Krauss v. Walmart, Inc.

• Court: District Court, E.D. California
• Decided: April 15, 2020
• Docket: 2:19-cv-00838
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 HOPE KRAUSS, aka DEONTE No. 2:19-cv-00838-JAM-DB KRAUSS, individually and on 11 behalf of all those similarly situated, 12 ORDER GRANTING IN PART AND Plaintiff, DENYING IN PART DEFENDANTS’ 13 MOTION TO DISMISS SECOND AMENDED v. COMPLAINT 14 WAL-MART, INC., a Delaware 15 corporation; WAL-MART ASSOCIATES, INC., a Delaware 16 corporation; and DOES 1 through 50, inclusive, 17 Defendants. 18 19 Plaintiff Hope Krauss (“Plaintiff”) filed this putative 20 class action against her former employer, Defendants Walmart, 21 Inc. and Wal-Mart Associate, Inc. (collectively “Walmart” or 22 “Defendants”), for violating California’s labor laws. Notice of 23 Removal, ECF No. 1. Defendants filed a motion to dismiss 24 Plaintiff’s First Amended Complaint (“FAC”), ECF No. 10, alleging 25 Plaintiff failed to properly state her claims. Mot. to Dismiss 26 FAC (“FAC MTD”), ECF No. 14. The Court granted the motion 27 without prejudice and granted Plaintiff leave to amend her 28 complaint. November 19, 2019 Order (“Order”), ECF No. 20. 1 Plaintiff filed her Second Amended Complaint shortly 2 thereafter. Second Amended Compl. (“SAC”), ECF No. 21. 3 Currently before this Court is Defendants’ motion to dismiss 4 Plaintiff’s Second Amended Complaint for failing to cure its 5 prior deficiencies. Mot. to Dismiss (“Mot.”), ECF No. 24. 6 Plaintiff opposes this Motion. Opp’n, ECF No. 25. 7 For the reasons set forth below, the Court GRANTS IN PART 8 and DENIES IN PART Defendants’ motion. 1 9 10 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 11 The Parties are familiar with Plaintiff’s allegations and 12 they will not be repeated in detail here. In short, Plaintiff 13 alleges Walmart: (1) required her to work off the clock, and 14 during meal and rest breaks without compensation; (2) 15 inaccurately recorded the amount of time she worked; (3) refused 16 to compensate her for overtime hours; (4) failed to reimburse her 17 for necessary business-related expenses; (5) and generally 18 withheld funds she was entitled to upon her termination. SAC 19 ¶¶ 4-9. 20 21 II. OPINION 22 A. Legal Standard 23 Federal Rule of Civil Procedure 8(a)(2) requires “a short 24 and plain statement of the claim showing that the pleader is 25 entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). Courts must 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for February 25, 2020. 1 dismiss a suit if the plaintiff fails to “state a claim upon 2 which relief can be granted.” Fed. R. Civ. Proc. 12(b)(6). To 3 defeat a Rule 12(b)(6) motion to dismiss, a plaintiff must 4 “plead enough facts to state a claim to relief that is plausible 5 on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 6 (2007). This plausibility standard requires “factual content 7 that allows the court to draw a reasonable inference that the 8 defendant is liable for the misconduct alleged.” Ashcroft v. 9 Iqbal, 556 U.S. 662, 678 (2009). “At this stage, the Court 10 “must accept as true all of the allegations contained in a 11 complaint.” Id. But it need not “accept as true a legal 12 conclusion couched as a factual allegation.” Id. 13 B. Analysis 14 1. Meal and Rest Break Claims 15 Employers cannot require employees to work during meal and 16 rest breaks. Id. at § 226.7(b). Moreover, an employer shall 17 pay an additional hour of pay for each workday a meal period or 18 rest break is not provided. Id. 19 The Court previously dismissed Plaintiff’s meal period and 20 rest claims because they “[fell] short of plausibility.” Order 21 at 6. Relying on its previous decision in Chavez v. RSCR 22 California, Inc., the Court explained: “failing to describe what 23 an employer actually told plaintiff or did to interfere with 24 meal periods and rest breaks, results in allegations that are 25 ‘factually lacking and border on wholly conclusory.’” Id. 26 (quoting Chavez, No. 2:18-CV-03137-JAM-AC, 2019 WL 1367812 at *3 27 (E.D. Cal. Mar. 26, 2019)). It then found Plaintiff’s 28 allegations “factually lacking,” because she failed to 1 (1) “describe what [Walmart] actually told [her] or did to 2 interfere with meal periods and rest breaks,” and (2) did “not 3 sufficiently allege that she worked a shift long enough to 4 trigger meal or rest periods obligations.” Id. at 5-6. 