Ashley Durham v. Banner Health, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ASHLEY DURHAM, No. 2:24-cv-00920-DJC-DMC 12 Plaintiff, 13 v. ORDER 14 BANNER HEALTH, et al., 15 Defendants. 16 17 18 Plaintiff Ashley Durham brings this first amended class action complaint against 19 Defendants Banner Health and BH Corporate Office alleging violations of certain 20 California Labor Code provisions and California’s Unfair Competition Law. 21 Defendants now move to dismiss for lack of subject matter jurisdiction and failure to 22 state a claim. Defendants also seek certification of this Court’s prior ruling for 23 interlocutory appeal under 8 U.S.C. § 1292(b). For the reasons explained below, the 24 Motion to Dismiss is GRANTED in part and DENIED in part. The request to certify is 25 DENIED. 26 //// 27 //// 28 //// 1 BACKGROUND 2 I. Procedural History 3 Former plaintiff Vincent Kelly initiated this class action on February 16, 2024, in 4 the Superior Court for the County of Lassen, (Compl. (ECF No. 1-1)), and Defendants 5 removed the matter to this Court shortly thereafter, (ECF No. 1). On October 29, 6 2025, Kelly filed a motion seeking leave to amend the Complaint and substitute a new 7 class representative. (Mot. to Amend (ECF No. 55).) After full briefing and oral 8 argument, the Court granted the motion for leave to amend on December 18, 2025. 9 (ECF No. 64.) Upon the filing of a first amended complaint (“FAC”) the next day, 10 Plaintiff Ashley Durham became the new class representative. (ECF No. 65.) 11 Defendants thereafter moved to dismiss the FAC, Plaintiff opposed, and Defendants 12 replied. (MTD (ECF No. 69); Opp’n (ECF No. 80); Reply (ECF No. 82).) 13 II. Factual Background 14 Plaintiff worked for Defendants as a non-exempt employee during the relevant 15 and statutory periods. (FAC ¶ 21.) Defendant Banner Health is an Arizona 16 corporation doing business in the State of California. (Id. ¶ 7.) On behalf of a putative 17 class, Plaintiff asserts several causes of action under the California Labor Code: 1) 18 failure to provide meal periods; 2) failure to provide rest periods; 3) failure to pay 19 hourly wages and overtime; 4) failure to pay proper sick pay; 5) failure to provide 20 accurate written wage statements; 6) failure to timely pay all final wages; 7) failure to 21 indemnify; as well as an eighth cause of action under the California Business and 22 Professions Code: 8) unfair competition. (See generally FAC.) 23 LEGAL STANDARDS 24 A party may move to dismiss for “failure to state a claim upon which relief can 25 be granted[.]” Fed. R. Civ. P. 12(b)(6). The motion may be granted if the complaint 26 lacks a “cognizable legal theory” or if its factual allegations do not support a 27 cognizable legal theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 28 Cir. 2019) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1 1988)). The court assumes all factual allegations are true and construes “them in the 2 light most favorable to the nonmoving party.” Steinle v. City & Cnty. of San Francisco, 3 919 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus., Inc. v. Symington, 51 4 F.3d 1480, 1484 (9th Cir. 1995)). If the complaint's allegations do not “plausibly give 5 rise to an entitlement to relief[,]” the motion must be granted. Ashcroft v. Iqbal, 556 6 U.S. 662, 679 (2009). 7 A complaint need contain only a “short and plain statement of the claim 8 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed 9 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule 10 demands more than unadorned accusations; “sufficient factual matter” must make the 11 claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or 12 formulaic recitations of elements do not alone suffice. See id. This evaluation of 13 plausibility is a context-specific task drawing on “judicial experience and common 14 sense.” Id. at 679. 15 DISCUSSION 16 Defendants assert two bases for dismissal and request this Court certify for 17 interlocutory appeal its prior Order granting Plaintiff leave to amend. (See generally 18 MTD.) 19 Defendants contend first, that Plaintiff’s five-month delay in moving to 20 substitute the new class representative divested this Court of subject matter 21 jurisdiction under Federal Rule of Civil Procedure 12(b)(1); second, that the Court’s 22 prior ruling granting leave to amend (ECF No. 64) presents a controlling question of 23 law suitable for interlocutory appeal under 28 U.S.C. § 1292(b); and third, that the FAC 24 otherwise fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). The 25 Court will address these issues in order. 