Reyna v. WestRock Company, et al, No. 5:2020cv01666 - Document 52 (N.D. Cal. 2020)

Court Description: ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS 28 WITH LEAVE TO AMEND IN PART AND WITHOUT LEAVE TO AMEND IN PART; TERMINATING WESTROCK CALIFORNIA LLC'S MOTION TO DISMISS 29 AS MOOT. Signed by Judge Beth Labson Freeman on 8/24/2020. (blflc3S, COURT STAFF) (Filed on 8/24/2020)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 ALICIA REYNA, Plaintiff, 8 v. 9 10 WESTROCK COMPANY, et al., Defendants. United States District Court Northern District of California 11 13 15 16 Plaintiff Alicia Reyna brings this putative class action against her employer WestRock Services, LLC, her employer’s parent company, WestRock Company, and five of her employer’s corporate affiliates for violations of California’s Labor Code and Unfair Competition Law. See First Amended Class Action Complaint (“FAC”), ECF 25. 17 18 19 20 21 22 23 24 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS WITH LEAVE TO AMEND IN PART AND WITHOUT LEAVE TO AMEND IN PART; TERMINATING WESTROCK CALIFORNIA LLC’S MOTION TO DISMISS AS MOOT [Re: ECF 28, ECF 29] 12 14 Case No. 20-cv-01666-BLF Before the Court are two motions: (1) Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Motion”) at ECF 28 and (2) Defendant WestRock California LLC’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 21 at ECF 29. The Court heard oral arguments on July 23, 2020 (the “Hearing”). For the reasons stated below, Defendants’ Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) is GRANTED WITH LEAVE TO AMEND IN PART, WITHOUT LEAVE TO AMEND IN PART. WestRock California LLC’s Motion to Dismiss Pursuant to Fed. R. of Civ. P. 21 is TERMINATED AS MOOT. 25 I. 26 27 28 BACKGROUND The FAC provides frustratingly little background about Plaintiff, Defendants, or Plaintiff’s experience as an employee. Plaintiff alleges that she is “female resident of the State of California.” United States District Court Northern District of California 1 FAC at 4 (¶ 3). She has been a non-exempt employee in Salinas, California from approximately 2 February 11, 2019 to present and her paystubs identify “WestRock Services, LLC, located at 1000 3 Abernathy Road NE, Atlanta, GA 30328” as her employer. Id. at 4 (¶ 3), 6-7 (¶ 14). Plaintiff alleges 4 that seven Defendants jointly employ her: (1) WestRock Services, LLC (identified as her employer 5 on her paystubs); (2) WestRock Company (the parent entity); and (3) WestRock Consumer 6 Packaging Group, LLC, WestRock MWV, LLC, WestRock California LLC, WestRock CP, LLC, 7 and WestRock Packaging Systems, LLC (affiliate entities of WestRock Services, LLC). According 8 to Plaintiff, “WestRock Group” is comprised of “WestRock Company […] and all of its 9 subsidiaries.” Id. at 6 (¶ 13.b). 1 10 Plaintiff seeks to represent a class of “all current and former non-exempt employees of 11 [Defendants] in the State of California at any time within the period beginning four (4) years prior 12 to the filing of this action and ending at the time this action settles or proceeds to final judgment.” 13 FAC at 9 (¶ 24). 14 Required Meal Periods; (2) Failure to Provide Required Rest Periods; (3) Failure to Pay Overtime 15 Wages; (4) Failure to Pay Minimum Wages; (5) Failure to Pay All Wages Due to Discharged and 16 Quitting Employees; (6) Failure to Maintain Required Records; (7) Failure to Furnish Accurate 17 Itemized Wage Statements; (8) Failure to Indemnify Employees for Necessary Expenditures 18 Incurred in Discharge of Duties; and (9) Unfair and Unlawful Business Practices. See generally, 19 FAC. Plaintiff also brings a representative action for civil penalties under California Private 20 Attorneys General Act of 2004 (“PAGA”). Id. at 23-24 (¶¶ 77-81). 21 II. She brings nine causes of action under California law: (1) Failure to Provide LEGAL STANDARD 22 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 23 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force 24 v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 25 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all 26 27 28 1 In the caption of her First Amended Complaint, Plaintiff names WestRock California, Inc., but she fails to allege any claims against that entity. See FAC at 4-5 (¶¶ 4-10). Thus, WestRock California, Inc. is not a party to this lawsuit. 2 United States District Court Northern District of California 1 well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese 2 v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not 3 “accept as true allegations that contradict matters properly subject to judicial notice” or “allegations 4 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 5 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations 6 omitted). While a complaint need not contain detailed factual allegations, it “must contain sufficient 7 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 8 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 9 claim is facially plausible when it “allows the court to draw the reasonable inference that the 10 defendant is liable for the misconduct alleged.” Id. On a motion to dismiss, the Court’s review is 11 limited to the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. 12 Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 13 (9th Cir. 1983). 