Valencia et al v. North Star Gas LTD. Co. et al, No. 3:2017cv00250 - Document 46 (S.D. Cal. 2018)
Court Description: ORDER Granting 21 Defendant Peoplease's Motion to Dismiss. Plaintiffs may amend their Complaint within fourteen days of entry of this Order. Signed by Judge Gonzalo P. Curiel on 1/23/18. (dlg)
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Valencia et al v. North Star Gas LTD. Co. et al Doc. 46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 WILLIAM STEVE VALENCIA, an individual, and LUIS FERNANDEZ SOTO, an individual, on behalf of themselves and on behalf of others similarly situated, 17 18 19 ORDER GRANTING DEFENDANT PEOPLEASE’S MOTION TO DISMISS Plaintiffs, 15 16 Case No.: 3:17-cv-00250-GPC-JMA [ECF No. 21.] v. NORTH STAR GAS LTD. CO., a California corporation; PEOPLEASE LLC, a South Carolina Corporation, Defendants. 20 21 Before the Court is Defendant Peoplease, LLC’s (“Defendant’s” or “Peoplease’s”) 22 motion to dismiss Plaintiffs William Steve Valencia and Luis Fernandez Soto’s 23 (collectively, “Plaintiffs’”) Complaint pursuant to Federal Rule of Civil Procedure 24 12(b)(6). Dkt. No. 21. The motion has been fully briefed. Dkt. Nos. 23, 45. The Court 25 deems Defendant’s motion suitable for disposition without oral argument pursuant to 26 Civil Local Rule 7.1(d)(1). Having reviewed the moving papers and applicable law, and 27 for the reasons set forth below, the Court GRANTS Defendant’s motion to dismiss 28 1 3:17-cv-00250-GPC-JMA Dockets.Justia.com 1 Defendant Peoplease, LLC. 2 3 4 BACKGROUND On February 8, 2017, Plaintiffs William Steve Valencia (“Valencia” or “Plaintiff”) 5 and Luis Fernandez Soto (“Soto” or “Plaintiff”) filed a putative hybrid class action in 6 federal court against Defendants North Star Gas Ltd. Co. (“North Star” or “Defendant”) 7 and Peoplease LLC (“Peoplease” or “Defendant”). Dkt. No. 1. On June 27, 2017, this 8 Court granted Defendant Peoplease’s motion to dismiss for failure to state a claim, but 9 granted plaintiffs leave to amend. Dkt. No. 14. Plaintiffs filed their First Amended 10 Complaint (“FAC”) on May 30, 2017. Dkt. No. 15. 11 Plaintiffs bring a putative collective action for violation of the Fair Labor 12 Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., a putative class action under Federal 13 Rule of Civil Procedure 23 (“Rule 23”) for violations of California state law, and a 14 representative action under the Private Attorney General Act, Cal. Labor Code § 2698, et 15 seq. FAC ¶ 1. Plaintiffs allege that North Star “owns, operates, or otherwise manages a 16 natural gas company responsible for distribution and supply of propane.” Id. ¶ 13. 17 In their FAC, Plaintiffs have expanded their discussion of Peoplease’s role. 18 Peoplease served as Plaintiffs’ co-employer. Id. ¶ 15. Peoplease advised Plaintiffs that 19 they served as plaintiffs’ “co-employer” and had responsibility for paying plaintiffs’ 20 wages, administering some benefit programs, and working with site supervisors to 21 administer all human resources functions. Id. ¶ 16. Peoplease offers human resource 22 offerings, which include tasks such as “recruiting, hiring, negotiating and setting pay 23 rates, setting schedules and hours, training. . . ” Id. ¶ 17. Plaintiffs allege that Peoplease 24 “control[led] substantial aspects of Plaintiffs’ rate and method of pay.” Id. ¶ 18. In 25 particular, Peoplease “dictated whether Plaintiffs received overtime on their piece rate 26 earnings” and “did much more than just the ministerial task of handing out payroll.” Id. 27 Finally, Plaintiffs asserted that Peoplease “[a]s the co-employer responsible for all human 28 2 3:17-cv-00250-GPC-JMA 1 resources functions and as a leading provider of administrative solutions and services for 2 the transportation and logistics industry . . . sets and negotiates rates of pay.” Id. ¶ 19. Plaintiffs bring the instant action on behalf of themselves and on behalf of “current 3 4 and former non-exempt employees who transported propane along certain routes for 5 Defendants.” Id. ¶ 3. Plaintiffs assert nine claims for relief based on Defendants’ (1) 6 failure to pay wages due under the FLSA, (2) failure to pay overtime due under state law, 7 (3) failure to pay regular wages