1 2 3 4 5 6 7 10 11 JULIO MAYEN, on his own behalf and on No. 1:21-cv-00318-DAD-BAK (EPG) behalf of all others similarly situated, 12 Plaintiff, 13 ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANT W.M. 14 BOLTHOUSE FARMS, INC.’S MOTION TO W.M. BOLTHOUSE FARMS, INC., et al., DISMISS 15 Defendants. (Doc. No. 8) 16 17 The matter is before the court on the motion to dismiss filed by defendant W.M. 18 Bolthouse Farms, Inc. (“Bolthouse”) on April 5, 2021.1 (Doc. No. 8.) Pursuant to General Order 19 No. 617 addressing the public health emergency posed by the COVID-19 pandemic, the motion 20 was taken under submission on the papers. (Doc. No. 10.) For the reasons explained below, the 21 court will grant in part and deny in part defendant Bolthouse’s motion to dismiss.
22 1 The undersigned apologizes for the excessive delay in the issuance of this order. This court’s 23 overwhelming caseload has been well publicized and the long-standing lack of judicial resources in this district long-ago reached crisis proportion. While that situation was partially addressed by 24 the U.S. Senate’s confirmation of district judges for two of this court’s vacancies on December 17, 2021 and June 21, 2022, another vacancy on this court with only six authorized district judge 25 positions was created on April 17, 2022. For over twenty-two months the undersigned was left presiding over approximately 1,300 civil cases and criminal matters involving 735 defendants. 26 That situation resulted in the court not being able to issue orders in submitted civil matters within 27 an acceptable period of time and continues even now as the undersigned works through the predictable backlog. This has been frustrating to the court, which fully realizes how incredibly 28 frustrating it is to the parties and their counsel. 2 Plaintiff Julio Mayen originally filed a wage-and-hour class action complaint in Kern 3 County Superior Court on October 28, 2020 against defendant MA Medina Farm Labor Services, 4 Inc. (“Medina”) and Does 1 through 100, alleging violations of California’s Labor Code, 5 California’s Unfair Competition Law (UCL), and the Migrant and Seasonal Agricultural Worker 6 Protection Act (AWPA). (Doc. No. 1 at 12–31.) On January 25, 2021, having discovered the 7 true names of Does 1–4, plaintiff amended his complaint in state court to name defendant 8 Bolthouse as Doe 1, defendant Bolt House Farms as Doe 2, defendant Bolthouse Farms Cuyama 9 Cuyama as Doe 3, and defendant Bolthouse Farms Kern County as Doe 4 (the “FAC”).2 (Id. at 10 8–11.) No other amendments were made to plaintiff’s original complaint aside from the 11 identification of Does 1–4. After being served with plaintiff’s FAC, defendant Bolthouse timely 12 filed a notice of removal in this federal court pursuant to 28 U.S.C. § 1331. (Id. at 2–3.) In 13 plaintiff’s operative FAC, he alleges as follows. 14 “Defendants,” which plaintiff uses to refer collectively to defendant Medina and Does 1 15 through 100, “are farm labor contractors that are engaged in providing agricultural 16 workers/employees who work on land located in Kern County, California that is owned by 17 various companies.” (Id. at 19, ¶ 17.) Plaintiff alleges that defendants “employed . . . thousands
18 2 This court’s docket reflects that only defendant Bolthouse has appeared in this action and 19 plaintiff has not filed any proof of service with respect to the remaining four defendants, despite the removal of this action occurring over 17 months ago. In the notice of removal, however, 20 defendant Bolthouse maintains that defendant Medina “was served in December 2020” and “consents to the removal,” but in regard to the other three named defendants, Bolthouse merely 21 states in a footnote that they are not “properly named entit[ies].” (Doc. No. 1 at 2–3.) On August 3, 2022, the assigned magistrate judge issued an order to show cause why the case against 22 defendants Bolt House Farms, Bolthouse Farms Cuyama, and Bolthouse Farms Kern County 23 should not be dismissed for failure to complete service pursuant to Federal Rule of Civil Procedure 4(m). (Doc. No. 17.) Pursuant to the assigned magistrate judge’s order, plaintiff was 24 further directed to file, no later than August 16, 2022, proof of service as to these three defendants, or a response demonstrating plaintiff’s good cause for failing to complete service on 25 these three defendants and explaining when he can complete such service. (Id. at 2.) In addition, plaintiff was “cautioned that failure to respond to this order to show cause may result in the 26 dismissal of these Defendants from the action.” (Id. at 3.) Accordingly, because the deadline for 27 plaintiff to respond to the order to show cause has now passed and plaintiff has not filed any response, the court will dismiss defendants Bolt House Farms, Bolthouse Farms Cuyama, and 28 Bolthouse Farms Kern County from this action. 