5 Defendants again seek to dismiss Plaintiff’s meal period and 6 rest breaks, arguing they are still factually lacking. Mot. at 7 9. The Court agrees. 8 In its Order, the Court stated that “[a]t a minimum” 9 Plaintiff needed to demonstrate she was entitled to “the 10 required meal period[s] or rest breaks.” Order at 6. Plaintiff 11 followed the Court’s instructions in her SAC and alleged she 12 worked hours long enough to trigger the required meal or rest 13 periods. SAC ¶¶ 23,28. As to the meal periods claim, she 14 alleged that “despite working shifts of more than five (5) 15 hours, Plaintiff was unable to take timely duty-free, and 16 uninterrupted meal breaks. . . .” Id. ¶ 23. Likewise, in her 17 rest breaks claim, she added “on more than one occasion, 18 Plaintiff worked a shift of at least three and one-half (3.5) 19 hours without being able to take a timely, duty-free, and 20 uninterrupted rest break.” Id. ¶ 28. 21 Plaintiff’s amended claims, however, stop there and are 22 still insufficient because she fails to “describe what [Walmart] 23 actually told [her]” to deter her meal and rest breaks. Id. at 24 5 (citing Chavez, 2019 WL 1367812, at *3). 25 Plaintiff maintains she has adequately pled these two 26 claims because “California courts have found similar allegations 27 to be sufficient at the pleading stage.” Opp’n at 5. But the 28 cases Plaintiff relies on are distinguishable. In Varsam v. 1 Laboratory Corp. of America, the plaintiff alleged she was 2 unable to take breaks because her employer did not schedule them 3 at all. 120 F. Supp. 3d 1173, 1178-79 (S.D. Cal. 2015). The 4 court found such conclusory allegations are sufficient when “an 5 employer makes it difficult . . . or undermines a formal policy 6 of providing meal and rest periods.” Id. In Ambriz v. Coca 7 Cola Co., a different court came to the same conclusion when the 8 plaintiff alleged the employer had a policy of never providing 9 breaks. No. 13-cv-03539, 2013 WL 5947010 at *3 (N.D. Cal. Nov. 10 5, 2013). But here, Plaintiff does not allege Walmart never 11 provided breaks. 12 Plaintiff’s reliance on these cases is misplaced. In fact, 13 in Ambriz the court explained that when an employer allegedly 14 pressured an employee not to take breaks, instead of never 15 providing breaks, the plaintiff must “plead the nature of the 16 pressure tactics.” Id. (citing Brown v. Wal-Mart Stores, Inc., 17 No. 08-cv-5221, 2013 WL 1701581, at *5 (N.D. Cal. Apr. 18, 18 2013)). Here Plaintiff has failed to identify any similar 19 “pressure tactics” engaged in by Walmart. The Court therefore 20 DISMISSES Plaintiff’s meal and rest break claims WITH PREJUDICE. 21 2. Minimum Wage and Overtime Claims 22 The Court previously dismissed Plaintiff’s minimum wage and 23 overtime claims because her FAC only included “generalized 24 allegations” in support of these claims. Order at 7. 25 Specifically, the Court found Plaintiff had not met the minimum 26 requirement of alleging “she had worked more than forty hours in 27 a given workweek without overtime [and minimum wage] 28 compensation.” Id. Because the claims failed for that reason 1 alone, the Court did not address Defendants’ other arguments. 2 Id. Defendants now seek dismissal of these two claims on the 3 grounds not previously addressed by the Court. 4 The Parties arguments regarding the minimum wage and 5 overtime claims are contained in the same section of the briefs; 6 however, because the Court finds different standards apply to 7 each claim, it will address each claim separately. 8 a. Minimum Wage 9 California state law requires an employer to pay employees 10 the minimum wage for all hours worked. See Cal. Lab. Code 11 § 1197. “[A]n employee receiving less than the legal minimum 12 wage” can recover “the unpaid balance of the full amount of this 13 minimum wage.” Id. at § 1194. 14 In Morelli v. Corizon Health, defendant allegedly did not 15 pay plaintiffs minimum wage, because they “remained under 16 [d]efendant’s control” during meal and rest breaks. No. 18-cv- 17 1395, 2018 WL 6201950, at *4 (E.D. Cal. Nov. 28, 2018). The 18 court dismissed plaintiffs’ claim because they failed to 19 factually allege “how [they] remained under [d]efendant’s 20 control during break periods.” Id. (emphasis added). Without 21 such factual allegations, Plaintiffs allegations were conclusory 22 and “could not form the basis of an adequately pled claim for 23 the failure to pay minimum wage.” Id. Stated another way, the 24 court determined “[plaintiff’s] allegations [] merely track[ed] 25 the statutory language of the Labor Code.” Id. 26 Defendants argue Plaintiff’s minimum wage claim is likewise 27 devoid of any factual allegation showing how she remained under 28 their control during breaks. Order at 11. Plaintiff does not 1 however allege she was under Defendants’ control at all during 2 breaks. See SAC ¶¶ 33-34. Her allegation thus fails to even 3 track the “statutory language of the Labor Code.” Morelli, 2018 4 WL 6201950, at *4. 