID #:233 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 65 of 116 Page ID #:234 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 66 of 116 Page ID #:235 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 67 of 116 Page ID #:236 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 68 of 116 Page ID #:237 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 69 of 116 Page ID #:238 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 70 of 116 Page ID #:239 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 71 of 116 Page ID #:240 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 72 of 116 Page ID #:241 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 73 of 116 Page ID #:242 Exh. B EXHIBIT B Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 74 of 116 Page ID #:243 EXHIBIT C Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 75 of 116 Page ID #:244 Exh. C EXHIBIT C Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 76 of 116 Page ID #:245 EXHIBIT D Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 77 of 116 Page ID #:246 Exh. D EXHIBIT D Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 78 of 116 Page ID #:247 Exh. D EXHIBIT D Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 79 of 116 Page ID #:248 EXHIBIT E Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 80 of 116 Page ID #:249 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 81 of 116 Page ID #:250 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 82 of 116 Page ID #:251 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 83 of 116 Page ID #:252 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 84 of 116 Page ID #:253 EXHIBIT F Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 85 of 116 Page ID #:254 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 86 of 116 Page ID #:255 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 87 of 116 Page ID #:256 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 88 of 116 Page ID #:257 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 89 of 116 Page ID #:258 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 90 of 116 Page ID #:259 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 91 of 116 Page ID #:260 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 92 of 116 Page ID #:261 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 93 of 116 Page ID #:262 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 94 of 116 Page ID #:263 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 95 of 116 Page ID #:264 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 96 of 116 Page ID #:265 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 97 of 116 Page ID #:266 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 98 of 116 Page ID #:267 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 99 of 116 Page ID #:268 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 100 of 116 Page ID #:269 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 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 101 of 116 Page ID #:270 EXHIBIT G Case 5:16-cv-02482-JGB-KK Document 12-1 Filed 12/22/16 Page 102 of 116 Page ID #:271 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 103 of 116 Page ID #:272 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 104 of 116 Page ID #:273 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 105 of 116 Page ID #:274 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 106 of 116 Page ID #:275 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 107 of 116 Page ID #:276 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 108 of 116 Page ID #:277 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 109 of 116 Page ID #:278 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 110 of 116 Page ID #:279 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 5: 6- - 2482-JGB KK 12-1 Filed 12/22/16 Page 11 of 116 Page ID #:280 