Alfonso Mendoza Garibay v. Bulwark Construction, Inc. dba Residential Wall Systems; and Does 1 to 50, inclusive

• Court: District Court, S.D. California
• Decided: April 27, 2026
• Docket: 3:25-cv-03643
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALFONSO MENDOZA GARIBAY, Case No.: 25cv3643-W-GC

12 Plaintiff, ORDER: (1) DENYING MOTION TO 13 v. REMAND [DOC. 4]; AND (2) GRANTING DEFENDANT’S 14 BULWARK CONSTRUCTION, INC. MOTION TO DISMISS [DOC. 3] dba RESIDENTIAL WALL SYSTEMS; 15 and DOES 1 to 50, inclusive, 16 Defendants. 17

18 19 Two motions are pending before the Court. Plaintiff Alfonso Mendoza Garibay 20 (“Mendoza”) moves to remand this case to the Superior Court of California, County of 21 San Diego. Defendant Bulwark Construction, Inc. (“Bulwark”) opposes. Bulwark also 22 moves to dismiss the action with prejudice under Federal Rules of Civil Procedure, Rule 23 12(b)(6). 24 The Court must first establish federal jurisdiction before making any ruling. 25 However, because both motions, and consequently also the jurisdictional inquiry, turn on 26 the resolution of the question of preemption, the Court treats both analyses 27 simultaneously. The Court decides the matter on the papers submitted and without oral 28 1 argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES 2 Mendoza’s motion to remand and GRANTS Bulwark’s motion to dismiss. 3 4 I. BACKGROUND 5 This lawsuit arises out of an employment dispute between the parties. Mendoza 6 was employed by Bulwark from February 2024 until his employment ended as a 7 “plaster,” a role which required performing plastering, wall preparation, and finishing 8 work on construction sites. (Compl. [Doc. 1] at ¶8.) Mendoza was classified as a non- 9 exempt, hourly employee and was initially paid $25 per hour but received subsequent pay 10 increases during his employment. (Id. at ¶ 9.) He regularly worked 32–40 hours per week 11 performing physically demanding work at multiple construction sites in San Diego 12 County. (Id. ¶ 10.) 13 While employed, Bulwark alleges Mendoza was at times a member of the United 14 Brotherhood of Carpenters and Joiners of America (“Union”). (Ntc. of Removal [Doc. 1] 15 at ¶5.) Bulwark further alleges that both the Union and Bulwark were parties to a 16 Collective Bargaining Agreement (“CBA”) between the Pacific Rim Drywall Association 17 and the Western States Regional Council of Carpenters. (Remand Opp’n [Doc. 7] at 8.) 18 Mendoza contends the CBA was never provided to him, never produced in pre-litigation 19 discussion, and never applied to him. (Mtn. to Remand [Doc. 4] at 4.) 20 On October 24, 2025, Mendoza filed a complaint in San Diego County Superior 21 Court. (Compl. at 9–15.) The complaint alleges the following wage and hour claims 22 against Bulwark: (1) Failure to Provide Meal Periods (Cal. Lab. Code §§ 512, 226.7); (2) 23 Failure to Provide Rest Periods (Cal. Lab. Code § 226.7); (3) Failure to Pay Wages Due 24 (Cal. Lab. Code §§ 201-203); and (4) Failure to Provide Accurate Wage Statements (Cal. 25 Lab. Code § 226). (Id. at ¶¶18–44.) Bulwark removed the action to this Court on or 26 around December 17, 2025. (See Ntc. of Removal.) Mendoza filed a motion to remand on 27 December 24, 2025 (See Mtn. to Remand) and Bulwark opposed (See Remand Opp’n). 28 1 Bulwark also filed a motion to dismiss on December 24, 2025 (Mtn. to Dismiss [Doc. 3]), 2 to which Mendoza opposed (Mtn. to Dismiss Opp’n [Doc. 6]). 3 On February 25, 2026, Mendoza filed a notice of related cases (Ntc. of Related 4 Cases [Doc. 10]), and a notice of a pending motion to consolidate the related cases the 5 next day. (Mtn. to Consolidate [Doc. 11].) Bulwark objected to the notice of related cases 6 on March 4, 2026. (Objection to Related Cases [Doc. 12].) 