Wright v. Frontier Management LLC

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JOSHUA WRIGHT, LORETTA No. 2:19-cv-01767-JAM-CKD STANLEY, HALEY QUAM, and 12 AIESHA LEWIS on behalf of themselves and all others 13 similarly situated, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 Plaintiffs, 15 v. 16 FRONTIER MANAGEMENT LLC, FRONTIER SENIOR LIVING LLC, 17 and GH SENIOR LIVING LLC, dba GREENHAVEN ESTATES ASSISTED 18 LIVING, 19 Defendants. [20] Joshua Wright, Loretta Stanley, Haley Quam, and Aiesha Lewis [21] (“Plaintiffs”) filed this putative class action against Frontier [22] Management LLC, Frontier Senior Living LLC, and GH Senior Living [23] LLC (collectively, “Defendants”) over several of their wage and [24] hour policies. See First Am. Compl. (“FAC”), ECF No. 56. [25] Currently before the Court is Defendants’ motion to dismiss [26] Plaintiffs’ FAC for failing to plead sufficient facts to state [27] plausible meal, rest period, and unpaid wage claims. See Mot. to [28] 1 Dismiss (“Mot.”), ECF No. 68. Defendants also argue that 2 Wright’s reimbursement claim fails, as do Plaintiffs’ derivative 3 claims. Id. Plaintiffs oppose the motion. See Opp’n, ECF No. 4 69. 5 For the reasons set forth below, the Court GRANTS 6 Defendants’ Motion to Dismiss.1 [7] 8 I. BACKGROUND 9 Defendants operate a chain of retirement and assisted living 10 communities. FAC ¶ 39. Wright worked as a medication technician 11 at one of the assisted living locations in California from April 12 12, 2018, until March 15, 2019. FAC ¶ 13. Stanley worked as a 13 lead medical technician and caregiver at a facility in Oregon 14 from December 2018, until September 2019. FAC ¶ 14. Quam worked 15 as a caregiver at a facility in Washington from September 2017, 16 until September 2018. FAC ¶ 15. Lewis worked as a caregiver at 17 a facility in Illinois from July 2017, until October 2017. FAC 18 ¶ 16. Plaintiffs, collectively, allege that Defendants’ wage and 19 hour practices violate the Fair Labor Standards Act (“FLSA”), 29 20 U.S.C. § 201 , et seq. See FAC ¶¶ 81–91. 21 Wright, on behalf of the California class, alleges 22 violations of several provisions of the California Labor Code and 23 behavior amounting to unfair business practices in violation of 24 the California Business and Professions Code. See FAC ¶¶ 92–104, 25 105-16, 117–25, 126–37, 138–47, 148–58, 159–66, 167–79. Quam, on [26] 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for May 18, 2021. 1 behalf of the Washington class, alleges violations of Washington 2 labor law and the Washington Consumer Protection Act. See FAC 3 ¶¶ 180–91, 192–207, 208–24, 225–33, 234–42, 243–50, 251-58. 4 Lewis, on behalf of the Oregon class, alleges a host of labor 5 violations pursuant to Oregon law. See FAC ¶¶ 259–76, 277–83, 6 284–90, 291–303, 304–14, 315–20. Stanley, on behalf of the 7 Illinois class, alleges violations of Illinois labor law, 8 consumer fraud, and deceptive business practices. See FAC 9 ¶¶ 321–31, 332–45, 346–59, 360–68, 369–82. Plaintiffs’ state law 10 claims are similar in that they generally allege that Defendants 11 failed to properly compensate them and denied them several 12 employee entitlements like meal and rest periods and accurate, 13 itemized wage statements. See generally FAC. 14 Defendants move to dismiss the FAC in its entirety, arguing 15 Plaintiffs have failed to present any specific, non-theoretical 16 factual allegations supporting the twenty-seven claims against 17 them. See generally Mot. Defendants argue the motion to dismiss 18 is rife with unsupported legal conclusions. Id. Plaintiffs 19 oppose the motion, arguing Defendants seek to inappropriately 20 impose a heightened pleading standard on their FAC. See 21 generally Opp’n. [22] 23 II. OPINION 24 A. Legal Standard 25 Federal Rule of Civil Procedure 8(a)(2) requires “a short 26 and plain statement of the claim showing that the pleader is 27 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Courts must 28 dismiss a suit if the plaintiff fails to “state a claim upon 1 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To 2 defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must 3 “plead enough facts to state a claim to relief that is plausible 4 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 570 5 (2007). This plausibility standard requires “factual content 6 that allows the court to draw a reasonable inference that the 7 defendant is liable for the misconduct alleged.” Ashcroft v. 8 Iqbal, 556 U.S. 662, 678 (2009). At this stage, the court “must 9 accept as true all of the allegations contained in a complaint.” [10] Id. But it need not “accept as true a legal conclusion couched 11 as a factual allegation.” Id. 12 B. Meal and Rest Break Claims 13 Plaintiffs’ fourth, twelfth, twenty-first, and twenty14 second causes of action are unpaid meal and rest break claims. 