26 27 28 1 III. Subject Matter Jurisdiction and Request for Interlocutory Appeal 2 A. Rule 12(b)(1) 3 The Court denies Defendants’ Motion to Dismiss under Federal Rule 12(b)(1) 4 for lack of subject matter jurisdiction. The Court rejects the argument that Mr. Kelly’s 5 decision to withdraw as class representative or the timing of the motion to substitute a 6 new class representative somehow mooted this case. 7 Defendants assert that dismissal under Rule 12(b)(1) is appropriate because 8 Plaintiff purportedly delayed, for five months, in identifying a new class representative 9 and moving to amend. (See MTD and Reply.) Defendants contend that even a gap of 10 two months since Mr. Kelly expressed his desire to withdraw was “more than enough 11 time to divest the Court of jurisdiction.” (Reply at 4.) As supporting authority, 12 Defendants cite numerous cases in which a motion to substitute a new class 13 representative was filed mere weeks after the original class representative expressed a 14 desire to withdraw. (Id. at 2–5.) 15 “Although the Ninth Circuit has not directly addressed the issue, it has 16 suggested that pre-certification substitution is allowed when the named plaintiff’s 17 claims survive.” Castillo v. United Rentals (N.A.), Inc., No. 2:17-cv-01573-JLR, 2018 WL 18 3429936, at *3 n.3 (W.D. Wash. Jul. 16, 2018) (citing Griggs v. Pace Am. Grp., Inc., 170 19 F.3d 877, 880–81 (9th Cir. 1999). Here, there is no evidence that Mr. Kelly has settled 20 or dismissed his claims, thus his claims remain live. While Mr. Kelly decided he no 21 longer wished to assume the duties of a class representative, the fact remains that at 22 no time was there a lack of case or controversy between him and Defendants. 23 Further, the Court declines to impose a requirement that there be an 24 immediate substitution of a new class representative to preserve Article III jurisdiction. 25 See, e.g., Rieken v. Timberland Bank, 639 F. Supp. 3d 1128 (W.D. Wash. 2022); Aguilar 26 v. Boulder Brands, Case No. 3:12-cv-01862-BTM-BGS, 2014 WL 4352169 (S.D. Cal. 27 Sept. 2, 2014). In Aguilar, as in this case, the named representative of the purported 28 class sought to withdraw as class representative due to health issues, and Plaintiff 1 requested leave to amend to name a new class representative. Aguilar, 2014 WL 2 4352169, at *5. In determining whether there was Article III jurisdiction, the Court 3 noted that Article III “’requires that an actual, ongoing controversy exist at all stages of 4 federal court proceedings.’” Id. at *6 (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 5 1081, 1086 (9th Cir. 2011)). As that court noted, however, the mootness doctrine is 6 applied “flexibly, particularly where the issues remain live, even if the plaintiff’s 7 personal stake in the outcome has become moot,” and that such flexibility applies pre- 8 class certification. Id. (cleaned up). Given that the previously existing named plaintiff 9 “ha[d] not settled her dispute with Defendants, [but] merely [sought] to join the 10 putative class and not serve as its representative due to health issues” there was “a 11 very real case or controversy sufficient to support jurisdiction . . . .” Id. at *8. 12 To be sure, the court in Aguilar noted that there was a “brief interim” between 13 the request to withdraw and the substitution of a new plaintiff, and that where there is 14 a decision of the named representative to withdraw as class representative “Plaintiffs 15 have a short amount of time to substitute the plaintiff and save their case.” Id. Seizing 16 on this language, some district courts have suggested that “the only circumstances 17 under which a named plaintiff is entitled to substitute prior to class certification is 18 when that plaintiff is both capable of and ‘intends to become part of the class, such 19 that her claims persist and the case or controversy remains active, and when plaintiff’s 20 counsel is able to produce a proposed substitute immediately.” Rieken, 639 F. Supp. 21 3d at 1134 (quoting and citing to Castillo, 2018 WL 3429936, at *3 and Aguilar, 2014 22 WL 4352169, at *9) (emphasis added).1 It is this “immediately” language on which 23 Defendants seize to argue that jurisdiction lapsed in this case. 24 To the extent some district courts have adopted this immediacy language, the 25 Court declines to follow their lead. The first part of the requirement from Rieken 26