1 of seasonal agricultural workers in its harvesting, field packaging and packaging business.” (Id. 2 at 19, ¶ 17.) Specifically, “Plaintiffs entered into working arrangements with Defendants,” which 3 were “formed and entered into each season” when “Defendants hire each plaintiff.” (Id. at 19, ¶ 4 19.) Although plaintiff lumps all defendants together in his FAC, alleging that all “Defendants 5 were the employers of Plaintiff and the Class” (id. at 29, ¶ 493), he also alleges, specifically, that 6 defendant Medina was his former employer and is the current and former employer of the 7 putative class members. (Id. at 14, ¶ 4.) No other defendant aside from Medina is mentioned by 8 name in the allegations of the FAC. Instead, plaintiff merely alleges that all defendants are “the 9 managerial agent, employee, predecessor, successor, joint-venturer, co-conspirator, alter ego 10 and/or representative of one or more of the other Defendants” and “the agents, servants, and/or 11 employees of each of the other Defendants,” such that all defendants “are jointly and severally 12 liable to the Plaintiff, and the Class.” (Id. at 15, ¶¶ 7–8.) Finally, nowhere in the FAC does 13 plaintiff allege when he worked for defendant Medina or the other defendants, or when the 14 alleged misconduct took place.4 15 Approximately one month after the removal of the action to this federal court, on April 5, 16 2021, defendant Bolthouse filed the pending motion to dismiss contending that: (i) eight of the 17 nine causes of action asserted by plaintiff are barred by the applicable statute of limitations; (ii) 18 there are insufficient facts alleged to state any cognizable claims against defendant Bolthouse as a 19 joint employer of plaintiff and that dismissal of all of plaintiff’s nine claims is warranted; and (iii) 20 3 This paragraph is misnumbered in the FAC and should be paragraph 81. (Doc. No. 1 at 29.) 21 4 The FAC asserts the following nine claims against all defendants: (1) failure to pay overtime 22 wages in violation of California Labor Code §§ 218.5, 1194 & Wage Order; (2) failure to pay 23 minimum wages in violation of California Labor Code §§ 200, 203, 218.5, 558, 1194, 1194.2, 1197 & Wage Order; (3) failure to provide itemized wage statements in violation of California 24 Labor Code § 226 & Wage Order; (4) failure to pay wages upon termination and/or resignation in violation of California Labor Code §§ 201–203 & Wage Order; (5) failure to provide rest breaks 25 in violation of California Labor Code § 226.7 & Wage Order; (6) failure to provide meal periods in violation of California Labor Code §§ 226.7, 512, & Wage Order; (7) failure to reimburse for 26 expenses reasonably incurred in violation of California Labor Code §§ 2802, 29 U.S.C. § 1832(c) 27 & Wage Order; (8) violation of the federal AWPA, 29 U.S.C. §§ 1831, 1832; and (9) violation of the California UCL, California Business and Professions Code, §§ 17200 et seq. (Doc. No. 1 at 28 23–30.) 1 the court should stay or dismiss this action under Colorado River Water Conservation District v. 2 United States, 424 U.S. 800 (1976) because a nearly identical action brought by a different 3 plaintiff is pending against the same five defendants in state court. (Doc. No. 8.) Attached to 4 defendant Bolthouse’s pending motion to dismiss is: (i) a declaration from its counsel with three 5 exhibits, including a copy of the complaint in the alleged parallel state court action (Doc. No. 8- 6 1), and (ii) a declaration of Iliana Lopez, a manager for defendant Medina to which is attached 7 one exhibit, a payroll earnings record for plaintiff maintained in defendant Medina’s ordinary 8 course of business that is offered in support of defendant Bolthouse’s statute of limitations 9 argument for dismissal (Doc. No. 8-2). On May 4, 2021, plaintiff filed an opposition to the 10 pending motion responding to some, but not all, of defendant Bolthouse’s arguments. (Doc. No. 11 11.) Defendant Bolthouse filed a reply thereto on May 11, 2021. (Doc. No. 12.) 13 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 14 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 15 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 16 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 17 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the 18 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) 19 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state 20 a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 21 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility when the 22 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining whether a 24 complaint states a claim on which relief may be granted, the court accepts as true the allegations 25 in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon 26 v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 27 1989). The court may also consider material that is properly submitted as part of the complaint, 28 documents that are not physically attached to the complaint if their authenticity is not contested 1 and the plaintiff’s complaint necessarily relies on them, and matters of public record. Lee v. City 2 of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). However, it is inappropriate to assume 3 that the plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . 4 . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 5 Council of Carpenters, 459 U.S. 519, 526 (1983). 7 A. Whether to Incorporate Plaintiff’s Earnings Statement into the FAC 8 Defendant Bolthouse first urges the court to incorporate by reference one of plaintiff’s 9 earnings statement as the basis for its argument that plaintiff’s first through eighth claims are 10 barred by the applicable statute of limitations. (Doc. No. 8 at 13.) 11 “As a general rule, ‘a district court may not consider any material beyond the pleadings in 12 ruling on a Rule 12(b)(6) motion.’” Lee, 250 F.3d at 688 (quoting Branch v. Tunnell, 14 F.3d 13 449, 453 (9th Cir. 1994)). Doing so would convert a motion to dismiss for failure to state a claim 14 under Rule 12(b)(6) into a motion for summary judgment under Rule 56. See Fed. R. Civ. P. 15 12(d). However, courts do recognize two exceptions to this rule: “the incorporation-by-reference 16 doctrine, and judicial notice under Federal Rule of Evidence 201.” Khoja v. Orexigen 17 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). 