7 8 II. LEGAL STANDARD 9 A. Motion to Remand 10 A federal court must order remand if it lacks subject matter jurisdiction over an 11 action. Kelton Arms Condominium Owners Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 12 1192 (9th Cir. 2003). Under the longstanding well-pleaded complaint rule, federal 13 jurisdiction is only proper when the plaintiff's complaint on its face shows that the cause 14 of action is based upon federal law. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). 15 Federal jurisdiction cannot be predicated on “an actual or anticipated defense,” nor can it 16 rest upon “an actual or anticipated counterclaim.” Id. 17 B. Motion to Dismiss 18 On the other hand, dismissal under Rule 12(b)(6) is appropriate where the 19 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal 20 theory. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Where 21 a motion to dismiss is granted, “leave to amend should be granted ‘unless the court 22 determines that the allegation of other facts consistent with the challenged pleading could 23 not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 24 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 25 1393, 1401 (9th Cir. 1986). A complaint may survive a motion to dismiss only if, taking 26 all well-pleaded factual allegations as true, it contains enough facts to “state a claim to 27 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 28 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 1 C. Preemption Under Section 301 of the LMRA 2 The “complete preemption” doctrine is an “independent corollary” to the well- 3 pleaded complaint rule and states that once an area of state law has been completely 4 preempted, any state law claims are considered from their inception to be federal claims 5 and therefore arise under federal law. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 6 (1987). The complete preemption corollary is applied primarily in cases raising claims 7 preempted by Section 301 of the Labor Management Relations Act (“LMRA.”) 8 Caterpillar Inc, 482 U.S. at 393. Section 301 states: 9 Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this 10 chapter, or between any such labor organizations, may be brought in any 11 district court of the United States having jurisdiction of the parties, without respect of the amount in controversy or without regard to the citizenship of 12 the parties. 13 29 U. S. C. § 185(a). The Supreme Court has held that the preemptive force of Section 14 301 is so powerful, it can entirely displace any state cause of action. Caterpillar, 482 U.S. 15 386 at 394. Any such suit is purely a creature of federal law, notwithstanding the fact that 16 state law would provide a cause of action in the absence of Section 301. Id. (quoting 17 Franchise Tax Bd. v. Constr. Laborers Vacation Trust., 463 U.S. 1, 23 (1983)). The 18 Court further specified that an application of state law is preempted by Section 301 only 19 if such application requires the interpretation of a collective-bargaining agreement. Lingle 20 v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988). 21 To determine whether Section 301 preempts a given claim, and to ensure that it 22 “extends only as far as necessary to protect the role of labor arbitration in resolving 23 collective bargaining agreement disputes,” courts apply a two-part test. Curtis v. Irwin 24 Industries, Inc. 913 F.3d 1146, 1152. Under step one, courts ask whether the claim 25 involves a right existing “solely as a result” of a collective bargaining agreement, rather 26 than a right rising from state law. Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 27 (9th Cir. 2007). If the asserted claim is brought “purely to vindicate a right or duty 28 1 created by the CBA itself,” the claim is preempted and the analysis ends there. Id. But if 2 not, courts proceed to the second step and ask, “whether a plaintiff’s state law right is 3 substantially dependent on the analysis of [the CBA],” which turns on whether the claim 4 cannot be resolved by simply “look[ing] to” versus “interpreting” the CBA. Id. at 1060. 