1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JULIO MAYEN, individually on his own CASE NO. 1:21-CV-0145 AWI JLT behalf and on behalf of all others similarly 8 situated, ORDER ON DEFENDANT’S MOTION 9 Plaintiff TO DISMISS
10 v. (Doc. No. 10) 11 CAL CENTRAL HARVESTING, INC., and DOES 1-100 inclusive, 12 Defendants 13 14 15 This is a putative class action brought by Plaintiff Julio Mayen (“Mayen”) against his 16 former employer Cal Central Harvesting, Inc. (“CCH”). Mayen alleges seven violations of the 17 California Labor Code, violation of Cal. Bus. & Prof. Code § 17200 for unfair competition (“the 18 UCL”), and violation of 29 U.S.C. § 1801 et. seq. the Agricultural Worker Protection Act 19 (“AWPA”). Currently before the Court is Defendant’s Rule 12(c) motion for judgment on the 20 pleadings. For the reasons that follow, Defendant’s motion will be granted in part and denied in 21 part. 22 23 RULE 12(c) FRAMEWORK 24 Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed but within 25 such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed. R. 26 Civ. Pro. 12(c). Because the motions are functionally identical, the same standard of review 27 applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion. Gregg v. Department of 28 Public Safety, 870 F.3d 883, 887 (9th Cir. 2017). The non-moving party’s allegations are 1 accepted as true, and all reasonable inferences are drawn in the non-moving party’s favor. See 2 Herrera v. Zumiez, Inc., 953 F.3d 1063, 1068 (9th Cir. 2020); Hines v. Youseff, 914 F.3d 1218, 3 1227 (9th Cir. 2019). Any allegations made by the moving party that have been denied or 4 contradicted are assumed to be false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 5 1081 (9th Cir. 2006); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th 6 Cir. 1989). However, the Court is “not required to accept as true allegations that contradict 7 exhibits attached to the Complaint, or matters properly subject to judicial notice, or allegations 8 that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Seven 9 Arts Filmed Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To 10 avoid judgment, “a complaint must contain sufficient factual matter, accepted as true, to state a 11 claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S 662, 678 (2009); Harris v. 12 County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Complaints that offer no more than 13 “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not 14 do.” Iqbal, 556 U.S. at 678; Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). “A 15 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 16 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 17 at 678; see Harris, 682 F.3d at 1131. “Plausibility” means “more than a sheer possibility,” but less 18 than a probability, and facts that are “merely consistent” with liability fall short of “plausibility.” 19 Iqbal, 556 U.S. at 678. Although Rule 12(c) does not mention leave to amend, courts may grant a 20 Rule 12(c) motion with leave to amend. See Gregg, 870 F.3d at 887, 889; Harris, 682 F.3d at 21 1134. The court need not grant leave to amend when doing so would be futile and the deficiencies 22 in the complaint could not be cured by amendment. See Deveraturda v. Globe Aviation Sec. 23 Servs., 454 F.3d 1043, 1046 (9th Cir. 2006); see also Gregg, 870 F.3d at 887; Harris, 682 F.3d at 24 1131. Further, although Rule 12(c) “does not expressly authorize ‘partial’ judgments, neither does 25 it bar them; it is common practice to apply Rule 12(c) to individual causes of action.” Mays v. 26 Wal-Mart Stores, Inc., 354 F.Supp.3d 1136, 1141 (C.D. Cal. 2019); Cornejo v. Ocwen Loan 27 Serv’g LLC, 151 F.Supp.3d 1102, 1107 (E.D. Cal. 2015). 28 1 FACTUAL BACKGROUND 2 Mayen is an individual who resides in Kern County, California and is a seasonal 3 agricultural worker within the meaning of the AWPA. Mayen was employed by CCH, who is a 4 farm labor contractor who provides agricultural employees to various agricultural businesses and 5 farms throughout Kern County. Mayen and the Class enter into working arrangements with CCH 6 each agricultural season. The working arrangements include the understanding that CCH would 7 pay Mayen and the Class either an hourly rate or a piece rate, depending on the work being 8 performed. The arrangement required CCH to pay Mayen and others their agreed upon wages for 9 all hours worked or pieces performed, for required rest periods, and abide by applicate California 10 Industrial Welfare Commission (“IWC”) Wage Orders. However, CCH did not pay Mayen and 11 others for conduct at the beginning of the day that was essential to the work, such as arriving to 12 work 10 to 30 minutes before the beginning of a shift, donning overalls and boots, sharpening 13 knives, lining up to sign attendance sheets, exercises, and mandatory schooling/safety meetings. 14 Nor did CCH pay for essential conduct after the scheduled shift, particularly time spent waiting 15 for a “puncher” to count boxes after the end of the scheduled work shift. This resulted in CCH 16 failing to maintain time records that demonstrated when employees began and ended each work 17 period, as well as each employee’s total daily hours worked. Mayen and the Class routinely 18 worked seven days a week and more than ten hours in a workday, but were not compensated for 19 any hours worked in excess of ten hours or paid premium wages for the seventh workdays. 