Krauss v. Walmart, Inc.

Opinion

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

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

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

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