5 Plaintiff argues she need not provide facts alleging she 6 remained under Defendants control. Opp’n at 6. She contends it 7 is enough to allege Defendants “refuse[d] to allow employees to 8 work overtime while making it difficult for employees to 9 complete their work within their scheduled shifts.” Id. (citing 10 Varsam, 120 F. Supp. 3d at 1177-1178). But, as Defendants point 11 out, Varsam is distinguishable because the plaintiff alleged 12 more than that defendant simply “‘discouraged’ her and putative 13 class members from clocking overtime.” Reply at 2-3 (citing 14 Varsam, 120 F. Supp. 3d at 1178)). The plaintiff also alleged 15 defendant “failed to schedule a sufficient number of [patient 16 technicians].” Varsam, 120 F. Supp 3d at 1178. The court thus 17 declined to dismiss plaintiffs’ minimum wage and overtime claims 18 because that additional allegation made it “plausible” her 19 employer prevented her from “[taking] breaks and undermine[d] a 20 formal policy of providing meal and rest periods.” Id. In the 21 instant case, unlike the Plaintiff’s allegations found 22 sufficient in Varsam, Plaintiff does not allege Walmart was 23 short staffed. Plaintiff has once again failed to “plead enough 24 facts to state a claim for relief that is plausible on its 25 face.” Twombly, 550 U.S. at 570. The Court DISMISSES 26 Plaintiff’s minimum wage claim WITH PREJUDICE. 27 b. Overtime 28 Employers must pay overtime for work exceeding eight hours 1 in one workday and forty hours in any workweek. See Cal. Lab. 2 Code § 510. Employees receiving less than the “legal overtime” 3 can likewise recover under Section 1194. Id. at § 1194. 4 Defendants argue Plaintiff’s overtime claim should be 5 dismissed because she “still [does] not provide[] any specific 6 details regarding the nature of her alleged ‘off the clock’ work 7 . . . and why she felt she had no choice but to secretly work 8 off the clock.” Mot. at 11. They further contend “if 9 [Plaintiff] is alleging that she was secretly working off the 10 clock . . . her allegation fails as a matter of law.” Id. at 11 11-12 (citing White v. Starbucks Corp., 497 F. Supp. 2d 1080, 12 1085 (N.D. Cal. 2007)). Defendants argue that to prevail on her 13 off-the-clock claim, Plaintiff must prove Walmart “had actual or 14 constructive knowledge of [her] alleged off-the-clock work.” 15 White, 497 F. Supp. 2d 1083. However, as Plaintiff points out, 16 proving whether Walmart had knowledge of her off-the-clock work 17 is irrelevant. Opp’n at 7. Unlike in White, before the Court 18 is a motion to dismiss, not a motion for summary judgment. Id. 19 At this stage, the Court is only concerned with whether 20 Plaintiff’s claims are plausible. Twombly, 550 U.S. at 570. 21 Nevertheless, Defendants are correct that Plaintiff’s 22 overtime claim allegations are conclusory. As the Court stated 23 in its Order, Plaintiff need not “approximate the number of 24 hours worked without compensation.” Order at 7 (quoting 25 Landers, 771 F.3d at 646). But “she must allege, at a minimum, 26 that she worked more than forty hours in a given workweek 27 without overtime compensation.” Id. (quoting Landers, 771 F.3d 28 at 644-46). In interpreting the parameters within this range, 1 courts “have offered varying and possibly inconsistent standards 2 for stating [these claims].” Morelli, 2018 WL 6201950, at *4 3 (quoting Sanchez v. Ritz Carlton, No. 15-cv-3484 PSG (PJWx), 4 2015 WL 50009659, at *2 (C.D. Cal. Aug. 17, 2015)). Despite 5 these inconsistent standards, it is clear “there must be 6 something beyond conclusory allegations that ties the alleged 7 [L]abor [C]ode violation to [Plaintiff] such as allegations 8 about [her] schedule[] to substantiate [she] worked [overtime] 9 shifts that would trigger overtime pay[.]” Id. 10 Plaintiff amended her claim in an attempt to meet the bare 11 minimum pleading requirements. She now alleges working at least 12 “on more than one occasion . . . more than eight (8) hours in a 13 given workday . . . and more than forty (40) hours in a given 14 workweek without being paid overtime compensation.” Compl. 