18 The Ninth Circuit has explained the incorporation-by-reference doctrine as follows: 19 “incorporation-by-reference is a judicially created doctrine that treats certain documents as 20 though they are part of the complaint itself. The doctrine prevents plaintiffs from selecting only 21 portions of documents that support their claims, while omitting portions of those very documents 22 that weaken—or doom—their claims.” Khoja, 899 F.3d at 1002. Even if not directly attached to 23 a complaint, a document “may be incorporated by reference into a complaint if the plaintiff refers 24 extensively to the document or the document forms the basis of the plaintiff’s claim.” United 25 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). That said, a complaint’s “mere mention of 26 the existence of a document is insufficient to incorporate the contents of a document.” Coto 27 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Moreover, 28 ///// 1 if the document merely creates a defense to the well-pled allegations in the complaint, then that document did not necessarily 2 form the basis of the complaint. Otherwise, defendants could use the doctrine to insert their own version of events into the complaint 3 to defeat otherwise cognizable claims. 4 Khoja, 899 F.3d at 1002 (explaining that “the doctrine is not a tool for defendants to short-circuit 5 the resolution of a well-pleaded claim”). Finally, whether the district court incorporates a 6 document by reference is a matter of discretion. See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 7 1152, 1159 (9th Cir. 2012) (“[T]he district court may, but is not required to incorporate 8 documents by reference.”). 9 Here, the court will exercise its discretion to not incorporate a payroll earnings record 10 purportedly showing plaintiff’s entire work history of only three weeks with defendant Medina 11 (“Medina payroll record”) as part of plaintiff’s operative FAC. (Doc. No. 8-2 at 5.) Defendant 12 Bolthouse argues that the Medina payroll record is “an integral part of [plaintiff’s] allegations 13 because [it] evidence[s] his last day of employment with Medina at a Bolthouse location,” 14 necessarily relied upon by plaintiff in his noncompliant wage statement claim, and incorporated 15 by reference vis-à-vis plaintiff’s allegations appearing in paragraphs 3–4, 29, and 52–56 of the 16 FAC. (Doc. No. 8 at 13.) However, plaintiff’s FAC simply does not refer to or mention the 17 Medina payroll record, nor indeed are any specific payroll records mentioned in the FAC, 18 including in the paragraphs that defendant Bolthouse directs the court’s attention to. As an initial 19 matter, this strongly implies that incorporating the Medina payroll record would merely form the 20 basis of an affirmative defense presented on behalf of defendant Bolthouse, not that it serves as a 21 basis of plaintiff’s claims. See Khoja, 899 F.3d at 1002–03 (“Submitting documents not 22 mentioned in the complaint to create a defense is nothing more than another way of disputing the 23 factual allegations in the complaint[.]”); Ritchie, 342 F.3d at 908 (declining to incorporate 24 documents as part of the complaint when the documents did not form the basis of the complaint 25 and were not referred to extensively in the complaint). In fact, plaintiff’s noncompliant wage 26 claim is alleged generally without reference to a particular payroll record whatsoever, further 27 showing that the Medina payroll record—which does not even resemble a weekly paystub, but 28 rather is a purported total payroll history of plaintiff—is not integral to plaintiff’s claim based on 1 the face of the FAC. (See, e.g., Doc. No. 1 at 21, ¶ 29 (“As a result of Defendants’ failure to 2 compensate Plaintiff and the Class premium wages for overtime worked and for all hours worked, 3 the wage statements issued to Plaintiff and the Class by Defendants did not comply with Labor 4 Code §226 in that they did not accurately reflect all wages earned and due and owing.”). 5 Bolthouse also fails to cite any case in which a court incorporated payroll records into a 6 complaint without a specific reference to such records in the complaint and then allowed a 7 specific payroll record to form the basis for dismissal of the complaint based upon an affirmative 8 defense. On the other hand, for instance, district courts have rejected attempts by defendants 9 seeking to have a release agreement which purportedly barred the plaintiff’s claims to be 10 incorporated into the complaint for purposes of ruling on a motion to dismiss. See Aledlah v. S-L 11 Distribution Co., LLC, No. 20-cv-00234-JSC, 2020 WL 2927980, at *3 (N.D. Cal. June 3, 2020) 12 (finding other courts’ reasoning that an “extrinsic release would bar the plaintiffs’ claims, [thus] 13 the release documents were integral” to be unsupported by Ninth Circuit law and would 14 “obliterate[e] the general rule that courts may not consider material outside the pleadings when 15 evaluating the sufficiency of a complaint”); Mednick v. Virtual Sonics, Inc., No. 21-cv-3755- 16 MRW, 2021 WL 4805194, at *2 (C.D. Cal. July 22, 2021) (“[D]istrict courts have declined to 17 incorporate release agreements into civil complaints in evaluating dismissal motions in 18 employment-related cases. . .[because] courts recognize that the existence or non-existence of a 19 valid release is a defense to liability, not a fundamental basis of the plaintiff’s claim.”); Almaznai 20 v. S-L Distribution Co., LLC, No. 20-cv-08487-JST, 2021 WL 4457025, at *4 (N.D. Cal. June 21, 21 2021) (rejecting a statute of limitations argument, in part, because it depended on a release 22 agreement that the court would not incorporate by reference because it only served to form an 23 affirmative defense and was not integral to the complaint).5 24 5 The court also notes that Bolthouse’s argument for dismissal on statute of limitations grounds 25 relies on Ms. Lopez’s declaration explaining the significance of coding on the Medina payroll record, which declaration was drafted after plaintiff filed his complaint. (Doc. No. 8-2 at ¶¶ 3–4.) 