14 III. DISCUSSION 15 A. 16 Defendants seek dismissal of all claims against WestRock Company; WestRock Consumer 17 Packaging Group, LLC; WestRock MWV, LLC; WestRock California LLC; WestRock CP, LLC; 18 and WestRock Packaging Systems, LLC (collectively, “Non-Employing Defendants”) and argue 19 that Plaintiff fails to allege sufficient facts to support a plausible claim that an employment 20 relationship existed between Plaintiff and the Non-Employing Defendants. Motion at 3. Claims against Non-Employing Defendants 21 Under California law, “an employment relationship must exist in order for the California 22 wage orders or the provisions of the Labor Code governing wages … to be applicable.” Post v. 23 Palo/Haklar Associates, 23 Cal. 4th 942, 947 (2000) (citing 1 Wilcox, Cal. Employment Law § 24 1.04[1][a], p. 1-9 (2000)). Corporate entities are presumed to have separate existences, and there is 25 a strong presumption that a parent company is not the employer of its subsidiary’s employees. Laird 26 v. Capital Cities/ABC, Inc., 68 Cal. App. 4th 727, 736 (1998) (citing Frank v. U.S. West, Inc., 3 F.3d 27 1357, 1362 (10th Cir. 1993)). 28 Here, Plaintiff acknowledges that her paystubs identify her employer as WestRock Services, 3 United States District Court Northern District of California 1 LLC. FAC at 6-7 (¶ 14). This leads to a presumption that WestRock Services, LLC is Plaintiff’s 2 employer. 3 […], includes any person or entity identified as the employer on the employee’s Federal Form W-2 4 (Wage and Tax Statement).”). Thus, the task before the Court is to determine whether Plaintiff has 5 alleged sufficient facts that if true, would lead to a plausible inference that an employment 6 relationship existed between Plaintiff and the non-employing Defendants See Cal. Gov’t Code § 12928 (“[T]here is a rebuttable presumption that ‘employer,’ 7 In the FAC, Plaintiff alleges all Defendants employed her because they are all “alter egos, 8 divisions, affiliates, integrated enterprises, joint employers, subsidiaries, parents, principals, related 9 entities, co-conspirators, authorized agents, partners, joint venturers, and/or guarantors, actual or 10 ostensible, of each other.” FAC at 6 (¶ 12). As for factual support of this laundry list of what 11 appears to be every possible corporate relationship, Plaintiff alleges the following: • 12 All policy documents Plaintiff signed at the time she was hired refer to “WestRock” as her employer. FAC at 6 (¶¶ 13, 13.a). 13 • 14 The Company’s “Legal” website page states the WestRock Group is “comprised of 15 the WestRock Company of 1000 Abernathy Road NE, Atlanta, GA 30328, USA, and 16 all of its subsidiaries.” FAC at 6 (¶ 13.b). 17 • Some of the Defendants share the same corporate addresses. FAC at 7 (¶¶ 15-16). 18 • Some of the Defendants share the same corporate officers. FAC at 7-8 (¶¶ 17-19). 19 • Some of the Defendants have the same or similar “type of business.” FAC at 8 (¶ 20). 20 21 In her opposition, Plaintiff argues that the above-mentioned facts support her allegations that 22 Defendants are “joint employers, an integrated enterprise, and alter egos.” Plaintiff’s Opposition to 23 Motion (“Opp’n”) at 3. The Court addresses below Plaintiff’s arguments as to each of her theories 24 of liability. 25 1. Joint Employers 26 The California Industrial Welfare Commission (“IWC”) has provided a test to establish joint 27 employers under California law. See Martinez v. Combs, 49 Cal. 4th 35, 64 (2010). In Martinez, 28 the California Supreme Court held that “to employ,” as used in California wage orders, means “(a) 4 United States District Court Northern District of California 1 to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, 2 or (c) to engage, thereby creating a common law employment relationship.” Id. 3 Plaintiff’s alleged facts are far from sufficient to support a joint employment relationship 4 under the Martinez test. At best, Plaintiff has alleged that Defendants are affiliated entities and the 5 WestRock Company is the parent entity – facts that Defendants do no dispute – by alleging: (1) her 6 employment documents referred to her employer as “WestRock” (a name all Defendants share); (2) 7 Defendants are affiliated as the WestRock Group under WestRock Company; (3) some of the 8 Defendants share corporate addresses and management. See FAC at 6-8 (¶¶ 13-20). None of these 9 facts establish a plausible claim that any of the Non-Employing Defendants had any control over 10 Plaintiff’s wages, hours, and work conditions; allowed her to suffer or permit work; or engage her 11 in any form. See Martinez, 49 Cal. 4th at 64. 12 Under the Martinez framework, “a common address does not suggest that a sibling 13 corporation controls the employee’s wages, hours, or working conditions; allows the employee to 14 suffer work or permits him to work; or engages the employee, thereby creating a common law 15 employment relationship.” Mata v. Manpower Inc., No. 14-CV-03787-LHK, 2016 WL 948997, at 16 *10 (N.D. Cal. Mar. 14, 2016). Similarly, Plaintiff has provided no authority or analysis in support 17 of her position that shared management renders one affiliate entity the joint employer of another 18 affiliate entity’s employees. See id. at *11. There are simply no facts alleged that if taken as true 19 at this pleading stage, would establish that any of the Non-Employing Defendants: (1) exercised 20 control over Plaintiff’s wages, hours or working conditions, (2) had any authority to hire or terminate 21 Plaintiff, or (3) engaged Plaintiff in an employment relationship. See Martinez, 49 Cal. 4th at 64. 22 “While plaintiff is not required to conclusively establish that defendants were her joint 23 employers at the pleading stage, plaintiff must at least allege some facts in support of this legal 24 conclusion.” Hibbs-Rines v. Seagate Techs., LLC., No. C 08-05430 SI, 2009 WL 513496, at *5 25 (N.D. Cal. Mar. 2, 2009). Here, Plaintiff has alleged none. The Court finds specifically egregious 26 Plaintiff’s argument that a “joint employer” relationship has been sufficiently pled, while her FAC 27 tells the Court almost nothing about any of the Defendants (e.g., what type business are they in?) or 28 even about Plaintiff (e.g., what does she do?). Instead, Plaintiff baldly asserts that Defendants “are 5 1 2 3 United States District Court Northern District of California 4 an interwoven fiction of parent and subsidiary relationships.” Opp’n at 5. This is insufficient. In short, the FAC lacks sufficient facts to lead to a plausible inference that the nonEmploying Defendants were joint employers of Plaintiff. 