15 ¶ 39. But Plaintiff’s amendments stop there. There is no 16 allegation that “ties” the alleged overtime violation together 17 with the statute to make her claim plausible. Morelli, 2018 WL 18 6201950, at *4. Plaintiff’s amended overtime claim still lacks 19 key facts and specific detail necessary to support this claim. 20 The Court therefore DISMISSES Plaintiff’s overtime claim WITH 21 PREJUDICE. 22 3. Wage Statement Claim 23 California Labor Code Section 226 itemizes nine categories 24 of information that must be included in a wage statement. See 25 Cal. Lab. Code § 226. If an employee suffers injury by an 26 employer’s knowing and intentional failure to provide such 27 information, she is entitled to recover damages and reasonable 28 attorney’s fees. Id. 1 The Court previously dismissed Plaintiff’s wage statement 2 claim in part because it was a “generic allegation [that] merely 3 restate[d] the requirements of Labor Code Section 226(a).” 4 Order at 9. Defendants argue Plaintiff once again merely 5 restates the statute requirements, without explaining “how her 6 wage statement supposedly violates the code.” Mot. at 12. 7 Plaintiff contends her claim is properly pled. Opp’n at 8. 8 In the SAC, Plaintiff still includes the allegation the 9 Court found to be a mere restatement of Section 226(a) 10 requirements. See SAC ¶ 50. However, Plaintiff also provides 11 three factual allegations elaborating on that generic 12 allegation. See SAC ¶¶ 51-53. Defendants argue these are not 13 new allegations. Reply at 3. Rather, they contend Plaintiff 14 merely copied paragraphs from the fact section of her FAC and 15 placed them in her amended Wage Statement claim. Id. But 16 whether Plaintiff repurposed allegations is irrelevant. What 17 matters is whether such repurposing has transformed her previous 18 implausible claim into one that is “plausible on its face.” 19 Twombly, 550 U.S. at 570. (2007). The Court will address 20 Plaintiff’s three factual allegations in turn. 21 a. Overtime Incentive Program 22 First, Plaintiff alleges her payment for an overtime 23 incentive program was “a lump sum without setting forth the 24 corresponding hours worked or hourly rate.” SAC ¶ 51. This 25 allegedly prevented her from “determin[ing] the formula 26 Defendant had used to calculate the [overtime incentive payment] 27 from her wage statement alone.” Id. Plaintiff argues such a 28 hindrance is a “wage statement violation” under Section 1 226(a)(9). Id. Indeed, the statute requires employers to 2 provide “semimonthly or at the time of each payment of wages,” 3 “all applicable hourly rates in effect during the pay period and 4 the corresponding number of hours worked at each hourly rate by 5 the employee.” Cal. Lab. Code § 226(a)(9). 6 But Defendants argue this allegation cannot support a 7 Section 226(a) violation because it was for “a prior pay 8 period.” Mot. at 13. They maintain “Section 226(a) only 9 requires the wage statement to show the ‘applicable hourly rates 10 in effect during each pay period.’” Id. (quoting Cal. Lab. Code 11 § 226(a)). Plaintiff argues the statute requires wages for the 12 period in which the compensation is actually paid. Opp’n at 9- 13 10 (citing Mitchell v. Corelogic, Inc., No. SACV172274DOCDFMX, 14 2019 WL 7172978, at *5 (C.D. Cal. Nov. 20, 2019)). 15 In Mitchell, the court determined “[Section 226(a)] does 16 not provide an exception for incentives that were earned in a 17 different pay period.” 2019 WL 7172978, at *5. Instead, “the 18 statute requires the applicable rates to be noted when they are 19 in effect,” which is “when the wages are actually paid.” Id. 20 The court further explained “because [d]efendant is paying 21 [p]laintiffs an incentive for work done in a prior period, 22 [d]efendant is in essence revising the prior period’s wage 23 statement which would otherwise have had to conform with 24 [Section]226(a)(9).” Id. It thus concluded the Section 25 “applies to the wage statement for payments made during the pay 26 period even if work was done before the pay period.” Id. 27 While Mitchell is not binding authority, the Court is 28 persuaded by its reasoning. Moreover, Defendants did not 1 present any authority to the contrary. The Court therefore 2 adopts Mitchell’s reasoning: Section 226(a)(9) required 3 Defendants to identify the hourly rates for the rates of 4 Plaintiff’s overtime incentive payment, even though the work was 5 done before the pay period. 