20 Because CCH did not compensate Mayen and others for overtime worked and all hours worked, 21 the wage statements issued did not accurately reflect all wages earned and due. Also as a result of 22 failing to compensate Mayen and the Class for overtime hours and premium wages, Mayen and 23 the Class were not timely paid all wages due them when their employment with CCH ended. 24 Further, when paid by a piece rate, CCH did not compensate Mayen and the Class or account for 25 rest periods. CCH also required that Mayen and the Class purchase their own tools which were 26 indispensable for performing the work, yet CCH never issued reimbursements for the tools. CCH 27 also required Mayen and the Class to travel between fields in their own vehicles, sometimes as 28 often as 3 times per day, with a 10 to 15 minute travel time. However, CCH did not record or pay 1 for travel time between fields or reimburse Mayen and the Class for using their own vehicles. 2 Finally, when either the harvest season ended or an employee quit or was discharged before the 3 season ended, CCH did not pay all wages owed at the time of termination or quitting. 4 From the above allegations, Mayen on behalf of himself and the Class alleges the 5 following causes of action: (1) failure to pay overtime (hours worked in excess of 10 per day, and 6 days worked in excess of six) in violation 8 Cal. Code Regs. § 11140(3)(A) and Labor Code § 7 1194; (2) failure to pay minimum wages in violation of Labor Code § 1197 and 8 Cal. Code Regs. 8 § 11140(4)(A); (3) failure to provide an itemized wage statement in violation of Labor Code § 9 226(a); (4) failure to timely pay wages upon termination or resignation in violation of Labor Code 10 §§ 201(a) and 202(a); (5) failure to provide rest breaks in violation of Labor Code § 226.7; (6) 11 failure to pay for unprovided meal breaks in violation of Labor Code § 512; (7) failure to 12 reimburse for expenses reasonably incurred in violation of Labor Code § 2802 and 29 U.S.C. § 13 1832(c); (8) violating the AWPA by failing to pay wages due, post a notice setting for rights and 14 protections, and violating the terms of working arrangements; and (9) unfair competition under the 15 UCL. 16 DEFENDANT’S MOTION 17 Defendant’s Argument 18 CCH argues that each cause of action should be dismissed. 19 As to the first cause of action, Mayen simply states that he and the class routinely worked 20 more than 10 hours per day and on the sixth day of a workweek without being paid premium 21 wages. The allegations are conclusory and do not adequately identify any dates in which he was 22 not paid overtime Under Landers, a plaintiff must allege facts that show that there was a specific 23 week in which he was entitled to but denied minimum or overtime wages. 24 As to the second cause of action, Mayen sets forth mere conclusions that he and the class 25 were not paid minimum wage. There are no specific allegations setting forth a factual basis for 26 that alleged failure. Further, there are no allegations about how CCH directed, permitted, or 27 encouraged Mayen and others to work off the clock. Additional allegations are needed that 28 specify how particular conduct was compensable but not actually compensated. 1 As to the third cause of action, the key allegation (Paragraph 54) is a mere legal conclusion 2 that appears to rest upon the inadequate factual allegations of the first and second causes of action. 3 Further, because Mayen’s § 226 claim is entirely duplicative of the first two claims, it should be 4 dismissed with prejudice so as to prohibit a double recovery. There are no allegations that the 5 wages actually paid to Mayen and the deductions made during the reporting period were 6 inaccurate, rather, the statements are inaccurate only because Mayen alleges that all hours worked 7 were not reported and not paid. Other courts have dismissed similar claims. Further, this claim 8 must be dismissed with prejudice because, contrary to Rule 8, there are only conclusory 9 statements that CCH acted knowingly and intentionally, there are no facts to support that 10 assertion. Finally, there are no allegations of fact that show Mayen or others suffered an injury as 11 a result any violations of § 226. 12 As to the fourth cause of action, CCH argues that the claims are defective because Mayen 13 does not allege what wages were due and not paid, there is no explanation of how the conduct was 14 willfully committed, and the allegations do not disclose when Mayen’s or any other putative class 15 member’s employment ended. 16 As to the fifth cause of action, the allegations are vague, lack any specificity, and do not 17 provide facts that support a violation of law. 18 As to the sixth cause of action, the Complaint fails to identify who prohibited Mayen and 19 others from taking a 30 minute lunch break and contains only vague and unspecific conclusory 20 allegations. 