15 See FAC ¶¶ 117–25, 208–24, 304–14, 315-20. Plaintiffs allege 16 that Defendants require them to remain on duty during rest 17 breaks and while clocked out for meal periods. FAC ¶ 44. 18 Further, Defendants require them to carry communication devices— 19 like cellphones and pagers—at all times, so that they can be 20 reached to handle any job-related issues. FAC ¶ 45. Plaintiffs 21 contend that this policy denies them their statutorily required 22 meal and rest breaks. FAC ¶ 46. In addition, Plaintiffs are 23 not compensated for any meal and rest breaks missed as a result 24 of this policy. FAC ¶ 47. 25 Defendants argue that these claims must be dismissed 26 because they are “conclusory, incomplete, and entirely 27 theoretical.” Mot. at 11–13. The Court agrees. It is not 28 difficult to imagine a situation in which an employee has a meal 1 or rest break interrupted by a phone call to help with a 2 resident of one of the assisted living facilities. However, the 3 allegations in the FAC “stop[] short of the line between 4 possibility and plausibility of entitlement to relief.” Iqbal, [5] 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 ). Plaintiffs 6 do not describe an instance in which Defendants actually 7 interfered with one of their meal or rest breaks, alleging only 8 that Defendants “require [them] to carry communication 9 devices . . . with them at all times” and that Defendants 10 “require [them] to respond to calls [] regardless of whether 11 they are taking a meal or rest break.” FAC ¶ 45. These 12 allegations are factually lacking. The Court cannot reasonably 13 infer that Defendants are liable for the misconduct alleged from 14 the few and unspecific facts presented in support of the meal 15 and rest break claims. See Iqbal, 556 U.S. at 678 . 16 Moreover, as this Court determined in Chavez v. RSCR Cal., 17 Inc., 2019 WL 1367812 , at *2 (E.D. Cal. 2019), Plaintiffs’ 18 “failure to plead at least one occasion on which [they were] 19 impeded from taking a meal of rest break likely runs afoul of 20 the Ninth Circuit’s decision in Landers v. Quality 21 Communications, Inc., 771 F.3d 638 (9th Cir. 204), as amended 22 (Jan. 26, 2015).” See Landers, at 645–46 (holding that “at a 23 minimum, a plaintiff asserting a violation of the FLSA overtime 24 provisions must allege that she worked more than forty hours in 25 a given workweek without being compensated for the hours worked 26 in excess of forty during that week.”); Bush v. Vaco Tech. 27 Servs., LLC, 2018 WL 2047807 , ay *8 (N.D. Cal. 2018) (finding 28 the reasoning of Landers, based on the Ninth Circuit’s reading 1 of Twombly and Iqbal, persuasive in determining overtime claim 2 asserted under the California labor Code); see also Guerrero v. 3 Halliburton Energy Servs., Inc., 2018 WL 6494296 , at *6 (E.D. 4 Cal. 2016 ) (collecting district court cases applying Landers 5 standard to meal and rest period claims under the California 6 Labor Code). 7 Plaintiffs argue that the FAC alleges that the putative 8 classes were “on call” during their meal and rest periods, and 9 that fact alone is sufficient to state a claim under California, 10 Oregon, and Washington law, regardless of whether an 11 interruption actually occurred. See Opp’n at 5–6. Plaintiffs 12 are correct that, under California, Washington, and Oregon law, 13 an employee should either not be on call during his meal or rest 14 breaks, or else receive compensation for being on call. See 15 Augustus v. ABM Sec. Servs., Inc., 2 Cal.5th 257, 273 (2016) 16 (California law prohibits on-duty and on-call rest periods); 17 White v. Salvation Army, 118 Wash.App. 272, 278 (Washington law 18 permits on-call meal periods “provided the employee is paid.”); 19 Talarico v. Hoffman Structures, Inc., 1999 U.S. Dist. Lexis 20 20898, at *9 (D. Or. 1999) (Oregon law permits on-call meal 21 breaks so long as employee is paid). But these legal 22 conclusions have no impact on the FAC’s factual deficiencies. 