6 b. Statement of Final Pay 7 Second, Plaintiff alleges “her ‘Statement of Final Pay’ did 8 not include pay period start and end dates, and consequently, 9 [she] could not determine the formula for calculating her final 10 pay from her wage statement alone.” SAC ¶ 53. Indeed, Section 11 226(a) requires employers to provide “the inclusive dates of the 12 period for which the employee is paid.” Cal. Lab. Code. 13 § 226(a)(6). 14 However, Defendants dispute the law requires them “to 15 provide anything more than ‘an ordinary wage statement.’” Reply 16 at 3 (citing Cal. Lab. Code § 226(a)). Yet the Statute does not 17 delineate an employer must only provide an “ordinary wage 18 statement” as Defendants contend. See Id. In fact, the term 19 “ordinary wage statement” is nowhere to be found in the 20 statute’s text. See Id. Instead, Section 226(a) explicitly 21 states an employer must provide the nine categories of 22 information either “semimonthly or at the time of each payment 23 of wages.” See Id. (emphasis added). Accepting Plaintiff’s 24 allegation as true, it is clear the “Statement of Final Pay” was 25 a payment of “all wages earned through the date of termination.” 26 SAC ¶ 53. Defendants were thus required under Section 226(a)(6) 27 to include pay period start or end dates. Cal. Lab. Code 28 § 226(a)(6). 1 c. Wrong Employer 2 Lastly, Plaintiff argues her wage statements list the wrong 3 employer in violation of Labor Code Section 226(a)(8). SAC 4 ¶ 52. Section 226(a)(8) requires an employer to list “the name 5 and address of the legal entity that is the employer.” Cal. 6 Lab. Code § 226(a)(8). 7 In her SAC, Plaintiff alleges the wage statement listed 8 “Wal-Mart Associates, Inc.” instead of the name of her actual 9 employer “Wal-Mart Stores, Inc.” Id. But in her Opposition, 10 Plaintiff claims this allegation was a typo. Opp’n at 10-11. 11 Instead, she supposedly meant to state it was the absence of 12 “‘Walmart, Inc.”—not of “Wal-Mart Stores, Inc.”— from her wage 13 statements that constitutes a violation. Id. 14 Defendants argue this clarification “misses the point” 15 because Plaintiff “explicitly alleges Walmart Associates, Inc. 16 is her employer.” Reply at 3 (citing SAC ¶ 3). Indeed, in 17 paragraph 3 of her Second Amended Complaint, Plaintiff alleges 18 she was “a former employee of DEFENDANTS.” SAC ¶ 3. Plaintiff 19 defines “DEFENDANTS” as “WALMART, INC.” and “WAL-MART 20 ASSOCIATES, INC.” SAC ¶¶ 13-14. But this alone is insufficient 21 to dismiss Plaintiff’s claim. 22 Mays v. Wal-Mart Stores, Inc. addressed this exact 23 question: whether listing “Wal-Mart Associates, Inc.” prevented 24 plaintiff from identifying her employer. 354 F. Supp. 3d 1136, 25 1142-1144 (C.D. Cal. 2019). In reaching its conclusion, the 26 Mays court examined a Ninth Circuit decision that addressed a 27 similar question. Id. at 1143-1144 (examining Elliot v. 28 Spherion Pac. Work, LLC, 368 F. App'x 761, 764 (9th Cir. 2010)). 1 In Elliot, the Ninth Circuit found listing an employer as 2 “Spherion Pacific Work, LLC” instead of the employer’s legal 3 name, “Spherion Pacific Workforce, LLC,” was such a “slightly 4 truncated name, it did not violate Section 226.” Id. But in 5 Mays, the court interpreted this holding to find the opposite 6 conclusion. 354 F. Supp. 3d at 1144. The court found listing 7 “Wal-Mart Associates, Inc.,” instead of “Wal-Mart Stores, Inc.” 8 was more than a slightly truncated name. Id. However, it only 9 found this was “confusing and unintelligible” because the 10 plaintiff had provided “at least some evidence that multiple 11 legal entities” were using the same initial “Walmart” in their 12 company titles. Id. Here, Plaintiff has provided no such 13 evidence. Unlike the plaintiff in May, “Plaintiff has [not] 14 alleged sufficient facts to show Walmart did not list the ‘legal 15 entity’ of [her] employer.” Id. 16 d. Conclusion 17 The Court finds Plaintiff has properly alleged a wage 18 statement violation under Labor Code Sections 226(a)(6) and (9), 19 but not under Section 226(a)(8). The Court therefore DENIES 20 Defendants’ motion to dismiss Plaintiff’s Wage Statement claim 21 as it pertains to those two Sections. 