under state law, (4) failure to pay meal period premium 8 pay under state law, (5) failure to pay rest break premium pay under state law, (6) failure 9 to provide accurate itemized wage statements under state law, (7) failure to timely pay 10 wages under state law; (8) violation of the UCL; (9) enforcement of the Private Attorney 11 General Act (“PAGA”), Cal. Labor Code §§ 2698 et seq.. 12 Peoplease filed the instant motion on June 27, 2017 under Federal Rule of Civil 13 Procedure 12(b)(6). Dkt. No. 21. Peoplease asserts that it is not in an employment 14 relationship with Plaintiffs and thus cannot be held liable for violations of the Labor Code 15 or the FLSA. Mot. at 4, 15. Plaintiffs responded on August 4, 2017 and Peoplease 16 replied on January 12, 2018. Dkt. No. 23, 45.1 17 LEGAL STANDARD 18 I. 19 Rule 12(b)(6) A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the 20 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 21 Dismissal is warranted under Rule 12 (b)(6) where the complaint lacks a cognizable legal 22 theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see 23 also Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to 24 25 26 27 28 1 The parties twice jointly requested and were granted continuances of the hearing date for this instant motion. The hearing date was moved to November 3, 2017, then later to January 26, 2017. See Dkt. Nos. 24, 26, 33, 34. 3 3:17-cv-00250-GPC-JMA 1 dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a complaint 2 may be dismissed where it presents a cognizable legal theory yet fails to plead essential 3 facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give 4 “detailed factual allegations,” a plaintiff must plead sufficient facts that, if true, “raise a 5 right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 6 545 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual 7 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft 8 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 547). A claim is 9 facially plausible when the factual allegations permit “the court to draw the reasonable 10 inference that the defendant is liable for the misconduct alleged.” Id. In other words, 11 “the non-conclusory ‘factual content,’ and reasonable inferences from that content, must 12 be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret 13 Service, 572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a 14 plausible claim for relief will . . . be a context-specific task that requires the reviewing 15 court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. 16 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 17 truth of all factual allegations and must construe all inferences from them in the light 18 most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 19 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). Legal 20 conclusions, however, need not be taken as true merely because they are cast in the form 21 of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. 22 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to 23 dismiss, the court may consider the facts alleged in the complaint, documents attached to 24 the complaint, documents relied upon but not attached to the complaint when authenticity 25 is not contested, and matters of which the court takes judicial notice. Lee v. Los Angeles, 26 250 F.3d 668, 688–89 (9th Cir. 2001). 27 28 4 3:17-cv-00250-GPC-JMA 1 DISCUSSION 2 I. Whether Peoplease is an Employer Under the California Labor Code 3 Peoplease first argument is that it is not Plaintiffs’ “employer” under the California 4 Labor Code. Mot. at 4–14. The Court agrees that Plaintiffs have once again not met their 5 burden their burden to plead that Peoplease employed them within the meaning of state 6 law. 7 Cal. Lab. Code § 1194 provides employees a cause of action for unpaid minimum 8 wages or overtime compensation.2 To be liable under Cal. Lab. Code § 1194, a 9 defendant must be an employer. See Martinez v. Combs, 49 Cal. 4th 35, 49 (2010), as 10 modified (June 9, 2010) (“That only an employer can be liable, however, seems logically 11 inevitable as no generally applicable rule of law imposes on anyone other than an 12 employer a duty to pay wages.”). The California Supreme Court has adopted the 13 Industrial Welfare Commission’s (“IWC’s”) definitions of the employment relationship 14 for actions under § 1194. See id. at 52. “To employ . . . under the IWC's definition, has 15 three alternative definitions. It means: (a) to exercise control over the wages, hours or 16 working conditions, or (b) to suffer or permit to work,3 or (c) to engage, thereby creating 17 a common law employment relationship.”4 Id. at 64 (emphasis in original). 