26 Ms. Lopez’s explanation in this regard (e.g., notations next to each week of “Grow 46” versus 27 “Grow 53”) is necessary in order to explain what the Medina payroll record purportedly shows— specifically, the payment of wages to plaintiff for work at a Bolthouse location for the period 28 October 17–26, 2016, and that this one week represents the only week that plaintiff ever worked 1 The court finds that defendant Bolthouse has not presented adequate grounds on which 2 this court could exercise its discretion to incorporate the Medina payroll record as part of the 3 FAC, and therefore, the court declines Bolthouse’s request to incorporate that record into the 4 FAC. As a result, defendant Bolthouse’s remaining arguments contending that plaintiff’s first 5 eight claims are barred under the applicable statute of limitations have necessarily been rendered 6 moot because they all depended on the court concluding that the Medina payroll record 7 represented plaintiff’s last day of work with defendant Bolthouse. Accordingly, the court denies 8 Bolthouse’s motion to dismiss to the extent it is based on a statute of limitations defense.6 9 B. Whether Plaintiff Alleged that Defendant Bolthouse was a Joint Employer 10 Defendant Bolthouse next contends that all of plaintiff’s claims against it must fail 11 because the FAC does not “plead a single fact showing an employment relationship with 12 Bolthouse.” (Doc. No. 8 at 14, 17–19.) Defendant Bolthouse admits that defendant Medina 13 employed plaintiff. (Id. at 10.) Whether the FAC sufficiently alleges that defendant Bolthouse 14 was a joint employer of plaintiff along with defendant Medina implicates state law as to 15 plaintiff’s California Labor Code claims and federal law as to plaintiff’s AWPA claim. 16 To be held liable for any violations under the California Labor Code, defendant Bolthouse 17 must be plaintiff’s employer. Lesnik v. Eisenmann SE, 374 F. Supp. 3d 923, 947 (N.D. Cal. 18 2019). “California courts rely on the definitions provided in California’s Industrial Welfare 19 at a defendant Bolthouse location. (Doc. No. 8-2 at ¶¶ 3–4.) Were the court to incorporate the 20 Medina payroll record as part of the FAC, the document would have to be construed in the light most favorable to plaintiff without reference to an explanatory declaration submitted by 21 defendants that was not in existence when the complaint was filed. Doing so, the court could not possibly conclude that Medina payroll record represents the last day plaintiff worked at a 22 defendant Bolthouse location because nothing in the document establishes or even implies that. 23 See Razo v. AT&T Mobility Servs., LLC, No. 1:20-cv-00172-NONE-HBK, 2021 WL 4804231, at *2 (E.D. Cal. Oct. 14, 2021) (rejecting evidence explaining the meaning of an earnings statement 24 that was incorporated by a specific reference made in the complaint because “documents incorporated by reference must be viewed in a light most favorable to plaintiff”). 25
6 The two district court cases cited in defendant Bolthouse in reply regarding the appropriateness 26 of raising a statute of limitations defense through a motion to dismiss (Doc. No. 12 at 12) are 27 inapposite because in those cited cases the statute of limitations defense was apparent from the face of the allegations of the complaint or judicially noticeable documents. As noted, such is not 28 the case here. 1 Commission’s (‘IWC’) wage orders in determining whether an employment relationship exists.” 2 Rodriguez v. SGLC, Inc., No. 2:08-cv-01971-MCE-KJN, 2012 WL 5704403, at *12 (E.D. Cal. 3 Nov. 15, 2012). Under the IWC’s wage orders, “[t]o employ . . . has three alternative definitions. 4 It means: (a) to exercise control over wages, hours or working conditions, or (b) to suffer or 5 permit to work, or (c) to engage, thereby creating a common law employment relationship.” 6 Martinez v. Combs, 49 Cal. 4th 35, 64 (2010); see also Cal. Code Regs. tit. 8, § 11140. 7 The AWPA has adopted the Fair Labor Standards Act (FLSA) definition of “employ.” 29 8 U.S.C. § 1802(5). Under the FLSA, the term “employ” means “to suffer or permit to work.” 29 9 U.S.C. § 203(g). The regulations implementing the AWPA also provide that the “definition of 10 the term employ includes the joint employment principles applicable under the [FLSA].” 29 11 C.F.R. § 500.20(h)(5); see also Torres-Lopez v. May, 111 F.3d 633, 639 (9th Cir. 1997). 12 Generally, joint employment will describe a situation where a single employee works for more 13 than one employer at the same time. Doe v. D.M. Camp & Sons, 624 F. Supp. 2d 1153, 1164 14 (E.D. Cal. 2008). To determine whether a joint employer relationship exists under the FLSA, 15 courts in the Ninth Circuit employ a four-part “economic reality” test that evaluates whether an 16 entity: “(1) had the power to hire and fire the employees, (2) supervised and controlled employee 17 work schedules or conditions of employment, (3) determined the rate and method of payment, 18 and (4) maintained employment records.” Lesnik, 374 F. Supp. 3d at 942 (quoting Bonnette v. 19 Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983), abrogated on other grounds 20 by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)). 21 In his FAC, plaintiff has not alleged sufficient facts to support his asserted legal 22 conclusion that defendant Bolthouse jointly employed him with defendant Medina, or any one of 23 the other three named defendants.7 Plaintiff simply does not allege any facts regarding his 24 relationship with defendant Bolthouse. In fact, defendant Bolthouse is not even mentioned in the 25