22 4. Unreimbursed Business Expenses Claim 23 Employers must indemnify employees for all necessary 24 expenditures or losses incurred in direct consequence of the 25 discharge of an employee’s duties or in obedience to the 26 directions of the employer. See Cal. Lab. Code § 2802(a). 27 Plaintiff seeks reimbursement for two incurred expenses: 28 (1) a cell-phone app utilized for work communication, and 1 (2) work boots for working in walk-in freezers. SAC ¶ 58. The 2 Court previously dismissed this claim because Plaintiff had 3 “fail[ed] to explain whether the cell-phone app required a fee 4 to download, let alone whether Walmart even knew that she 5 downloaded [the] app or purchased [the] boots.” Order at 11. 6 Defendants argue Plaintiff’s claim fails for the same reasons. 7 Mot. at 14-15. The Court agrees as to the work boot allegation 8 but finds Plaintiff has properly pled the claim as to her phone 9 app allegation. 10 a. Phone App 11 In its Order, the Court found Plaintiff’s cell phone app 12 allegation was insufficiently pled partly because she failed to 13 allege it required a fee to download. Order at 11. Plaintiff 14 still does not allege this. See SAC ¶ 58. In fact, she 15 maintains such an allegation is not necessary. Opp’n at 12. 16 Plaintiff supports this argument with a case that was absent in 17 her opposition to the first motion to dismiss. See Opp’n at 12 18 (citing Cochran v. Schwan’s Home Serv., Inc., 228 Cal. App. 4th 19 1137, 1140 (2014)). Defendants do not reply to this argument. 20 See Reply at 3-4. 21 In Cochran, an employee filed a putative class action 22 against his employer on behalf of customer service managers that 23 were not reimbursed for expenses pertaining to the work-related 24 use of their personal cell phones. 228 Cal. App. 4th 1140. The 25 court found Section 2802 required employer’s to “always” 26 reimburse an employee “for the reasonable expense of the 27 mandatory use of a personal cell phone.” Id. at 1144. Here, 28 Plaintiff alleges because she was required to use her cell phone 1 in order to communicate with Defendants through that app, she is 2 likewise entitled to reimbursement under Section 2802. Opp’n at 3 12 (quoting SAC ¶ 58). The Court agrees. 4 In interpreting state law, federal courts must consider 5 intermediate state appellate court decisions, “unless it is 6 convinced by other persuasive data that the highest court of the 7 state would decide otherwise . . . .” West v. American Tel. & 8 Tel. Co., 311 U.S. 223, 237 (1940). As such, although Cochran 9 involved class certification and not a motion to dismiss, the 10 Court must consider its decision. Especially since Defendant 11 provides no other persuasive case to the contrary. 12 The Court previously found this allegation also failed 13 because Plaintiff did not provide a “single instance when such a 14 cost was actually incurred and not reimbursed.” Order at 11. 15 In light of Cochran, the Court no longer finds Plaintiff needs 16 to allege such an instance. The Court therefore now finds 17 Plaintiff has properly plead the reimbursement claim as to her 18 phone app allegation. 19 b. Work Boots 20 In its Order, the Court also found Plaintiff’s 21 reimbursement claim failed as to her work boots allegation. 22 Order at 10-11. Specifically, the Court found it failed because 23 Plaintiff did not allege “Walmart even knew that she . . . 24 purchased these boots” or that there was at least a single 25 instance in which Walmart did not reimburse her for the boots. 26 Id. at 11. Yet instead of rectifying her claim by adding those 27 allegations, Plaintiff simply chose to add the cost of the 28 boots: $14. SAC ¶ 58. 1 This new fact does not correct the deficiencies the Court 2 highlighted in its Order. For example, Plaintiff still fails to 3 show Walmart knew she purchased the boots. Plaintiff argues 4 such an allegation “can be reasonably inferred” because “an 5 employee would need to purchase special shoes for working in the 6 intemperate environment of a freezer.” Opp’n at 12. But the 7 case she relies on to support this contention holds otherwise. 8 Id. at 11 (citing Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 9 1005 (N.D. Cal. 2016)). In Tan, the court stated “Section 2802 10 claims are sufficiently pled where the complaint identifies the 11 particular expenses that were not reimbursed and affirmatively 12 alleges that the expenses were part of the plaintiff’s job 13 duties.” Tan, 171 F. Supp. at 1005. Yet, in the instant case, 14 Plaintiff fails to affirmatively allege the boots were required 15 as part of her job duties, even when she cites that specific 16 rule in her brief. See Opp’n at 11. 