Wecan easily dispose of these contentions. We have already explained that “quits” in sections 202 and 203 includes all employees who quit, whetherto retire or for a different reason, and these employees constitute a single group underthe statutory scheme. Wehave also explained that McLean’s employeris the State of California.

Petitioner has not cited to any legislative history, or any source of any kind, to even remotely suggest that the Legislature singled outretirees with the intent of excluding them from the protection given to all other employees by prompt pay law. Instead, all employees who quit their employment, for whatever reason, were included within the protection of section 203’s waiting time penalties. Because no split in authority exists -14- and no important and unsettled issue of law arises from Petitioner’s misreading of prompt pay law, the petition seeking review of this issue should be denied.

Plaintiff’s Section 203 claim also fails to the extent it relies on a failure to make Section 226.7 meal and rest break payments at termination because Section 226.7 payments do not constitute “wages earned” under Cal. Labor Code § 201 (“Section 201”) for purposes of incurring waiting time penalties under Section 203. 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 they are actually liquidated damages intended to “compensate[] the employee for events other than time spent working.” Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1113 (2007) (emph. added). Accord Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, *8 (C.D. Cal. Nov. 28, 2011) (Carney, J.) (emph. added).

Accordingly, Plaintiff’s claim for waiting time penalties fails to satisfy the pleading requirements of Rule 8 and should be dismissed on this basis. 2. Because Section 226.7 Payments Are Not “Wages Earned,” The Non-Payment Thereof At Termination Does Not Trigger Liability For Waiting Time Penalties Plaintiff’s claim also fails in part because Section 226.7 meal and rest break payments do not constitute “wages earned” under Cal. Labor Code § 201 (“Section 201”) for purposes of incurring waiting time penalties under Section 203.8 Section 201 provides, in pertinent part, that “[i]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Section 226.7 payments for missed or non-compliant meal and rest breaks are not “wages earned” for purposes of triggering Section 203 liability because, as discussed in Section III.C.4., above, they are actually liquidated damages intended to “compensate[] the employee for events other than time spent working.” Murphy, 40 Cal.4th at 1113 (emph. added).

See Pineda v. Bank of America, 50 Cal.4th 1389, 1401–1402 (2010) (Labor Code penalties not recoverable under the UCL); Baas v. Dollar Tree Stores, Inc., No. C 07–03108 JSW, 2007 WL 2462150 *5 (N.D. Cal. Aug. 27, 2007) (“Defendant moves to strike Plaintiff’s reference to California Labor Code §§ 203 and 226.6 from their Section 17200 claim on the grounds that Plaintiffs are limited to seeking injunctive relief and restitution under this claim. California Labor Code sections 203 and 226.6 provide for statutory penalties, not injunctive relief or restitution, and thus, are not recoverable pursuant to Section 17200. . . . the Court grants Defendant’s motion to strike the references to Sections 203 and 226.6 from Plaintiff’s Section 17200 claim.”)

, “Kirby forecloses the possibility of an action under [S]ections 201 and 203 for the nonpayment of wages” and “makes clear that an employer who owes an employee a premium wage under [Section] 226.7 is not also liable for a violation of § 203.” See Rodriguez v. Old Dominion Freight Line, Inc., C.D. Cal. Case No. 13-cv- 00891-DSF-RZx (June 18, 2013) (Fischer, J.) (“Rodriguez”) (Exh. G) at pp. 7-8 (dismissing Section 203 claim based on unpaid Section 226.7 payments because a plaintiff “cannot maintain a § 203 claim on the basis of unpaid co

Plaintiff’s choice of language here is particularly deficient because it does not even allege facts in support of the statutorily prescribed legal basis required to seek waiting time penalties pursuant to California law – in particular, there are no alleged facts regarding how Defendant failed to pay employees all wages due upon termination, or how such alleged failure was willful, as required in order to establish the elements of Plaintiff’s cause of action. (See Cal. Lab. Code § 203(a) (authorizing penalties only where an employer “willfully” fails to pay wages in accordance with the statute)). In addition, Plaintiff’s fifth claim for relief for waiting time penalties fails because it is a claim that is predicated upon the (nonexistent) allegations in support of his first four claims for failure to pay overtime and minimum wages and failure to provide meal and rest periods or compensation in lieu thereof.

Because alleged meal and rest period Case 3:16-cv-02189-AJB-JLB Document 54-1 Filed 04/13/17 PageID.1580 Page 8 of 30 - 9 - Firm:43284217v1 Memorandum in Support of Defendant NeoStrata Company, Inc.’s Motion to Dismiss or Strike Plaintiff’s FAC – Case No. 3:16-cv-02189-AJB-JLB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violations cannot support a section 203 claim or a UCL claim, references to such meal and rest period claims should be stricken therefrom. Fifth, Plaintiffs have also brought wage claims under the theory that NeoStrata “secretly” underpaid wages to them in violation of Labor Code sections 223 and 225.5.

As such, to state a claim for waiting time penalties under Section 203, Plaintiff must allege facts demonstrating that Defendants willfully failed to timely pay final wages. Here, Plaintiff’s claim alleges nothing more than a formulaic recitation of the statutory language, which is impermissible under Twombly and Iqbal:  “Defendants' failure to pay wages . . . was willful in that Defendants, and each of them, knew wages to be due but failed to pay them, thus entitling Plaintiff and Plaintiff Class to penalties under California Labor Code § 203 . . . .” Exh. A (Complaint), ¶ 57;  “Defendants have failed to pay Plaintiff and Plaintiff Class in a sum certain at the time of termination and have failed to pay these sums for

FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MEM. OF P’S. AND A’S. IN SUPP. 3 1194), Continuing Wages (Ca. Lab. Code § 203), Failure to Provide Accurate Itemized Wage Statements (Ca. Lab. Code § 226), Failure to Maintain Accurate Payroll Records (Ca. Lab. Code §1174), Failure to Provide Adequate Rest Periods (Ca. Lab. Code §§ 226.7, 512, and IWC Wage Order 5), Failure to Provide Adequate Meal Periods (Ca. Lab. Code §§ 226.7, 512 and IWC Wage Order 5), Improper Deductions from Wages (Ca. Lab. Code § 221), Conversion – Employer Taking Gratuities, Failure to Reimburse Business Expenses (Ca. Lab. Code § 2802), Failure to Pay Minimum Wage and Overtime Compensation (Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.), Restitution and Injunctive Relief (Ca. Bus. and Prof. Code §§ 17200 et seq.) and Civil Penalties (Ca. Lab. Code § 2968)