Billington v. United Natural Foods, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 CHRISTOPHER BILLINGTON and No. 2:18-cv-02082-TLN-EFB RONALD COOKSEY, on behalf of 12 themselves, all others similarly situated, and on behalf of the general public, 13 ORDER Plaintiffs, [14] v. [15] UNITED NATURAL FOODS, INC.; [16] UNITED NATURAL FOODS WEST, 17 INC.; and DOES 1 through 100, 18 Defendants. [19] 20 This matter is before the Court on Defendants United Natural Foods, Inc. and United 21 Natural Foods West, Inc.’s (collectively, “Defendants”) Motion to Dismiss and/or Strike. (ECF 22 No. 9.) Plaintiffs Christopher Billington and Ronald Cooksey (collectively, “Plaintiffs”) filed an 23 opposition. (ECF No. 13.) Defendants filed a reply. (ECF No. 14.) For the reasons set forth 24 below, the Court GRANTS in part and DENIES in part Defendants’ motion. 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On June 19, 2018, Plaintiffs commenced this class action against Defendants — their 3 former employers — in Sacramento County Superior Court. (ECF No. 1-1.) Plaintiffs’ 4 Complaint alleges eight claims for violations of the California Labor Code and applicable wage 5 orders: (1) failure to pay straight time wages; (2) failure to pay overtime wages; (3) failure to 6 provide meal periods; (4) failure to authorize and permit rest periods; (5) failure to authorize and 7 permit recovery periods; (6) knowing and intentional failure to comply with itemized employee 8 wage statement provisions; (7) failure to pay all wages due at time of termination of employment; 9 and (8) violation of California’s Unfair Competition Law (“UCL”), California Business & 10 Professions Code § 17200, et seq. (Id.) On July 30, 2018, Defendants timely removed the case to 11 this Court. (ECF No. 1.) Defendants filed the instant Motion to Dismiss and/or Strike on August 12 20, 2018. (ECF No. 9.) 13 II. STANDARD OF LAW 14 A. Motion to Dismiss Pursuant to Rule 12(b)(6) 15 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 16 (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729 , 732 17 (9th Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the 18 claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662 , 678–79 19 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 20 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 21 544, 555 (2007) (internal quotation omitted). “This simplified notice pleading standard relies on 22 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 23 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 24 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 25 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every 26 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 27 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746 , 753 n.6 (1963). A plaintiff need not allege 28 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 1 relief.” Twombly, 550 U.S. at 570 . “A claim has facial plausibility when the plaintiff pleads 2 factual content that allows the court to draw the reasonable inference that the defendant is liable 3 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556 ). 4 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 5 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638 , 643 n.2 (9th Cir. 6 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 7 unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678 . A 8 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 9 elements of a cause of action.” Twombly, 550 U.S. at 555 ; see also Iqbal, 556 U.S. at 678 10 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 11 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 12 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 13 been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, [14] 459 U.S. 519, 526 (1983). 15 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 16 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 17 Twombly, 550 U.S. at 570 ). Only where a plaintiff has failed to “nudge[] [his or her] claims . . . 18 across the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. 19 While the plausibility requirement is not akin to a probability requirement, it demands more than 20 “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is 21 “a context–specific task that requires the reviewing court to draw on its judicial experience and 22 common sense.” Id. at 679. 