2. Integrated Enterprise 5 Federal courts in California apply the “integrated enterprise” test to claims arising from 6 alleged violations of the California Labor Code where a plaintiff seeks to hold the parent corporation 7 liable for California Labor Code violations. Johnson v. Serenity Transportation, Inc., No. 15-CV- 8 02004-JSC, 2018 WL 3760983, at *2 (N.D. Cal. Aug. 8, 2018). In these cases, in determining 9 whether two entities are liable as an integrated enterprise courts consider four factors: (1) centralized 10 control of labor relations; (2) interrelation of operations; (3) common management; and (4) common 11 ownership or financial control. Laird v. Capital Cities/ABC, Inc., 68 Cal. App. 4th 727, 737, 80 12 Cal. Rptr. 2d 454, 460 (1998). 13 As relevant to these factors, Plaintiff’s factual allegations, at best, lead to a plausible 14 inference that Defendants share common management. But under the “integrated enterprise” test 15 “common ownership or control alone is never enough to establish parent liability.” Laird, 68 Cal. 16 App. 4th at 738. “Although courts consider the four factors together, they often deem centralized 17 control of labor relations the most important.” Id. Plaintiff argues that facts alleged in the FAC 18 “evidence centralized control of labor relations by and among the Defendants” because “[t]he parent 19 company issued all policy documents signed by Plaintiff, and a subsidiary managed payroll.” Opp’n 20 at 7 (citing FAC at 6 (¶ 13)). 21 mischaracterization of the factual allegations in the FAC. This argument can most generously be described as a 22 First, The FAC simply alleges that “[a]ll policy documents signed by [Plaintiff] refer to the 23 employer as ‘WestRock.’” See FAC at 6 (¶ 13). It is unclear which “WestRock” Defendant the 24 FAC refers to, where all Defendants – including the one identified as Plaintiff’s employer on her 25 paystubs – has a name that includes “WestRock.” Second, The FAC is devoid of any facts 26 establishing who controls Plaintiff’s work – whatever that work is – let alone support an inference 27 that “centralized control of labor relations” existed among the Defendants. Third, the identification 28 of WestRock Services, LLC as Plaintiff’s employer on her paystubs (FAC at 6-7 (¶ 14)) leads to a 6 1 presumption that WestRock Services, LLC is her employer – not that WestRock Services, LLC is 2 “a subsidiary manag[ing] payroll” as Plaintiff suggests. See Cal. Gov’t Code § 12928; Opp’n at 5. 3 In sum, Plaintiff has failed to allege sufficient facts to support a claim based on integrated 4 enterprise liability against the Non-Employing Defendants. 2 United States District Court Northern District of California 5 3. Alter Ego 6 “It is well recognized that the law permits the incorporation of businesses for the very 7 purpose of isolating liabilities among separate entities.” Pac. Landmark Hotel, Ltd. v. Marriott 8 Hotels, Inc., 19 Cal. App. 4th 615 (1993), as modified on denial of reh’g (Nov. 5, 1993). Under 9 California law, “[a]lter ego is an extreme remedy, sparingly used.” Sonora Diamond Corp. v. 10 Superior Court, 83 Cal. App. 4th 523, 539 (2000). “To justify piercing the corporate veil on an alter 11 ego theory in order to hold a parent corporation liable for the acts or omissions of its subsidiary, a 12 plaintiff must show that there is such a unity of interest and ownership between the two corporations 13 that their separate personalities no longer exist, and that an inequitable result would follow if the 14 parent were not held liable.” Laird, 68 Cal. App. 4th at 742; see also Sandoval v. Ali, 34 F. Supp. 15 3d 1031, 1040 (N.D. Cal. Mar. 28, 2014). Courts consider nine factors in assessing whether the unity of interest prong of an alter ego 16 17 18 19 20 21 relationship is satisfied: (1) the commingling of funds and other assets of the entities, (2) the holding out by one entity that it is liable for the debts of the other, (3) identical equitable ownership of the entities, (4) use of the same offices and employees, (5) use of one as a mere shell or conduit for the affairs of the other, (6) inadequate capitalization, (7) disregard of corporate formalities, (8) lack of segregation of corporate records, and (9) identical directors and officers. Park Miller, LLC v. Durham Grp., Ltd., No. 19-CV-04185-WHO, 2020 WL 1955652, at *13 (N.D. 22 Cal. Apr. 23, 2020) (citation omitted). While a court need not find that every factor is present, 23 Updateme Inc. v. Axel Springer SE, No. 17-CV-05054-SI, 2018 WL 1184797, at *10 (N.D. Cal. 24 Mar. 7, 2018), in the Ninth Circuit “[t]otal ownership and shared management personnel are alone 25 26 27 28 Defendants challenge the applicability of the “integrated enterprise” test to affiliate entities because this test is generally used in the context of parent-subsidiary relationships. Reply at 4-5. The Court need not resolve this issue at this juncture because Plaintiff’s claims fail as to all Non-Employing Defendants. 7 2 United States District Court Northern District of California 1 insufficient to establish the requisite level of control.” Ranza v. Nike, Inc., 793 F.3d 1059, 1073 (9th 2 Cir. 2015). 