21 As to the seventh cause of action, the Complaint fails to identify any specific factual 22 allegations. The are no allegations that identify what tools were not provided, what tools had to be 23 purchased, or how much the tools cost. The claim is too vague and conclusory. 24 As to the eighth cause of action, there are no specific facts pled. Instead, the Complaint 25 merely quotes the AWPA. Merely parroting the statute does not constitute plausible factual 26 allegations. 27 As to the ninth cause of action, the UCL claim is a derivative cause of action. Because the 28 other claims fail, so too fails the UCL. 1 Finally, CCH argues that the proposed class is ill-defined, vague, and overbroad. The 2 proposed classes do not identify when the class worked, when work began and ended, whether 3 they were paid hourly or piece rate, and whether they were hired by other farmers. More 4 allegations are needed to show that class treatment is appropriate. 5 Plaintiff’s Opposition 6 As to the first cause of action, Mayen states that dismissal is inappropriate. Paragraph 41 7 of the Complaint alleges that Mayen and others routinely worked more than 10 hours per day and 8 on the sixth day of a workweek, yet CCH did not pay premium wages. 9 As to the second cause of action, Mayen states that dismissal is inappropriate. Paragraph 10 48 of the Complaint alleges that CCH was required to compensate its employees the mandated 11 minimum wage, but failed to do so by failing to pay for all hours worked, failing to pay premium 12 wages for more than 10 hours worked per day and more than five days worked, taking them off 13 the clock to avoid paying overtime, failing to accurately record the time worked, and “other 14 reasons to be discovered.” 15 As to the third cause of action, Mayen states that dismissal is inappropriate. Paragraph 54 16 alleges CCH intentionally failed to furnish itemized payment statements that accurately showed 17 the total number of hours worked, the applicable hourly rates in effect, and the corresponding 18 hours worked at each hourly rate. 19 As to the fourth cause of action, Mayen requests leave to amend to identify facts showing 20 that CCH failed to pay wages at termination. 21 As to the fifth cause of action, Mayen requests leave to amend to identify facts showing 22 that CCH failed to provide legally required rest periods. 23 As to the sixth cause of action, Mayen requests leave to amend to identify facts that he and 24 others were not paid for meal periods. 25 As to the seventh cause of action, Mayen requests leave to amend to identify with more 26 specificity the expenses he and others incurred but which were not reimbursed by CCH. 27 As to the eighth cause of action, Mayen states that Paragraphs 17 through 38 of the 28 Complaint are sufficient to allege plausible violations of the AWPA. 1 Finally, as to the ninth cause of action, Mayen simply states that UCL’s coverage is 2 sweeping and that a plausible claim has been pled. 3 Discussion 4 1. First Cause of Action – Labor Code § 1194 – Failure to Pay Overtime 5 a. Legal Standard 6 In California, “any employee receiving less than . . . the legal overtime compensation 7 applicable to the employee is entitled to recover in a civil action the unpaid balance of the full 8 amount of this . . . overtime compensation, including interest thereon, reasonable attorney’s fees, 9 and costs of suit.” Cal. Lab. Code § 1194(a); Cortez v. Purolator Air Filtration Products Co., 23 10 Cal.4th 163, 169 n.5 (2000). Agricultural workers covered by IWC Wage Order No. 14 “shall not 11 be employed more than ten (10) hours in any one workday or more than six (6) days in any 12 workweek unless the employee receives one and one-half (1 1/2) times such employee’s regular 13 rate of pay for all hours worked over ten (10) hours in any workday and for the first eight (8) hours 14 on the seventh (7th) day of work and double the employee’s regular rate of pay for all hours 15 worked over eight (8) on the seventh (7th) day of work in the workweek.” 8 Cal. Code Regs. § 16 11140(3)(A)(1); Alcala v. Western Ag. Enterprises, 182 Cal.App.3d 546, 548 n.1 (1986). 17 To properly allege a § 1194 failure to pay overtime, it is not appropriate to merely recite 18 statutory language or rely on mere conclusory statements that are nothing more than labels or the 19 statutorily required elements. See Landers v. Quality Communs., Inc., 771 F.3d 638, 644 (9th Cir. 20 2015); Ritenour v. Carrington Mortg. Servs. LLC, 228 F.Supp.3d 1025, 1033 (C.D. Cal. 2017). 21 Rather, a plaintiff must include sufficient factual allegations that plausibly indicate that the 22 plaintiff worked more than 10 hours a day or worked more than six days in a workweek, yet did 23 not receive overtime pay. Cf. Landers, 771 F.3d at 644-45; Ritenour, 228 F.Supp.3d at 1033. A 24 plausible § 1194 claim can be alleged by estimating the average hours in a workday or workweek 25 of the plaintiff during the applicable period, the average rate at which the plaintiff was paid, and 26 the overtime wages that the plaintiff believes he is owed. See Landers, 771 F.3d at 645; Ritenour, 27 228 F.Supp.3d at 1033. However, plausibility is “context specific” and a variety of other factual 28 allegations may permit a court to find that a plaintiff has plausibly alleged that he was not paid 1 owed overtime due for workday(s) or workweek(s). See Landers, 771 F.3d at 645; Hansber v. 2 Ulta Beauty Cosmetics, LLC, 2021 U.S. Dist. LEXIS 192456, *19-*20 (E.D. Cal. Oct. 5, 2021). 