Benyamin v. TopGolf Payroll Services, LLC

• Court: District Court, E.D. California
• Decided: February 26, 2024
• Docket: 2:23-cv-00303
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOB B. BENYAMIN, on behalf of himself No. 2:23-cv-00303-DAD-DB and others similarly situated, 12 Plaintiff, 13 ORDER GRANTING DEFENDANTS’ v. MOTION TO DISMISS CERTAIN OF 14 PLAINTIFF’S CLAIMS IN THE SECOND TOPGOLF PAYROLL SERVICES, LLC, AMENDED COMPLAINT 15 et al., (Doc. No. 21) 16 Defendants.

17 18 This matter is before the court on defendants Topgolf Payroll Services, LLC; Topgolf 19 International, Inc.; and Topgolf USA Roseville, LLC’s July 25, 2023 motion to dismiss certain of 20 plaintiff’s claims asserted in his second amended complaint. (Doc. No. 21.) On August 30, 2023, 21 the pending motion was taken under submission on the papers.1 (Doc. No. 27.) For the reasons 22 explained below, defendants’ motion to dismiss will be granted. 23 BACKGROUND 24 This is a putative class action arising from defendants’ alleged violation of various 25 California wage-and-hour laws. On July 6, 2023, plaintiff Bob B. Benyamin filed the operative 26 ///// 27

28 1 That same day, August 30, 2023, this case was reassigned to the undersigned. (Doc. No. 28.) 1 second amended complaint (“SAC”) in this action. (Doc. No. 20.) As relevant for the purposes 2 of this motion, plaintiff alleges the following in his SAC. 3 Plaintiff worked for defendants from August 2016 to May 2022. (Id. at ¶ 9.) On average, 4 plaintiff worked eight hours per day and five days per week. (Id.) Defendants were the 5 “employer and/or joint employer” of plaintiff. (Id.) Defendants had a policy of not paying all 6 wages owed, including minimum wages, overtime pay, and sick leave pay. (Id. at ¶ 28.) 7 Defendants also maintained a policy of applying extreme pressure on plaintiff to meet time- 8 sensitive deadlines imposed right before meal and rest periods. (Id. at ¶¶ 29, 30.) Defendants 9 would interrupt meal or rest periods with business-related inquiries and instructions for tasks, or 10 simply cut the breaks short. (Id.) Plaintiff was forced to use his personal cell phone for work 11 purposes every day and was not reimbursed by defendants until March 2021; that belated 12 reimbursement was still insufficient because it was paid as a wage and thus subject to taxation. 13 (Id. at ¶ 31.) Defendants failed to provide plaintiff with accurate wage statements because of the 14 unpaid wages, meal periods, and rest breaks. (Id. at ¶ 32.) The wage statements provided by 15 defendants were also inaccurate because they “incorrectly identified the legal entity that was 16 [plaintiff’s] employer as ‘Topgolf Payroll Services LLC.’” (Id.) Moreover, defendants failed to 17 timely pay plaintiff all wages owed upon his termination for two reasons: First, because of the 18 unpaid wages, meal periods, and rest breaks, and second, because defendants failed to pay 19 plaintiff all of the paid time off he had accrued at the time of his termination. (Id. at 33.) 20 Based on the above allegations, plaintiff asserts the following eight claims in his SAC2: 21 (1) failure to pay minimum wages in violation of §§ 246, 1194, 1194.2, 1197; (2) failure to pay 22 overtime wages in violation of §§ 510, 1194, 1198; (3) failure to provide meal periods in 23 violation of §§ 226.7, 512; (4) failure to permit rest breaks in violation of § 226.7; (5) failure to 24 reimburse business expenses in violation of §§ 2800, 2802; (6) failure to provide accurate 25 itemized wage statements in violation of § 226; (7) failure to pay all wages due upon separation 26 ///// 27 2 Unless otherwise noted, all citations to code sections in this order are to the California Labor 28 Code. 1 of employment in violation of §§ 201–203, 227.3; and (8) violation of California Business and 2 Professions Code §§ 17200, et seq. (“the UCL”). (Doc. No. 20 at ¶¶ 36–102.) 