18 19 20 21 22 23 24 25 26 27 28 2 Cal. Lab. Code § 1194(a) provides, in pertinent part: Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit. 3 Plaintiffs fail to allege any facts showing that Peoplease suffered or permitted Plaintiffs’ to work. See Opp. at 9 (“Plaintiffs need not also allege Peoplease suffered or permitted their work or engaged them, thereby creating a common law employment relationship.”). See also Martinez, 49 Cal. 4th at 69 (“A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.”). 4 Plaintiffs have also not alleged any facts showing that Peoplease created a common law employment relationship with Plaintiffs. See Opp. at 9 (“Plaintiffs need not also allege Peoplease suffered or 5 3:17-cv-00250-GPC-JMA 1 2 A. Control Over Wages, Hours, or Working Conditions Plaintiffs do not allege or contend that Peoplease exercises control over their hours 3 or working conditions. See Compl. ¶ 14-20; Opp. at 5. Plaintiffs’ sole argument is that 4 Peoplease exercises control over their wages. See id. Plaintiffs’ revised complaint still 5 does not give rise to a reasonable inference that Peoplease exercised control over their 6 wages under California law. 7 “‘[C]ontrol over wages’ means that a person or entity has the power or authority to 8 negotiate and set an employee's rate of pay, and not that a person or entity is physically 9 involved in the preparation of an employee's paycheck.” Futrell v. Payday California, 10 11 12 13 14 15 16 17 Inc., 190 Cal. App. 4th 1419, 1432 (2010). The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make Payday an employer for purposes of liability for wages under the Labor Code wage statutes. The preparation of payroll is largely a ministerial task, albeit a complex task in today's marketplace. The employer, however, is the party who hires the employee and benefits from the employee's work, and thus it is the employer to whom liability should be affixed for any unpaid wages. Id.; see also Field v. Am. Mortg. Exp. Corp., No. C-09-5972 EMC, 2011 WL 3354344, at *4 (N.D. Cal. Aug. 2, 2011) (interpreting California law and rejecting plaintiff’s 18 19 20 21 22 23 24 25 26 27 28 permitted their work or engaged them, thereby creating a common law employment relationship.”). As stated in Futrell, 190 Cal. App. 4th at 1434: The essence of the common law test of employment is in the “control of details.” A number of factors may be considered in evaluating this control, including: (1) whether the worker is engaged in a distinct occupation or business; (2) whether, considering the kind of occupation and locality, the work is usually done under the alleged employer's direction or without supervision; (3) the skill required; (4) whether the alleged employer or worker supplies the instrumentalities, tools, and place of work; (5) the length of time the services are to be performed; (6) the method of payment, whether by time or by job; (7) whether the work is part of the alleged employer's regular business; and (8) whether the parties believe they are creating an employer-employee relationship. The parties' use of a label to describe their relationship does not control and will be ignored where the evidence of their actual conduct establishes a different relationship exists. 6 3:17-cv-00250-GPC-JMA 1 argument that defendant payroll processing company exercised control over plaintiff’s 2 wages where defendant’s “role was simply to carry out the ministerial task of payroll 3 processing”). 