23 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 24 amend even if no request to amend the pleading was made, unless it determines that the pleading 25 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122 , 26 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484 , 497 (9th Cir. 1995)); 27 see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 28 denying leave to amend when amendment would be futile). Although a district court should 1 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to 2 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 3 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 4 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 5 B. Motion to Strike Pursuant to Rule 12(f) 6 The Court “may strike from a pleading an insufficient defense or any redundant, 7 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “As with motions to 8 dismiss, when ruling on a motion to strike, the Court takes the plaintiff’s allegations as true[.]” 9 Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1146 (N.D. Cal. 2010). Similarly, the Court “must 10 view the pleading in the light most favorable to the nonmoving party.” Cholakyan v. 11 MercedesBenz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011). “Motions to strike are 12 generally disfavored because they are often used as delaying tactics and because of the limited 13 importance of pleadings in federal practice.” Shaterian v. Wells Fargo Bank, N.A., 829 F. Supp. 14 2d 873, 879 (N.D. Cal. 2011) (internal quotation omitted). “If there is any doubt whether the 15 portion to be stricken might bear on an issue in the litigation, the court should deny the motion.” 16 Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 930 (N.D. Cal. 2013). 17 Courts have recognized that class action allegations may sometimes be properly stricken 18 at the pleading stage. See, e.g., Kamm v. Cal. City Dev. Co., 509 F.2d 205 , 209–13 (9th Cir. 19 1975); see generally Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“Sometimes the 20 issues are plain enough from the pleadings to determine whether the interests of absent parties are 21 fairly encompassed within the named plaintiff’s claim.”). However, Ninth Circuit precedent 22 stands “for the unremarkable proposition that often the pleadings alone will not resolve the 23 question of class certification and that some discovery will be warranted.” Vinole v. Countrywide 24 Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). District courts have broad discretion to 25 control the class certification process, including whether to permit discovery in connection with 26 class certification. See id. 27 /// 28 /// 1 III. ANALYSIS 2 Defendants move to dismiss all Plaintiffs’ claims pursuant to Rule 12(b)(6). In addition, 3 Defendants move to strike Plaintiffs’ class allegations and request for attorneys’ fees, interest, and 4 injunctive relief pursuant to Rule 12(f). The Court will address Defendants’ arguments in turn. 5 A. Claims One and Two 6 For Claim One — failure to pay all straight time wages — Plaintiffs allege Defendants 7 “have had a consistent policy and/or practice of not paying Plaintiffs and those similarly situated 8 for all hours worked.” (ECF No. 1-1 at 22, ¶ 75.) Plaintiffs also allege Defendants “have 9 continuous and widespread” policies of improperly clocking out Plaintiffs and “time shaving” or 10 deducting a portion of wages earned. (Id. at 23–24, ¶ 77–83.) For Claim Two — failure to pay 11 overtime wages — Plaintiffs allege Defendants “failed to pay overtime when employees worked 12 over eight (8) hours per day and when employees worked over forty (40) hours per week.” (Id. at 13 25, ¶ 88.) Aside from the general allegation that Defendants engaged in unlawful conduct for at 14 least four years prior to the filing of this case (see id. at 6, ¶ 8), Plaintiffs provide no specific dates 15 as to when these alleged violations occurred. 16 The Ninth Circuit has held that in pleading wage and hour claims, “at a minimum the 17 plaintiff must allege at least one workweek when he worked in excess of forty hours and was not 18 paid for the excess hours in that workweek, or was not paid minimum wages.” Landers v. 19 Quality Commc’ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014). In Landers, the plaintiff “presented 20 generalized allegations asserting violations of the minimum wage and overtime provisions of the 21 [Fair Labor Standards Act].” Id. The plaintiff alleged the defendants implemented a “de facto 22 piecework no overtime” system, failed to pay minimum wages or overtime wages, and falsified 23 payroll records to conceal their failure to pay required wages. Id. In affirming the district court’s 24 dismissal of the plaintiff’s wage and hour claims, the Ninth Circuit emphasized, [25] Notably absent from the allegations in Landers’s complaint . . . was any detail 26 regarding a given workweek when Landers worked in excess of forty hours and was not paid overtime for that given workweek and/or was not paid minimum wages. 