27 1 Rieken is factually distinguishable from this case in an important way – the named Plaintiff in that case never possessed standing to bring her claims, as a bankruptcy trustee was the real party in interest. 28 639 F. Supp. 3d at 1133–34. 1 quoted above — that plaintiff’s claims persist and the controversy remain active — is 2 certainly mandated by Article III, which requires a live case or controversy at all stages 3 of the proceedings. And that requirement is met here: Mr. Kelly remains a part of the 4 class and continues to have a live controversy with respect to the Defendants. As to 5 the second part — that a new class representative be immediately identified once a 6 Plaintiff indicates a desire to withdraw as class representative (but not from the class) — 7 that requirement does not appear to find any support in Article III. 8 If there were in fact a lack of a case or controversy as soon as a class 9 representative decided she did not want to continue as class representative, then the 10 immediacy requirement would truly need to be immediate; yet courts imposing an 11 immediacy requirement generally provide at least a few weeks to amend the 12 complaint to identify a new representative. See, e.g., Aguilar, 2014 WL 4352169, at 13 *11 (providing two weeks). Counsel for Defendants appeared to recognize this at oral 14 argument, agreeing that if the request of a named representative to withdraw from 15 being named class representative were enough to divest the Court of jurisdiction, 16 then it should not matter how long it takes to substitute a new representative, since 17 Article III jurisdiction must attach at all stages of the proceedings. Lewis v. Cont’l Bank 18 Corp., 494 U.S. 472, 477 (1990). With respect, in this Court’s view there cannot be a 19 “jurisdictional void,” Aguilar, 2014 WL 4352169 at *8, of any length, no matter how 20 short lived, or the Court would be deprived of jurisdiction. While the timeliness of the 21 substitution is certainly relevant for purposes of Federal Rules of Civil Procedure 15 22 and 16 to establish diligence, in a case such as this where there has consistently been 23 a case or controversy between the current class representative and Defendants, the 24 Court does not believe Article III requires an “immediate” substitution of the named 25 representative. 26 Defendants’ argument is also inconsistent with Ninth Circuit caselaw making 27 clear that even pre-certification “mooting the putative class representative’s claims will 28 not necessarily moot the class action.” Pitts, 653 F.3d at 1090. “To the extent that 1 defendants may avoid a class action by ‘picking off’ the named plaintiffs, the class 2 claims are ‘inherently transitory’ and evade review, making an exception to the 3 mootness rule appropriate.” Chen v. Allstate Ins. Co., 819 F.3d 1136, 1143 (9th Cir. 4 2016) (quoting 5 James Wm. Moore, Moore's Federal Practice § 23.64[1][b] (3d ed. 5 2016)). Surely, if there was a live case or controversy in a putative class action where 6 the claims of the class representative had been mooted, there remains a live case or 7 controversy here where Mr. Kelly at all times retained a live claim against Defendants. 8 Finally to the extent that Defendants argue that under Rule 15 the Court should 9 not have granted leave to amend, the Supreme Court has been clear that the 10 determination as to “the grant or denial of an opportunity to amend is within the 11 discretion of the District Court[.]” Foman v. Davis, 371 U.S. 178, 182 (1962). In making 12 that determination, the Supreme Court has instructed district courts to consider 13 certain factors “such as undue delay, bad faith or dilatory motive on the part of the 14 movant, repeated failure to cure deficiencies by amendments previously allowed, 15 undue prejudice . . . futility of amendment, etc.” Id. Defendants’ immediacy argument 16 would eviscerate this discretionary analysis. This Court acted within the discretion 17 afforded by the Rules of Civil Procedure when it granted amendment of the Complaint 18 to add Ms. Durham as the new class representative. The Court found there was good 19 cause under Rule 16 as Plaintiff had been sufficiently diligent in flagging the prior class 20 representative’s desire to withdraw as soon as it came up and “came to court pretty 21 quickly thereafter.” (Tr. (ECF No. 84) 11:15–16.) Moreover, under Rule 15, the Court 22 discussed the effect of the proposed amendments and ultimately concluded there 23 was no substantial prejudice to Defendants and that amendment was not futile (see Tr. 24 11:22–23; 13:7–14). The Court sees no need to revisit that determination here. 25 Defendant’s Motion to Dismiss for lack of subject matter jurisdiction is therefore 26 DENIED. 