3 b. Resolution 4 Mayen relies on Paragraph 41 of the Complaint. That paragraph alleges that Mayen and 5 the class “routinely worked more than ten hours daily and on the sixth day of a workweek, and 6 [CCH] did not pay [Mayen] and the Class premium wages for the overtime hours they worked.” 7 Complaint ¶ 41. This paragraph/sentence is similar to a paragraph that was found to be 8 insufficient by the First Circuit in Pruell v. Caritas Christi, 678 F.3d 10 (1st Cir. 2012). In Pruell, 9 the First Circuit held that an allegation that the plaintiffs had “regularly worked hours over forty in 10 a week and were not compensated for such time,” was “little more than a paraphrase of the 11 statute” and thus, was “too meager, vague, or conclusory” to constitute a plausible claim. Id. at 12 13. The Ninth Circuit in Landers endorsed the approach of Pruell (which was consistent with 13 cases from the Second and Third Circuits). See Landers, 771 F.3d at 642, 644-45. 14 The Court detects no material difference between Paragraph 41 in this case and the 15 insufficient Pruell allegations. Both pleadings paraphrase an applicable statute or regulation 16 (except that § 11140(A)(3) actually involves working a seventh day, not a sixth as Mayen alleges) 17 and are unsupported by any factual allegations. Mayen cites only Paragraph 41 in support of this 18 cause of action, and the Court’s own review of prior paragraphs in Complaint does not reveal any 19 other key facts. The Court is unaware of any rates of pay, the duration of typical shifts, or any 20 policy, practice or other factual circumstances that would make it plausible that Mayen and the 21 Class regularly worked sufficient hours so as to be entitled to overtime pay for any workday or 22 workweek. Because the allegations are too conclusory and vague, no plausible claim is pled, and 23 dismissal is appropriate. See Landers, 771 F.3d at 642, 644-45; Pruell, 678 F.3d at 13. 24 25 2. Second Cause of Action – Labor Code § 1197 – Failure to Pay Minimum Wage 26 a. Legal Standard 27 In California, the “minimum wage for employees fixed by the [IWC] or by any applicable 28 state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage 1 that the minimum so fixed is unlawful.” Cal. Lab. Code § 1197; Martinez v. Combs, 49 Cal.5th 2 35, 56 (2010). Employers are to compensate employees at the minimum wage for “all hours 3 worked.” 8 Cal. Code. Regs. § 11140(a)(4); Stoetzl v. Department of Human Resources, 7 Cal.5th 4 718, 725 (2019). “Hours worked” means “the time during which an employee is subject to the 5 control of an employer, and includes all the time the employee is suffered or permitted to work, 6 whether or not required to do so.” 8 Cal. Code. Regs. § 11140(a)(4); Stoetzl, 7 Cal.5th at 725; 7 Morillion v. Royal Packing Co., 22 Cal.4t h 575, 587-88 (2000). 8 b. Resolution 9 The parties focus on Paragraph 48 as the key allegation in the Complaint. By itself, 10 Paragraph 48 is conclusory in that it more or less alleges that CCH did not pay for all hours 11 worked (be they hours subject to a minimum wage or an overtime wage) and took Mayen and the 12 Class off the clock to avoid paying them.1 However, other paragraphs in the Complaint give 13 examples of work performed without compensation. The Complaint explains that at the end of a 14 shift, Mayen and the Class were under CCH’s control and had to wait for a puncher to check 15 boxes of produce. See Complaint ¶ 24.2 The Complaint also alleges that Mayen and the Class 16 performed “off the clock” pre-shift tasks such as organizing materials and equipment, donning 17 work clothes, sharpening tools, arriving to work 10 to 30 minutes early, lining up for sign-in 18 sheets, performing pre-shift exercise, and attending schooling or safety meetings. See id. at ¶ 32. 19 Further, the Complaint alleges that Mayen and the class were required to change or travel between 20 ranches or fields throughout their workday, but were never compensated for the 10 to 15 minute 21 travel time between locations. See id. at ¶ 36. These are sufficient examples of pre-shift, post- 22 shift, and mid-shift activities that arguably were performed while under CCH’s control and that 23 allegedly went uncompensated in any form. See id. at ¶¶ 24, 32, 36. 24
