LAUREL BEELER, Magistrate Judge.
Plaintiff Miguel Mendoza brings this putative class action for wage-and-hour violations against his former employer Bank of America Corporation. Mr. Mendoza brings seven claims:
Bank of America moves to dismiss claims one through seven on the grounds that Mr. Mendoza does not actually plead any instances when he was deprived of minimum wage or overtime pay, or where he requested, and was denied, reimbursement for business expenses.
Mr. Mendoza worked as an operations manager at a Bank of American branch in California, from September 2015 to January 2017.
The plaintiff's shifts averaged eight to nine hours, which entitled him to a meal period of at least thirty minutes and a rest period.
The plaintiff's employment with Bank of America ended on or around January 2017, and he alleges that because Bank of America owed him wages due to the paid meal and rest period violations above, he was not paid all his wages upon discharge.
The plaintiff alleges that he was not reimbursed for business expenses based on the following facts:
Mr. Mendoza does not specify when he received less than minimum wage, worked more than 40 hours a week without receiving overtime pay, or was not afforded full uninterrupted meal breaks or rest periods.
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level[.]" Id. (internal citations omitted).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, which when accepted as true, "`state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 557). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).
If a court dismisses a complaint, it should give leave to amend unless the "the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).
In Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014), as amended (Jan. 26, 2015), the Ninth Circuit set forth the standard for pleading wage-and-hour claims post-Twombly and Iqbal. The plaintiff there alleged that his employer violated the minimum-wage and overtime requirements of the federal Fair Labor Standards Act ("FLSA"). Id. at 639-40.
Specifically, the complaint alleged:
Id. at 646 (brackets and ellipses in original).
The Ninth Circuit held that this recitation was insufficient to state a claim in light of Twombly and Iqbal. Id. It reiterated "the Supreme Court's pronouncement in Iqbal that a Plaintiff's pleading burden cannot be discharged by `a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action.'" Id. at 644 (internal brackets and ellipsis omitted) (quoting Iqbal, 556 U.S. at 678). It held that "[a]lthough plaintiffs in these types of cases cannot be expected to allege `with mathematical precision,' the amount of overtime compensation owed by the 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 wages." Id. at 646. It confirmed that allegations that "merely allege[ ] that [a plaintiff] was not paid for overtime hours worked," without more, do not plead a plausible claim. Id.
Twombly and Iqbal apply to all civil claims in federal court (not just FLSA claims), and thus federal courts apply the Twombly/Iqbal standard as delineated in Landers to minimum-wage, overtime, meal-breaks, and rest-period claims under the California Labor Code. Courts have held that a plaintiff must plead facts demonstrating at least one workweek when she was not paid minimum wage, worked in excess of 40 hours a week and was not paid overtime, or was impeded from taking a meal break or rest period, to state a plausible claim. See, e.g., Cortez v. United Nat. Foods, Inc., No. 18-cv-04603-BLF, 2019 WL 955001, at *10, *12 (N.D. Cal. Feb. 27, 2019) (applying Landers to California Labor Code minimum-wage, overtime, meal-break, and rest-period claims); Suarez v. Bank of Am. Corp., No. 18-cv-01202-MEJ, 2018 WL 2431473, at *4-7 (N.D. Cal. May 30, 2018) (generally same). Courts have held that general allegations that a plaintiff "regularly" worked without being adequately compensated, without more facts, are conclusory and insufficient to state a claim. See, e.g., Bush v. Vaco Tech. Servs., LLC, No. 17-cv-05605-BLF, 2018 WL 2047807, at *9 (N.D. Cal. May 2, 2018) ("[Plaintiff's] bare assertion that she `regularly' worked more than the statutory requirement is conclusory and insufficient under the standard set forth in Landers.") (citing Perez v. Wells Fargo & Co., 75 F.Supp.3d 1184, 1191 (N.D. Cal. 2014)). Similarly, general allegations that the defendant "required" a plaintiff to work without being adequately compensated, without more facts, are conclusory and insufficient to state a claim. See, e.g., Bush, 2018 WL 2047807, at *8 (allegations that "Plaintiff was required to report to [defendant]'s headquarters" at certain times "is another way of saying that [plaintiff] and the putative class `regularly' worked excess hours, and does not amount to an allegation that [plaintiff] actually worked [excess hours]") (emphasis in original); McMillian v. Overton Sec. Servs., Inc., No. 17-cv-03354-JSC, 2017 WL 4150906, at *2 (N.D. Cal. Sept. 19, 2017) (allegations that plaintiff "was required to work in excess of 40 hours per week" fail to state a plausible claim).