4 Here, Plaintiffs have not adequately alleged facts showing that Peoplease had the 5 power or authority to negotiate and set their rates of pay, beyond the mere responsibility 6 to provide Plaintiffs with payment.5 See Futrell, 190 Cal. App. 4th at 1433 (citing cases 7 concluding that “a payroll company, or any other person or entity that processes payroll, 8 is not an employer because he, she, or it, does not control the hiring, firing, and day-to- 9 day supervision of workers supplying the labor”). In their First Amended Complaint, 10 Plaintiffs’ contend that Peoplease, “as the co-employer responsible for all human 11 resources functions . . . sets and negotiates rates of pay.” FAC ¶ 19. This conclusory 12 allegation is not enough to survive a motion to dismiss under the standards established in 13 Iqbal and Twombly. Plaintiffs’ pleading is particularly deficient as it fails to allege that 14 Peoplease actually set and negotiated rates of pay for the employees at issue in this case, 15 rather than for the industry as a whole. See, e.g., Mot. at 12 (arguing that Plaintiffs’ 16 claims refer only to setting the “industry’s rate of pay,” not “Plaintiffs’ rate of pay.”).6 17 The FAC is lacking, for example, allegations that Peoplease conducted actual salary 18 negotiations with Mr. Valencia or Mr. Soto, actually set Mr. Valencia or Mr. Soto’s wage 19 20 21 22 23 24 25 26 27 28 5 Plaintiffs correctly point out that Peoplease cites to cases adjudicated at summary judgment, not at a motion to dismiss stage. (Opp. at 7-8.) As the Court has previously stated, this observation does not save Plaintiffs’ threadbare allegations. See Dkt. No. 14 at 17. Moreover, numerous cases have dismissed similar claims at the motion to dismiss/demurrer stage. See, e.g., Goonewardene v. ADP, LLC, 5 Cal. App. 154, 160, 166 (2016) (affirming trial court’s dismissal of proposed Sixth Amended Complaint for payment processor); Johnson v. Serenity Transportation, Inc., 141 F. Supp. 3d 974, 998 (N.D. Cal. 2015) (dismissing claim where customer defendants failed to exercise control over drivers’ wages under Futrell). 6 Plaintiffs’ allegation that “Peoplease dictated whether Plaintiffs received overtime on their piece rate earnings” is not enough to suggest an inference that Peoplease had the power or authority to control Plaintiffs’ wages. See Futrell, 190 Cal. App. 4th at 1432 (calculation of pay is a ministerial task that does not indicate control over wages). 7 3:17-cv-00250-GPC-JMA 1 rates at a certain number, or other facts indicating that North Star delegated the power or 2 authority to set the wages of its employees to Peoplease. Without additional facts, the 3 Court concludes the statements that Peoplease “set and negotiate[d] rates of pay” are 4 merely conclusory regurgitations of the law, rather than well-pleaded factual allegations.7 5 See OSU Student All. v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012) (to survive a Rule 6 12(b)(6) motion plaintiff must plead “sufficient factual matter” that is “plausible on its 7 face.”); Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (“However, we do not 8 accept any unreasonable inferences or assume the truth of legal conclusions cast in the 9 form of factual allegations.”). Plaintiffs’ allegations thus do not satisfy the first definition of employment 10 11 articulated in Martinez. Absent factual allegations tending to show such power or 12 authority, Plaintiffs’ Complaint does not yield a reasonable inference that Peoplease 13 exercised control over Plaintiffs’ wages. Accordingly, Plaintiffs have not adequately 14 pled that Peoplease qualifies as an “employer” under California law. 15 II. Whether Peoplease is an Employer under the FLSA 16 Peoplease next argues that it is not Plaintiffs’ “employer” under the FLSA. Mot. at 17 15-18. The Court agrees that Plaintiffs have not met their burden to plead that Peoplease 18 was a joint employer of Plaintiffs under the FLSA. To be liable under the FLSA, a defendant must be the plaintiff’s “employer.” See 19 20 Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983), 21 abrogated on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 22 528, 538 (1985).8 Two or more employers may be joint employers for purposes of the 23 FLSA. See id. at 1469; see also 29 C.F.R. § 825.106. Courts evaluate the “economic 24 25 Plaintiffs also assert that they “control[] substantial aspects of Plaintiffs’ rate and method of pay” but do not articulate what “substantial aspects” of the pay rate Peoplease actually controls. 