25 1 There is also an allegation that CCH failed to accurately record the time that Mayen and the class worked. See Complaint ¶ 48. However, the conduct prohibited by § 1197 is the failure to pay a minimum wage, it is not a failure 26 to maintain accurate records. Nevertheless, while not itself a violation of § 1197, an allegation that records were not accurately kept is supportive of a § 1197 claim. 27 2 The Court notes that the Complaint at Paragraph 23 alleges that Mayen and the Class performed off the clock work 28 pre-shift. However, Paragraph 23 identifies no specific activities performed/“hours worked.” Therefore, Paragraph 1 CCH argues that there are no allegations about how it directed, permitted, or encouraged 2 off the clock work. However, CCH cites no authority that such allegations are necessary to state a 3 claim under § 1197. While Mayen could provide that specificity, § 1197 is violated by the failure 4 to pay the minimum wage. It is not violated if an employer directs or encourages “off the clock” 5 work in a particular manner. Because the Complaint gives examples of alleged uncompensated 6 work performed pre-shift, mid-shift, and post-shift while Mayen and the Class were under CCH’s 7 control, the Complaint plausibly alleges that Mayen and the class were not paid a minimum wage 8 for all work performed/“hours worked.”3 Dismissal of this cause of action is inappropriate. 9 10 3. Third Cause of Action – Labor Code § 226 – Failure to Provide Itemized Wage Statements 11 a. Legal Standard 12 In California, an employer must provide to every employee: 13 an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee . . . , (3) the number of piece-rate units earned and 14 any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee 15 may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee 16 and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address 17 of the legal entity that is the employer . . . , and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each 18 hourly rate by the employee . . . . 19 Cal. Labor Code § 226(a). An employee who has suffered injury as a result of his or her 20 employer’s "knowing and intentional" failure to comply with § 226(a) may recover the greater of 21 all actual damages or certain statutory penalties. Cal. Labor Code § 226(e)(1). 22 b. Resolution 23 CCH raises a number of arguments against Mayen’s itemized wage statement claim. 24 First, the argument that this claim is insufficient because “knowing and intentional” 25 conduct is alleged in a conclusory fashion is without merit. “Malice, intent, knowledge, and other 26 conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b); Reinhardt v. 27 3 CCH does not argue that the activities identified in Paragraphs 24, 32, and 36 cannot be classified as “hours worked” 28 under California law. Therefore, the Court does not determine at this time that each activity identified in these 1 Gemini Motor Transp., 879 F.Supp.2d 1138, 1142 (E.D. Cal. 2012). Therefore, the Complaint 2 adequately alleges knowing and intentional conduct. See id. 3 Second, the argument that the failure of the first two causes of action leads to the failure of 4 this claim is not well taken. As explained above, the second cause of action states a plausible 5 claim. Because the second cause of action will not be dismissed, CCH’s argument collapses. 6 Third, the Complaint indicates that the wage statements omitted information by not 7 identifying all hours worked and without identifying the applicable rates of pay. These items of 8 information are required by California law to be included in an itemized wage statement. See Lab. 9 Code § 226(a). The omission of this information does not merely involve “simple math.” See 10 Hansber, 2021 U.S. Dist. LEXIS 192456 at *25; Reinhardt, 879 F.Supp.2d at 1142; see also Cal. 11 Lab. Code § 226(e)(2)(B)(i). Thus, an adequate injury is identified for purposes of § 226. 12 Fourth, arguments regarding an impermissible double recovery through a § 226 claim is a 13 divisive area of law. However, this Court has held that a plaintiff may bring a derivative § 226 14 claim. See Hansber, 2021 U.S. Dist. LEXIS 192456 at *26 (and cases cited therein); Bates v. 15 Leprino Foods Co., 2020 U.S. Dist. LEXIS 204511, *18-*20 (E.D. Cal. Oct. 30, 2020). 16 Therefore, the Complaint does not implicate an impermissible double recovery. 17 In sum, dismissal of the third cause of action is inappropriate. 18 19 4. Fourth Cause of Action – Labor Code §§ 201, 202 – Failure to Pay Wages upon 20 Termination or Resignation 21 a. Legal Standard 22 California law requires wages to be paid in a timely manner at an employee’s separation. 23 “If an employer discharges an employee, the wages earned and unpaid at the time of discharge are 24 due and payable immediately.” Cal. Labor Code § 201(a); Bernstein v. Virgin Am., Inc., 3 F.4th 25 1127, 1143 (9th Cir. 2021). When an employee without a written contract for a definite period 26 quits, "his or her wages shall become due and payable not later than 72 hours thereafter, unless the 27 employee has given 72 hours previous notice of his or her intention to quit, in which case the 28 employee is entitled to his or her wages at the time of quitting.” Cal. Labor Code § 202(a); 1 Bernstein, 3 F.4th at 1143. Where an employer willfully fails to comply with §§ 201 and 202 2 upon an employee's separation, “the wages of the employee shall continue as a penalty from the 3 due date thereof at the same rate until paid or until an action therefor is commenced; but the wages 4 shall not continue for more than 30 days.” Cal. Labor Code § 203(a); Bernstein, 3 F.4th at 1143. 5 b. Resolution 6 Mayen does not defend the substantive allegations made in support of the fourth cause of 7 action, but instead merely requests leave to amend to include additional factual information. 