Mr. Mendoza's first and second claims are for failure to provide meal-and-rest periods pursuant to California Labor Code §§ 512 and 226.7, and IWC Wage Orders.
California "wage and hour claims are . . . governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC." Vaquero v. Stoneledge Furniture LLC, 214 Cal.Rptr.3d 661, 666 (2017), as modified (Mar. 20, 2017), review denied (June 21, 2017). The California Labor Code requires employers to give their nonexempt employees meal periods and rest periods during the workday. Cal. Lab. Code §§ 226.7, 512. Labor Code section 226.7(b) prohibits an employer from requiring an employee "to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission[.]" Section 226.7 and IWC Wage Order No. 5-2001, operating in conjunction, require that an employer must authorize and permit all employees to take rest periods for "ten (10) minutes net rest time per hour (4) hours" worked; "[h]owever, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours." Cal. Code Regs. tit. 8, § 11140(12). Additionally, Labor Code section 512(a) requires an employer to "provid[e] the employee with a meal period of not less than 30 minutes" for workdays lasting more than five hours, and provide two meal periods for workdays in excess of 10 hours, subject to waiver in certain circumstances.
Here, the plaintiff alleges Bank of America failed to consistently provide uninterrupted meal and rest breaks.
Mr. Mendoza does not identify a specific calendar workweek when he was not paid minimum wage or worked in excess of 40 hours a week and was not paid overtime, or where his meal or rest periods were interrupted other than explaining that "in or around the end of December 2015 or beginning of January 2016," he did not receive a legally compliant meal period.
The court finds that the preceding facts are sufficient to state a plausible claim. The plaintiff provided as an example that he was not provided with an uninterrupted meal or rest period "in or around the end of December 2015 or beginning of January 2016."
The authority cited by the defendant is inapposite to the facts here. The plaintiffs in each of those cases plead fewer facts sufficient to indicate a plausible claim. See Soratorio v. Tesoro Ref. & Mktg. Co., LLC, No. CV 17-1554-MWF (RAOx), 2017 WL 1520416, at *6 (C.D. Cal. April 26, 2017) (dismissing claim because the plaintiff's complaint stated "merely that workers were required to work through meal breaks; that Defendants did not provide the required meal breaks; and that Defendant `suffered and permitted' Plaintiff and other employees to work through their meal breaks"); Hernandez v. Houdini, Inc., No. SA CV 16-1825-DOC (JCGx), 2017 WL 8223987, *7-*8 (C.D. Cal. Mar. 21, 2017) (dismissing the claims because the plaintiff made only general allegations that he did not receive compliant meal periods and did not allege "who it was that cut short or cancelled his meal or rest periods, on what basis they were cut short and cancelled, who ordered Plaintiff and/or others to falsify their time cards, or any other details [showing plausibility]"); Guerrero v. Halliburton Energy Servs., Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296, at *6 (E.D. Cal. Nov. 2, 2016) (claims dismissed because the plaintiff did not plead any period of time/specific workweek where he did not receive a compliant meal or rest period); Freeman v. Zillow, Inc., No. SACV 14-01843-JLS (RNBx), 2015 WL 5179511, *5 (C.D. Cal. Mar. 19, 2015) (same).
The defendants argue that even if the court finds that the plaintiff has pled sufficient facts for a plausible claim, the claim still fails because the asserted time period falls outside the statute of limitations.
A similar argument by a plaintiff relying on the same authority as Mr. Mendoza was dismissed in Rojas-Cifuentes v. ACX Pacific Northwest, Inc. No. 14-cv-00697-JAM-CKD, 2016 WL 6217060, at *3 (E.D. Cal. Oct. 25, 2016). The court there stated:
Rojas-Cifuentes, 2016 WL 6217060, at *3.
The plaintiff filed his initial complaint in state court on March 25, 2019 and it was removed to this court on May 8, 2019.
Mr. Mendoza's fifth claim is for failure to pay all wages due upon discharge pursuant to California Labor Code § 203.
Under Labor Code section 201(a), "if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately." But if an employee does not "hav[e] a written contract for a definite period [and] quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter," subject to certain exceptions. Cal. Lab. Code § 202(a). Employees are awarded a penalty if an employer willfully fails to pay unpaid wages pursuant to sections 201 and 202, among others. Id. § 203(a). "A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due." Cal. Code Regs. tit. 8, § 13520; see Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1201 (2008) ("The settled meaning of `willful[`,] as used in section 203, is that an employer has intentionally failed or refused to perform an act which was required to be done.")