27 Although plaintiffs in these types of cases cannot be expected to allege with mathematical precision, the amount of overtime compensation owed by the [28] 1 employer, they should be able to allege facts demonstrating there was at least one workweek in which they worked in excess of forty hours and were not paid overtime [2] wages. Landers’s allegations failed to provide sufficient detail about the length and frequency of [his] unpaid work to support a reasonable inference that [he] worked [3] more than forty hours in a given week. [5] Id. (internal quotation marks and citations omitted). 6 Defendants argue Plaintiffs’ conclusory allegations fail to satisfy the rule set forth in 7 Landers. The Court agrees. As in Landers, Plaintiffs in the instant case generally assert 8 Defendants had a policy of underpaying them for “all” time worked, but Plaintiffs fail to point to 9 any factual allegations in the Complaint that describe at least one specific workweek where pay 10 was denied to either Plaintiff. Plaintiffs also fail to identify specific tasks for which they were not 11 paid. See Boon v. Canon Bus. Sols., Inc., 592 F. App’x 631, 632 (9th Cir. 2015). Indeed, the 12 Complaint fails to identify even basic information, such as the nature of Plaintiffs’ employment 13 with Defendants. As a whole, Plaintiffs’ overly general allegations fail “to provide sufficient 14 detail about the length and frequency of [their] unpaid work” to support a reasonable inference 15 they were underpaid. Landers, 771 F.3d at 646 ; see also Guerrero v. Halliburton Energy Servs., 16 Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296 , at *4–5 (E.D. Cal. Nov. 2, 2016). 17 Therefore, the Court DISMISSES Plaintiffs’ First and Second Claims with leave to 18 amend. 19 B. Claims Three and Four 20 For Claim Three — failure to provide meal periods — Plaintiffs allege Defendants “failed 21 to provide thirty (30) minute, uninterrupted meal periods to its Non-Exempt Employees who 22 worked for work periods of more than five (5) consecutive hours.” (ECF No. 1-1 at 27, ¶ 97.) 23 Plaintiffs allege Defendants’ “business model is such that [the employees] were assigned too 24 much work and insufficient help due to chronic understaffing to be able to take meal periods.” 25 (Id. at ¶ 99.) Plaintiffs further allege Defendants “had a pattern and practice of assigning too 26 much work to be completed in too short of time frames, resulting in Plaintiffs and those similarly 27 situated not being able to take meal periods” and Defendants “would not permit Plaintiffs and the 28 Class to take 30-minute meal periods unless specifically scheduled by Defendants and/or DOES 1 or unless Plaintiff and the Class were expressly told to by Defendants.” (Id. at ¶¶ 100–01.) 2 For Claim Four — failure to provide rest periods — Plaintiffs allege Defendants “failed to 3 authorize and/or permit rest period time based upon the total hours worked daily at the rate of ten 4 (10) minutes net rest time per four (4) hours or major fraction thereof.” (Id. at 29, ¶ 109.) 5 Plaintiffs further allege Defendants’ “business model was such that Non-Exempt Employees were 6 assigned too much work with insufficient help due to chronic understaffing whereby Plaintiffs 7 and the Class had to work through their rest periods.” (Id. at ¶ 110.) Finally, Plaintiffs allege 8 Defendants “had a pattern and practice of assigning too much work to be completed in too short 9 of time frames, resulting in Plaintiffs and those similarly situated not being able to take rest 10 periods.” (Id. at ¶ 111.) 