27 28 1 B. Request to Certify 2 The Court also declines to certify its prior ruling for interlocutory appeal under 3 28 U.S.C. § 1292(b). A district court may certify an appeal of an interlocutory order 4 only if three factors are present: (1) the issue to be certified involves a “controlling 5 question of law,” (2) there is “substantial ground for difference of opinion” on the 6 issue, and (3) it is likely that an interlocutory appeal will “materially advance the 7 ultimate termination of the litigation.” 28 U.S.C. § 1292(b). These requirements are 8 jurisdictional, and the party seeking certification bears the burden of demonstrating 9 that they have been satisfied. Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 10 2009). 11 Defendants cannot make this showing, which fails at the second prong. As 12 explained above, given clear Ninth Circuit authority that mooting the claim of the 13 named representative of the putative class does not moot the class action, the Court 14 does not find that there is substantial ground for difference of opinion as to whether 15 the decision of a named representative to withdraw as class representative — while 16 retaining a claim against Defendants — moots the class action entirely. Accordingly, 17 Defendants’ request to certify is DENIED. 18 IV. Failure to State a Claim under Federal Rule 12(b)(6) 19 A. Failure to Provide Meal and Rest Periods (Counts 1 and 2) 20 Plaintiff’s first two causes of action allege that Defendants failed to provide meal 21 and rest periods. (FAC ¶¶ 22, 25–27, 38–63.) The California Labor Code requires 22 employers to provide off-duty meal periods of at least 30 minutes for each day 23 worked of five hours or more, and to provide a second meal period of at least 30 24 minutes for each day worked of 10 hours or more. Cal. Labor Code §§ 512(a), 226.7. 25 California law also requires employers to provide off-duty rest periods to Plaintiffs and 26 putative class members. Id. § 226.7. 27 Defendants assert that Plaintiff fails to plead sufficient facts to undergird her 28 meal and rest break claims. (MTD at 18–20.) Defendants point out that Plaintiff does 1 not identify how she was denied an opportunity to take a meal or rest break on any 2 particular day, that she does not identify who denied her a meal or rest break, and that 3 she does not identify a single instance of, or workweek with, a violation. (Id. at 19.) In 4 rebuttal, Plaintiff contends Defendants misstate the law, “read the FAC too narrowly,” 5 and ignore the specific instances of noncompliant breaks identified in the FAC as well 6 as supporting allegations as to how Defendants prevented break opportunities. (See 7 Opp’n at 21–22.) Plaintiff points to paragraphs 25, 26, and 27 in the FAC as examples 8 of specific factual allegations. (Id.) As explained below, the Court agrees with 9 Defendants. 10 In the FAC, Plaintiff alleges that “Defendants had a common policy and practice 11 of systemically failing to pay Plaintiff proper wages . . . . Specifically, Plaintiff and Class 12 Members were required to perform work during unpaid meal periods, when such 13 meal periods were provided, including having to carry and monitor their company- 14 issued radios.” (FAC ¶ 22.) Later on, the FAC reiterates that “Plaintiff and Class 15 Members were regularly denied meal periods altogether” and that “due to 16 understaffing, heavy workloads, and the uncompensated pre-shift duties, Plaintiff and 17 Class Members were denied the opportunity to take their meal periods prior to the 18 completion of their fifth hour of work, and second meal periods prior to the 19 completion of their tenth hour of work. . . . Plaintiff and Class Members were denied 20 the opportunity to take uninterrupted meal periods of at least 30 minutes . . . and were 21 regularly required to perform work-related activ[ities] during meal periods, including 22 having to carry and monitor their company-issued radios during meal periods and rest 23 breaks.” (FAC ¶ 25.) 