5 At the second step of this analysis, claims are preempted only if there is an active dispute 6 over “the meaning of contract terms,” such that the terms need to be interpreted. Id. 7 III. DISCUSSION 8 Here, the parties dispute whether the Court has federal question jurisdiction over 9 Plaintiff’s California Labor Code claims and, therefore, whether remand or dismissal is 10 appropriate. The Court addresses the parties’ initial arguments around the validity and 11 effect of the CBA before analyzing the parties’ Section 301 preemption arguments. 12 A. The CBA’s Validity and Effect 13 Mendoza argues that the Court lacks federal question jurisdiction because Bulwark 14 is “invoking a collective bargaining agreement that was never provided to Plaintiff, never 15 served, never produced upon request, and never shown to govern Plaintiff’s employment 16 during the relevant period.” (Mtn. to Remand at 3.) These arguments are without merit. 17 Whether the CBA was provided, served, or produced in litigation has no bearing on its 18 binding effect. What matters is whether Mendoza opted into the CBA as an employee. 19 As a threshold matter, the Court GRANTS Bulwark’s request for judicial notice 20 (“RJN”) of the CBA and the related documents discussed below1. (See Mtn. to Dismiss 21 RJN [Doc. 3-2].) Courts routinely take judicial notice of CBAs at the motion to dismiss 22 phase, especially when reference to the CBA is required to resolve issues of preemption. 23 See, e.g., Hall v. Live Nation Worldwide, Inc., 146 F. Supp. 3d 1187, 1193 (C.D. Cal. 24 2015) (taking judicial notice of a CBA that formed the basis for defendant's argument 25 26

27 1 Bulwark’s request for judicial notice also includes California Industrial Welfare Commission Wage 28 1 that certain claims were preempted by the LMRA). Furthermore, Mendoza acknowledges 2 that the Court may take judicial notice of the existence of the submitted documents. (Mtn. 3 to Dismiss Opp’n at 5.) 4 Mendoza’s arguments about the validity of the CBA are unpersuasive. First, 5 Bulwark’s request for judicial notice includes Mendoza’s completed application to join 6 the Union, agreement to pay dues, and executed authorization for “any and all” local 7 unions affiliated with the Western States Regional Council of Carpenters to represent him 8 in collective bargaining in “all matters pertaining to wages, hours and other terms and 9 conditions of employment.” (RJN Ex. 3 [Doc. 3-2] at 44–49.) Bulwark’s request also 10 contains the executed CBA between Pacific Rim Drywall Association and the Western 11 States Regional Council of Carpenters of the Union, the latter of which Mendoza 12 authorized to represent him in collective bargaining negotiations. (RJN Ex. 1 [Doc. 3-2] 13 at 5–32.) Therefore, it is clear that Mendoza opted into the CBA. 14 Mendoza also argues that the Court cannot find federal question jurisdiction by 15 way of Bulwark invoking Section 301 preemption because it is a defense and therefore 16 does not appear in the complaint. (Mtn. to Remand at 5.) This argument misunderstands 17 the law. Section 301 was created with an “extraordinary pre-emptive power” that 18 circumvents the well-pleaded complaint rule. Curtis, 913 F.3d at 1152 (quoting Taylor, 19 481 U.S. at 65). As the Ninth Circuit has made clear, “a civil complaint raising claims 20 preempted by Section 301 raises a federal question that can be removed to a federal 21 court.” Id. Thus, Mendoza’s arguments that the Court may not look beyond the face of 22 his complaint are unfounded. 23 B. Preemption Under Section 301 of the LMRA 24 Mendoza’s remaining two arguments broadly assert that his claims arise under 25 state law independent of any CBA and that any operative CBA provision does not require 26 interpretation. (Mtn. to Remand at 3–7.) In doing so, Mendoza argues that his claims are 27 not preempted under steps one and two of the Section 301 preemption analysis. Curtis, 28 1 913 F.3d at 1152; Burnside, 491 F.3d at 1059. The Court analyzes each cause of action in 2 turn. 3 1. Failure to Provide Meal Periods 4 Mendoza asserts that Bulwark was required to provide a timely, uninterrupted 30- 5 minute meal period for every work period exceeding five hours and it knowingly and 6 willfully failed to do so. (Compl. at ¶19–20). Bulwark argues the meal period claim is 7 exempted by California Labor Code section 512(e) and (f). The Court agrees. 