11 Defendants argue Plaintiffs’ meal and rest period claims should be dismissed because they 12 do not allege sufficient facts that Plaintiffs were denied meal or rest periods. California Labor 13 Code § 226.7(a) (“§ 226.7(a)”) prohibits employers from requiring an employee to work during a 14 meal, rest, or recovery period in accordance with any applicable law. In Brinker Restaurant 15 Corp. v. Superior Court, 53 Cal. 4th 1004, 1034 (2012), the California Supreme Court held that 16 an employer need only “relieve the employee of all duty for the designated period, but need not 17 ensure that the employee does no work.” 18 Arguably there is at the very least a reasonable inference that Defendants denied 19 Plaintiffs’ meal periods by not permitting Plaintiffs “to take 30-minute meal periods unless 20 specifically scheduled by Defendants. . . or unless Plaintiffs and the Class were expressly told to 21 by Defendants.” However, this type of factual allegation about Defendants’ conduct is absent 22 from Plaintiffs’ rest period claim. It is therefore unclear from Plaintiffs’ allegations whether 23 Defendants failed to provide rest periods, or whether Plaintiffs chose to forego rest periods that 24 were available despite their heavy workload. See Carrasco v. C.H. Robinson Worldwide, Inc., 25 No. 1:13-CV-01438-LJO, 2013 WL 6198944 , at *10 (E.D. Cal. Nov. 27, 2013) (“These broad 26 statements do not allege any pertinent factual information regarding how [the defendant 27 employers] actually went about coercing the Plaintiff and sub-classes to forego breaks.”); see also 28 Morales v. Amazon.com, LLC, No. 2:17-CV-1981-ODW-JEM, 2018 WL 3636888 , at *2 (C.D. 1 Cal. Jul. 30, 2018) (“Plaintiff has not identified any ‘pressuring’ by [the defendant employer] that 2 coerced Plaintiff to perform her duties in ways that omit breaks.”). 3 Regardless, “[t]he requirement in Landers that a plaintiff must plead a specific instance of 4 alleged wage and hour violations also applies to claims about missed meal and rest periods.” 5 Guerrero, 2016 WL 6494296 , at *6. Here, Plaintiffs do not allege “at least one meal or rest break 6 where [they] worked through the break and [were] not paid for that time,” nor do they “allege a 7 given instance where Defendant[s] failed to provide [them] a meal or rest break in compliance 8 with state law.” Id. (citation omitted). 9 Therefore, the Court DISMISSES Plaintiffs’ Third and Fourth Claims with leave to 10 amend. 11 C. Claim Five 12 For Claim Five — failure to provide recovery periods — Plaintiffs allege they “work in 13 Sacramento during the summer and autumn months, when temperatures frequently exceed eighty 14 degrees Fahrenheit.” (ECF No. 1-1 at 30, ¶ 117). Additionally, Plaintiffs allege Defendants 15 failed to “permit, allow, or encourage Plaintiffs and the Class members to take preventative cool16 down recovery periods in the shade to protect against overheating when the temperature exceeds 17 eighty (80) degrees Fahrenheit.” (Id.) Moreover, Plaintiffs allege Defendants “failed to 18 implement other cooling measures in lieu of shade at least as effective as shade in allowing 19 employees to cool.” (Id. at ¶ 118.) 20 Plaintiffs’ allegations are conclusory and essentially recite the statutory language. In 21 California, employers must provide outdoor employees with access to shade when the 22 temperature exceeds 80 degrees Fahrenheit. 8 CCR § 3395(d)(1). As mentioned, the Complaint 23 fails to describe what type of work Plaintiffs performed for Defendants. Plaintiffs do not allege 24 they worked outdoors when the temperature exceeded 80 degrees Fahrenheit, nor do they allege 25 that they were denied access to a recovery period in a shaded area on any specific occasion. 26 Absent sufficient factual allegations regarding the nature of Plaintiffs’ employment, the Court 27 cannot draw a reasonable inference in Plaintiffs’ favor. 28 For these reasons, the Court DISMISSES Plaintiffs’ Fifth Claim with leave to amend. 1 D. Claim Six 2 Defendants argue Plaintiffs’ Sixth Claim for failure to comply with itemized employee 3 wage statement provisions should be dismissed because it is barred by the statute of limitations. 4 In opposition, Plaintiffs agree to withdraw Claim Six. (ECF No. 13 at 6.) Therefore, the Court 5 DISMISSES Plaintiffs’ Sixth Claim without leave to amend. 6 E. Claim Seven 7 For Claim Seven — failure to pay all wages due at termination — Plaintiffs allege 8 Defendants did not timely pay them straight time wages, overtime wages, or meal/rest period 9 premiums owed at the time of their termination. Plaintiffs also allege Defendants’ failure to pay 10 was willful in that “each of them knew the wages to be due, but failed to pay them.” (ECF No. 111 1 at 34, ¶ 138.) 12 The Court agrees with Defendants that Plaintiffs’ allegations fail to state a plausible claim. 