24 The following paragraphs provide three reasons for the lack of meal and rest 25 periods: first, Defendants had a “policy of not scheduling each meal [or rest] period as 26 part of each work shift”; second, there was “no formal written . . . policy that 27 encouraged employees to take their meal [or rest] periods, or that advised Class 28 Members of their meal and rest period rights”; and third, Defendants had a practice of 1 “requiring putative class members to continue working through their meal and rest 2 periods due to the excessive workload.” (FAC ¶¶ 26, 27, 46, 49, 60.) As to rest 3 periods, Defendants also had a “policy and practice of requiring Plaintiff and Class 4 Members to remain on the premises during their rest breaks.” (Id. ¶ 27, 60.) 5 The parties dispute the degree of granularity required to state a claim under 6 Rule 8. The Ninth Circuit has addressed the degree of specificity required to state a 7 claim under the Fair Labor Standards Act. Landers v. Quality Commc’ns, Inc., 771 F.3d 8 638, 640 (9th Cir. 2014, as amended (Jan. 26, 2015). While Landers addressed 9 pleading requirements for minimum wage and overtime claims under that statute, 10 federal courts have applied Landers’s analysis to California Labor Code claims. See, 11 e.g., Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1006 (N.D. Cal. 2016) (citation 12 omitted) (applying Landers to Labor Code minimum wage and overtime claims); 13 Guerrero v. Halliburton Energy Servs., No. 1:16-cv-01300-LJO-JLT, 2016 WL 6494296, 14 at *6 (E.D. Cal. Nov. 2, 2016) (applying Landers to Labor Code meal and rest break 15 claims). 16 While there is some variation among district courts in how Landers is applied, 17 this Court has previously held that “while Plaintiff need not allege each violation by 18 Defendants, consistent with Landers, Plaintiff must plausibly allege he was denied 19 meal and rest breaks in some specific instances.” Benge v. Office Depot, LLC, 20 No. 2:24-cv-00749-DJC-SCR, 2025 WL 373501, at *7 (E.D. Cal. Feb. 3, 2025) 21 (emphasis added); see also Delgado v. Oldcastle Infrastructure, Inc., 2025 WL 22 1951601, at *4 (E.D. Cal. Jul. 16, 2025) (“[T]here must be some plausible allegations as 23 to specific instances of denial of meal or rest breaks.”). Other courts in this district 24 have held similarly. See Guerrero, 2016 WL 6494296, at *5 (stating “[t]he requirement 25 in Landers that a plaintiff must plead a specific instance of alleged wage and hour 26 violations also applies to claims about missed meal and rest periods.”); Benyamin v. 27 Topgolf Payroll Servs., LLC, 2023 WL 4054543 (E.D. Cal. Jun. 16, 2023) (same). The 28 Court sees no reason to depart from this authority now. 1 Here, while Plaintiff’s allegations regarding Defendants’ policies and practices 2 describe the ways in which the meal and/or rest breaks were violated, the FAC lacks 3 any specific example of such violation in contravention of Landers and this Court’s 4 prior rulings. Plaintiff’s cited authority is distinguishable. First, in Perez v. Island 5 Hospitality Management III, LLC, while the court found the allegation that defendants 6 “regularly” violated the Labor Code provisions sufficiently specific to satisfy Landers, it 7 relied on much more specific allegations than are present here. No. 18-CV-04903- 8 DMG-JPRx, 2019 WL 3064113 (C.D. Cal. Feb. 8, 2019). Specifically, in Perez, the 9 plaintiff alleged that he was “frequently interrupted by hotel guests and asked work- 10 related questions” which occurred “approximately three to four times per week”; that 11 because he was not able to take a meal break until he was relieved of his duties he 12 “took a meal period after the fifth hour of work approximately two days per week”; 13 and that his timesheets would reveal “that he worked 26 shifts during which the first 14 required meal period was recorded after the fifth hour of work (in violation of section 15 512(a)) and an additional 30 shifts during which a meal period of less than 30 minutes 16 was recorded (in violation of section 226.7).” 2019 WL 3064113, at *4. While the 17 Court agrees with the observation in Perez that requiring “plaintiffs to allege specific 18 dates, actual (or approximate) amounts of wages, corresponding violations, and other 19 data giving rise to their claims would rachet up the general pleading standard” 20 beyond what Rule 8 requires, id. at *3, the plaintiff’s adequately pled allegations in 21 Perez illustrate the level of detail required under Landers. 