8 California Labor Code section 512(a) provides that employers shall not employ an 9 employee for a work period of more than five hours per day without providing the 10 employee with a meal period of no less than 30 minutes. Cal. Lab. Code §512(a). 11 However, section 512(e) provides an exception, stating section 512(a) does not apply if: 12 (1) the employee is covered by a valid collective bargaining agreement and (2) the valid collective bargaining agreement expressly provides for the 13 wages, hours of work, and working conditions of employees, and expressly 14 provides for meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium 15 wage rates for all overtime hours worked, and a regular hourly rate of pay of 16 not less than 30 percent more than the state minimum wage rate. 17 Cal. Lab. Code §512(e). Section 512(f)(1) states that section 512(e) applies to employees 18 employed in a construction occupation. Cal. Lab. Code §512(f)(1). 19 Here, at all relevant times, Mendoza was employed in a construction occupation 20 within the meaning of section 512(f). (Compl. at ¶¶8, 10.) In his complaint, he states that 21 he was employed as a “plaster” which involved working at multiple construction sites 22 during his employment. Id. Secondly, and as previously established, Mendoza’s local 23 union executed a valid CBA on his behalf. A review of the CBA shows that it meets the 24 requirements of section 512(e) because it expressly provides for the conditions listed 25 above. Article XIII and Appendix A provide for wages, hours of work, working 26 conditions of employees, premium wages for overtime, and a regular hourly rate of pay 27 that is at least 30 percent more than the state minimum wage. (RJN Exhibit 1 (“CBA”) 28 1 covered employees. (Id. at 23.) Article VII provides for final and binding arbitration of 2 disputes arising from the agreement, including the meal period provision. (Id. at 15–18.) 3 By its terms, Section 512(a) does not apply to Mendoza, who is instead subject to 4 the specific, negotiated terms of his CBA. His meal period protections thus exist “solely 5 as a result of the CBA,” and is therefore preempted under step one of the Section 301 6 analysis. Curtis, 913 F.3d at 1154. 7 2. Failure to Provide Rest Periods 8 Mendoza also asserts that Bulwark was required to provide a paid 10-minute rest 9 period for every four hours worked or major fraction thereof and it knowingly and 10 willfully failed to do so. (Compl. at ¶26–27.) Bulwark argues the claim is covered by the 11 CBA and is preempted by the first prong of the Section 301 analysis. The Court agrees. 12 Mendoza brings his rest period claim under Cal. Labor Code Section 226.7 13 (Compl. at ¶26), which prohibits employers from requiring employees to work during 14 mandated meal, rest, or recovery periods. Cal. Labor Code Section 226.7(b). However, 15 Industrial Wage Order 16, which is incorporated in Mendoza’s CBA, provides 16 exemptions of rest and meal period requirements for specified categories of employees, 17 including construction employees. It states: “[t]his order shall apply to all persons 18 employed in the on-site occupations of construction, including, but not limited to, work 19 involving alteration, demolition, building, excavating, renovation, remodeling, 20 maintenance, improvement, and repair work….” Cal. Code of Regs. 8 § 11160(1). 21 Section 11 of the Wage Order then addresses rest periods and expressly exempts any 22 employees covered by a valid CBA if the CBA provides equivalent protection. Cal. Code 23 of Regs. 8 § 11160(11)(e). 