3 On February 17, 2023, defendants removed this action from Placer County Superior Court 4 to this federal court. (Doc. No. 1.) Defendants moved to dismiss plaintiff’s complaint on 5 February 23, 2023. (Doc. No. 7.) Plaintiff filed his first amended complaint (“FAC”) pursuant to 6 Federal Rule of Civil Procedure 15(a)(1)(B) on March 9, 2023. (Doc. No. 11.) Defendants filed 7 a motion to dismiss certain claims in plaintiff’s FAC on March 23, 2023. (Doc. No. 13.) The 8 previously assigned district judge issued an order granting in part and denying in part that motion 9 on June 16, 2023. (Doc. No. 19.) Plaintiff then filed the operative SAC on July 6, 2023. (Doc. 10 No. 20.) On July 25, 2023, defendants filed the pending motion to dismiss claims 3, 4, 5, 7, and 8 11 in plaintiff’s SAC. (Doc. No. 21.) Plaintiff filed his opposition brief on August 8, 2023 (Doc. 12 No. 24); on August 18, 2023, defendants filed their reply thereto (Doc. No. 26). 13 LEGAL STANDARD 14 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 15 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 16 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 17 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 18 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 19 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). 23 In determining whether a complaint states a claim on which relief may be granted, the 24 court accepts as true the allegations in the complaint and construes the allegations in the light 25 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, 26 the court need not assume the truth of legal conclusions cast in the form of factual allegations. 27 U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). “[T]o to be entitled to the 28 presumption of truth, allegations in a complaint . . . must contain sufficient allegations of 1 underlying facts to give fair notice” to the opposing party. Starr v. Baca, 652 F.3d 1202, 1216 2 (9th Cir. 2011). While Rule 8(a) does not require detailed factual allegations, “it demands more 3 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 4 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 5 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 6 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 7 statements, do not suffice.”). It is inappropriate to assume that the plaintiff “can prove facts that 8 it has not alleged or that the defendants have violated the . . . laws in ways that have not been 9 alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 10 519, 526 (1983). 11 In ruling on a motion to dismiss under Rule 12(b)(6), the court is permitted to consider 12 material that is properly submitted as part of the complaint, documents that are not physically 13 attached to the complaint if their authenticity is not contested and the plaintiffs’ complaint 14 necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d. 15 668, 688–89 (9th Cir. 2001). 16 ANALYSIS 17 A. Certain Labor Code Claims (Claims 3, 4, 5, and 7) 18 In their pending motion and their reply brief, defendants argue that claims 3, 4, and 5 in 19 plaintiff’s SAC must be dismissed because plaintiff has failed to allege which of the defendants 20 were his employer. (See Doc. Nos. 21-1 at 6, 7, 9, 11; 26 at 2.) Defendants argue that they are 21 “left to guess who engaged in the alleged misconduct” and that plaintiff has failed to provide any 22 of the defendants with fair notice of the basis of the claims brought against them. (Doc. No. 26 at 23 2–3.) Defendants also argue that plaintiff’s claim 7, to the extent it seeks penalties related to 24 allegedly unpaid vacation pay, must be dismissed for the same reason. (See Doc. No. 21-1 at 12.) 25 Plaintiff argues in his opposition that defendants have forfeited this argument by failing to raise it 26 in their previously filed motions to dismiss. (See Doc. No. 24 at 3, 6.) As defendants point out in 27 reply, plaintiff is incorrect on this point; defendants included this argument, albeit briefly, in each 28 of their previous motions to dismiss. (See Doc. No. 26 at 2) (citing Doc. Nos. 7-1 at 20 (“He does 1 not allege . . . even the specific employer for which he worked. . . . These pleading deficiencies 2 warrant the dismissal of the class claims.”); 13-1 at 12 (“Plaintiff makes no factual allegations 3 (a) identifying his employer out of any of the three named defendants . . . .”)). 