8 Contrary to the request by CCH, the Court sees no basis to dismiss the fourth cause of action with 9 prejudice, particularly in the face of a request to amend. Because the Court cannot determine that 10 amendment would be futile, see Deveraturda, 454 F.3d at 1046, and in the absence of a substantive 11 opposition by Mayen, the Court will grant Mayen’s request and dismiss the fourth cause of action 12 with leave to amend. 13 14 5. Fifth & Sixth Causes of Action-Labor Code §§ 226.7, 512-Meal & Rest Break Violations 15 a. Legal Standard 16 In California, an employer generally must provide an employee with a meal period of not 17 less than thirty minutes for a work period of more than five hours in a day and a second meal 18 period for a work period of at least ten hours. Cal. Labor Code § 512(a); 8 Cal. Code Regs. § 19 11070(11)(A)-(B). Likewise, California law also dictates that employees receive ten minutes of 20 rest time for every “four hours or major fraction thereof” of work time. 8 Cal. Code Regs. § 21 11070(12)(A). If a legally compliant meal or rest period is not provided, “the employer shall pay 22 the employee one additional hour of pay at the employee’s regular rate of compensation for each 23 workday that the meal or rest . . . period is not provided.” Cal. Labor Code § 226.7(c); see also 24 Cal. Code Regs., tit. 8, § 11070(11)(D), 12(B). To satisfy an employer’s obligation under these 25 provisions, “employees must not only be relieved of work duties [during breaks], but also be freed 26 from employer control over how they spend their time.” Augustus v. ABM Sec. Servs., Inc., 2 27 Cal.5th 257, 270 (2016); see also Brinker Rest. Corp. v. Superior Ct., 53 Cal.4th 1004, 1038-39 28 (2012) (explaining that the “fundamental employer obligations associated with a meal break" are 1 "to relieve the employee of all duty and relinquish any employer control over the employee and 2 how he or she spends the time”). 3 b. Resolution 4 Mayen does not defend the substantive allegations made in support of the fifth or sixth 5 causes of action, but instead merely requests leave to amend to include additional factual 6 information. Contrary to the request by CCH, the Court sees no basis to dismiss the fifth and sixth 7 causes of action with prejudice, particularly in the face of a request to amend. Because the Court 8 cannot determine that amendment would be futile, see Deveraturda, 454 F.3d at 1046, and in the 9 absence of a substantive opposition by Mayen, the Court will grant Mayen’s request and dismiss 10 the fifth and sixth causes of action with leave to amend. 11 12 6. Seventh Cause of Action – Labor Code § 2802 & 29 U.S.C. § 1832 – Failure to Reimburse 13 a. Legal Standard 14 Starting with the Labor Code provision, § 2802 states that “[a]n employer shall indemnify 15 his or her employee for all necessary expenditures or losses incurred by the employee in direct 16 consequence of the discharge of his or her duties, or of his or her obedience to the directions of the 17 employer, even though unlawful, unless the employee, at the time of obeying the directions, 18 believed them to be unlawful.” Cal. Lab. Code § 2802(a). The statute also defines “necessary 19 expenditures or losses" as "reasonable costs, including, but not limited to, attorney’s fees incurred 20 by the employee enforcing the rights granted by this section.” Cal. Lab. Code § 2802(c). 21 b. Resolution 22 Mayen does not defend the substantive allegations made in support of the seventh cause of 23 action, but instead merely requests leave to amend to include additional factual information. 24 Contrary to the request by CCH, the Court sees no basis to dismiss the seventh cause of action 25 with prejudice, particularly in the face of a request to amend. Because the Court cannot determine 26 that amendment would be futile, see Deveraturda, 454 F.3d at 1046, and in the absence of a 27 substantive opposition by Mayen, the Court will grant Mayen’s request and dismiss the seventh 28 cause of action with leave to amend. 1 7. Eighth Cause of Action – 29 U.S.C. §§ 1831, 1832 – AWPA Violations 2 a. Legal Standard 3 In § 1831 and § 1832, AWPA sets out requirements and regulations regarding the 4 conditions of employment for seasonal agricultural workers. See Doe v. D.M. Camp & Sons, 624 5 F.Supp.2d 1153, 1166 (E.D. Cal. 2008). 6 Section 1831(b) requires inter alia farm labor contractors to post at the place of 7 employment in a conspicuous place a poster provided by the Secretary of Labor that sets forth 8 rights and protections afforded by AWPA. See 29 U.S.C. § 1831(b); Fulford v. Alligator River 9 Farms, LLC, 858 F.Supp.2d 550, 555 (E.D. N.C. 2012). 10 Section 1832(a) provides inter alia that each farm labor contractor who “employs any 11 seasonal agricultural worker shall pay the wages owed to such worker when due.” 29 U.S.C. § 12 1832(a). The term “wages” may be defined through any applicable federal, state, or local laws, 13 and a failure to pay any applicable federal, state, or local wage constitutes a violation of § 1832(a). 14 D.M. Camp, 624 F.Supp.2d at 1168. 