3 Plaintiff’s alter ego allegations are too conclusory to survive a motion to dismiss. In the 4 FAC, Plaintiff makes the following conclusory and illogical allegation: “Each Defendant was 5 completely dominated by his, her or its co-Defendant, and each was the alter ego of the other.” FAC 6 at 6 (¶ 12). As for her factual allegations, Plaintiff again relies on (1) unity in the onboarding process 7 (FAC at 6 (¶ 13.a)); (2) WestRock Group includes WestRock Company and all of its subsidiaries 8 (id. ¶ at 6 (13.b)); (3) some Defendants share the same address (id. at 6-7 (¶¶ 13-15)); and (4) some 9 Defendants share corporate officers (id. at 7-8 (¶¶ 17-19)). Again, at best, Plaintiff has alleged that 10 Defendants are affiliated and share common management. Plaintiff’s allegation, accepted as true at 11 the pleading stage, do not justify piercing the corporate veil under the alter ego theory. Ranza, 793 12 F.3d at 1073; see also Park Miller, 2020 WL 1955652, at *14 (“[T]otal ownership, shared office 13 space and/or shared management personnel is not enough to show unity of interest.”). 14 In her opposition, Plaintiff points to a declaration by Defendants’ General Counsel and 15 Assistant Secretary, Kevin A. Maxwell, (Defendant WestRock California, LLC’s Motion to Dismiss 16 Pursuant to Federal Rules of Civil Procedure 21) in which he states: “I am responsible for overseeing 17 WestRock’s legal entity management, which requires me to have knowledge of and be familiar with 18 the corporate structure and business operations of WestRock’s legal entities, including the other 19 named defendants in this action.” Opp’n at 10 (citing ECF 28-2 ¶ 1). According to Plaintiff, Mr. 20 Maxwell’s declaration “lends further weight” to Plaintiff’s alter ego theory. Id. Defendants object 21 to “Plaintiff relying on any evidence beyond what is contained in the four corners of Plaintiff’s First 22 Amended Complaint.” Defendants’ Reply in Support of Motion (“Reply”) at 7, n.1. The Court 23 agrees with Defendants and declines to consider Plaintiff’s reliance on evidence outside of the 24 pleadings and not subject to judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 25 988, 998 (9th Cir. 2018). 26 27 Thus, Plaintiff has failed to state sufficient facts to support an inference of alter ego liability against the Non-Employing Defendants. 28 8 1 4. Leave to Amend In deciding whether to grant leave to amend, the Court must consider the factors set forth by 2 the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the Ninth 3 Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district court 4 ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1) undue 5 delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by amendment, (4) 6 undue prejudice to the opposing party, or (5) futility of amendment. Eminence Capital, 316 F.3d at 7 1052. “[I]t is the consideration of prejudice to the opposing party that carries the greatest weight.” 8 Id. However, a strong showing with respect to one of the other factors may warrant denial of leave 9 to amend. Id. 10 Plaintiff filed her original complaint on November 14, 2019, in California state court. ECF 11 United States District Court Northern District of California 1-1. Defendants removed the case to federal court and moved to dismiss. See ECF 1; ECF 15 12 (motion to dismiss under Fed. R. Civ. P. 12(b)(b)); ECF 19 (motion to dismiss under Fed. R. Civ. 13 14 P. 21). After having an opportunity to review Defendants’ motions to dismiss, Plaintiff timely amended her complaint. See FAC. The Court subsequently terminated Defendants’ first set of 15 motions to dismiss. ECF 26. Defendants then moved to dismiss the FAC. 16 In their first motion to dismiss, like in the present Motion, Defendants challenged the 17 sufficiency of Plaintiff’s allegations as to the liability of Defendants as employers. See ECF 15. 18 Specifically, Defendants argued that Plaintiff had sued seven different entities without alleging facts 19 20 “regarding joint employment or any relationship between Defendants that could support liability.” Id. at 4. Defendants further noted the relevant authority regarding what it means to “employ” 21 someone in California. Id. at 4-5 (citing Martinez, 49 Cal. 4th at 49). In her FAC Plaintiff attempted 22 to cure the identified deficiencies. Importantly, Plaintiff acknowledged that WestRock Services, 23 LLC is identified as her employer on her paystubs. See FAC at 6-7 (¶ 14). But Plaintiff’s factual 24 allegations as to the Non-Employing Defendants fall woefully short of what is required to state a 25 plausible claim against any of the Non-Employing Defendants, as explained in this Order. 26 As to WestRock Company, the parent entity for WestRock Services, LLC (Plaintiff’s 27 presumptive employer), the Court finds that leave to amend is warranted because additional facts 28 9 United States District Court Northern District of California 1 may be alleged to support one or more of Plaintiff’s theories of liability (i.e., joint liability, 2 integrated enterprises, or alter ego). Thus, Plaintiff’s claims against WestRock Company are 3 DISMISSED WITH LEAVE TO AMEND. 4 But Plaintiff’s allegations as to the affiliate entities are too implausible to warrant leave to 5 amend. Plaintiff had an opportunity to cure the defects in her complaint as to the affiliate entities 6 and failed to add any factual allegations that could come close to stating a plausible claim of liability 7 as to those entities – making further amendment a futile exercise and prejudicial to those Defendants 8 who have now twice moved to dismiss Plaintiff’s implausible claims against them. Accordingly, 9 Plaintiff’s claims against WestRock Consumer Packaging Group, LLC; WestRock MWV, LLC; 10 WestRock California LLC; WestRock Cp, LLC; and WestRock Packaging Systems, LLC are 11 DISMISSED WITHOUT LEAVE TO AMEND. 12 At the Hearing, the Court noted that it was inclined to grant leave to amend as to all 13 Defendants. However, upon further reflection and careful review of the record, the Court now finds 14 that any amendment as to the affiliate entities would be futile. Sufficiency of Plaintiff’s Claims 15 B. 16 Next Defendants argue that none of Plaintiff’s causes of action are adequately pled. Motion 17 18 19 20 at 7-11. The Court addresses each argument in turn below. 