22 Similarly, in Morrelli v. Corizon Health, Inc., the court found plaintiffs’ allegation 23 that, pursuant to policy, there was only one nursing professional on staff “on any 24 particular shift” to be adequately alleged because it “meant Plaintiffs were not fully 25 relieved of their duties during break and meal times[.]” No. 1:18-cv-1395-LJO-SAB, 26 2019 WL 918210, at *9 (E.D. Cal. Feb. 25, 2019). Plaintiffs also there alleged that the 27 defendants “implemented a policy and practice prohibiting the Plaintiffs and class 28 members from leaving the work place during statutorily required off-duty meal and 1 rest break time.” Id. at *8. Significantly, the Complaint there included an allegation 2 that “Defendant's contract with the county facility required it to always maintain at 3 least one nursing professional on site to respond to emergencies and health care 4 needs of the facility's inmates,” id. at *9, which lent plausibility to their claim that the 5 policy of failing to leave the workplace resulted in missed meal and rest breaks. 6 Similarly distinguishable is Perez v. DNC Parks & Resorts at Asilomar, Inc., in 7 which the court concluded plaintiffs stated meal and rest break claims because they 8 provided “specific instances” where such breaks were not fully taken. No. 1:19-cv- 9 00484-DAD-SAB, 2022 WL 411422, at *5 (E.D. Cal. Feb. 10, 2022). And, last, in 10 Parsittie v. Schneider Logistics, Inc., the Ninth Circuit held plaintiff had stated a claim 11 for meal- and rest-break violations because he alleged sixty-five days in which he was 12 discouraged from leaving the facility during a meal period. 859 Fed. App’x 106, 108 13 (9th Cir. 2021) (unpublished). Against the weight of this authority, Plaintiff’s meal and 14 rest break claims are not adequately pled. 15 Thus, the Court GRANTS Defendants’ motion to dismiss the first and second 16 causes of action with leave to amend. 17 B. Failure to Pay Hourly Wages and Overtime (Count 3) 18 In Count 3, Plaintiff alleges that Defendants failed to pay her and the putative 19 class their minimum wages and/or overtime. (FAC ¶¶ 22–24, 64–84.) 20 As with the meal- and rest-break claims, the parties disagree on whether 21 Plaintiff must plead a specific instance of an overtime violation or failure to pay hourly 22 wages. (MTD at 20; Opp’n at 17.) Plaintiff asserts that she need only allege facts 23 supporting a plausible inference of such a violation and relies on the Ninth Circuit’s 24 unpublished decision in Boon v. Canon Business Solutions, Inc., 592 Fed. App’x 631 25 (9th Cir. 2015), for the principle that so long as she has “identified tasks for which [s]he 26 was not paid” and alleges that she “regularly worked more than eight hours in a day 27 and forty hours in a week,” she has stated a claim. (Opp’n at 18–19.) Plaintiff further 28 contends that she has identified a typical work schedule and alleged “facts 1 demonstrating there was at least one workweek in which they worked an excess of 2 forty hours and were not paid overtime wages.” (Id. at 20 (quoting Landers, 771 F.3d 3 at 646).) The Court disagrees. 4 Boon cannot be read without reference to Landers. In Boon, the Ninth Circuit 5 reversed a district court’s dismissal of an overtime claim for failure to state a claim 6 because the court improperly required the plaintiff to include “the amount of wages 7 accrued and unpaid at the time the employment relationship terminated,” 8 approximate “the hours worked for which these wages were not received,” and 9 “estimate as to how much uncompensated time was spent, how often, and at what 10 rate.” 592 Fed. App’x at 632. The Court in Boon concluded that such detailed 11 allegations were not consistent with Landers. Id. Boon also explicitly applied 12 Landers’s holding that a plaintiff must allege facts demonstrating that “there was at 13 least one workweek in which they worked in excess of forty hours and were not paid 14 overtime wages.” Id. Here, Plaintiff’s FAC does not meet the Landers test because it 15 does not provide factual allegations for any particular workweek. Instead, the FAC 16 asserts the following:

17 Defendants had a common policy and practice of systemically failing to pay Plaintiff and Class Members 18 proper wages and overtime for all hours worked, at the proper rates of pay. . . . Plaintiff and Class Members were 19 required to make and respond to work-related calls off-the- clock, including scheduling calls, for which no wages were 20 paid, and open the department including turning on lights and computer before being able to clock in. Next, Plaintiff 21 and Class Members were required to undergo Covid-19 related testing off-the-clock prior to the start of their shift 22 and when returning from a meal break. Furthermore, Plaintiff and Class Members were required to wait in line 23 for a timeclock to become available for them to clock in. Lastly, Plaintiff and Class Members were required to 24 perform work off-the-clock after clocking out for the day, including assisting other employees with computer 25 systems, for which no wages were paid.

26 . . . This uncompensated time caused Plaintiff and Class Members to work in excess of eight (8), ten (10) and/or 27 twelve (12) hours a day and/or forty (40) hours a week, entitling Plaintiff and Class Members to minimum and 28 overtime wages, which they were systemically denied. 1 (FAC ¶¶ 22–23.) While these contentions give some color and detail to the types of 2 tasks Plaintiffs were allegedly required to do off the clock, they do not plausibly allege 3 any specific workweek or period when such activities took place. The Complaint also 4 lacks allegations concerning Plaintiffs’ typical work schedule or the approximate 5 number of hours worked during any specific period or the amount of time spent on 6 uncompensated tasks. See Benge, 2025 WL 373501, at *4 (comparing cases and 7 concluding overtime and minimum wage claims were inadequately pled). So too with 8 the minimum wage claim, for which Plaintiff does not plead any specific facts 9 indicating how many hours they worked without compensation or the hourly wages 10 paid. Id. at *5; see also Boyack v. Regis Corp., 812 Fed. App’x 428, 430 n.1 (9th Cir. 11 2020) (“Although Landers does not require plaintiffs plead ‘with mathematical 12 precision’ the number of hours they worked in a week, Landers does require plaintiffs 13 to allege they worked several hours without being paid minimum wages, which 14 Appellants failed to do.”); see also Tavares v. Cargill Inc., No. 1:20-cv-0679-JLT-SKO, 15 2019 WL 2918061, at *3–4 (E.D. Cal. Jul. 8, 2019) (collecting cases and finding 16 dismissal appropriate where plaintiff failed to plausibly allege facts supporting a 17 conclusion that off-the-clock work should have been compensated as overtime). Thus, 18 the Court GRANTS Defendants’ Motion to Dismiss Count 3 with leave to amend. 19 C. Failure to Pay Proper Sick Time (Count 4) 20 In Count 4, Plaintiff alleges that Defendants failed to pay proper sick pay in 21 accordance with California law. (FAC ¶¶ 37, 85–89.) Labor Code § 246 provides for 22 sick pay. Defendants contend that Labor Code § 246 does not provide for a private 23 right of action, while Plaintiff disputes that it does. 24 The Court concludes that there is no private right of action to enforce a 25 violation of Labor Code § 246 directly. See Reyes v. Costco Wholesale Corp., 26 No. 2:24-cv-00300-KES-HBK, 2024 WL 3105624, at *7 (E.D. Cal. Jun. 24, 2024) 27 (granting motion to dismiss a “direct” sick pay claim under Labor Code 246 but 28 permitting a waiting time penalties claim). However, as discussed more fully below, 1 “unpaid or underpaid sick pay wages are recoverable through Labor Code section 2 203” as waiting time penalties. Mendieta v. Williams Scotsman, Inc., No. 5:24-cv- 3 02090-MWF-SP, 2025 WL 104095, at *8 (C.D. Cal. Jan. 15, 2025). 4 Accordingly, because amendment of this claim would be futile, Defendants’ 5 Motion to Dismiss Count 4 for failure to pay proper sick pay is GRANTED with 6 prejudice. 7 D. Failure to Provide Accurate Wage Statements and Timely Pay Final Wages 8 (Counts 5 and 6) 9 In Counts 5 and 6, Plaintiff alleges Defendants failed to provide accurate wage 10 statements and timely pay final wages. (FAC ¶¶ 29–36, 90–107.) California law 11 requires employers to provide their employees with written wage statements listing 12 gross and net wages earned, hourly pay rates, hours worked, and other employment- 13 related information. Lab. Code § 226. California law also requires prompt payment of 14 final wages to discharged employees and provides penalties for failure to comply with 15 those provisions. See Lab. Code §§ 201–203. 16 Plaintiff acknowledges that her wage statement claims are strictly derivative and 17 based upon the allegations of the underlying wage, overtime, meal, and rest break 18 claims. (Opp’n at 25.) Because the Court has already dismissed these prior claims, 19 Defendant’s Motion to Dismiss Counts 5 and 6 for failure to provide accurate wage 20 statements and timely final pay based on these claims is GRANTED with leave to 21 amend. 