15 Section 1832(c) prohibits inter alia a farm labor contractor from violating without 16 justification the terms of any “working arrangement made by the contractor . . . with any seasonal 17 agricultural work.” 29 U.S.C. § 1831(c); D.M Camp, 624 F.Supp.2d at 1168. A “working 18 arrangement” for purposes of § 1831(c) is the terms of employment actually communicated either 19 expressly or implicitly between an employer and employee; it does not automatically encompass 20 any and all statutes and regulations governing agricultural employment. D.M. Camp, 624 21 F.Supp.2d at 1172. 22 b. Resolution 23 With respect to Mayen’s § 1831(b) claim, dismissal is appropriate. There are no factual 24 allegations to be found in the Complaint that in any way relate to § 1831(b)’s posting requirement. 25 There is merely a single sentence in Paragraph 78 that states a violation of that provision occurred. 26 That is an impermissible legal conclusion. See Iqbal, 556 U.S. at 678; Landers, 771 F.3d at 644; 27 Chavez, 683 F.3d at 1108. Dismissal of the AWPA § 1831(b) claim is appropriate. 28 With respect to Mayen’s § 1832(a) claim, the Court has found that the Complaint plausibly 1 alleges a claim under Labor Code § 1197. The allegations indicate that Mayen and the Class were 2 not paid for hours worked under CCH’s control that occurred pre-shift, mid-shift, and post-shift. 3 Because there is a plausible violation of § 1197, there is also a plausible claim under AWPA § 4 1832(a). Therefore, dismissal of the § 1832(a) claim is inappropriate. 5 Finally, with respect to the § 1832(c) claim, the Complaint alleges that CCH offered 6 Mayen and the Class jobs, and through words, conduct, practice, custom, and usage, it was 7 understood between CCH and Mayen and the Class that Defendants would pay an hourly rate for 8 certain services and a piece rate for production services, and that through inter alia the posting of 9 an IWC wage order, it was communicated that CCH would follow California’s wage order and 10 laws. See Complaint ¶ 20. From this allegation, the Court finds that Mayen and the Class have 11 plausibly alleged that the failure of CCH to pay them the applicable minimum wage (be it hourly 12 or piece rate) violated the terms of a “working arrangement.” That is, because Mayen and the 13 Class plausibly allege a violation of § 1197, Paragraph 20 operates in such a manner that they 14 have also alleged a violation of § 1832(c). 15 However, while the Court has also found that Mayen and the Class have plausibly alleged 16 a violation of Labor Code § 226, the Court is not satisfied that Paragraph 20 would sufficiently 17 include § 226 into the working agreement. Paragraph 20 focuses primarily on wages. If any other 18 conduct or statutes formed a part of the “working arrangement,” and if Mayen believes that there 19 was a breach of such a provision, then additional allegations are needed that explain what the 20 additional provisions are. how they became a part of the working agreement, and how CCH 21 breached them. Although the Complaint appears to allege that the entirety of California wage 22 orders and laws, which the Court takes to mean agricultural employment laws, D.M. Camp, 624 23 F.Supp.2d at 1172, were part of the working agreement, the only factual allegation that supports 24 this assertion is that an unspecified IWC wage order was posted somewhere on CCH premises. It 25 is not reasonable to infer that this entire body of law became part of the working agreement simply 26 because a single IWC wage order, the contents of which are unknown,4 was posted somewhere by 27
28 4 Because a “wage order” was posted, it is reasonable to infer that the order dealt with wages to be paid. However, 1 CCH. If Mayen has a good faith belief that all California wage orders and agricultural 2 employment law became part of the working agreement, more specific factual allegations that 3 justify such a belief must be included in an amended complaint. 4 5 8. Ninth Cause of Action – UCL 6 a. Legal Standard 7 The UCL broadly proscribes the use of any “unlawful, unfair or fraudulent business act or 8 practice.” Cal. Bus. & Prof. Code. § 17200; Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1177 (9th 9 Cir. 2016). “The UCL operates as a three-pronged statute: ‘Each of these three adjectives 10 [unlawful, unfair, or fraudulent] captures a 'separate and distinct theory of liability.’” Beaver, 816 11 F.3d at 1177 (citation omitted). The UCL’s “unlawful” prong “borrows violations of other laws . . 12 . and makes those unlawful practices actionable under the UCL,” and “virtually any law or 13 regulation — federal or state, statutory or common law — can serve as a predicate . . . .” 14 Candelore v. Tinder, Inc., 19 Cal.App.5th 1138, 1155 (2018). When the underlying legal claim 15 that supports a UCL cause fails, however, “so too will the [the] derivative UCL claim.” AMN 16 Healthcare, Inc. v. Aya Healthcare Services, Inc., 28 Cal.App.5th 923, 950 (2018). 