Perez v. Leprino Foods Company et al, No. 1:2017cv00686 - Document 24 (E.D. Cal. 2017)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS, signed by District Judge Anthony W. Ishii on 12/20/2017. (Kusamura, W)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN PEREZ and on behalf of all other similarly situated individuals, 12 13 CASE NO. 1:17-CV-00686-AWI-BAM ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiff, 14 LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, 15 16 17 Defendants. 18 I. Introduction 19 On April 13, 2017, Plaintiff John Perez (“Plaintiff”) filed the instant wage and hour class 20 21 action on behalf of himself and other similarly situated non-exempt, hourly unionized employees 22 at the cheese processing plant operated by Defendants Leprino Foods Company and Leprino 23 Foods Dairy Products Company (collectively “Leprino” or “Defendants”) in East Lemoore, 24 California (the “East Lemoore Plant”). Leprino removed the action to this Court on May 18, 25 2017. The action proceeds forward on Plaintiff’s First Amended Complaint (“FAC”), filed on 1 26 June 6, 2017, consisting of eight causes of action for violations of the labor code, an Unfair 27 28 1 The title page of Plaintiff’s complaint lists ten causes of action. Two are omitted from the body of the complaint. Further, Plaintiff pleads two causes of action identified as Plaintiff’s “seventh cause of action.” FAC at 19, 22. The Court refers to the second of those two causes of action as the “eighth cause of action.” 1 1 Business Practices Act claim, and a conversion claim. Doc. 10. Defendant filed an answer on 2 June 19, 2017. Doc. 16. 3 Leprino moves for judgment on the pleadings regarding Plaintiff’s first (failure to pay 4 minimum wages), second (failure to compensate for all hours worked), third (failure to pay 5 overtime wages), and eighth causes of action (conversion). Plaintiff opposes that motion. The 6 matter is fully briefed. 7 For the following reasons, the Leprino’s motion will be granted in part and denied in part. 8 II. Background 9 A. Allegations of the Complaint 10 Plaintiff and the putative class members are all “non-exempt, hourly employees, who 11 work pursuant to a Collective Bargaining Agreement (“CBA”) between Leprino and the 12 Teamsters Union.” FAC at ¶ 4. Plaintiff attached the CBA to the complaint. FAC at ¶ 4; Doc 13 10-1 (“CBA”). 14 The central factual allegation underlying Plaintiff’s action is that Leprino has a practice 15 of requiring Plaintiff and the putative class members to “work substantial amounts of time 16 without pay.” FAC at ¶ 3. Specifically, Leprino does not “pay Plaintiff and [the putative] [c]lass 17 [m]embers for all required pre- and post-shift work activies that are necessary and integral to 18 their overall employment responsibilities, such as: donning and doffing required sanitary gear [], 19 walking to production lines, waiting in line to sanitize, and waiting for [sanitary gear] and/or 20 supplies.” FAC at ¶ 5. Plaintiff details the ordinary pre-shift activities of putative class members: 21 When employees arrive at Lemoore East plant the must “first report to a ‘clean locker’ to be 22 issued clean work shirts and trousers for the day…. From their clean lockers, workers must next 23 walk over to their personnel lockers where they keep tools and required [person protective 24 equipment], such a work boots and helmets. At their personnel lockers[,] workers changed out of 25 their street clothes and into their sanitary work equipment. After putting on their required 26 equipment, workers then punch in for their required shift, roughly 5 minutes before paid work 27 time begins in order to allow them time to walk to their respective work areas.” FAC at ¶ 7. 