1. Failure to Provide Meal and Rest Periods (First and Second Causes of Action) Defendants move to dismiss Plaintiff’s claims for denied meal and rest periods and argue that Plaintiff’s allegations are “nothing more than legal conclusions,” because “Plaintiff offers no 21 substantive facts whatsoever regarding how Defendants required Plaintiff to work through her meal 22 or rest breaks, let alone specific examples on when such allegedly occurred.” Motion at 8. 23 Under California Labor Code Section 226.7, an employer is prohibited from requiring 24 employees to work during a meal or rest period mandated by a wage order. Cal. Lab. Code § 25 226.7(a). An employer who fails to comply must pay an additional hour of pay for each workday 26 that a meal or rest break is not provided. Cal. Lab. Code § 226.7(b). Pursuant to California’s 27 Industrial IWC Wage Order 4–2001, an employer is required to provide at least a thirty-minute meal 28 10 United States District Court Northern District of California 1 period per five-hour work period. Cal. Code Regs. Tit. 8, § 11040(11); see also Cal. Labor Code § 2 512. 3 Plaintiff alleges that she and the putative class members have been (and continue to be) 4 “denied the opportunity to take full, uninterrupted, and timely meal periods.” FAC at 11 (¶ 21). 5 According to Plaintiff, Defendants maintain a common policy that non-exempt employees “may 6 take meal breaks only at a designated time” and only with “permission from a manager or 7 supervisor.” Id. at 10 (¶ 17). Specifically, Plaintiff alleges that she and other putative class members 8 were “required to relieve members of their team for meal breaks which often resulted in late meal 9 breaks more than 5 or 6 hours after their scheduled start time.” Id. at 11 (¶ 18). This was because 10 “machines ran consistently 24 hours a day and were not shut off for meal breaks,” resulting in late 11 meal breaks after the fifth hour of work. Id. Further, Plaintiff alleges that Defendants “failed to 12 maintain adequate staffing levels which resulted in [class members] clocking in and out for meal 13 breaks after the fifth hour of work.” Id. at 11 (¶ 19). 14 Defendants argue that Plaintiff's claim is insufficient under the standard set forth in Brinker 15 Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012). See Reply at 9. In Brinker, the 16 California Supreme Court held that an employer complies with California labor laws and the 17 applicable wage order if it “relieves its employees of all duty, relinquishes control over their 18 activities and permits them a reasonable opportunity to take an uninterrupted 30–minute break, and 19 does not impede or discourage them from doing so.” Id. at 1040. But an employer “is not obligated 20 to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and 21 the relinquishing of control satisfies the employer’s obligations[.]” Id. at 1040–41. Defendants 22 argue that Brinker requires that Plaintiff “must allege how exactly the employer denied those meal 23 and rest breaks.” Reply at 9; see also Motion at 8 (citing Brown v. Wal-Mart Stores, Inc., Case No. 24 C 08-5221 SI, 2013 U.S. Dist. LEXIS 55930, at *13-14 (N.D. Cal. Apr. 18, 2013) (granting motion 25 to dismiss where the plaintiffs alleged that the defendant pressured, incentivized, and discouraged 26 the Drivers from taking lunch breaks, yet did not provide any facts surrounding these alleged 27 tactics). 28 While not a model of clarity, the FAC describes some facts as to how Defendants allegedly 11 United States District Court Northern District of California 1 failed to relieve the employees of their duties for meal and rest breaks: employees were not allowed 2 to take a break outside of designated times and without permission from a manager or supervisor; 3 employers were required to relieve members of their team for meal breaks; and due to short staffing 4 of the 24/7 operation, employees received late and interrupted breaks. FAC at 10-11 (¶¶ 17-19). 5 Although these general allegations suggest that the Defendants may be liable for the misconduct 6 alleged in the abstract, they fail to state a plausible claim that Plaintiff is entitled to relief for the 7 allegedly illegal conduct. This is because “[n]owhere in the [FAC] does [Plaintiff] provide any 8 factual information to suggest that [she] personally worked any shift that was long enough to trigger 9 meal and rest break obligations.” Haralson v. United Airlines, Inc., 224 F. Supp. 3d 928, 940 (N.D. 10 Cal. 2016). As they stand, the allegations in the FAC run afoul of the Ninth Circuit’s decision in 11 Landers v. Quality Communications, Inc., 771 F.3d 638, 646 (9th Cir. 2014), as amended (Jan. 26, 12 2015), as discussed in more detail with respect to Plaintiff's third and fourth causes of action. See 13 e.g., Cortez v. United Nat. Foods, Inc., No. 18-CV-04603-BLF, 2019 WL 955001, at *10 (N.D. Cal. 14 Feb. 27, 2019) (applying Landers to meal and rest break claim); Guerrero v. Halliburton Energy 15 Servs., Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296, at *5-6 (E.D. Cal. Nov. 2, 2016) 16 (same); Reilly v. Recreational Equip., Inc., No. 18-CV-07385-LB, 2019 WL 1024960, at *5 (N.D. 17 Cal. Mar. 4, 2019) (same). 18 19 20 21 22 Because Plaintiff could cure these deficiencies with amendment, Defendants’ Motion to Dismiss Plaintiff’s first and second causes of action is GRANTED WITH LEAVE TO AMEND. 