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 5:16-cv- 2482-JGB-KK Document 12-1 Filed 2/22/16 Page 112 of 116 Page ID #:281 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 5:16-cv- 2482-JGB-KK Document 12-1 Filed 2/22/16 Page 113 of 116 Page ID #:282 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 5:16-cv- 2482-JGB-KK Document 12-1 Filed 2/22/16 Page 114 of 116 Page ID #:283 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 5:16-cv- 2482-JGB-KK Document 12-1 Filed 2/22/16 Page 115 of 116 Page ID #:284 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 5:16-cv- 2482-JGB-KK Document 12-1 Filed 2/22/16 Page 116 of 116 Page ID #:285 84876215.2 DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WILLIAM ROBLES, on behalf of himself, on behalf of all persons similarly situated, Plaintiff, vs. SCHNEIDER NATIONAL CARRIERS, INC., a Corporation; DOES 1 through 50, inclusive, Defendant. CASE NO. 5:16-cv-02482-JGB-KK [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S MOTION TO DISMISS AND/OR STRIKE COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND/OR 12(f) Date: February 13, 2017 Time: 9:00 a.m. Crtrm.: 1 Judge: Hon. Jesus G. Bernal Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 1 of 9 Page ID #:286 84876215.2 1 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 [PROPOSED] ORDER The motion of Defendant Schneider National Carriers, Inc. (“Defendant”) to dismiss and/or strike Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and/or 12(f) (the “Motion”) came on regularly for hearing before this Court on February 13, 2017. The appearances of counsel for the parties were made and noted on the record. After full consideration of the written evidence and arguments submitted by the parties, the Court’s records and files in this action, and the oral arguments of the parties’ counsel, IT IS HEREBY ORDERED AS FOLLOWS: 1. The Motion shall be and hereby is GRANTED. [and] 2. Plaintiff’s First Cause of Action for violation of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., shall be and hereby is dismissed because: a. It is derivative of the factually and legally insufficient allegations of Plaintiff’s Second through Sixth Causes of Action that do not satisfy the pleading requirements of Fed. R. Civ. P. 8 (“Rule 8”). Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”); Farm Credit Svcs. v. Am. State Bank, 339 F.3d 764, 767 (8th Cir. 2003); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“Iqbal”); Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134, 1143 (2003); Madlaing v. JPMorgan Chase Bank, Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 2 of 9 Page ID #:287 84876215.2 2 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 N.A., 2013 WL 2403379, *25 (E.D. Cal. May 31, 2013); Pellerin v. Honeywell Int’l, Inc., 877 F.Supp.2d 983, 992 (S.D. Cal. 2012); Driscoll v. Graniterock Company, ___ Cal.App.4th ___, 2016 WL 6994923 (Nov. 30, 2016); Lefevere v. Pacific Bell Directory, 2014 WL 5810530, *1, 3 (N.D. Cal. Nov. 17, 2014); See Sanchez v. Ritz Carlton, 2015 WL 5009659, *2 (C.D. Cal. Aug. 17, 2015); Freeman v. Zillow, Inc., 2015 WL 5179511, *5 (C.D. Cal. Mar. 19, 2015); Sinohui v. CEC Entm’t, Inc., 2015 WL 11072128, *2 (C.D. Cal. Mar. 25, 2015); Deleon v. Time Warner Cable LLC, 2009 U.S. Dist. LEXIS 74345, *7-8 (C.D. Cal. July 17, 2009); Schneider v. Space Systems/Loral, Inc., 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011) ; 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. Clark v. Sup. Ct., 50 Cal.4th 605, 610 (2010); Woo v. Home Loan Group, L.P., 2007 WL 6624925, *3 (S.D. Cal. July 27, 2007); Korea Supply Co., 29 Cal.4th 1134 at 1144-45 (2003); Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244, 1255 (2012); Parson v. Golden State FC, LLC, 2016 WL 1734010, *6- 7 (N.D. Cal. May 2, 2016). [and/or] 3. Plaintiff’s Second Cause of Action for failure to pay minimum wages shall be and hereby is dismissed