4 Under California law, to be an employer, an entity “must (1) ‘exercise control’ over the 5 individual’s ‘wages, hours, or working conditions’; (2) ‘suffer or permit’ the individual to work; 6 or (3) ‘engage’ the individual, creating a common law employment relationship.” Williams v. 7 Costco Wholesale Corp., No. 20-16455, 2021 WL 5026837, at *1 (9th Cir. Oct. 29, 2021) 8 (quoting Martinez v. Combs, 49 Cal. 4th 35, 64 (2010)).3 9 The court concludes that plaintiff’s SAC does not “contain sufficient allegations of 10 underlying facts to give fair notice” to defendants regarding which of them, if any, were his 11 employer. Starr, 652 F.3d at 1216. Plaintiff’s SAC contains undifferentiated allegations 12 regarding defendants’ alleged control over his wages, hours, and working conditions. Plaintiff 13 also alleges that all three defendants (i.e., Topgolf Payroll Services, LLC; Topgolf International, 14 Inc.; and Topgolf USA Roseville, LLC) were his employer during the relevant time period. (See 15 Doc. No. 20 at ¶¶ 13, 15.) However, plaintiff’s SAC later alleges the opposite, namely that his 16 “wage statements incorrectly identified the legal entity that was [his] employer as ‘Topgolf 17 Payroll Services LLC.’” (Id. at ¶ 32.) This contradictory allegation is particularly troubling in 18 light of plaintiff’s repeated suggestion that the named defendants were his joint employers. (See 19 id. at ¶ 13; see also Doc. No. 24 at 3 (“Defendants failed to cite any authority supporting [the 20 argument] that plaintiff can only have one employer . . . .”), 5–6 (“Defendants ask the court to 21 additionally require plaintiff to specifically allege . . . which of the three defendants was 22 plaintiff’s employer (as if there can only ever be one employer and never joint employment) . . . 23 .”)). In sum, plaintiff first alleges that all defendants were his employers, next alleges that 24 defendants may have been his joint employers, and finally alleges that one of the defendants was 25 not his employer at all. Plaintiff’s confusing and contradictory allegations in this regard fail to 26 provide “fair notice” to each defendant of the claims brought against it. Starr, 652 F.3d at 1216; 27 3 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit 28 Rule 36-3(b). 1 cf. Myles v. Builders Concrete, Inc., No. 1:21-cv-01309-DAD-BAK, 2022 WL 2318176, at *3 2 (E.D. Cal. June 28, 2022) (holding that the plaintiff had “not alleged sufficient facts supporting 3 his alleged legal conclusion that all four defendants were his joint employers” where “the 4 allegations of plaintiff’s FAC regarding the four defendants ‘are entirely undifferentiated,’” are 5 “merely referred to by plaintiff as one ‘defendant’ throughout the entirety of the FAC,” and “there 6 is no attempt to allege specific facts stating how each of the four defendants employed plaintiff”) 7 (citation omitted). 8 Accordingly, defendants’ motion to dismiss claims 3, 4, and 5, as well as claim 7 (to the 9 extent claim 7 seeks penalties related to allegedly unpaid vacation pay), will be granted.4 10 Because the noted deficiencies in plaintiff’s SAC can easily be cured, leave to amend will also be 11 granted. See Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Servs., 911 F.2d 242, 247 (9th 12 Cir. 1990) (holding that a district court “should grant leave to amend even if no request to amend 13 the pleading was made, unless it determines that the pleading could not possibly be cured by the 14 allegation of other facts”). 15 B. UCL Claim 16 Plaintiff’s UCL claim is predicated on defendants’ alleged Labor Code violations 17 underlying plaintiff’s claims 1 through 7, as well as on defendants’ alleged failure to pay sick 18 leave wages in violation of California Labor Code § 246.5 (See Doc. No. 20 at ¶ 94.) 19 Plaintiff seeks restitution and disgorgement of funds through his UCL claim. (Id. at 23.) 20 However, a plaintiff “must establish that she lacks an adequate remedy at law before securing 21 ///// 22

23 4 Defendants argue that these claims must be dismissed for several additional reasons. (See Doc. No. 21-1 at 5–12.) Because the claims will already be dismissed, the court will not address 24 defendants’ additional arguments at this time. The court notes that it is expressing no opinion on these arguments and that, if he so desires, plaintiff may supplement his allegations in any third 25 amended complaint in anticipation of a potential motion to dismiss.