13 California Labor Code § 203 states “[i]f an employer willfully fails to pay . . . any wages . . . the 14 wages of the employee shall continue as a penalty.” Notably absent from the Complaint are any 15 allegations as to when Plaintiffs’ employment with Defendants ended, what wages were earned, 16 and if/when the wages were paid. See Ritenour v. Carrington Mortg. Servs. LLC, 228 F. Supp. 3d 17 1025, 1033 (C.D. Cal. 2017) (dismissing a failure to pay wages timely upon discharge claim 18 because the pleading “contain[ed] no description of what wages were due, when they were due, 19 and when, if at all, they were paid”). Plaintiffs also fail to provide any factual allegations to 20 suggest Defendants’ alleged failure to pay was willful. See Sanchez v. Aerogroup Retail 21 Holdings, Inc., No. 12-CV-05445-LHK, 2013 WL 1942166 , at *14 (N.D. Cal. May 8, 2013) 22 (“Plaintiff has, in essence, just restated the language of Section 203. Plaintiff has not alleged facts 23 showing that [defendant] willfully refused to pay Plaintiff her wages after she was discharged or 24 quit. Consequently, Plaintiffs’ Section 203 claim must be dismissed.”). 25 Accordingly, the Court DISMISSES Plaintiffs’ Seventh Claim with leave to amend. 26 F. Claim Eight 27 For Claim Eight — violation of the UCL — Plaintiffs allege Defendants’ failure to pay all 28 straight time and overtime, failure to provide compliant meal and/or rest breaks, failure to itemize 1 and keep accurate records, and failure to pay all wages due at time of termination constitute 2 “unlawful” activity. (ECF No. 1-1 at 35, ¶ 142.) However, Plaintiffs admit in their opposition 3 that the UCL claim “is a derivative claim based upon the other causes of action in Plaintiffs’ 4 Complaint.” (ECF No. 13 at 21.) Having found that Plaintiffs fail to adequately allege any of 5 their claims, the Court DISMISSES Plaintiffs’ derivative UCL claim with leave to amend. See 6 Ramirez v. Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531 , at *7 (N.D. Cal. Jan. 13, 7 2014) (“Where Plaintiff cannot state a claim under the borrowed law, she cannot state a UCL 8 claim either.”). 9 G. Motion to Strike Class Allegations 10 Defendants next move to strike Plaintiffs’ class allegations. “[S]triking is severe and 11 disfavored,” and “many courts have declined to so rule solely on the basis of the allegations in a 12 complaint, preferring to address the propriety of the class action at a later stage in the litigation.” 13 Khorrami v. Lexmark Int’l, Inc., No. CV 07-01671 DDP (RCx), 2007 WL 8031909 , at *2 (C.D. 14 Cal. Sept. 13, 2007); see also Cholakyan, 796 F. Supp. 2d at 1245 (“[While] class allegations can 15 be stricken at the pleadings stage, it is in fact rare to do so in advance of a motion for class 16 certification.”); Vinole, 571 F.3d at 942 (“District courts have broad discretion to control the class 17 certification process.”); Cole v. Asurion Corp., No. CV 06-6649 PSG (JTLx), 2008 WL 5423859 , 18 at *14 (C.D. Cal. Dec. 30, 2008) (“[T]he Court is reluctant to preemptively deny Plaintiff at least 19 the opportunity to present a motion for class certification.”). 20 In the instant case, the parties have not had the opportunity to conduct discovery or 21 present a motion for class certification. The Court declines to strike class allegations at this early 22 stage in the litigation. As such, the Court DENIES Defendants’ Motion to Strike Plaintiffs’ Class 23 Allegations without prejudice. Defendants may raise their arguments again at the class 24 certification stage. 25 H. Motion to Strike Plaintiffs’ Request for Attorneys’ Fees, Interest, and 26 Injunctive Relief 27 Plaintiffs’ prayers for relief include a request for attorneys’ fees, interest, and injunctive 28 relief. Defendants move to strike these claims for relief. The Court has determined the 1 Complaint does not adequately plead any cognizable claims. Therefore, the Court need not 2 address the parties’ arguments regarding Plaintiffs’ requested relief at this time and DENIES AS 3 MOOT Defendants’ motion to strike Plaintiffs’ prayers for relief. 4 IV. CONCLUSION 5 For the foregoing reasons, Defendants’ Motion to Dismiss and/or Strike (ECF No. 9) is 6 GRANTED in part and DENIED in part as follows: 7 1. Claims One through Eight are DISMISSED with leave to amend, except Claim 8 Six, which is DISMISSED without leave to amend; 9 2. Defendants’ Motion to Strike Plaintiffs’ class allegations is DENIED; and 10 3. Defendants’ Motion to Strike Plaintiffs’ request for attorneys’ fees, interest, 11 and injunctive relief is DENIED AS MOOT. 12 Plaintiffs may file an amended complaint not later than fourteen (14) days from the date of 13 electronic filing of this Order. Defendants’ responsive pleading is due twenty-one (21) days after 14 Plaintiffs file their amended complaint. 15 IT IS SO ORDERED. 16 DATED: September 24, 2020