2. Failure to Pay Overtime and Minimum Wages (Third and Fourth Causes of Action) Defendants also move to dismiss Plaintiff’s claims for unpaid overtime and minimum wage as conclusory. Motion at 7-8. Under California Labor Code § 1194, “any employee receiving less 23 than the legal minimum wage or the legal overtime compensation applicable to the employee is 24 entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or 25 overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” 26 Cal. Lab. Code § 1194. Labor Code § 1197 makes it unlawful for an employer to pay an employee 27 less than the minimum wage. Cal. Lab. Code § 1197. Further, California Labor Code § 1198 28 12 United States District Court Northern District of California 1 provides that “[t]he maximum hours of work and the standard conditions of labor fixed by the 2 commission shall be the maximum hours of work and the standard conditions of labor for 3 employees. The employment of any employee for longer hours than those fixed by the order or 4 under conditions of labor prohibited by the order is unlawful.” Cal. Lab. Code § 1198. 5 Although Plaintiff recounts each of these statutes in the FAC, she does not plausibly state a 6 claim that Defendants violated any of these provisions with respect to her or any of the putative 7 class members. This is because Plaintiff pleads no facts raising the inference that she or any of the 8 class members worked more than 40 hours in a given week without being compensated for that time. 9 The Court credits Plaintiff’s allegation that Defendants failed to pay overtime at the correct rate and 10 required or permitted Plaintiff and putative class members to work off the clock and during meal 11 and rest breaks. FAC at 14 (¶ 34), 16 (¶¶ 43-44). However, in Landers, the Ninth Circuit held that 12 in order to state a plausible claim for failure to pay overtime or minimum wages, “at a minimum the 13 plaintiff must allege at least one workweek when he worked in excess of forty hours and was not 14 paid for the excess hours in that workweek, or was not paid minimum wages.” 771 F.3d at 646. 15 Although Plaintiff need not identify a calendar week or particular instance where she was 16 denied overtime wages, she must plead facts giving rise to a plausible inference that such an instance 17 actually occurred. Plaintiff has not done so here. Her bare assertions that Defendants “routinely 18 failed to calculate overtime pay accurately” (FAC at 14 (¶ 34)) or required her and the putative class 19 members “to finish work in progress while clocked-out for their meal breaks” (FAC at 16 (¶ 44)) 20 are conclusory and insufficient under the standard set forth in Landers. See Perez v. Wells Fargo 21 & Co., 75 F. Supp. 3d 1184, 1191 (N.D. Cal. 2014) (“Under Landers, allegations such as those 22 asserted in the FAC—that certain plaintiffs ‘regularly’ or ‘regularly and consistently’ worked more 23 than 40 hours per week—fall short of the Twombly/Iqbal standard and are thus insufficient to state 24 a claim for denial of overtime compensation.”). 25 Plaintiff’s claims also lack facts regarding “what period of time or type of conduct” she is 26 counting as hours worked. Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1008 (N.D. Cal. 2016) 27 (declining to conclude that plaintiffs’ minimum wage or overtime claims were plausible without 28 “basic facts,” where there were “no allegations about what period of time or type of conduct 13 1 [p]laintiffs are counting as hours worked.”). In fact, the FAC is devoid of any facts about what type 2 of work Plaintiff does – let alone what conduct she is counting at overtime. Accordingly, Plaintiff’s 3 allegations “raise the possibility of undercompensation” but “a possibility is not the same as 4 plausibility.” Landers, 771 F.3d at 646 (internal quotations omitted); see also Freeman v. Zillow, 5 Inc., No. SA-CV-1401843, 2015 WL 5179511, at *4 (C.D. Cal. Mar. 19, 2015). 6 7 United States District Court Northern District of California 8 Thus, Defendants’ Motion as to Plaintiff’s claims for unpaid minimum wage and overtime is GRANTED WITH LEAVE TO AMEND. 3. Failure to Pay All Wages upon Termination (Fifth Cause of Action) 9 Defendants next move to dismiss Plaintiff’s claim for failure to pay discharged and quitting 10 employees at the time of discharge. Motion at 10-11. Plaintiff’s fifth cause of action alleges that 11 Defendants willfully failed to pay Plaintiff and the putative class members all of their accrued wages 12 at the time of termination (or within 72 hours) and demands waiting time penalties pursuant to 13 California Labor Code section 203 “as well as other available remedies.” FAC at 18 (¶¶ 53-54). 14 15 16 17 Plaintiff brings this Claim under California Labor Code §§ 201, 202, and 203. Those statutes, in relevant parts, provide: If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. Cal. Lab. Code § 201(a). 18 19 20 21 If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. Cal. Lab. Code § 202(a). 22 23 24 25 26 If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. Cal. Lab. Code § 203. 27 Defendants correctly note that Plaintiff may not bring a claim under these statutes because 28 she lacks standing as a current employee (i.e., not terminated). Motion at 10-11 (citing FAC at 4 (¶ 14 United States District Court Northern District of California 1 3) (“Plaintiff is employed by Defendants as a non-exempt employee in Salinas, California from 2 approximately February 11, 2019 to present.”). 3 Section 201(a) refers to an employer’s discharge of an employee, section 202(a) refers to an 4 employee’s resignation, and section 203 refers to an employee who is discharged or who quits. 5 Because Plaintiff alleges that she remains employed by Defendants, she does not have valid claims 6 under section 203. In other words, because Plaintiff has failed to properly allege violations of 7 sections 201 and 202, she is not entitled to the penalties under section 203. Pulido v. Coca-Cola 8 Enterprises, Inc., No. EDCV06-406VAP(OPX), 2006 WL 1699328, at *3 (C.D. Cal. May 25, 2006). 