Plaintiff and appellant Drake Price worked at Starbucks as an entry-level barista for approximately 13 scheduled shifts before he was fired. He sued Starbucks Corporation (Starbucks) on behalf of himself and a putative class, seeking to recover unpaid wages, penalties, and damages, alleging Labor Code violations, including failure to timely pay wages upon termination, failure to pay an additional hour of reporting time pay on the day he was fired, and failure to issue a wage statement that complied with the Labor Code. Starbucks challenged the pleadings, and the trial court dismissed the noncompliant wage statement cause of action and granted a motion to strike the allegations that Price was entitled to continuing wages because Starbucks failed to timely pay wages upon termination. Starbucks then
Price was an entry-level employee at Starbucks from October 22, 2007, through November 16, 2007, when he was terminated.
On November 16, Price arrived at the store, and the branch manager informed Price that he "was letting him go." Price received two paychecks; one paycheck for the work he performed up until November 10, and another paycheck for two hours of reporting time pay for the meeting on November 16. The earnings statements attached to these paychecks are exhibits to the complaint.
Price, on behalf of himself and a putative class, alleged causes of action for (1) violation of Labor Code section 203
Starbucks filed a demurrer to Price's third cause of action for noncompliant wage statements, and moved to strike allegations in the first and fifth causes of action seeking continuing wages under section 203 for allegedly failing to timely pay Price upon his termination (§ 201).
The trial court sustained the demurrer without leave to amend and granted the motion to strike. Thus, the complaint and the remaining causes of action alleged therein, were based upon Starbucks's alleged failure to pay Price (and the putative class he sought to represent) the appropriate amount of reporting time pay on the date of termination.
Starbucks moved for summary judgment on the complaint, contending Price's causes of action (first, second) based upon the failure to pay an additional hour of reporting time pay failed as a matter of law, and the remaining causes of action (fourth, fifth) were derivative of the reporting time pay causes of action. The following evidence was presented in support of, and in opposition to, the summary judgment motion.
Price was not scheduled to work a shift on November 16, 2007, but he agreed to come to the store for the scheduled meeting. Price testified the meeting lasted about 45 seconds. For attending this meeting, Price received two hours of regular pay at his hourly rate.
Price worked different hours during his employment at Starbucks. His shifts ranged from approximately four hours to eight hours. Price submitted a declaration in which he "averaged" his shifts, and stated the average was 6.31 hours. In reviewing his time records to determine the average hours of his shifts, Price noticed an error in which he did not clock in when he started work, and he claimed to have worked 43 minutes for which he was not paid.
On appeal from a judgment dismissing an action following the sustaining of a demurrer, we consider the legal sufficiency of the complaint. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317].) "Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action. If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer. [Citation.]" (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 [96 Cal.Rptr.2d 354].) We review de novo "whether the complaint states facts sufficient to constitute a cause of action." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]" (Ibid.)
A purely legal issue raised on demurrer is reviewed de novo. (American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 755 [285 Cal.Rptr. 765].)
An order striking all or part of the pleading under Code of Civil Procedure section 435 is reviewed following the entry of final judgment for abuse of discretion. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1282 [45 Cal.Rptr.3d 222].)
Price alleged Starbucks's wage statements did not comply with the requirements of subdivision (a) of section 226.