7 Plaintiff’s FAC does allege that defendant Medina was the “former employer of Plaintiff and 26 the current or former employer of the putative Class members.” (Doc. No. 1 at 14, § 4.) As noted 27 above, defendant Bolthouse agrees, stating in its pending motion that “Defendant [Medina] briefly employed Plaintiff . . . from October 17, 2016 to May 28, 2017 as an agricultural worker.” 28 (Doc. No. 8 at 10.) 1 FAC because all “defendants” are lumped together therein by plaintiff as a single entity. The 2 dearth of factual allegations and failure to differentiate (or even name) the individual entity 3 defendants compels the conclusion that plaintiff has not adequately alleged the existence of an 4 employment relationship with defendant Bolthouse under state or federal law. See Haralson v. 5 United Airlines, Inc., 224 F. Supp. 3d 928, 939 (N.D. Cal. 2016) (“While [the] plaintiff is not 6 required to conclusively establish that defendants were her joint employers at the pleading stage, 7 [the] plaintiff must at least allege some facts in support of this legal conclusion.”); Johnson v. 8 Serenity Transportation, Inc., No. 3:15-cv-02004-JSC, 2016 WL 270952, at *11 (N.D. Cal. Jan. 9 22, 2016) (“[A] plaintiff seeking to hold multiple entities liable as joint employers must plead 10 specific facts that explain how the defendants are related and how the conduct underlying the 11 claims is attributable to each defendant.”); Terrell v. Samuel, Son & Co. (USA), No. 5:20-cv- 12 00587-JGB-KK, 2020 WL 5372107, at *3 (C.D. Cal. Apr. 23, 2020) (granting a motion to 13 dismiss where “Plaintiff’s allegations against [alleged joint employer] Defendants are entirely 14 undifferentiated”). 15 Although almost all of plaintiff’s allegations are legal conclusions that the court may 16 disregard, see, e.g., (Doc. No. 1 at 15, ¶¶ 6–8), he does allege that “Plaintiffs entered into working 17 arrangements with Defendants . . . at or near the time Defendants hire[d] each plaintiff” and that 18 defendants allegedly “employed . . . thousands of seasonal agricultural workers.” (Id. at 19, ¶ 19 19.) However, the FAC fails to allege even the most basic facts regarding these working 20 arrangements such as, identifying the parties to the working arrangements and identifying what 21 role each party played with respect to hiring and firing, setting of wages and hours, directing 22 when and where workers were to report to, and so on. See Perez v. DNC Parks & Resorts at 23 Asilomar, Inc., No. 1:19-cv-00484-DAD-SAB, 2019 WL 5618169, at *7 (E.D. Cal. Oct. 31, 24 2019) (“To make a plausible joint employer claim, plaintiff must allege some specific facts such 25 as whether defendant pays the employee’s salary and taxes, owns the equipment necessary for the 26 employee to perform his job, has authority to hire, train, fire, or discipline the employee, or has 27 discretion to set the employee’s salary.”) (internal quotations omitted). Courts routinely dismiss 28 pleadings that are, like plaintiff’s FAC, bereft of alleged factual support for an asserted joint 1 employer relationship among several named entity defendants. See, e.g., Valencia v. N. Star Gas 2 Co., 291 F. Supp. 3d 1155, 1160–62 (S.D. Cal. 2018) (dismissing claims brought against a 3 defendant where the plaintiff’s allegations that the defendant was a “co-employer responsible for 4 all human resources functions . . . [that] sets and negotiates rates of pay” and “schedules and 5 hours” were deemed insufficient to sufficiently assert a joint employer relationship under state 6 and federal law); Bravo v. On Delivery Servs., LLC, No. 18-cv-01913-EMC, 2018 WL 2387835, 7 at *1 (N.D. Cal. May 25, 2018) (granting a motion to dismiss because there were “no factual 8 allegations in the complaint regarding the nature of the alleged joint relationship”); Myles v. 9 Builders Concrete, Inc., No. 1:21-cv-01309-DAD-BAK, 2022 WL 2318176, at *3 (E.D. Cal. June 10 28, 2022) (dismissing all claims brought against four entity defendants where the only factual 11 allegations in support of a joint employer relationship were that it was “evidenced by [plaintiff’s] 12 paychecks and company documents”). 13 For the noted reasons, plaintiff has failed to state any cognizable claims against defendant 14 Bolthouse for violations of the California Labor Code or the AWPA because his FAC is lacking 15 any factual allegations that defendant Bolthouse jointly employed plaintiff. Thus, defendant 16 Bolthouse’s motion to dismiss will be granted to the extent it is based on plaintiff’s failure to 17 adequately allege the existence of a joint employer relationship.8