because it fails as a matter of law in that, instead of pleading facts, the Complaint proffers nothing more than conclusory allegations that SNC violated the law, which fail to Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 3 of 9 Page ID #:288 84876215.2 3 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 satisfy the pleading requirements of Rule 8. Twombly, 550 U.S. at 544, 555; Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014); Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296, *5 (E.D. Cal. Nov. 2, 2016); Perez v. Wells Fargo and Co., 2014 WL 6997618, *7 (N.D. Cal. Dec. 11, 2014); Makaneole v. Solarworld Indus. Am., Inc., 2014 WL 8102530, *11 (Dec. 8, 2014); Tan v. GrubHub, Inc., 171 F.Supp.3d 998, 1008 (N.D. Cal. Mar. 22, 2016); Iqbal, 556 U.S. at 679. [and/or] 4. Plaintiff’s Third Cause of Action for failure to provide accurate itemized wage statements in violation of Cal. Lab. Code § 226 (“Section 226”) shall be and hereby is dismissed because: a. The claim fails to comply with the pleading requirements of Rule 8. Twombly, 550 U.S. at 544, 555; Byrd v. Masonite Corp., 2016 WL 756523, *3 (C.D. Cal. Feb. 25, 2016); Guerrero, 2016 WL 6494296 at *7; Ramirez v. Manpower, Inc., 2014 WL 116531, *5 (N.D. Cal. Jan. 13, 2014); Brown v. Wal-Mart Stores, Inc., 2013 WL 1701581, *8 (N.D. Cal. Apr. 18, 2013); and/or b. The Complaint is devoid of any factual allegation whatsoever that Plaintiff in fact suffered any cognizable injury. Milligan v. Am. Airlines, Inc., 577 F. App’x 718, 719 (9th Cir. 2014); Angeles v. U.S. Airways, Inc., 2013 WL 622032, *10 (N.D. Cal. Feb. 19, 2013); and/or Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 4 of 9 Page ID #:289 84876215.2 4 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 c. Plaintiff fails to allege that his wage statements were inaccurate as to the payment of wages actually paid to him. Cal. Labor Code § 226(e)(2)(B)(i)-(ii); De La Torre v. Am. Red Cross, 2013 WL 5573101, *6 (C.D. Cal. Oct. 9, 2013); and/or d. Meal and rest break payments pursuant to Section 226.7 are not “wages” that are subject to reporting under Section 226. Cal. Labor Code § 226(a); Jones v. Spherion Staffing LLC, 2012 WL 3264081 at *8-9 (C.D. Cal. Aug. 7, 2012); Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, *8 (C.D. Cal. Nov. 28, 2011); Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1113 (2007); Kirby, 53 Cal.4th at 1244. [and/or] 5. Plaintiff’s Fourth Cause of Action for failure to timely pay final wages at separation pursuant to Cal. Lab. Code § 203 (“Section 203”) shall be and hereby is dismissed because: a. The claim fails to comply with the pleading requirements of Rule 8. Cal. Labor Code § 203; Twombly, 550 U.S. at 544, 555; Iqbal, 556 U.S. at 679; Guerrero, 2016 WL 6494296 at *8; Anderson v. Blockbuster Inc., 2010 WL 1797249, *2-4 (E.D. Cal. May 4, 2010); Lopez v. Aerotek, Inc., 2015 WL 4504691, *2 (C.D. Cal. July 23, 2015); and/or b. The claim fails to set forth sufficient facts regarding a willful failure to pay wages due. Brown, 2013 WL 1701581 at *8; Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 5 of 9 Page ID #:290 84876215.2 5 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Sanchez v. Aerogroup Retail Holdings, Inc., 2013 WL 1942166, *14 (N.D. Cal. May 8, 2013); Driscoll Stmt. of Dec. at p. 23 (Sept. 20, 2011); and/or c. Payments for missed or non-compliant meal and rest breaks do not constitute “wages earned” for purposes of triggering the final pay requirements of Cal. Lab. Code § 201. Kirby, 53 Cal.4th at 1255; Singletary v. Teavana Corporation, 2014 WL 1760884, *4 (N.D. Cal. Apr. 2, 2014); Jones v. Spherion Staffing LLC, 2012 WL 3264081 at *8-9 (C.D. Cal. Aug. 7, 2012); Guerrero, 2016 WL 6494296 at *8. [and/or] 6. Plaintiff’s Fifth Cause of Action for failure to reimburse business- related expenses in violation of Cal. Lab. Code § 2802 shall be and hereby is dismissed