22 To the extent Count 6 is based on unpaid sick leave, courts in this circuit have 23 found that while a claim under Labor Code § 246 for sick pay cannot be pursued 24 directly, a waiting time penalties claim may be sustained. See Reyes, 2024 WL 25 3105624, at *7 (holding that an employee may recover waiting time penalties for used 26 sick leave pay that the employer failed to timely pay following the employee’s 27 termination); Ismail v. Am. Airlines, Inc., No. 2:22-cv-01111-DMG-JPRX, 2023 WL 28 5504932, at *5 (C.D. Cal. Jul. 14, 2023) (finding that plaintiff could seek waiting time 1 penalties for used sick pay); Flores v. Dart Container Corp., No. 2:19-CV-00083-WBS- 2 EFB, 2020 WL 2770073, at *3 (E.D. Cal. May 28, 2020) (finding paid sick leave 3 constitutes wages for which a plaintiff can recover waiting time penalties). 4 Accordingly, while Plaintiff may state a claim for waiting time penalties for used sick 5 leave pay purportedly not paid following her discharge, the FAC lacks any allegations 6 that Plaintiff has taken sick leave for which she has not been paid. See Flores, 2020 7 WL 2770073, at *3 (denying motion to dismiss because plaintiff alleged she took sick 8 leave and “defendants owe plaintiff accurate payment of sick leave already taken”). 9 Accordingly, Defendants’ Motion to Dismiss Count 6 for waiting time penalties 10 as to unpaid sick pay is GRANTED with leave to amend. 11 E. Failure to Indemnify (Count 7) 12 Plaintiff does not provide any argument in support of her failure to indemnify 13 claim. (Opp’n at 22.) Thus, the Court GRANTS the Motion to Dismiss as to Count 7 14 with leave to amend. 15 F. Unfair Competition (Count 8) 16 Plaintiff’s final claim is for violation of California’s Unfair Competition Law 17 (“UCL”). (FAC ¶¶ 113–132.) California’s Unfair Competition Law, Bus. & Prof. Code 18 §§ 17200 et seq., defines “unfair competition” as including “any unlawful, unfair or 19 fraudulent business act or practice.” Plaintiff specifically alleges that her unfair 20 competition claim is based upon the meal period, rest break, overtime/minimum 21 wage, and sick leave claims. (Id. ¶ 117.) She seeks temporary, preliminary, and 22 permanent injunctive relief, restitution, and declaratory relief. 23 Employees can bring claims against their employers under UCL for restitution 24 of unpaid earned wages. Mewawalla v. Middleman, 601 F. Supp. 3d 574, 611 (N.D. 25 Cal. May 2, 2022) (citation omitted). As previously noted, because Plaintiff has not 26 successfully alleged a violation of California’s wage and hour laws as to her 27 overtime/minimum wage, meal and rest break claims, she cannot state a claim for an 28 unfair business practice. See Lopez v. Wendy’s Int’l, Inc., No. 5:11-cv-00275-TJH-JC, 1 | 2011 WL 6967932, at *12 (C.D. Cal. Sept. 19, 2011) (dismissing derivative UCL claim 2 | based upon insufficiently pled wage and hour claims). However, as the Court grants 3 | Plaintiff leave to amend these particular claims, leave to amend the UCL claim is 4 | therefore appropriate. 5 As to the sick leave claim, Plaintiff has not adequately alleged that she lacks an 6 | adequate remedy at law to make restitution under section 246 for her unpaid sick 7 | wages necessary. The Ninth Circuit has held that a plaintiff “must establish that she 8 | lacks an adequate remedy at law before securing equitable restitution for past harm 9 | underthe UCL....” Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 10 | 2020). There is no allegation in the complaint that Plaintiff lacks a remedy at law, such 11 | that the UCL claim must be dismissed with leave to amend. 12 Thus, the Court GRANTS the Motion to Dismiss as to Count 8 with leave to 13 | amend. 14 CONCLUSION 15 For the foregoing reasons, IT IS HEREBY ORDERED THAT Defendant's Motion 16 | to Dismiss (ECF No. 69) is GRANTED in part and DENIED in part as follows: 17 1. Counts 1, 2, 3, 5, 6, 7 and 8 of the First Amended Complaint are DISMISSED 18 with leave to amend; 19 2. Count 4 for sick leave pay is DISMISSED with prejudice; and 20 3. Defendants’ Motion to Dismiss is otherwise DENIED. 21 4. Plaintiff has 21 days from the docketing of this Order to file a Second 22 Amended Complaint. Defendants will have 21 days after the docketing of 23 the Second Amended Complaint to file their next responsive pleading. 24 95 IT IS SO ORDERED. 26 | Dated: _May 29, 2026 “Darel J □□ bratte— Hon. Daniel alabretta 27 UNITED STATES DISTRICT JUDGE 28