8 The determination of whether a party is an “employer” within the meaning of the FLSA is a question of law. Bonnette, 704 F.2d at 1469. 7 26 27 28 8 3:17-cv-00250-GPC-JMA 1 reality” of an employment situation to determine whether an employment relationship 2 exists under the FLSA. See Goldberg v. Whitaker House Coop., 366 U.S. 28, 33 (1961). 3 The Ninth Circuit employs a non-exhaustive list of factors for the “economic reality” 4 assessment. See Bonnette, 704 F.2d at 1470. These factors include, inter alia, whether 5 the employer: “(1) had the power to hire and fire the employees, (2) supervised and 6 controlled employee work schedules or conditions of employment, (3) determined the 7 rate and method of payment, and (4) maintained employment records.” Id. (internal 8 citation omitted); see also Moreau v. Air France, 356 F.3d 942, 946–47 (9th Cir. 2004) 9 (confirming the Bonnette factors and articulating additional factors that may be relevant 10 to the analysis). Plaintiffs’ allegations continue to fail to give rise to a plausible inference that they 11 12 were Plaintiffs’ “joint employers” under the FLSA. Plaintiffs did not plead that 13 Peoplease had the power to hire and fire Plaintiffs. See FAC ¶ 14-20. Plaintiffs do not 14 allege that Peoplease supervised Plaintiffs’ work schedules. Instead, they merely pled 15 that Peoplease “[set] schedules and hours,” suggesting Peoplease engaged in a mere 16 ministerial administrative task. FAC ¶ 17. Finally, plaintiffs’ have not adequately 17 alleged—as described above––that Peoplease determined the pay rate of the plaintiffs or 18 other similarly situated plaintiffs.9 The totality of the circumstances do not suggest that 19 Peoplease was a joint employer of Plaintiffs in “economic reality.” See Bonnette, 704 20 F.2d at 1470 (concluding that state agency was a joint employer of plaintiffs, where the 21 agency paid plaintiffs’ wages, controlled the rate and method of payment, maintained 22 employment records, “exercised considerable control over the structure and conditions of 23 employment by making the final determination, after consultation with the [co- 24 25 26 27 28 Plaintiffs have adequately alleged that Peoplease “maintain[s] employment records.” See FAC ¶ 15. Nonetheless, the satisfaction of a single Bonnette factor does not qualify Peoplease to be an “employer” in light of the other Bonnette factors that plaintiffs have not adequately alleged. 9 9 3:17-cv-00250-GPC-JMA 1 employer], of the number of hours each [plaintiff] would work and exactly what tasks 2 would be performed,” and “intervened when problems arose which the [co-employer] and 3 the [plaintiff] could not resolve”); Goonewardene v. ADP, LLC, 5 Cal. App. 5th 154, 170, 4 209 Cal. Rptr. 3d 722, 737 (Ct. App. 2016), as modified on denial of reh'g (Nov. 29, 5 2016) (dismissing sixth amended complaint under the “economic reality” test because 6 ADP “acted as Altour’s payroll department” and “exercised no material control over 7 appellant’s rate of pay, terms of employment, or circumstances of work.”). 8 III. 9 Leave to Amend Federal Rule of Civil Procedure 15 provides that courts should freely grant leave to 10 amend when “justice so requires.” Fed. R. Civ. P. 15(a). Accordingly, “leave to amend 11 should be granted unless the court determines that the allegation of other facts consistent 12 with the challenged pleading could not possibly cure the deficiency.” DeSoto v. Yellow 13 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (internal quotation marks omitted). 14 Amendment may be denied, however, if amendment would be futile. See id. As 15 amendments could cure the deficiencies in the pleading, the Court will allow Plaintiffs a 16 final opportunity to amend their complaint. Plaintiffs should take care to plead facts that 17 indicate an inference that Peoplease had the power and authority to control the wages of 18 the plaintiffs and other similarly situated plaintiffs in this case. 19 CONCLUSION 20 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss. 21 Plaintiffs may amend their Complaint within fourteen (14) days of entry of this Order. 22 23 IT IS SO ORDERED. Dated: January 23, 2018 24 25 26 27 28 10 3:17-cv-00250-GPC-JMA
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