17 b. Resolution 18 CCH argues that the UCL claim is derivative of the other claims alleged. Mayen does 19 nothing to dispel that theory. Therefore, the Court will read the UCL claim as alleging only 20 “unlawful” conduct based on violations of the AWPA and the Labor Code. Because the Court has 21 found that the second, third, and parts of the eighth causes of action are plausibly pled, the Court 22 will not dismiss the UCL claim to the extent it is based on violations of § 1197, § 226, and AWPA 23 § 1832(a) and (c). However, all other causes of action have been dismissed. Therefore, there is no 24 plausible UCL claim pled beyond the claims based on violations of § 1197, § 226, and AWPA § 25 1832. See AMN Healthcare, 28 Cal.App.5th at 950. 26 27 9. Class Definitions 28 Motions to dismiss or strike that are aimed at class related matters, including class 1 definitions, are generally disfavored and rarely granted. See Hansber, 2021 U.S. Dist. LEXIS 2 192456 at *6; Portaluppi v. Fortifi Fin., Inc., 2021 U.S. Dist. LEXIS 142897, *21-*22 (C.D. Cal. 3 July 30, 2021); Waterbury v. A1 Solare Power, Inc., 2016 U.S. Dist. LEXIS 7422, *10-*12 (S.C. 4 Cal. June 7, 2016); Missaghi v. Apple, Inc., 2013 U.S. Dist. LEXIS 202198, *22-*23 (C.D. Cal. 5 May 31, 2013); Cholakyan v. Mercedes-Benz USA, LLC, 796 F.Supp.2d 1220, 1245 (C.D. Cal. 6 2011); In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F.Supp.2d 609, 615-16 (N.D. Cal. 7 2007). Instead, issues surrounding the adequacy of class definitions or other class allegations are 8 usually resolved through the class certification process. See Hansber, 2021 U.S. Dist. LEXIS 9 192456 at *6; Portaluppi, 2021 U.S. Dist. LEXIS 142897 at *21-*22; Missaghi, 2013 U.S. Dist. 10 LEXIS 202198 at *22-*23; Cholakyan, 796 F.Supp.2d at 1245; In re Wal-Mart, 505 F.Supp.2d at 11 614-15. 12 Here, there are two classes identified: (1) employees who were employed as seasonal 13 agricultural workers under AWPA to pick, harvest, or field pack crops in California from February 14 2, 2017 to the present; and (2) employees who were employed as seasonal agricultural workers 15 under AWPA to pick, harvest, or field pack crops in California and thereafter ended their 16 employment with CCH from February 2, 2020 to the present. See Complaint ¶ 10. The Court is 17 not satisfied that these class definitions are so vague, ambiguous, unascertainable, or insufficient 18 that this case falls outside of the general rule.5 While CCH raises a number of questions regarding 19 the class, the questions seem more like defenses against the claims alleged or plausibility 20 challenges to the causes of action pled. The Court has already addressed the pleading challenges 21 made against the causes of action. Therefore, the Court finds that CCH’s challenges to the class 22 definitions should be raised through the class certification process.6 Dismissal of the class 23
24 5 That being said, the Complaint alleges that CCH hired Mayen and the Class on a seasonal basis. See Complaint ¶ 19. Additional details about the seasonal hiring could be provided, but it would seem that Mayen and the Class were 25 hired, terminated, and rehired a number of times from February 2017 to the present based on the nature of a typical growing season. If that is so, the second subclass would appear to be fully encompassed by the first subclass. Further 26 clarification regarding the second subclass will need to occur (at a minimum through the class certification process).
27 6 The Court notes that additional subclasses may be needed. For example, because the pay is not identical, subclasses that distinguish between those employed on a piece rate versus those employed on an hourly rate may be necessary. 28 Again, however, such concerns can be addressed in the class certification process. The Court is not holding at this 1 definitions is inappropriate at this time.’ See Hansber, 2021 U.S. Dist. LEXIS 192456 at *6; 2 | Portaluppi, 2021 U.S. Dist. LEXIS 142897 at *21-*22; Missaghi, 2013 U.S. Dist. LEXIS 202198 3 | at *22-*23; Cholakyan, 796 F.Supp.2d at 1245; In re Wal-Mart, 505 F.Supp.2d at 614-15. 4 5 ORDER 6 Accordingly, IT IS HEREBY ORDERED that: 7 (1. Defendant’s motion for judgment on the pleadings (Doc. No. 10) is GRANTED in part as 8 follows: 9 a. The first, fourth, fifth, sixth, and seventh causes of action are DISMISSED with 10 leave to amend; 11 b. The eighth cause of action based on a violation 29 U.S.C. § 1831(b) is 12 DISMISSED with leave to amend; 13 Cc. The ninth cause of action, to the extent that it is not based on violations of Labor 14 Code § 226, Labor Code § 1197, and 29 U.S.C. § 1832, is DISMISSED with leave 15 to amend; 16 Defendant’s motion for judgment on the pleadings is otherwise DENIED; 17 Within twenty-eight (28) days of service of this order, Plaintiff may file an amended 18 complaint that is consistent with the analysis of this order; and 19 |4, If Plaintiff fails to timely file an amended complaint, then leave to amend will be 20 automatically withdrawn without further notice and Defendant shall file an answer within 21 forty-two (42) days of service of this order. 22 73 IT IS SO ORDERED. 74 Dated: _ October 25, 2021 : : "SENIOR DISTRICT JUDGE 25 26 27 2g |’ Largely at Mayen’s request, the Court is dismissing claims with leave to amend. Mayen is free to change the class definitions or other class allegations as he deems fit through an amended complaint. 12