28 Next, Plaintiff sets forth allegations regarding three of Leprino’s meal and rest break 2 1 policies. First, Plaintiff and putative class members were “required to remain on call during meal 2 and rest breaks and to respond to communications from supervisory personnel. Plaintiff and 3 [putative] [c]lass members are either required to carry a radio in order to communicate with 4 supervisory personnel concerning work issues during meal and rest breaks, and/or are required to 5 respond to calls over the intercom during meal and rest breaks, including returning to the 6 production floor prior to the conclusion of their meal and rest breaks.” FAC at ¶ 10. This policy 7 applied to all putative class members. FAC at ¶ 10. Plaintiff alleges a second meal break policy 8 that applied to “many, though not all” putative class members—employees were “provided with 9 … paid, on duty meal breaks and thus were kept on duty during their 30 minute meal breaks.” 10 FAC at ¶ 11. Finally, Plaintiff alleges a third meal break policy applicable to employees who 11 “worked … shifts in excess of ten hours.” Those employees “were not afforded a second off-duty 12 30-minute meal period…. [R]ather, they were [nominally] afforded a third rest break.” However, 13 during the third rest break, employees were required “to remain on duty and answer questions 14 from the production floor.” 15 B. The Collective Bargaining Agreement2 The CBA between Leprino and Teamsters Local #517 (“Teamsters”) is operative 16 17 between January 1, 2014 and December 31, 2018. The CBA is comprehensive; it covers topics 18 including hours of work, holidays, wage rates, meal periods, rest periods, sick leave, vacation, 19 and retirement, to name a few. See CBA at 2. 20 Leprino emphasizes the following sections of the CBA: 21 1. The lowest hourly wage rate for any employee provided for in the CBA is $12.99. CBA 22 at 13, 43. 2. “Employees who are required to change into and out of uniforms will … be paid a total 23 24 of 14 minutes of additional compensation for donning and doffing at the straight time 25 26 27 28 2 The CBA was attached as an exhibit to Plaintiff’s FAC. Plaintiff contends that the Court should not consider the CBA to be incorporated by reference because the Plaintiff does not “rel[y] upon the documents to form the basis for a claim or part of a claim.” Doc. 19 at 6 (quoting Pittsburgh League of Young Voters Educ. Fund v. Port. Auth., 2007 U.S. Dist. LEXIS 23626, *14-15 (W.D. Pa. Mar. 30, 2007). Plaintiff “attached [the CBA] for nothing more than to substantiate for the [C]ourt that Plaintiff and the putative class members worked pursuant to a union contract.” Doc. 19 at 6. 3 1 rate for each shift worked. This compensated time is not considered hours worked.” 2 CBA at 14. 3 3. “Time and one-half (1 ½) will be paid for all hours worked above eight (8) hours within 4 nine and one-half (9 ½) consecutive hours in any one (1) day, or forty (40) hours in any 5 one (1) week, whichever is greater….” CBA at 4. 6 III. Legal Standard 7 Federal Rule of Civil Procedure 12(c) permits a party to seek judgment on the pleadings 8 “[a]fter the pleadings are closed—but early enough not to delay trial.” “A motion for judgment 9 on the pleadings should be granted where it appears the moving party is entitled to judgment as a 10 matter of law.” Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir.2003). “Analysis under 11 Rule 12(c) is ‘substantially identical’ to analysis under Rule 12(b)(6) because, under both rules, a 12 court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff 13 to a legal remedy.” Pit River Tribe v. Bureau of Land Management, 793 F.3d 1147, 1155 (9th 14 Cir. 2015) (quoting Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir.2012)). Judgment on 15 the pleadings is appropriately granted in favor of a defendant when, even if all of the allegations 16 in the pleadings are true, the defendant is entitled to judgment as a matter of law. Westlands 17 Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). If there is a material dispute in 18 the parties’ pleadings, a motion for judgment on the pleadings cannot be granted. 19 Although Rule 12(c) does not mention leave to amend, courts have discretion to grant a 20 Rule 12(c) motion with leave to amend. Silas v. Argent Mortg. Co., LLC, 2017 WL 6055842, *4 21 (E.D. Cal. Dec. 7, 2017) (citing Carmen v. San Francisco Unified Sch. Dist., 982 F. Supp. 1396, 22 1401 (N.D. Cal. 1997)). Leave to amend should be granted unless amendment would be futile, 23 the party seeking amendment acted in bad faith or unduly delayed, or such amendment would 24 unfairly prejudice the opposing party. Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994). 25 IV. Discussion 26 A. Incorporation by Reference of the CBA 27 As a threshold matter, the parties dispute whether Plaintiff’s reference to the CBA in the 28 CBA in the First Amended Complaint and attachment of the CBA to the First Amended 4 1 Complaint are sufficient to incorporate the entirety of the CBA into the complaint such that the 2 Court can consider the CBA in resolving the present motion. Plaintiff argues that he “attached 3 the CBA to support the discreet allegation of fact that workers at [Leprino’s] Lemoore East plant 4 worked pursuant to a CBA….” Doc. 19 at 6. Otherwise, “[t]he CBA is neither referenced nor 5 relied upon.” In considering a motion for judgment on the pleadings a district court may “consider 6 7 materials that are submitted with and attached to the [c]omplaint.” United States v. Corinthian 8 Colleges, 655 F.3d 984, 998-999 (9th Cir. 2011); accord Outdoor Media Group, Inc. v. City of 9 Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 10 2007); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The CBA is a document that 11 was attached to the FAC. 12 Plaintiff relies on Saunders v. Knight, 2006 WL 224426, *4 (E.D. Cal. Jan. 25, 2006), for 13 the proposition that “documents … attached as exhibits to [a] complaint” which were not “relied 14 upon by plaintiff as a necessary part of her claim” did not bind the plaintiff to that position. Doc. 15 19 at 6. Plaintiff’s reliance on Saunders is inapposite. In Saunders, the plaintiff attached to her 16 complaint a transcribed statement by the defendant that the plaintiff alleged to be inaccurate. 17 Saunders, 2006 WL 224426 at *4. That court, very reasonably, rejected the defendant’s attempt 18 to treat the content of transcribed statement as an admission attributable to the plaintiff. 19 Saunders, 2006 WL 224426 at *4. Here, Plaintiff contends that he and the putative class 20 members worked pursuant to the CBA between Teamsters and Leprino. The parties are in 21 agreement that the attached CBA is authentic. The CBA is appropriately considered in resolving Leprino’s motion for judgment on the 22 23 pleadings.3 24 /// 25 /// 26 27 28 3 For the sake of clarity, the Court does not assume that wages were actually paid at the rates listed in the CBA, that meal breaks were actually afforded in the manner set out in the CBA, or that the putative class members were actually compensated for donning and doffing sanitary gear as required by the CBA. Plaintiff does not allege that was the case and the CBA does not so indicate. 5 1 B. Plaintiff’s First and Second Causes of Action – Failure to Pay Minimum Wage and 2 Failure to Pay All Wages Due 3 Plaintiff contends that Leprino failed to Plaintiff and putative class members for all hours 4 worked and therefore also failed to pay the minimum wage for all hours worked in violation of 5 the California Labor Code. Cal. Lab. Code §§ 204, 510, 1194, 1197. Leprino initially argued 6 that, because the CBA indicates that it paid its employees at least $12.99 per hour, it did not fail 7 to pay less than the minimum wage. Doc 17 at 10. However, that argument is not responsive to 8 Plaintiff’s theory—that Leprino failed to pay wages to Plaintiff and putative class members for 9 various pre and post-shift activities, including donning and doffing sanitary gear, walking to 10 production lines, waiting in line to sanitize, and waiting for sanitary gear or supplies. FAC at ¶ 5. 11 If Defendants failed entirely to pay any wages for the time Plaintiff and the putative class 12 members spent on the above-mentioned activities, they also failed to pay the minimum wage for 13 all hours worked. 