18 8 The court will also dismiss plaintiff’s remaining claim brought against defendant Bolthouse 19 under California’s UCL because it is derivative of his inadequately alleged violations of California’s Labor Code. (Doc. No. 1 at 29); see Cleveland v. Groceryworks.com, LLC, 200 F. 20 Supp. 3d 924, 961 (N.D. Cal. 2016) (“[L]iability under the UCL is generally derivative of liability under another statutory violation.”); Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1011 (N.D. Cal. 21 2016) (dismissing UCL claim to the extent it was based on California Labor Code violations that were also being dismissed). Moreover, as defendant Bolthouse points out, plaintiff “seek[s] a 22 declaration” that the conduct alleged in the complaint is “unfair and unlawful” and that 23 “injunctive relief should be issued restraining Defendants from engaging in any of the above described unfair and unlawful business practices in the future,” but also concedes that he was 24 “discharged and/or resigned from Defendants employ.” (Doc. No. 1 at 17, 26, 30, 32) (emphasis added). The Ninth Circuit has held that former employees cannot seek declaratory or injunctive 25 relief for ongoing or future employment practices and policies, and plaintiff includes no allegations in his FAC or presents any arguments in his opposition to the pending motion 26 addressing how injunctive or declaratory relief would be appropriate in this case. See Bayer v. 27 Neiman Marcus Grp., Inc., 861 F.3d 853, 864–65, 867–68 (9th Cir. 2017) (holding that former employee’s requests for injunctive and declaratory relief were moot because there was no 28 “reasonably certain basis for concluding he or she has some personal need for prospective relief” 1 C. Whether to Stay or Dismiss This Action Under Colorado River 2 Lastly, defendant Bolthouse contends that this action should be dismissed or stayed 3 pursuant to the Supreme Court’s holding in in Colorado River Water Conservation District v. 4 United States, 424 U.S. 800 (1976). (Doc. No. 8 at 22–24.) 5 Although federal courts have a “virtually unflagging obligation . . . to exercise the 6 jurisdiction given them,” the Supreme Court has recognized that federal courts may dismiss or 7 stay a case “in situations involving the contemporaneous exercise of concurrent jurisdictions . . . 8 by state and federal courts.” Colorado River, 424 U.S. at 817. This power stems from the court’s 9 “considerations of ‘wise judicial administration, giving regard to conservation of judicial 10 resources and comprehensive disposition of litigation.’” Id. (quoting Kerotest Mfg. Co. v. C-O- 11 Two Fire Equipment Co., 342 U.S. 180, 183 (1952)). The court’s power to stay or dismiss a case 12 under Colorado River, however, is “considerably . . . limited” and only applies in “exceptional” 13 circumstances. Id. at 818; see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 14 U.S. 1, 25–26 (1983) (noting that the court’s task is “not to find some substantial reason for 15 the exercise of federal jurisdiction” but rather “to ascertain whether there exist ‘exceptional’ 16 circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River to justify 17 the surrender of that jurisdiction”); Smith v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 18 1033 (9th Cir. 2005) (noting that circumstances warranting a stay under the Colorado River 19 doctrine are “exceedingly rare”); Holder v. Holder, 305 F.3d 854, 867 (9th Cir. 2002) (“[T]he 20 Colorado River doctrine is a narrow exception.”). 21 In the Ninth Circuit, eight factors are to be considered in determining the appropriateness 22 of a dismissal or stay under Colorado River: 23 (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to 24 avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides 25
or that the employer’s policy “has adversely affected and continues to affect a present interest” of 26 the plaintiff’s). Accordingly, the court will also dismiss plaintiff’s request for injunctive and 27 declaratory relief without leave to amend. See Barajas v. Blue Diamond Growers Inc., No. 1:20- cv-0679-JLT-SKO, 2022 WL 1103841, at *23 (E.D. Cal. Apr. 13, 2022) (dismissing a prayer for 28 injunctive relief without leave to amend) (collecting cases). 1 the rule of decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal 2 litigants; (7) the desire to avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal 3 court. 4 R.R. Street & Co. Inc. v. Transport Ins. Co., 656 F.3d 966, 978–79 (9th Cir. 2011) (citing Holder, 5 305 F.3d at 870). “These factors are to be applied in a pragmatic and flexible way, as part of a 6 balancing process rather than as a ‘mechanical checklist.’” Am. Int’l Underwriters (Philippines), 7 Inc. v. Continental Ins. Co., 843 F.2d 1253, 1257 (9th Cir. 1988). “The weight to be given to any 8 one factor may vary greatly from case to case, depending on the particular setting of the case. 9 Some factors may not apply in some cases, and, in some cases, a single factor may decide 10 whether a stay is permissible.” United States v. State Water Res. Control Bd., 988 F.3d 1194, 11 1203 (9th Cir. 2021) (internal quotations and citations omitted). 12 In the Ninth Circuit, particular attention is paid to the eighth factor: “In this Circuit, the 13 narrow Colorado River doctrine requires that the pending state court proceeding resolve all issues 14 in the federal suit.” Holder, 305 F.3d at 859. Indeed, if “there exists a substantial doubt as to 15 whether the state court proceeding will resolve all of the disputed issues in [the federal] case, it is 16 unnecessary for [the court] to weigh the other factors included in the Colorado River analysis.” 17 Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 n.7 (9th Cir. 1993). In this regard, 18 the Ninth Circuit has explained: 19 Under the rules governing the Colorado River doctrine, the existence of a substantial doubt as to whether the state proceeding 20 will resolve the federal action precludes the granting of a stay. . . . “When a district court decides to . . . stay under Colorado River, it 21 presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the 22 issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or 23 dismissal at all. . . . Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing 24 further to do in resolving any substantive part of the case, whether it stays or dismisses.” 