17 In Tan, the plaintiff did not need an affirmative 18 allegation because it was obviously inferred “an app-based 19 delivery service requires a vehicle and a phone and thus 20 expenses related to each.” 171 F. Supp. at 1005. As Defendants 21 point out, Plaintiff’s job duties do not reasonably infer she 22 required work boots. Reply at 4. Plaintiff was “a produce 23 associates whose duties included ‘maintaining the sales floor, 24 stocking merchandise, data entry, assisting customers, and 25 general manual labor throughout the store.’” Id. Based on this 26 description, the need for work boots is not an obvious 27 inference. Plaintiff therefore needed to affirmatively allege 28 the boots “were necessary to discharge [her] duties.” 171 F. 1 Supp. at 1005. Without such an affirmative allegation, 2 Plaintiff’s reimbursement claim as to the work boots fails. 3 c. Conclusion 4 The Court DENIES Defendants’ motion to dismiss Plaintiff’s 5 unreimbursed business expenses claim only to the extent it is 6 predicated on her cellphone app allegation. 7 5. Derivative Claims 8 Defendants seek to dismiss Plaintiff’s claims under Labor 9 Code Section 203, the UCL, and PAGA. The Court will discuss 10 each claim in turn. 11 a. Section 203 Claim (Fifth Cause of Action) 12 Section 203 provides an employee may recover wages in the 13 form of a penalty, if an employer fails to pay them upon 14 termination. Cal. Lab. Code § 203. In her fifth cause of 15 action, Plaintiff alleges Defendants failed to pay her wages in 16 accordance with Sections 201 and 202, which in turn violates 17 Section 203. SAC ¶¶ 43-45. Sections 201 and 202, require an 18 employer to pay an employee all “wages earned and unpaid” within 19 72 hours of termination. Cal. Lab. Code §§ 201-202. 20 Defendants argue Plaintiff’s Section 203 claim fails 21 because her underlying claims fail. Mot. at 15. While 22 Plaintiff does not specify, it is presumed this cause of action 23 is predicated on her overtime and minimum wage claims. See SAC 24 ¶ 43 (“DEFENDANTS have willfully failed to pay accrued wages and 25 other compensation to PLAINTIFF”). Because those claims fail, 26 this cause of action fails as well. The Court DISMISSES the 27 fifth cause of action WITH PREJUDICE. 28 /// 1 b. UCL Claim 2 Defendants argue Plaintiff’s UCL claim fails because all 3 the underlying claims must be dismissed. Mot. at 15. As 4 explained above, some of the claims upon which the UCL claim is 5 predicated are adequately pled. Specifically, the Court finds 6 that in the SAC Plaintiff has properly pled the underlying 7 claims alleging “[Defendants] failure to . . . furnish accurate 8 itemized wage statements . . . and indemnify [Plaintiff] for 9 necessary expenditures.” SAC ¶ 61. Accordingly, the Court 10 DENIES Defendants’ motion to dismiss Plaintiff’s UCL claim to 11 the extent it is predicated on wage statement and 12 indemnification violations. 13 c. PAGA Claim 14 As set forth above, Plaintiff has properly pled two of the 15 underlying claims upon which her PAGA claim is based on: wage 16 statement and indemnification claims. SAC ¶ 68. The Court 17 therefore turns to Defendants’ argument that the PAGA claim 18 should be dismissed under PAGA’s exhaustion requirement. Mot. 19 at 16. 20 California Labor Code Section 2699.3 requires an “aggrieved 21 employee or representative” to give written notice to the Labor 22 and Workforce Development Agency (“LWDA”) by online filing and 23 to the employer by certified mail, prior to commencing a civil 24 suit. Cal. Lab. Code. § 2699.3. The written notice must 25 include “the specific provisions of [the Labor Codes] alleged to 26 have been violated, including facts and theories to support the 27 alleged violation.” Id. This notice requirement “is evaluated 28 according to a different standard than the allegations in a 1 complaint.” Lyter v. Cambridge Sierra Holdings, LLC, No. 2 CV173435MWFAGRX, 2017 WL 8186044, at *7 (C.D. Cal. July 25, 3 2017). The Ninth Circuit has specified “a string of legal 4 conclusions with no factual allegations or theories of liability 5 to support them” is insufficient to provide proper notice to 6 either the LWDA or to an employer. Alcantar v. Hobart Service, 7 800 F.3d 1047, 1057 (9th Cir. 2015). 8 Defendants argue it is “impossible to assess” whether 9 Plaintiff even met these notice requirements because she has 10 “failed to either attach a copy of the PAGA notice letter or 11 substantively plead compliance by supplying the details of her 12 [letter].” Mot. at 17. Indeed, Plaintiff has not attached a 13 copy of her PAGA notice letter. Instead she alleges the 14 following:

15 Pursuant to California Labor Code § 2699.3, [Plaintiff] gave written notice on August 31, 2018 by online filing 16 to the [LWDA] and by certified mail to [Walmart, Inc.] 17 of the specific provisions of the California Labor Code and IWC Wage Orders alleged to have been violated, 18 including the facts and theories to support the alleged violations. 19 20 SAC ¶ 68. Plaintiff argues this alone is sufficient proof she 21 has satisfied the notice requirement. Opp’n at 14. She relies 22 on Lyter, to argue Defendants’ are “improperly bootstrapping the 23 LWDA’s administrative standard to this Court’s pleading standard” 24 despite their distinct differences. Id. (citing Lyter, 2017 WL 25 8186044, at *7). But in Lyter, the plaintiff actually attached 26 the notice letter. 2017 WL 8186044, at *7. The Court was thus 27 able to determine the sufficiency of the facts and theories, and 28 1 ultimately allowed the PAGA claim to proceed. Id. Here, the 2 Court is unable to make the same determination. 3 In Varsam, the plaintiff also did not attach the notice 4 letter and provided a similar bare-bones allegation in her 5 complaint. 120 F. Supp. 3d 1173. The plaintiff merely alleged 6 “[prior] to the commencement of [her] action, [she] properly 7 complied with the exhaustion requirements of the LWDA.” Id. 8 Because the plaintiff’s allegation did not state the facts and 9 theories she provided to LWDA, the court found the allegation was 10 a “legal conclusion, insufficient to support a claim.” Id. 11 Here, Plaintiff’s claim suffers from these same shortcomings. 12 Yet she attempts to argue this pleading requirement is a mere 13 suggestion, because the Varsam court used the word “should” to 14 modify “include,” instead of the word “must.” Opp’n at 14. 15 While creative, Plaintiff’s textualist argument does not succeed 16 in gaslighting the Court. 17 Without including the facts and theories Plaintiff provided 18 to LWDA in her complaint, the Court cannot “independently 19 conclude that [she] has satisfied the requirements of the statute 20 as a matter of law.” Kemp v. International Business Machines 21 Corp., No. C-09-4638 MHP, 2010 WL 4698490, at *3 (N.D. Cal. Nov. 22 8, 2010)(similarly dismissing plaintiff’s PAGA claims for 23 “insufficiently ple[ading] compliance with PAGA’s administrative 24 requirements”). The Court therefore DISMISSES Plaintiff’s PAGA 25 claims WITH PREJUDICE. 26 6. Amendment 27 Plaintiff contends she is entitled to leave to amend unless 28 it is clear the pleading cannot be cured by the allegation of WwAOe 2.40 VV YVYUOVOTVFANTT EY Oo POI ee PAY Oe I ee

1 additional facts. Opp. at 15 (citing Cook v. Perkiss and Liehe, 2 Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 247 3 (9th Cir. 1990)). As Defendants point out, Plaintiff has had 4 three chances to amend her complaint and has failed to rectify 5 | most of the deficiencies the Court pointed out in its November 6 2019 Order. Mot. at 7. Specifically, the Court finds Plaintiff 7 has failed to cure her First, Second, Third, Fourth, Fifth and 8 | Ninth Causes of Action. The Court finds further amendment of 9 these claims would be futile and unduly prejudicial to Defendants 10 Since she has had multiple opportunities to properly state her 11 claims. See Lesnik v. Eisenmann SE, 374 F. Supp. 3d 923, 950 12 (N.D. Cal. 2019). Plaintiff’s request for leave to amend is 13 therefore denied. 14 15 Til. ORDER 16 For the reasons set forth above, the Court GRANTS in part 17 and DENIES in part Defendant’s Motion to Dismiss as follows: 18 1. GRANTED as to Plaintiff’s First, Second, Third, Fourth, 19 Fifth, and Ninth Causes of Action, which are dismissed with 20 | prejudice; and 21 2. DENIED (with limitations) as to Plaintiff’s Sixth, 22 Seventh, and Eight Causes of Action. 23 3, Defendants shall file their Answer to the remaining 24 claims in the SAC within twenty days of this Order. 25 IT IS SO ORDERED. 26 | Dated: April 14, 2020 27 ke Me 28 teiren staves odermacr 7008 22