23 Plaintiffs have vaguely alleged that Defendants require 24 them to remain on duty “during rest breaks and while clocked out 25 for meal periods.” FAC ¶ 44. The only fact that speaks to 26 Defendants’ failure to provide off-duty meal and rest breaks is 27 Defendants’ policy requiring employees to have communication 28 devices on them at all times. FAC ¶ 46. From this, Plaintiffs 1 ask the Court to infer that they were interrupted and asked to 2 work during their off-duty meal and rest breaks. The Court 3 declines to do so. In this instance, there is little difference 4 between drawing an inference and mere speculation. Thus, 5 Plaintiffs’ meal and rest break allegations fall short of 6 plausibility. 7 The Court DISMISSES Plaintiffs’ fourth, twelfth, twenty8 first, and twenty-second causes of action for on-duty and unpaid 9 meal and rest breaks. 10 C. Unpaid Wage Claims 11 Plaintiffs’ first, second, third, fifth, tenth, eleventh, 12 fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, 13 twenty-third, twenty-fourth, and twenty fifth causes of action 14 assert various types of unpaid wage claims. See FAC ¶¶ 81–91, 15 92–104, 105–16, 126–37, 180–91, 192–207, 234–42, 243–50, 259–76, 16 277–83, 284–90, 321–31, 332–45, 346-59. Plaintiffs allege that 17 Defendants failed or refused to pay them minimum and overtime 18 wages, did not pay them for all hours worked, and made unlawful 19 deductions from their wages. Id. In support of these 20 allegations, Plaintiffs contend: 21 • Employees are not paid for “work performed while clocked 22 out for meal periods” or “missed breaks and meal 23 periods”; 24 • Employees are “regularly required to work off-the-clock” 25 filling out paperwork, waiting to be relieved of their 26 posts, helping other employees with “a number of tasks” 27 like transferring residents, and are not compensated for 28 that time; 1 • Wright and other California employees are prevented from 2 logging eight to twelve hours of work per pay period 3 because Defendants require them to use a malfunctioning 4 timeclock; 5 • Stanley and other Illinois employees are required to 6 arrive at work ten to fifteen minutes before clocking in 7 and are not compensated for this time; and 8 • Defendants round down time worked by Plaintiffs to the 9 nearest fifth minute, which results in underpayment of 10 wages. 11 See FAC ¶¶ 44, 47, 48, 49, 50, 52. 12 Defendants argue that these claims fail because they do not 13 include any facts specifying Plaintiffs “were not paid any 14 specific sum for any specific amount of time allegedly worked on 15 any specific date or during any specific pay period.” Mot. at 16 15. In other words: The lack of specificity is key. Plaintiffs 17 have only presented “generalized allegations.” See Krauss v. 18 Wal-Mart, Inc., 2018 WL 6170770 , at *3 (E.D. Cal. 2019) (quoting 19 Landers, 771 F.3d at 646 ). With regard to minimum and overtime 20 wages, “[n]otably absent” from Plaintiffs’ FAC is “any detail 21 regarding a given workweek when [Plaintiffs] worked in excess of 22 forty hours and [were] not paid overtime for that given workweek 23 and/or were not paid minimum wages.” Id. 24 Plaintiffs “[do] identify the tasks for which [they] were 25 allegedly not paid:” filling out paperwork, waiting to be 26 relieved, and helping other employees with certain tasks. 27 Chavez, 2019 WL 1367812 , at *3. However, as in Chavez, 28 Plaintiffs “fail[] to provide any other factual detail regarding 1 the [unaccounted task time] sufficient to state a plausible 2 claim for non-payment of minimum wages.” Id. (citing Iqbal, 556 3 U.S. at 678) (noting that the “plausibility standard . . . asks 4 for more than a sheer possibility that a defendant has acted 5 unlawfully.”)). Plaintiffs are not required “to identify an 6 exact calendar week or particular instance of denied overtime” 7 or minimum wages, but Plaintiffs must supply allegations that 8 “give rise to a plausible inference that there was such an 9 instance.” Tan v. GrubHub Inc., 171 F.Supp.3d 998, 1008 (N.D. 10 Cal. 2016 ). 11 Similarly, while the FAC alleges that Wright and other 12 California employees were required to use a malfunctioning 13 timeclock that prevented them from logging eight to twelve hours 14 of work per pay period, more specific facts are absent. For 15 instance, Plaintiffs do not specify what sort of technical 16 difficulties prevented them from logging their hours. They do 17 not give an example of a specific time this occurred. 