25 26 Id. at 913 (quoting Moses H. Cone, 460 U.S. at 28); see also State Water, 988 F.3d at 1204 (“We 27 have repeatedly emphasized that a Colorado River stay is inappropriate when the state court 28 proceedings will not resolve the entire case before the federal court.”). On the other hand, courts 1 should be “particularly reluctant to find that the actions are not parallel when the federal action is 2 but a ‘spin-off’ of more comprehensive state litigation.” Nakash v. Marciano, 882 F.2d 1411, 3 1417 (9th Cir. 1989). 4 Defendant Bolthouse contends that plaintiff Rhina Beatriz Carrillo filed a class action 5 complaint in the Kern County Superior Court (the “Carrillo action”) on April 30, 2019, which is 6 before plaintiff Julio Mayen filed this action on October 28, 2020, and that a stay of the present 7 action is therefore warranted. (Doc. No. 8 at 23.) The complaint in the Carrillo action, attached 8 to the declaration of defendant Bolthouse’s counsel filed in support of the pending motion, shows 9 that it was brought against the same five defendants named in the present action and that nearly 10 the same claims were asserted in both cases. (Compare Doc. No. 8-1 at 13–29 with Doc. No. 1 at 11 12–31.) However, the claims asserted in the two actions differ slightly, because a claim under 12 federal law for violation of the AWPA was asserted in the present action but not in the Carrillo 13 action.9 (Compare Doc. No. 8-1 at 13 with Doc. No. 1 at 12.) Notwithstanding this difference, 14 defendant Bolthouse argues that “the very same claims” pending in the Carrillo action are “now 15 pending in this case” because plaintiff’s “time-barred AWPA claim [] should be dismissed,” 16 meaning “the Carrillo action would conclusively resolve all claims brought by Plaintiff in this 17 action.” (Doc. Nos. 8 at 23; 12 at 11.) The court observes that plaintiff has failed to 18 meaningfully oppose defendant Bolthouse’s argument that this action should be dismissed or 19 stayed pursuant to the Supreme Court’s decision in Colorado River. (Doc. No. 11 at 9.) 20 Nonetheless, the court concludes that consideration of the Colorado River factors weighs 21 against issuing a stay.10 Beginning with the eighth factor, which is dispositive, the court 22 concludes that there is substantial doubt as to whether the proceedings in state court in the 23 Carrillo action will resolve all the issues presented in this federal action. See State Water, 988 24 9 In Carrillo, the plaintiff has asserted a claim for failure to maintain required records, which is 25 absent in the present action. (Compare Doc. No. 8-1 at 13 with Doc. No. 1 at 12.)
26 10 “Although Colorado River involved dismissal of a federal suit, we generally require a stay 27 rather than a dismissal. That is because [a] stay ensures that the federal forum will remain open if for some unexpected reason the state forum . . . turn[s] out to be inadequate.” State Water, 988 28 F.3d at 1202 n.3 (internal quotations and citations omitted). 1 F.3d at 1203 (“[T]h[e] [eighth] factor should be addressed ‘as a preliminary matter.’”). Although 2 all but one of the claims brought in the Carrillo action and the present action overlap, a federal 3 claim under the AWPA has not been asserted in the Carrillo action, and this difference alone is 4 fatal to defendant Bolthouse’s request for a Colorado River stay. The Carrillo action simply 5 cannot resolve plaintiff’s AWPA claim because the plaintiff in the Carrillo action did not assert 6 that claim in the state forum.11 Id. at 1204–08 (finding that the district court abused its discretion 7 in issuing a partial stay of three state law claims that were “identical” to claims in a parallel state 8 action brought by the same plaintiff with the same allegations underpinning the “identical” claims 9 because the federal court action also included a fourth federal law claim that the state proceeding 10 could not resolve “because the [plaintiff] ha[d] not raised such a claim in that forum”); see also 11 Martinez-Sanchez v. Anthony Vineyards, Inc., No. 1:19-cv-01404-DAD-JLT, 2020 WL 469341, 12 at *5 (E.D. Cal. Jan. 29, 2020) (denying a stay under Colorado River, in part, due to the presence 13 of an AWPA claim in the federal court action that was absent from the parallel state court action). 14 Defendant Bolthouse only addresses this difference between the two actions by arguing that 15 plaintiff’s AWPA claim is barred under the applicable statute of limitations, thus maintaining that 16 the two actions are identical after dismissing the AWPA claim. (Doc. Nos. 8 at 23 n.4; 12 at 11.) 17 But as the court has concluded above, it will not reach defendant Bolthouse’s statute of 18 limitations arguments brought in the pending motion to dismiss, and thus plaintiff’s federal 19 AWPA claim remains in this action. Moses H. Cone, 460 U.S. at 26 (“[T]he presence of federal- 20 law issues must always be a major consideration weighing against surrender.”); State Water, 988 21 F.3d at 1206–07 (“There is a strong presumption that the presence of an additional claim in the 22 federal suit means that Colorado River is inapplicable.”). 23 In addition, due to the paucity of factual allegations presented in the operative complaints 24 in both actions and the lack of information before the court regarding the status of class