24 Numerous cases in this circuit have held that if a CBA incorporates the terms of 25 Wage Order 16 and provides a grievance resolution mechanism, then the plaintiff’s rest 26 period claims are preempted. Zayerz v. Kiewit Infrastructure W., No. 16-CV-6405-PSG 27 (PJW), 2018 WL 582318, at *4–5 (C.D. Cal. Jan. 18, 2018); Rodriguez v. S E Pipeline 28 Construction, 2023 WL 9319043, at *4 (C.D. Cal. Dec. 1, 2023); Rodriguez v. Gonsalves 1 & Santucci, Inc., No. 21-CV-07874-LB, 2022 WL 161892, at *4 (N.D. Cal. Jan. 18, 2 2022). The CBA here provides identical protection to Wage Order 16: Article XIII 3 Section 2(e) incorporates Wage Order 16 in its entirety. (CBA at 24.) Furthermore, 4 Article VII of the CBA provides a grievance procedure, stating that “the decision of the 5 Arbitrator is final and binding upon the parties.” (Id. at 18.) Consequently, the CBA 6 provides equivalent protection and a final and binding grievance procedure. As a result, 7 Mendoza’s rest period claim is preempted under step one of the Section 301 analysis. 8 Curtis, 913 F.3d at 1154. 9 3. Failure to Pay Wages and Provide Accurate Wage Statements 10 Lastly, Mendoza alleges that after his employment ended, Bulwark willfully failed 11 to pay him all wages earned and unpaid for the missed meal and rest periods. (Compl. at 12 ¶35.) He also alleges due to the failure to provide meal and rest periods, Bulwark failed to 13 provide accurate itemized wage statements. (Id. at ¶40.) Bulwark asserts that the claims 14 for failure to pay wages due and the failure to provide accurate wage statements are 15 preempted because they are derivative of claims that are preempted by the LMRA. 16 (Remand Opp’n at 14–15.) The Court agrees. 17 Due to the fact the meal and rest period claims are preempted, the derivative claims 18 of failure to pay timely after employment and to provide accurate wage statements are 19 also preempted to the extent they rely upon the prior claims. Estrada v. Kaiser Found. 20 Hosps., 678 Fed. App'x 494, 497 (9th Cir. 2017) (finding that when a claim derives from 21 a preempted claim, the derivative claim also fails); Jimenez v. Young's Market Co., LLC, 22 No. 21-cv-02410-EMC, 2021 WL 5999082, at *13 (N.D. Cal. Dec. 20, 2021) (“Because 23 overtime pay and meal periods claims are preempted, the derivative claims of failure to 24 pay final wages and provide accurate itemized wage statements are also preempted.”). 25 The complaint states the unpaid wages are for missed meal and rest periods and also 26 states that the itemized wage statements are inaccurate because they fail to reflect “all 27 hours worked, overtime wages, or premium wages owed for missed meal and rest 28 breaks.” (Compl. at ¶¶35, 40.) 1 As a result, the complaint establishes that the claims for failure to pay wages and 2 failure to provide wage statements are derivative of the meal and rest period claims and 3 are preempted for the same reasons illustrated above. Estrada v. Kaiser Foundation 4 Hospitals, 678 Fed.Appx. 494, 497 (9th Cir. 2017) (finding that when a claim derives 5 from a preempted claim, the derivative claim also fails). 6 C. Defendant’s Motion to Dismiss 7 Bulwark has moved for the dismissal of all claims pursuant to Federal Rule of 8 Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. 9 (See Mtn. to Dismiss at 2.) 10 Both the Supreme Court and the Ninth Circuit have instructed courts to dismiss 11 claims found to be preempted by Section 301 of the LMRA if they are brought by an 12 employee who failed to exhaust the applicable CBA’s grievance and arbitration process. 13 DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 163 (1983) (citing Republic Steel 14 Corp. v. Maddox, 379 U.S. 650 (1965)) (“[A]n employee is required to attempt to exhaust 15 any grievance or arbitration remedies provided in the collective bargaining agreement”); 16 see Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1036–37 (9th Cir. 2016) 17 (failure to exhaust, or allege valid excuse for failure to exhaust, a claim preempted by 18 section 301 precludes pursuing that claim in court); Marquez v. Toll Global Forwarding 19 (USA) Inc., 2018 WL 3218102, at *3 (C.D. Cal. 2018), aff’d, 804 F. App’x 679 (9th Cir. 20 2020) (“If a claim is preempted by the LMRA it can be dismissed if the claimant failed to 21 plead exhaustion of the grievance procedures set forth in the CBA.”). 