26 5 Plaintiff does not bring a claim against defendants for failure to pay sick leave wages, 27 presumably because “courts have routinely found that § 246 does not create a private right of action.” Phoung v. Winco Holdings, Inc., No. 1:21-cv-02033-MCE-JDP, 2022 WL 3636369, at 28 *6 (E.D. Cal. Aug. 23, 2022). 1 equitable restitution for past harm under the UCL . . . .” Sonner v. Premier Nutrition Corp., 971 2 F.3d 834, 844 (9th Cir. 2020). 3 Defendants argue that plaintiff’s UCL claim must be dismissed because plaintiff has failed 4 to allege the lack of an adequate legal remedy. (Doc. No. 21-1 at 13). Plaintiff argues in 5 response that in the “wake of Sonner, district courts within the Ninth Circuit [have] consistently 6 held that while an express allegation of inadequacy of legal remedies is required, seeking 7 alternative remedies at the pleading stage is still permitted.” (Doc. No. 24 at 6) (quoting Height 8 St. Skilled Care, LLC v. Liberty Mut. Ins. Co., No. 1:21-cv-01247-JLT-BAM, 2022 WL 1665220, 9 at *9 (E.D. Cal. May 25, 2022)). Plaintiff further argues that he has alleged the inadequacy of 10 legal remedies. (Id.) 11 The court concludes that plaintiff has not alleged the inadequacy of legal remedies in 12 connection with his UCL claim to the extent that claim is predicated on the asserted Labor Code 13 wage-and-hour violations underlying claims 1 through 7 in his SAC. Plaintiff’s only relevant 14 allegation on this point is that “[a]dministrative relief” would be inadequate. (Id. at ¶ 101.) The 15 only predicate act listed by plaintiff that involves administrative relief is defendants’ alleged 16 failure to pay sick leave wages. For the other predicate acts, i.e., those underlying claims 1 17 through 7, statutory private rights of action permit plaintiff to seek damages in court—which of 18 course is exactly what plaintiff has done here. Consequently, the court cannot discern any 19 allegation in plaintiff’s SAC that the available legal remedies would be inadequate for his UCL 20 claim except for his reference to “[a]dministrative relief,” which is only applicable to defendants’ 21 alleged failure to pay sick leave wages. Moreover, because plaintiff seeks only restitution 22 equivalent to the damages he is seeking via his wage-and-hour claims, plaintiff must allege why 23 those damages would be inadequate. See Franckowiak v. Scenario Cockram USA, Inc., No. 20- 24 cv-08569-JFW-PVC, 2020 WL 9071697, at *3 (C.D. Cal. Nov. 30, 2020) (“Plaintiff bases her 25 claim for restitution and injunctive relief on defendant’s alleged failure to pay plaintiff and the 26 putative class members all wages owed, provide meal and rest breaks . . . and provide accurate 27 wage statements. . . . Plaintiff’s UCL allegations are predicated on the identical wage and hour 28 violations alleged in plaintiff’s first through seventh causes of action. Therefore, plaintiff has not, 1 and cannot, successfully allege that her legal remedies are inadequate because her claims for 2 restitution and injunctive relief are premised on the allegedly unpaid wages (i.e., a legal 3 remedy).”) (internal citation omitted); Mish v. TForce Freight, Inc., No. 21-cv-04094-EMC, 2021 4 WL 4592124, at *6 (N.D. Cal. Oct. 6, 2021) (“Mish’s UCL claim seeks ‘restitution of all unpaid 5 wages and other sums owed,’ which is the same relief she seeks with her Labor Code claims. 6 Therefore, Mish’s own allegations show that the Labor Code provides an adequate legal remedy 7 at law for each of her wage-and-hour claims. Since Sonner, courts have consistently dismissed 8 purely derivative UCL claims in wage-and-hour actions in which damages and penalties are 9 available for the same underlying Labor Code claims.”) (internal citation omitted). 10 The court also concludes that plaintiff has failed to allege the inadequacy of legal 11 remedies with respect to the remainder of his UCL claim, i.e., to the extent that claim is 12 predicated on defendants’ alleged failure to pay sick leave wages in violation of § 246. As noted, 13 plaintiff does not bring a claim for violation of § 246, presumably because “courts have routinely 14 found that § 246 does not create a private right of action.” Phoung, 2022 WL 3636369, at *6. 15 Defendants argue that an adequate legal remedy nevertheless exists because plaintiff can—and 16 did—file an action pursuant to the Private Attorneys General Act (“PAGA”) seeking damages for 17 his alleged unpaid sick leave.6 (Doc. No. 21-1 at 17–18; see also Doc. No. 22-1 at 47, 49.) 