18 Plaintiffs do not detail Wright’s exchanges with management 19 about these issues (e.g., who he spoke to, what they said, when 20 he spoke to them). Nor do Plaintiffs set forth specific facts 21 in support of the allegation that Stanley and other Illinois 22 employees were required to arrive early for work. No example is 23 given of a specific time this occurred. Plaintiffs do not 24 specify what sort of work-related tasks they were required to 25 complete during that time, if any. And they do not explain how 26 Defendants went about requiring them to show up early. 27 Insofar as Plaintiffs allege that Defendants round down 28 their time worked to the nearest fifth minute, and that this 1 results in underpayment of wages, this allegation similarly 2 lacks specificity. The FAC does not allege who “was actually 3 affected by [this practice], when, for what amount of time, at 4 whose direction, and the approximate amount of wages [they] are 5 owed as a result.” Mot. at 16. In sum, Plaintiffs allegations 6 are overly general. See, e.g., Krauss v. Wal-Mart, Inc., 2020 7 WL 1874072 , at *2–4 (E.D. Cal. 2020) (dismissing overtime and 8 minimum wage claims because plaintiff failed to “allege key 9 facts and specific details necessary to support [them].”); 10 Chavez, 2019 WL 1367812 , at *3 (same); Morelli, 2018 WL 6201950 , 11 at *4 (same). They preclude the Court from making any plausible 12 inferences about Defendants’ conduct and fail to give Defendants 13 the fair notice necessary to defend themselves effectively. See 14 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 15 The Court DISMISSES Plaintiffs’ first, second, third, 16 fifth, tenth, eleventh, fourteenth, fifteenth, seventeenth, 17 eighteenth, nineteenth, twenty-third, twenty-fourth, and twenty 18 fifth causes of action for unpaid wages. 19 D. Unreimbursed Business Expenses Claim 20 Plaintiffs’ eighth cause of action is for unreimbursed 21 business expenses. See FAC ¶¶ 159–66. Plaintiffs allege Wright 22 and the other California employees were not reimbursed for the 23 use of “their personal cell phones, in addition to their radios” 24 while working. FAC ¶ 55. However, Plaintiffs fail to allege 25 any specific instances in which an employee was required to use 26 his or her personal cell phone for work-related purposes. 27 Plaintiffs do not specify whether they incurred any actual 28 expenses related to the use of their cell phones; whether they 1 requested Defendants reimburse them for those expenses; or that 2 Defendants refused to tender any requested reimbursements. 3 Absent any supporting details, the Court cannot infer that 4 Plaintiffs’ claim for unreimbursed business expenses is 5 plausible. See Krauss, 2019 WL 6170770 , at * 5 (“Because 6 Plaintiff fails to allege even a single instance when Walmart 7 did not reimburse her for reimbursement-eligible items, this 8 claim fails.”); Chavez, 2019 WL 1367812 , at *3 (“Chavez fails to 9 provide a single instance when such a cost was actually incurred 10 and not reimbursed.”). 11 The Court DISMISSES Plaintiffs’ eighth cause of action for 12 unreimbursed business expenses. 13 E. Derivative Claims 14 Plaintiffs’ sixth, seventh, ninth, thirteenth, sixteenth, 15 twentieth, twenty-sixth, and twenty-seventh causes of action 16 allege violations of state consumer protection and unfair 17 business practice laws, as well as waiting time and inaccurate 18 wage statement penalties. See FAC ¶¶ 138–47, 148–58, 167–79, 19 225–33, 251–58, 291–303, 360–68, 369–82. As currently alleged, 20 these claims are dependent upon adequately pled claims for 21 failure to pay overtime compensation, failure to provide meal and 22 rest breaks, and failure to pay minimum wages. See Marshall v. 23 Pollin Hotels II, LLC, 170 F.Supp.3d 1290, 1306 (D. Or. 2016) (a 24 claim of late payment of wages upon termination under Oregon law 25 is completely dependent on claims for unpaid overtime wages and 26 unlawful wage deductions); Morrelli, 2018 WL 6201950 , at *5 27 (claims of inaccurate wage statements and failure to pay wages 28 upon termination under California law and violations of 1 California’s Unfair Competition Law are all dependent upon 2 adequately pled overtime, minimum wage, and meal and rest break 3 claims); Porch