22 Bulwark alleges that Mendoza did not exhaust the CBA’s grievance and arbitration 23 process. (Mtn. to Dismiss at 17–18.) Mendoza does not contest this fact but instead 24 argues that dismissing claims is an inappropriate remedy if he did not exhaust arbitration 25 procedures. (Mtn. to Dismiss Opp’n at 6). Instead, Mendoza believes that if arbitration is 26 required then the proper procedural vehicle to consider the issue would be a motion to 27 compel arbitration and a stay of proceedings. (Id.) Mendoza misunderstands the rules 28 governing Section 301 preemption. 1 As previously stated, courts are instructed to dismiss claims found to be preempted 2 by Section 301 of the LMRA if they are brought by an employee who failed to exhaust 3 the applicable CBA’s grievance and arbitration process. DelCostello, 462 U.S. at 163; see 4 Kobold, 832 F.3d at 1036–37. All four of Mendoza’s claims are preempted, and because 5 he has not alleged exhaustion of the CBA’s grievance and arbitration provisions, the 6 claims are dismissed with prejudice. 7 Furthermore, Mendoza argues that preemption is an affirmative defense and at the 8 motion to dismiss phase, cannot be relied upon to warrant dismissal. (Mtn. to Dismiss 9 Opp’n at 6). Generally, this is true. However, Section 301 of the LMRA is an exception 10 to the well-pleaded complaint rule. Curtis, 913 F.3d at 1151–52. Section 301 was 11 intended to “fashion a body of federal common law to be used to address disputes arising 12 out of labor contracts” and “is an essential component of federal labor policy.” Burnside, 13 491 F.3d 1053, 1059 (9th Cir. 2007); Curtis, 913 F.3d at 1152. Accordingly, the Supreme 14 Court has held that “[a] state rule that purports to define the meaning or scope of a term 15 in a [labor] contract suit therefore is pre-empted by federal labor law.” Allis-Chalmers 16 Corp. v Lueck, 471 U.S. 202, 210 (1985). Section 301’s “extraordinary pre-emptive 17 power” “converts an ordinary state common law complaint into one stating a federal 18 claim for purposes of the well-pleaded complaint rule.” Curtis, 913 F.3d at 1152 (quoting 19 Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987)). “In other words, a civil complaint 20 raising claims preempted by Section 301 raises a federal question that can be removed to 21 a federal court.” Id. 22 Mendoza also alleges that due to improper removal, he should be awarded 23 attorney’s fees and costs incurred in bringing the motion. (Mtn. to Remand at 5–6.) 24 Attorney fees, however, are only appropriate under Section 1447(c) when the removing 25 party had an objectively unreasonable basis for removal. Martin v. Franklin Capital 26 Corp., 546 U.S. 132, 141 (2005). The removal by Bulwark was not objectively 27 unreasonable for the reasons discussed above. Therefore, fees and costs are not 28 warranted. | |TV. CONCLUSION & ORDER 2 The doctrine of complete preemption renders the claims federal from their 3 inception, and the Court consequently has jurisdiction over them. Because all claims are 4 ||completely preempted, the Court DENIES Plaintiff Alfonso Mendoza Garibay’s motion 5 remand. (Min. to Remand [Doc. 4].) Furthermore, preempted LMRA claims should be 6 || dismissed with prejudice if the claims are brought by an employee who failed to exhaust 7 grievance and arbitration procedures of the applicable CBA. Accordingly, the Court 8 || GRANTS Defendant Bulwark Construction’s motion to dismiss all claims WITH 9 || PREJUDICE. (Min. to Dismiss [Doc. 3].) 10 IT IS SO ORDERED. 11 ||Dated: April 27, 2026 12 \ ° [pe Lor 14 Hn. 1 omas J. Whelan 15 Unted States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 12