14 It is agreed between the parties, and it is well established under California law, that an 15 employer must compensate employees for all “hours worked.” Cal. Code. Regs. tit. 8 § 16 11080(2)(G); Arredondo v. Delano Farms Co., 301 F.R.D. 493, 523 (E.D. Cal. 2014); White v. 17 Starbucks Corp., 497 F.Supp.2d 1080, 1083 (N.D. Cal. 2007); Brinker Rest. Corp. v. Superior 18 Court, 53 Cal.4th 1004, 1051-1052 (2012); Morillion v. Royal Packing Co., 22 Cal.4th 575, 585 19 (2000). “Hours worked are defined as ‘the time during which an employee is subject to the 20 control of an employer, and includes all the time the employee is suffered or permitted to work, 21 whether or not required to do so.’” Arredondo, 301 F.R.D. at 523 (quoting Morillion, 22 Cal.4th 22 575); accord Cal. Code. Regs. tit. 8 § 11080(2)(G). Under California law, hours worked includes 23 any on-site pre or post-shift activities required by the employer. See, e.g., Morillion, 22 Cal.4th 24 at 587 (“[A]n employer [that] requires employees to meet at designated places to take its buses to 25 work and prohibits them from taking their own transportation” subjects employees to “the 26 control of [the] employer” and the time spent traveling on the buses “is compensable as ‘hours 27 worked.’”); Ridgeway v. Wal-Mart Stores, Inc., 107 F.Supp.3d 1044, 1054-1055 (N.D. Cal. 28 2015) (holding that an employer requires an employee to remain onsite—even though the 6 1 employees were permitted to relax or take meals—exercises control and the time is compensable 2 as hours worked.) See also, IPB, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005) (holding that donning 3 and doffing of specialized gear performed before or after a shift is “integral and indispensable” 4 to the employee’s principal activities thus compensable under the Fair Labor Standards Act 5 (“FLSA”)); Armenta v. Osmose, Inc., 135 Cal.App.4th 314, 323-324 (Cal. Ct. App. 2005) (“A 6 review of [California’s] labor statutes reveals a clear legislative intent to protect the minimum 7 wage right of California employees to a greater extent than federally.”) 8 The pre and post-shift activities that Plaintiff alleges are appropriately classified as 9 “hours worked” under California law. Plaintiff alleges that he and the putative class members 10 were not paid minimum wage for those hours worked. 11 In response, Defendants highlight the portion of the CBA that requires employees to be 12 “paid a total of 14 minutes of additional compensation for donning and doffing at the straight 13 time rate for each shift worked.” CBA at 14. Defendants explain that the CBA shows that they 14 did pay compensate for donning and doffing time at an hourly rate above the minimum wage. 15 However, the Court does not accept as true that Leprino actually paid Plaintiff and the putative 16 class members an amount exceeding minimum wage for the time actually spend donning and 17 doffing.4 Indeed, Plaintiff alleges that “at the beginning of each work day, prior to the start of 18 paid time, Plaintiff and the [putative] [c]lass [m]embers spen[t] substantial amounts of time, for 19 which they [were] not compensated, engaged in mandatory” donning and doffing activities and 20 sanitary procedures. FAC at ¶¶ 20-21. Plaintiff goes on to highlight that the CBA continues on to explain that “[t]his 21 22 compensated time is not considered hours worked.” CBA at 14.5 Plaintiff appears to suggest that 23 the fourteen minutes of additional compensation paid by Leprino for donning and doffing is not 24 considered “hours worked” for purposes of the California Labor Code because the CBA 25 26 27 28 4 In other words, even though the CBA requires Defendants to pay fourteen minutes of compensation, Plaintiff alleges that he and the putative class members were not paid for the hours worked donning and doffing. Plaintiff’s allegations tend to show a violation of the CBA and the Labor Code. 5 The clear purpose of classifying the compensation for donning and doffing time as something other than hours worked is to avoid payment of overtime wages if the required donning and doffing causes employees to work more than eight hours in a day or forty hours in a week. 7 1 indicates that the “compensated time is not considered hours worked.” The Court rejects that 2 position. If, as the CBA requires, the putative class members were compensated for fourteen 3 minutes worth of time for donning and doffing, Plaintiff and the putative class members could 4 not recover for failure to pay