18 Plaintiff does not respond to this argument in his opposition. Absent any argument from plaintiff 19 that such a PAGA suit is somehow not an adequate legal remedy, the court concludes that 20 plaintiff has failed to adequately allege the lack thereof as to the remainder of his UCL claim. Cf. 21 6 Defendants request that the court take judicial notice of several purported state court actions 22 that, defendants argue, demonstrate that plaintiff has failed to allege inadequate legal remedies. 23 (Doc. No. 22 at 1–3.) One such action is a PAGA suit that was initiated by plaintiff against defendants on March 20, 2023 in the Placer County Superior Court, in which plaintiff seeks to 24 recover civil penalties for, among other things, defendants’ alleged failure to pay sick leave wages in violation of § 246. (Doc. No. 22-1 at 47, 49.) The court takes judicial notice of 25 plaintiff’s complaint filed in that case. See Harris v. Cnty. of Orange, 682 F.3d 1126, 1131–32 (9th Cir. 2012) (“We may take judicial notice of undisputed matters of public record, including 26 documents on file in federal or state courts.”) (internal citation omitted). Because the court need 27 not consult the other purported cases referred to in defendants’ request for judicial notice in order to conclude that plaintiff has failed to allege inadequate legal remedies, defendants’ request for 28 judicial notice will be denied as to those remaining cases. 1 Hassell v. Uber Techs., Inc., No. 20-cv-04062-PJH, 2020 WL 7173218, at *9 (N.D. Cal. Dec. 7, 2 2020) (“[P]laintiff could have pursued civil penalties for past violations of § 226.8 [the Labor 3 Code section prohibiting the willful misclassification of individuals as independent contractors] 4 through the Private Attorneys General Act (‘PAGA’) . . . . The fact that plaintiff chose not to 5 litigate defendant’s purported violation of § 226.8 as a private attorney general does not alter the 6 existence or prior availability of such avenue.”).7 7 Accordingly, defendants’ motion to dismiss plaintiff’s UCL claim will be granted in its 8 entirety. Because it is not unimaginable that plaintiff may be able to cure the deficiencies in his 9 pleadings via allegations as to the inadequacy of his legal remedies, leave to amend his UCL 10 claim will also be granted. See Cook, 911 F.2d at 247. However, plaintiff should only include a 11 UCL claim in an amended complaint if he has a good faith basis for additional allegations that the 12 available legal remedies are inadequate. 13 CONCLUSION 14 For the reasons explained above, 15 1. Defendants’ motion to dismiss plaintiff’s claims for failure to provide meal periods 16 in violation of California Labor Code §§ 226.7, 512 (claim 3); failure to permit 17 rest breaks in violation of California Labor Code § 226.7 (claim 4); failure to 18 reimburse business expenses in violation of California Labor Code §§ 2800, 2802 19 (claim 5); failure to pay all wages due upon separation of employment in violation 20 of California Labor Code §§ 201–203, 227.3 (claim 7), to the extent that claim 21 seeks penalties related to allegedly unpaid vacation pay; and unfair competition in 22 violation of the UCL, California Business and Professions Code §§ 17200, et seq. 23 (claim 8) (Doc. No. 21) is granted; 24 2. Plaintiff is granted to leave to amend his complaint;

25 7 Labor Code § 246 may also be enforced via an administrative process involving the California Labor Commissioner. See Cal. Lab. Code § 248.5. Plaintiff alleges that this administrative relief 26 is inadequate for various reasons (see Doc. No. 20 at ¶ 101) but does not address defendants’ 27 argument that a PAGA action supplies an adequate legal remedy. Because the court agrees with defendants’ argument on this point, the court need not consider plaintiff’s argument as to the 28 adequacy of administrative proceedings involving the Labor Commissioner. 1 3. Within twenty-one (21) days from the date of entry of this order, plaintiff shall file 2 either a third amended complaint, or a notice of his intent not to file a third 3 amended complaint and to proceed only on the claims not challenged by 4 defendants in their latest motion to dismiss (Doc. No. 21); and 5 4. If plaintiff files a notice of his intent not to file a third amended complaint, then 6 defendants shall file an answer as to the claims not challenged in this motion to 7 dismiss (Doc. No. 21) within twenty-one (21) days of service of that notice. 8 IT IS SO ORDERED. ” | Dated: _ February 24, 2024 Dab A. 2, sxe 10 DALE A. DROZD UNITED STATES DISTRICT JUDGE

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