v. Masterfoods, USA, Inc., 685 F.Supp.2d 1058 , 4 1075–76 (claim of unfair business practices under California law 5 is predicated on at least one legal violation). For the reasons 6 described above, none of those preceding claims are adequately 7 pled. Thus, the derivative claims necessarily fail. 8 Moreover, Plaintiffs’ twenty-seventh cause of action for 9 violation of the Illinois Consumer Fraud and Deceptive Business 10 Practices Act (the “ICFDBPA”) fails as a matter of law because 11 Plaintiffs are employees and not consumers. See Hess v. Kanoski 12 & Assocs., 668 F.3d 446, 454 (7th Cir. 2012) (Plaintiff did not 13 have a valid claim under the ICFDBPA because he was an employee 14 and not a consumer). And Plaintiffs’ sixteenth cause of action 15 for violation of Washington’s Consumer Protection Act (“CPA”) 16 also fails as a matter of law because simple wage and hour 17 violations do not constitute CPA violations. See Aziz v. Knight 18 Transp., 2012 WL 3596370 , at *2 (W.D. Wash. 2012) (an act which 19 violates wage and hour laws may form the basis for a CPA claim if 20 it also has the capacity to deceive a substantial portion of the 21 public); Castillo v. United Rentals, Inc., 2018 WL 1382597 , at 22 *8–9 (W.D. Wash. 2018) (dismissing the plaintiff’s CPA claim as a 23 matter of law because a simple violation of a meal and rest break 24 statute does not constitute a CPA violation). 25 Plaintiffs dispute this and contend that there has been a 26 violation of the CPA because: (1) Defendants have per se violated 27 statutory wage and hour laws; and (2) Defendants’ conduct toward 28 their employees constitutes unfair and deceptive business 1 practices. See Opp’n at 12–14. With regard to the per se 2 violations, “[t]he Washington Supreme Court has been clear that a 3 per se unfair trade practice ‘exists when a statute which has 4 been declared by the Legislature to constitute an unfair or 5 deceptive act in trade or commerce has been violated.’” 6 Castillo, 2018 WL 1282597 , at *8 (quoting Hangman Ridge Training 7 Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (Wash. 8 1986)). By way of example, a violation of a statute governing 9 embalming services has been designated by the legislature as 10 “constitut[ing] an unfair practice under [the CPA].” Id. 11 (quoting RCW 18.39.350). The wage and hour statutes at issue 12 here have not been given a similar designation. Id. Thus, there 13 can be no per se violation. 14 As for Plaintiffs’ argument that Defendants’ conduct 15 constitutes unfair and deceptive business practices, for their 16 conduct to fall within this category, “the plaintiff must allege 17 more than merely the failure to comply with Washington’s wage 18 laws, but rather the payment of wages at rates below what 19 [Defendants] represented to [Plaintiffs] and the general public.” [20] Id. (internal quotation marks and citations omitted). Plaintiffs 21 have pled no facts regarding what representations, if any, were 22 made by Defendants to Plaintiffs and the general public 23 concerning payment of wages. Nor have they presented any 24 supporting facts in their opposition brief. 25 The Court DISMISSES Plaintiffs’ sixth, seventh, ninth, 26 thirteenth, sixteenth, twentieth, twenty-sixth, and twenty27 seventh causes of action for violations of state consumer 28 protection and unfair business practice laws and waiting time and mE IRIE IMIR EIR IRIE IRIE I IRIE ORS)?" SENSES IEEE OSI IE ESO 1 inaccurate wage statement penalties. 2 EF. Leave to Amend 3 Plaintiffs’ request leave to file a second amended complaint 4 if any of their claims are found to be deficient. See Opp’n at 5 14-15. The Court need not grant leave to amend where amendment 6 would be futile. Deveraturda v. Globe Aviation Sec. Servs., 454 7 F.3d 1043 , 1049 (9th Cir. 2006). Plaintiffs have already filed 8 two complaints and, notably, supplied no further factual detail 9 in their opposition brief. Plaintiffs, therefore, do not appear 10 able to cure the FAC’s deficiencies. Amendment, at this point, 11 would be futile. Additionally, Plaintiffs’ sixteenth and twenty12 seventh causes of action fail as a matter of law. Accordingly, 13 Plaintiffs’ request for leave to amend is DENIED. [14] 15 Til. ORDER 16 For the reasons set forth above, Defendants’ Motion to 17 Dismiss is GRANTED WITH PREJUDICE. 18 IT IS SO ORDERED. 19 Dated: May 28, 2021 20 kA 2 teiren staves odermacr 7008