the minimum wage for that fourteen minutes. See Melchor v. Foster 5 Poultry Farms Inc., 2012 WL 1836289, *5-6 (E.D. Cal. May 21, 2012). If, however, Plaintiff 6 and the putative class members regularly spend more than fourteen minutes donning and doffing 7 sanitary gear, they could recover for underpayment of that time. Id. Plaintiff’s allegations do not 8 support one theory clearly over the other. Plaintiff has alleged facts that, if true, could just as 9 easily support liability as an absence of liability. For that reason, insofar as Plaintiff’s first claim 10 is premised upon failure to pay wages for donning and doffing, it must be dismissed and 11 Defendants’ motion granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560-561 (2007). 12 Because the Court has recognized that Plaintiff’s claim might not be futile, amendment will be 13 permitted. 14 Also significant, the CBA does not address the other alleged uncompensated pre and 15 post-shift activities; Defendants have identified no part of the CBA that discusses walking to 16 production lines, waiting in line to sanitize, or waiting for sanitary gear or supplies. Defendants 17 have advanced no argument that challenges Plaintiff’s claim for off-the-clock walking to 18 production lines after donning and doffing, waiting in line to sanitize, or waiting for sanitary gear 19 or supplies. That portion of the cause of action survives and Defendants’ motion to is denied as 20 to it. 21 C. Plaintiff’s Third Cause of Action – Failure to Pay Overtime Wages 22 Generally, California Labor Code Section 510 requires an employer to pay a non-exempt 23 employee overtime for any work in excess of eight hours in one workday or forty hours in one 24 workweek. Cal. Labor Code § 510(a); Cal. Code Regs. tit. 8 § 11080(3)(A)(1). Leprino contends 25 that Plaintiff and the putative class members are exempted from the general overtime rules. 26 California Labor Code Section 514 provides that Section 510 does “not apply to an employee 27 covered by a valid collective bargaining agreement if the agreement expressly provides for the 28 wages, hours of work, and working conditions of the employees, and if the agreement provides 8 1 premium wage rates for all overtime hours worked and a regular hourly rate of pay for those 2 employees of not less than 30 percent more than the state minimum wage.” Cal. Labor Code § 3 514. 4 Plaintiff points out that Section 514 exempts employees from the reach of Section 510 5 only when the valid collective bargaining agreement provides “premium wage rates for all 6 overtime hours worked….” Doc. 19 at 9. Plaintiff argues that by defining time spent donning and 7 doffing sanitary gear as something other than “hours worked,” the CBA does not provide a 8 premium wage rate for all overtime hours worked for purposes of the California Labor Code. 9 Doc. 19 at 9. Plaintiff argues that “[t]o conclude otherwise would allow unionized employers to 10 avoid overtime by unilaterally choosing what activities it will and will not count as hours 11 worked.” Although Plaintiff’s position ignores the role that a labor union has in negotiating a 12 CBA—an employer of unionized employees can take no unilateral action impacting the pay or 13 conditions of employment of those employees—Plaintiff’s position is not without merit. The 14 California Labor Code only provides an exemption to payment of overtime pursuant to Section 15 510 if a premium wage is paid for all overtime hours worked. See Gregory v. SCIE, LLC, 317 16 F.3d 1050, 1053 (9th Cir. 2003); Guillen v. SEIU United Service Workers West, 2017 WL 17 6372815, *3 (N.D. Cal. Dec. 13, 2017). That limitation would be largely undermined if the 18 parties to a CBA could exclude activities that are integral to performance of the principal work 19 activity from consideration as “hours worked” for purposes of calculating overtime 20 compensation. On the face of the CBA, it is clear that it does not require Leprino to pay a 21 premium rate for all overtime hours worked, to wit donning and doffing time is not counted as 22 hours worked for purposes of overtime calculation. Based on the allegations before the Court, 23 Section 514 does not exempt Plaintiff or the putative class from the reach of the overtime 24 requirements of Section 510(a). Defendants’ motion to for judgment on the pleadings as to Plaintiff’s third cause of action 25 26 will be denied.6 27 28 6 Defendants’ motion for judgment on the pleadings presented no Labor Management Relations Act preemption issues, see 29 U.S.C. § 185; Kobold v. Good Samaritan Reg. Med. Ctr., 832 F.3d 1024 (9th Cir. 2016), and the Court does not address any such issues sua sponte. This order should not be read to weigh in on that issue. 