Defendant also argues that the plaintiff's section 203 claim fails to the extent it relies on a failure to make section 226.7 meal-and-rest period payments at termination because section 226.7 payments do not constitute "wages earned" under California Labor Code section 201.
As this court has noted,
Suarez v. Bank of America Corp., No. 18-cv-01202-MEJ, 2018 WL 3659302, *10 (N.D. Cal. Aug. 2, 2018) (citing In re: Autozone, Inc., 2016 WL 4208200, at *6 (N.D. Cal. Aug. 10, 2016), recons. denied sub nom. In re: AutoZone, Inc., 2016 WL 6834138 (N.D. Cal. Nov. 21, 2016), leave to appeal denied sub nom. Ellison v. AutoZone Inc., 2017 WL 6048892 (9th Cir. Mar. 3, 2017); but see Ling v. P.F. Chang's China Bistro, Inc., 245 Cal.App.4th 1242, 1261 (2016) ("[T]he remedy for a section 226.7 violation is an extra hour of pay, but the fact that the remedy is measured by an employee's hourly wage does not transmute the remedy into a wage as that term is used in section 203")); see also Ortiz v. Amazon.com LLC, No. 17-cv-03820-JSW, 2018 WL 8221267, at *4 (N.D. Cal. Jan. 1, 2018) ("[T]he court joins those courts, including its many colleagues in this District, that have found the premium payment provided for as a remedy under Section 226.7 should be viewed as a wage[.]").
This claim is derivative of the plaintiff's first through fourth claims. Because the court dismisses those claims, the defendants' motion to dismiss the plaintiff's fifth cause of action is granted with leave to amend.
Mr. Mendoza's sixth claim is for failure to reimburse for business expenses pursuant to California Labor Code § 2802.
California Labor Code Section 2802 requires an employer to "indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer[.]" "Merely alleging failure to reimburse unspecified work-related expenses is not enough to state a Section 2802 claim." Tan, 171 F.Supp.3d at 1005 (citing cases). "Instead, Section 2802 claims are sufficiently pled where the complaint identifies the particular expenses that were not reimbursed and affirmatively alleges that the expenses were part of the plaintiff's job duties." Id. (citing cases).
Here, the plaintiff alleges that he and others were required to use their personal cell phones for work-related purposes such as communicating with other employees and managers regarding status updates, emergencies, scheduling, pending documentation, pending training, approving timesheets, and answering work-related questions.
As a result, the court denies the defendant's motion to dismiss the plaintiff's sixth claim.
The UCL provides a cause of action for business practices that are (1) unlawful, (2) unfair, or (3) fraudulent. Cal. Bus. & Prof. Code § 17200, et seq. Each prong of the UCL provides "a separate and distinct theory of liability." Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007). "Generally, violation of almost any law may serve as a basis for a UCL claim." Antman v. Uber Techs., Inc., No. 3:15-cv-01175-LB, 2015 WL 6123054, at *6 (N.D. Cal. Oct. 19, 2015) (internal quotation marks omitted). Claims under the UCL "shall be commenced within four years after the cause of action accrued." Cal. Bus. & Prof. § 17208; see also Cortez v. Purolator Air Filtration Products Co., 23 Cal.4th 163, 179 (2000) ("Any action on any UCL cause of action is subject to the four-year period of limitations created by that section.").
Mr. Mendoza's seventh cause of action alleges unfair competition. This claim relies on and is derivative of his meal-break, rest-period, minimum wage, and overtime claims which have been dismissed pursuant to the three-year statute of limitations governing those claims, however, his UCL claim is still within the four-year period that that statute allows. The "[p]laintiff may pursue UCL claims predicated upon unpaid overtime and missed meal and rest periods that occurred within the four-year limitations period." Van v. Language Line Services, Inc., No. 14-cv-03791-LHK, 2016 WL 3143951, at *30 (N.D. Cal. June 6, 2016) (citing case).
As the court found above, the plaintiff plead sufficient facts to establish a plausible claim for California Labor Code violations, but the claims were dismissed pursuant to the statute of limitations on those claims. The plaintiff's UCL claim, being based on these facts, but not barred by the same statute of limitations, is therefore sufficiently pled. Accordingly, the court denies the defendant's motion with regard to the UCL claim.
The parties say in their briefs that the plaintiff has agreed to dismiss his claim for injunctive relief.
The court grants Bank of America's motion to dismiss claims one through five and denies the motion to dismiss claims six and seven. The dismissal is without prejudice, and Mr. Mendoza may file an amended complaint within 21 days of the date of this order. (If he files an amended complaint, he must attach a blackline of his new amended complaint against his First Amended Complaint.)
The court dismisses the claim for injunctive relief with prejudice.