9 Plaintiff responds that she may bring a claim under PAGA because she has alleged other 10 violations of the California Labor Code that affect her directly. See Opp’n at 17-18. But this 11 argument is irrelevant with respect to Defendants’ challenge to Plaintiff’s fifth cause of action where 12 she seeks penalties under section 203 as an individual and class representative – not under PAGA. 13 And any amendment to this cause of action would be futile because Plaintiff is a current 14 employee. Thus, the Court DISMISSES Plaintiff’s claim for unpaid wages upon termination 15 WITHOUT LEAVE TO AMEND. 16 4. Inaccurate Wage Statements (Sixth and Seventh Causes of Action) 17 Defendants seek to dismiss Plaintiff’s claims for inaccurate wage statements to the extent 18 they are derivative of her off-the-clock allegations. Motion at 9-10. In other words, Defendants 19 argue that Plaintiff cannot state a claim for inaccurate wage as a matter of law, if those claims are 20 predicated on her allegation that she worked off the clock and therefore her wage statements 21 allegedly did not accurately reflect her total hours worked. Id. Defendants rely on Maldonado v. 22 Epsilon Plastics, Inc., 22 Cal. App. 5th 1308 (2018) for the proposition that “wage statements 23 comply with section 226 when they reflect what an employee was actually paid, not what the 24 employee claims should have been paid due to alleged off-the-clock work.” Motion at 10. 25 First, Plaintiff responds that her claims for inaccurate wage statements are not “wholly 26 derivative” of the other claims – but “a direct violation of California Labor Code section 226, as 27 well.” Opp’n at 16. Plaintiff then goes on to explain the alleged deficiencies in the wage statements 28 – none of which appear in her FAC and thus cannot be considered in deciding this Motion. See 15 United States District Court Northern District of California 1 Opp’n at 16-17. In the FAC, the claims for inaccurate wage statements add no independent facts 2 and rely solely on Plaintiff’s other claims. See FAC at 18-20 (¶¶ 56-64). Accordingly, the Court 3 concludes that the claims for wage statements in the FAC are derivative of Plaintiff’s other claims 4 – and thus they rise and fall with her wage and hour claims. 5 That said, the Court is not persuaded that “wholly derivative” claims for inaccurate wage 6 statements fail as a matter of law. “Courts in this District have repeatedly found that section 226 7 claims are adequately pleaded even if they are derivative of other wage and hour claims.” Fodera 8 v. Equinox Holdings, Inc., No. 19-CV-05072-WHO, 2020 WL 3961985, at *5 (N.D. Cal. July 13, 9 2020) (collecting cases). And Maldonado is distinguishable. In Maldonado, the plaintiffs argued 10 that that the wage statement was inaccurate not because it did not include all hours worked, but 11 because it did not correctly state the rate of pay for those hours. Id. at 1336. The Maldonado court 12 found that plaintiff cannot maintain a claim under 226(a) based on additional wages allegedly owed 13 to the plaintiff if the wage statement contains the accurate amount of hours worked. See Maldonado, 14 22 Cal. App. 5th at 1336-37. (“But only the absence of the hours worked will give rise to an 15 inference of injury; the absence of accurate wages earned will be remedied by the violated wage 16 and hour law itself, as is the case here.”). In contrast, here, Plaintiff alleges an absence of actual 17 hours worked (as well as inaccurate rates) on her wage statement. See e.g., FAC at 20 (¶ 62) (“[T]he 18 total hours worked for some pay periods does not accurately coincide with the hours on the time 19 records.”). 20 In conclusion, Defendants’ Motion to Dismiss Plaintiff’s inaccurate wage statement claims 21 is GRANTED WITH LEAVE TO AMEND. Plaintiff also has LEAVE TO AMEND her inaccurate 22 wage statement claims as to her non-derivative theory of liability. 23 24 25 5. Failure to Reimburse Business Expenses (Eighth Cause of Action) Next, Defendants move to dismiss Plaintiff’s claim for failure to reimburse employees for necessary business expenses. 26 California Labor Code § 2802(a) requires employers to “indemnify his or her employee for 27 all necessary expenditures or losses incurred by the employee in direct consequence of the discharge 28 of his or her duties, or of his or her obedience to the directions of the employer.” Cal. Lab. Code. § 16 United States District Court Northern District of California 1 2802(a). To recover under section 2802, an employee must show that “(i) [she] made expenditures 2 or incurred losses; (ii) the expenditures or losses were incurred in direct consequence of the 3 employee’s discharge of his or her duties, or obedience to the directions of the employer; and (iii) 4 the expenditures or losses were reasonable and necessary.” Marr v. Bank of Am., Case No. 09-cv- 5 05978-WHA, 2011 WL 845914, at *1 (N.D. Cal. Mar. 8, 2011), aff’d sub nom. Marr v. Bank of 6 Am., NA, 506 F. App’x 661 (9th Cir. 2013). In addition, the employer “must either know or have 7 reason to know that the employee has incurred an expense.” Stuart v. RadioShack Corp., 641 F. 8 Supp. 2d 901, 904 (N.D. Cal. 2009). 9 Plaintiff alleges that Defendants failed to reimburse Plaintiff and putative class members for 10 business expenses “including but not limited to expenses for tools, steel toed boots, uniform-related 11 expenses, usage of personal cell phones, and other employment-related expenses.” FAC at 21 (¶ 12 67). Plaintiff further alleges that Plaintiff and other putative class members were required to wear 13 “steel-toe work boots” and “buy tools” but fails to allege facts as to why these items were 14 “reasonable and necessary” to perform their jobs or whether Defendants “knew or had reason to 15 know” that the employees incurred those expenses. In fact, Plaintiff fails to even allege what her 16 job functions are. The conclusory nature of Plaintiff’s allegations is further evidenced by the fact 17 Plaintiff seeks to represent all current and former non-exempt employees of all seven Defendants – 18 making it extremely implausible that all these employees (regardless of their job functions) 19 performed duties in which tools, steel toed boots, uniforms, and cell phones were necessary and 20 reasonable. 