The injury requirement in section 226, subdivision (e), cannot be satisfied simply if one of the nine itemized requirements in section 226, subdivision (a) is missing from a wage statement. (See Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1306 [105 Cal.Rptr.3d 443]; see also Elliot v. Spherion Pacific Work, LLC (C.D.Cal. 2008) 572 F.Supp.2d 1169, 1181.) By employing the term "`suffering injury,'" the statute requires that an employee may
Price alleged a "mathematical injury," that required him to add up his overtime and regular hours and to ensure his overtime rate of pay is correct, but the allegedly missing information from Price's wage statement is not the type of mathematical injury that requires "`computations to analyze whether the wages paid in fact compensated [him] for all hours worked.' [Citation.]" (Jaimez v. Daiohs USA, Inc., supra, 181 Cal.App.4th at p. 1306.) Price only speculates on the "possible underpayment of wages due," which is not evident from the wage statements attached to the complaint. Price's complaint, therefore, is distinguishable from the plaintiffs in the cases he relies on that sufficiently alleged (and presented evidence) of an injury arising from inaccurate or incomplete wage statements, which required those plaintiffs to engage in discovery and mathematical computations to reconstruct time records to determine if they were correctly paid. (See, e.g., Wang v. Chinese Daily News, Inc. (C.D.Cal. 2006) 435 F.Supp.2d 1042, 1050, affd. on other grounds (9th Cir. 2010) 623 F.3d 743 [wage statements inaccurately listed hours worked and omitted hourly wage]; see also Ortega v. J.B. Hunt Transport, Inc. (C.D.Cal. 2009) 258 F.R.D. 361, 373-374 [wage statements failed to include hours worked and applicable hourly rate]; Perez v. Safety-Kleen Systems, Inc. (N.D.Cal. 2008) 253 F.R.D. 508, 517 [inaccurate hours on wage statements]; Jaimez v. Daiohs USA, Inc., supra, at pp. 1305-1306 [wage statement listed "`total hours paid,'" which left employees unable to determine if they were paid for all hours worked]; Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 956, 961 [35 Cal.Rptr.3d 243] [inaccurate hours on wage statements].) Price's simple math is not based upon any allegation that the information is inaccurate.
Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 585, 591-592 [49 Cal.Rptr.3d 503], upon which Price also relies, did not address the injury requirement under section 226, subdivision (e). Our citation in that case to
Price has not alleged an injury arising from the purportedly missing information from his earnings statements in order to seek damages under section 226, subdivision (e). The demurrer was properly sustained.
Price seeks additional pay under the theory he should have been paid his final paycheck on November 11, 2007, when he was taken off the schedule, instead of November 16, 2007, when he was fired. We find no abuse of discretion in striking the allegations in the complaint to support this theory.
Price alleged he was discharged on November 16, 2007, the same day he received his last paycheck. The trial court accepted that date and rejected Price's alternative dates. Price does not allege his coworker told him he was fired on November 11. Nor does he allege the branch manager left a voice mail message that he was fired; the voice mail message scheduled a meeting on November 16 to "have a talk." Price took himself off the schedule on November 11, but he does not allege that he quit on that day. Thus, based upon the pleadings, Price's employment at Starbucks ended on November 16, the day he was fired.
We reject Price's contention that his removal from the schedule was an indefinite layoff.
Price has not presented any possibility that he could amend his complaint to cure these pleading defects. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Instead, Price contends, at a minimum, he can amend to allege an entirely new cause of action seeking 43 minutes of unpaid wages, for which he would be entitled to continuing wages under section 203. This allegation, even if accepted as true, would not cure the pleading defects to revive either the third cause of action for noncompliant wage statements, or the first and fifth causes of action that are based upon the failure to timely pay wages upon termination.
Price's complaint seeks damages and penalties because Starbucks should have paid him 3.3 hours at his regular rate of pay, the average of his scheduled shifts, for reporting on the day he was fired, instead of two hours. Price's summary judgment appeal is reviewed de novo. (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618 [101 Cal.Rptr.3d 2, 218 P.3d 262]; City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212 [9 Cal.Rptr.3d 791].)
Section 5(A) of wage order No. 5-2001 states: "Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage." (See Cal. Code Regs., tit. 8, § 11050, subd. 5(A).)
The DLSE states the primary purpose of the reporting time pay regulation "is to guarantee at least partial compensation for employees who report to work expecting to work a specified number of hours, and who are deprived of that amount because of inadequate scheduling or lack of proper notice by the employer." (DLSE Operations and Procedures Manual (1989) § 10.88; see also California Manufacturers Assn. v. Industrial Welfare Com. (1980) 109 Cal.App.3d 95, 112 [167 Cal.Rptr. 203] [purpose of regulation is to ensure
Price's remaining causes of action (fourth and fifth) are derivative. Price's UCL cause of action is dependent upon the right to recover additional reporting time pay, additional wage payments for untimely payment upon discharge, and damages arising from noncompliant wage statements. Price's PAGA claim is based upon the failure to timely pay him upon discharge. Because the underlying causes of action fail, the derivative UCL and PAGA claims also fail. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182 [83 Cal.Rptr.2d 548, 973 P.2d 527]; Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1280, fn. 5 [83 Cal.Rptr.3d 576].) Summary judgment was properly granted.
The judgment is affirmed. Starbucks is entitled to costs on appeal.
Klein, P. J., and Croskey, J., concurred.