9 1 D. Plaintiff’s Eighth Cause of Action – Conversion 2 Plaintiff alleges that Leprino “wrongfully withheld earned wages and other monies” from 3 Plaintiff and the putative class. “In particular, [Leprino] failed to pay … all wages [] earned 4 pursuant to the applicable [e]mployment [l]aws and [r]egulations.” FAC at ¶ 21. Presumably, 5 Plaintiff’s allegation is designed to encompass Leprino’s alleged withholding of wages for all 6 hours worked, overtime wages, and premium wages for denied meal periods. 7 Not all of those wages are recoverable in an action for conversion. “Under California law, 8 when the Legislature creates a right that did not exist at common law and provides a 9 comprehensive remedial scheme for that right, the statutory remedies are exclusive.” Jones v. AB 10 Acquisition, LLC, ---Fed.Appx. ----, 2017 WL 5562459, *1 (9th Cir. Nov. 20, 2017) (citing 11 Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 180 P.2d 321, 322 (1947)). “The common law in 12 California did not recognize a right to overtime compensation ‘absent an express contract to that 13 effect.’” Jones, 2017 WL 5562459 at *1 (quoting Aubry v. Goldhor, 201 Cal. App. 3d 399, 404 14 (1988)). The Labor Code established that right. Jones, 2017 WL 5562459 at *1. As a result, 15 Plaintiff’s conversion claim is precluded insofar as it seeks to recovery overtime wages. That 16 portion of Plaintiff’s eighth cause of action will be dismissed without leave to amend. 17 Insofar as meal period premiums are wages, a question that the Court does not now weigh 18 in on, they did not exist at common law and no remedy for their recovery existed at common 19 law. Thomas v. Home Depot USA Inc., 527 F.Supp.2d 1003, 1010 (N.D. Cal. 2007); accord Boyd 20 v. Autozone, Inc., 2011 WL 13153245 (N.D. Cal. Mar. 28, 2011). The Labor Code established 21 that right. As a result, Plaintiff’s conversion claim is precluded insofar as it seeks to recover meal 22 period premium wages. That portion of Plaintiff’s eighth cause of action will be dismissed 23 without leave to amend. 24 A claim for recovery of unpaid wages existed at common law. Alvarenga v. Carlson 25 Wagonlit Travel, Inc., 2016 WL 466132, *4-5 (E.D. Cal. Feb. 8, 2016). “Although the California 26 Labor Code creates a comprehensive and detailed remedial scheme …, because the Labor Code” 27 sections governing payment of wages are not expressly exclusive, and because the right existed 28 at common law, “the remedies provided by the Labor Code [for non-payment of wages] 10 1 supplement, rather than supplant, the common law remedies.” Alvarenga, 2016 WL 466132 at 2 *4; Dittmar v. Costco Wholesale Corp., 2016 WL 3387464, *2 (S.D. Cal. June 20, 2016); Sims v. 3 AT&T Mobility Servs. LLC, 995 F.Supp.2d 1110, 1120 (E.D. Cal. 2013); contra Lopez v. 4 Aerotek, Inc., 2015 WL 4504691, *3 (C.D. Cal. 2015) (“[E]mployees cannot bring a claim for 5 conversion based on a defendant’s failure to pay wages under the Labor Code because the Labor 6 code provides an extensive and exclusive remedial scheme.”); Green v. Party City Corp., 2002 7 WL 553219 (C.D. Cal. Apr. 9, 2002); Voris v. Lampert, 2017 WL 1153334, *6-7 (Cal. Ct. App. 8 Mar. 28, 2017) (unpub.) (rejecting viability of claim for conversion of unpaid wages). Plaintiff’s 9 claim for conversion is not precluded insofar as it seeks to recover unpaid wages. Defendants further contend that Plaintiff’s claim fails because the Plaintiff and putative 10 11 class members did not allege that they held “title to the wages allegedly converted” or that the 12 alleged wages were “a specific sum capable of identification.” Doc. 17 at 13 (citing, inter alia, 13 Moore v. Regents of University of California, 51 Cal.3d 120, 136 (1990)). In Alvarenga this 14 Court rejected the argument that an employee does not hold title to earned but unpaid wages. 