21 22 23 Accordingly, the Court GRANTS Defendants’ Motion to dismiss Plaintiff’s claim for unreimbursed business expenses WITH LEAVE TO AMEND. 6. Unfair Competition (Ninth Cause of Action) 24 Defendants also seek dismissal of Plaintiff’s Unfair Competition claims as derivative of 25 other inadequately pled claims for unpaid wages, denied meal and rest periods, and unreimbursed 26 business expenses. Motion at 9. Defendants argue that because liability on this claim “depend[s] 27 upon and [is] only triggered upon Plaintiff proving liability on the underlying claims for alleged 28 unpaid wages, denied meal and rest periods, and unreimbursed business expenses,” this claim should 17 1 be dismissed as well. Id. (citing Reilly v. Recreational Equip., Inc., No. 18-CV-07385-LB, 2019 2 WL 1024960, at *6 (N.D. Cal. Mar. 4, 2019) (dismissing derivative unfair competition claim 3 because the underlying claims for alleged minimum-wage, overtime, meal-break, and rest-period 4 claims were insufficiently pled)). Plaintiff does not respond to this argument. See generally, Opp’n. 5 The Court agrees with Defendants. Plaintiff’s unfair competition claim relies on and is 6 derivative of her minimum wage, overtime, meal/rest-period, and unreimbursed business expenses 7 claims. Accordingly, Defendants’ Motion to dismiss is GRANTED WITH LEAVE TO AMEND. United States District Court Northern District of California 8 7. PAGA Penalties (Tenth Cause of Action) 9 Similarly, Defendants argue that Plaintiff’s PAGA claim should be dismissed to the extent 10 it is derivative of her other inadequately pled claims. See Motion at 2. Plaintiff responds by arguing 11 that she has standing to bring a claim for PAGA penalties as to the alleged violations of sections 12 201, 202, and 203 of the Labor Code. Opp’n at 17-18. But Defendants do not challenge Plaintiff’s 13 standing as a PAGA representative – only that her claim for PAGA penalties fails to the extent that 14 it is derivative of Plaintiff’s other inadequately pled claims. See Reply at 2. Thus, there is no dispute 15 that Plaintiff has standing to bring a PAGA claim as to all of the alleged violations of California 16 Labor Code because she alleges that she is employed by Defendants and affected by “one or more” 17 of the alleged violations – even if she was not personally injured by every alleged violation. Huff 18 v. Securitas Sec. Servs. USA, Inc., 23 Cal. App. 5th 745, 757 (2018). 19 That said, Plaintiff’s PAGA claim does not add any factual allegations and is derivative of 20 her Labor Code claims. FAC at 23-24 (¶¶ 77-81). Defendants’ Motion to dismiss the PAGA claim 21 is therefore GRANTED WITH LEAVE TO AMEND for the reasons discussed above regarding the 22 underlying Labor Code violations the Court has now dismissed. See Price v. Starbucks Corp., 192 23 Cal. App. 4th 1136, 1147 (2011) (“Because the underlying causes of action fail, the derivative UCL 24 and PAGA claims also fail.”). Plaintiff also has LEAVE TO AMEND her PAGA claim (but not the 25 substantive claim) for failure to pay all wages upon termination. 26 The Court reminds Plaintiff that her claims for Labor Code violations will be viable only to 27 the extent that she can plausibly allege facts showing that she has personally suffered the alleged 28 wrong. As presented, the FAC seems to be an attempt to impermissibly inflate the size of the class 18 1 and the reach to unrelated companies without adequate factual support. 2 IV. 3 4 ORDER For the foregoing reasons, Defendants’ Motion to Dismiss at ECF 28 is: • Services, LLC WITH LEAVE TO AMEND. 5 6 • GRANTED as to Plaintiff’s claims against WestRock Consumer Packaging Group, 7 LLC; WestRock MWV, LLC; WestRock California LLC; WestRock CP, LLC; and 8 WestRock Packaging Systems, LLC WITHOUT LEAVE TO AMNED. 9 • 11 • • • • • 22 GRANTED WITH LEAVE TO AMEND as to Plaintiff’s ninth cause of action for unfair competition. 20 21 GRANTED WITH LEAVE TO AMEND as to Plaintiff’s eight cause of action for failure to reimburse business expenses. 18 19 GRANTED WITH LEAVE TO AMEND as to Plaintiff’s sixth and seventh causes of action for inaccurate wage statements. 16 17 GRANTED WITHOUT LEAVE TO AMEND as to Plaintiff’s fifth cause of action for failure to pay all wages upon termination. 14 15 GRANTED WITH LEAVE TO AMEND as to Plaintiff’s third and fourth causes of action for failure to pay overtime and minimum wages. 12 13 GRANTED WITH LEAVE TO AMEND as to Plaintiff’s first and second causes of action for failure to provide meal and rest periods. 10 United States District Court Northern District of California GRANTED as to Plaintiff’s claims against WestRock Company and WestRock • GRANTED WITH LEAVE TO AMEND as to Plaintiff’s tenth cause of action for PAGA penalties. 23 Any amended complaint must be filed within 21 days of this Order. Plaintiff may only 24 amend her claims and shall not add new claims or new parties without leave of Court. The Court 25 requests that the chambers copy of any amended complaint be a redlined version, in color. 26 27 WestRock California LLC’s Motion to Dismiss Pursuant to Fed. R. of Civ. P. 21 at ECF 29 is TERMINATED AS MOOT. 28 19 1 IT IS SO ORDERED. 2 3 4 5 Dated: August 24, 2020 ______________________________________ BETH LABSON FREEMAN United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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