in that it fails as a matter of law because it fails to comply with the Rule 8 pleading requirements. Lopez v. Wendy’s International, Inc., 2011 WL 6967932, *12 (C.D. Cal. Sept. 19, 2011); Nelson v. Dollar Tree Stores, Inc., 2011 WL 3568498, *1 (E.D. Cal. Aug. 15, 2011). [and/or] 7. Plaintiff’s Sixth Cause of Action for unlawful wage deductions pursuant to Cal. Lab. Code § 221 (“Section 221”) shall be and hereby is dismissed in that it fails as a matter of law because: Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 6 of 9 Page ID #:291 84876215.2 6 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 a. There is no private right to action to sue for violations of Section 221. Jeske v. Maxim Healthcare Servs., Inc., 2012 WL 78242, *4 (E.D. Cal. Jan. 10, 2012); Viko Ins. Servs., Inc. v. Ohio Indem. Co., 70 Cal.App.4th 55, 62-63 (1999); Johnson v. Hewlett- Packard Co., 809 F.Supp.2d 1114, 1135 n.23 (N.D. Cal. 2011); Mouchati v. Bonnie Plants, Inc., 2014 WL 1661245, *8 (C.D. Cal. Mar. 6, 2014); and/or b. The claim fails to comply with the pleading requirements of Rule 8. Lopez, 2011 WL 6967932 at *12-13. [and/or] 8. Plaintiff’s allegation regarding SNC’s alleged violation of Cal. Lab. Code § 204 (“Section 204”) in connection with Plaintiff’s UCLA claim shall be and hereby is stricken from Paragraph 47 of the Complaint because: a. Plaintiff alleges no facts which would suggest that SNC failed to comply with the pay timing requirements of Section 204. Cal. Lab. Code § 204(a); Singer v. Becton, Dickinson & Co., Med- Safe Sys., 2008 WL 2899825, *3 (S.D. Cal. July 23, 2008); Hadjavi v. CVS Pharm., Inc., 2010 WL 7695383, *2 (C.D. Cal. Sept. 22, 2010); Johnson v. Hewlett-Packard Co., 809 F.Supp.2d 1114, 1136 (N.D. Cal. 2011); See’s Candy Shops, Inc. v. Sup. Ct., 210 Cal.App.4th 889, 905 (2012); In re Application of Moffett, 19 Cal.App.2d 7, 13 (1937); and/or Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 7 of 9 Page ID #:292 84876215.2 7 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 b. Section 204 penalties are not recoverable as restitution under the UCL. Slay v. CVS Caremark Corp., 2015 WL 2081642, *8 (E.D. Cal. May 4, 2015); Tomlinson v. Indymac Bank, F.S.B., 359 F.Supp.2d 891, 894 (C.D. Cal. 2005); Pineda v. Bank of Am., N.A., 50 Cal.4th 1389, 1401 (2010); Cal. Labor Code § 210. [and/or] 9. Plaintiff’s allegation regarding SNC’s alleged violation of Cal. Lab. Code § 226.8 (“Section 226.8) in connection with Plaintiff’s UCL claim shall be and hereby is stricken from Paragraph 47 of the Complaint because: a. There is no private right of action to sue for violation of Section 226.8. Cal. Lab. Code § 226.8; Noe v. Sup. Ct., 237 Cal.App.4th 316, 337-41 (2015); Rosset v. Hunter Eng’g Co., 2014 WL 3569332, *8 (N.D. Cal. July 17, 2014); and/or b. Section 226.8 penalties are not recoverable as restitution under the UCL. Tomlinson, F.Supp.2d 891 at 894 (C.D. Cal. 2005); Pineda, 50 Cal.4th 1389 at 1401 (2010). [and/or] 10. Plaintiff’s request for injunctive relief shall be and hereby is dismissed and/or stricken because he lacks standing to seek such relief as a former employee. Clark v. Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001); Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2560 (2011); Ellis v. Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 8 of 9 Page ID #:293 84876215.2 8 [PROPOSED] ORDER GRANTING DEFENDANT SCHNEIDER NATIONAL CARRIERS, INC.’S 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 Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011); Richards v. Ernst & Young LLP, 2010 WL 682314, *3 (N.D. Cal. Feb. 24, 2010); DeLodder v. Aerotek, Inc., 2009 WL 3770670, *3 (C.D. Cal. Nov. 9, 2009). IT IS SO ORDERED. DATED: _______________, 2017 ____________________________________ HON. JESUS G. BERNAL UNITED STATES DISTRICT COURT Case 5:16-cv-02482-JGB-KK Document 12-2 Filed 12/22/16 Page 9 of 9 Page ID #:294