15 Alvarenga, 2017 WL 466132 at *4-5. Defendants’ argument does not persuade the Court that its 16 prior decision was in error.7 17 Next, the Court agrees with Defendants’ characterization of the requirement that the 18 allegedly converted sum must be a “specific sum” that is “capable of identification.” See 19 Alvarenga, 2017 WL 466132 at *4-5 (citation omitted); see PCO, Inc. v. Christensen, Miller, 20 Fink Jacobs, Glaser, Weil & Shapiro, LLC, 150 Cal.App.4th 384, 396-397 (Cal. Ct. App. 2007) . 21 Plaintiff’s answer is that California law requires employers to keep records of all hours worked 22 by employees, therefore all that would be required to identify the sum owed is to calculate the 23 number of hours worked multiplied by the applicable hourly rate. Doc. 19 at 10; see FAC at ¶ 98 24 (“The amount of property … wrongfully converted is capable of being ascertained using 25 Defendants’ own records and other data.”) The most evident problem with Plaintiff’s theory is 26 that it fails to recognize that at least some of the “off-the-clock” hours were not recorded. See 27 28 7 Moreover, because Plaintiff fails to identify a specific sum capable of identification, the Court need not revisit whether a claim for conversion of wages can ever be cognizable. 11 1 FAC at ¶ 7 (“After putting on their required equipment, workers then punch in for their required 2 shift, roughly 5 minutes before paid work time begins in order to allow them time to walk to 3 their respective work areas.”); FAC at ¶ 8 (“[A] worker whose shift starts at 6 a.m., is not paid 4 for all time prior to 6 a.m. spent from the time they arrive at their clean lockers and subsequent 5 time spent at personal lockers, waiting in lines at lockers and to punch in. This illegal practice 6 calls into question the reliability of Leprino’s time keeping data….”) Plaintiff does not seek a 7 definite sum that is readily identifiable. For instance, Plaintiff does not allege that each wage 8 statement indicates the number of hours worked without pay. 9 In order to plead a cause of action, Plaintiff must “specifically allege the basis for their 10 claim and how a specific sum that was allegedly converted could be ascertained.” Khan v. K2 11 Pure Solutions, L.P., 2013 WL 6503345, *9 (N.D. Cal. Dec. 4, 2013). In light of the likely 12 absence of any identifiable specific sum converted, this claim will be dismissed. A claim that 13 Defendants, over time, failed to pay Plaintiff an incalculable amount of wages—regardless of 14 why the amount is incalculable—will not suffice. 15 The Court cannot now determine that it would be futile to permit amendment. However, 16 if any amended complaint does not cure the defect identified herein, Plaintiff’s conversion claim 17 will be dismissed without further leave to amend. 18 /// 19 /// 20 /// 21 22 23 24 25 26 27 28 12 1 V. Order 2 Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ motion for 3 judgment on the pleadings is GRANTED in part and DENIED in part as follows: 4 1. Defendants’ motion is GRANTED as to Plaintiff’s First and Second Causes of Action 5 insofar as they are premised upon non-payment of wages for donning and doffing; 6 2. Defendants’ motion is DENIED as to Plaintiff’s First and Second Causes of Action 7 insofar as they are premised upon other unpaid, off-the-clock work; 8 3. Defendants’ motion is DENIED as to Plaintiff’s Third Cause of Action; 9 4. Defendants’ motion is GRANTED as to Plaintiff’s Eighth Cause of Action. 10 Leave to amend is GRANTED as to Plaintiff’s First Cause of Action. Leave to amend is 11 GRANTED as to Plaintiff’s Eighth Cause of Action except as set forth above. Any amended 12 complaint must be filed within twenty-one days of the date of this Order. 13 14 IT IS SO ORDERED. 15 Dated: December 20, 2017 SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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