25 11 The Ninth Circuit in State Water found that the strong presumption against staying an action could be overcome through “clear-cut evidence of forum shopping.” State Water, 988 F.3d at 26 1206–07. However, here, defendant Bolthouse does not argue that plaintiff was forum shopping, 27 nor could it, because this case is only in federal court because of defendant Bolthouse’s removal of the case. Otherwise, both actions would have been pending in the Kern County Superior 28 Court. 1 ///// 2 ///// 3 ///// 4 certification in Carrillo,12 the court has no assurance that the Carrillo action encompasses 5 plaintiff as a class member or that it covers the factual theories underpinning plaintiff’s claims 6 brought in this case. In short, it remains unclear whether resolution of the purportedly 7 overlapping state law claims in the Carrillo action would completely resolve the present dispute 8 between plaintiff Julio Mayen and the common defendants. Moses H. Cone, 460 U.S. at 28 9 (noting a district court will find a Colorado River stay appropriate when it “concludes that the 10 parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution 11 of the issues between the parties”); State Water, 988 F.3d at 1204 (“[T]he requirement of 12 ‘parallel’ state court proceedings implies that those proceedings are sufficiently similar to the 13 federal proceedings to provide relief for all of the parties’ claims.”) (quoting Intel Corp., 12 F.3d 14 at 913 n.4). 15 Because the court has substantial doubt that the Carrillo action will resolve the entire case 16 before this federal court, a stay under Colorado River is inappropriate and the court need not 17 address the other relevant factors. See Intel Corp., 12 F.3d at 913 n.7 (“Since we find that there 18 exists a substantial doubt as to whether the state court proceedings will resolve all of the disputed 19 issues in this case, it is unnecessary for us to weigh the other factors included in the Colorado 20 River analysis.”). Accordingly, defendant Bolthouse’s motion to stay or dismiss this action under 21 Colorado River will be denied. 22 D. Leave to Amend 23 Having determined that all of plaintiff’s claims against defendant Bolthouse should be 24 dismissed based on plaintiff’s failure to adequately allege a joint employer relationship, the court 25 must determine whether plaintiff should be granted leave to file a second amended complaint to 26
27 12 The only information before the court regarding the status of the Carrillo action is defendant Bolthouse’s contention in its reply brief that the Carrillo action “has progressed substantially 28 further than this federal action through extensive discovery.” (Doc. No. 12 at 11.) 1 attempt to cure the noted pleading deficiency. 2 “Dismissal without leave to amend is proper if it is clear that the complaint could not be 3 saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the 4 extent that the pleadings can be cured by the allegation of additional facts, however, courts will 5 generally grant leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 6 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). “The court considers five factors in 7 assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing 8 party, futility of amendment, and whether the plaintiff has previously amended the complaint.” 9 United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). 10 In his opposition, plaintiff requests—in a perfunctory manner—that the court grant him 11 further leave to amend. (Doc. No. 11 at 9.) Defendant Bolthouse maintains that plaintiff’s 12 opposition brief does not identify any alleged facts that plaintiff could plead if granted such leave, 13 but does not assert that the granting of further leave to amend would result in prejudice, bad faith, 14 or undue delay. (Doc. No. 12 at 10.) The court agrees that plaintiff has offered little reason to 15 suggest that he is capable of adequately alleging a joint employer relationship with respect to 16 defendant Bolthouse. However, at this early stage of the litigation, and given that plaintiff has not 17 had an opportunity to address the pleading deficiencies now identified by the court, leave to file 18 an amended pleading is appropriate. See Corinthian Colleges, 655 F.3d at 995 (“The standard for 19 granting leave to amend is generous.”); Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 20 1041 (9th Cir. 2015) (“It is black-letter law that a district court must give plaintiffs at least one 21 chance to amend a deficient complaint, absent a clear showing that amendment would be futile.”). 22 Leave to amend will be limited, however, to additional allegations of a joint employer 23 relationship between plaintiff and defendant Bolthouse. Plaintiff should heed the court’s 24 direction in this order as to what the law requires to adequately allege a joint employer 25 relationship and consider whether he is able to do so in good faith before filing a second amended 26 complaint. 27 ///// 28 ///// 2 For the reasons explained above: 3 1. The court denies in part and grants in part defendant Bolthouse’s motion to dismiss 4 (Doc. No. 8) as follows: 5 a. The court grants defendant Bolthouse’s motion to dismiss plaintiff’s first 6 through eighth claims due to plaintiff’s failure to adequately allege a joint 7 employer relationship; 8 b. The court grants defendant Bolthouse’s motion to dismiss plaintiff’s ninth 9 claim to the extent it is derivative of plaintiff’s insufficiently alleged first 10 through eighth claims; 11 c. The court grants defendant Bolthouse’s motion to dismiss plaintiff’s prayer 12 for injunctive relief and request for declaratory relief without leave to 13 amend; and 14 d. Plaintiff is granted leave to file a second amended complaint to address the 15 deficiencies identified in this order with respect to the existence of a joint 16 employer relationship as to defendant Bolthouse; 17 e. Defendant Bolthouse’s motion to dismiss or stay this action is otherwise 18 denied. 19 2. The court dismisses defendants Bolt House Farms, Bolthouse Farms Cuyama, and 20 Bolthouse Farms Kern County from this action pursuant to Federal Rule of Civil 21 Procedure 4(m). 22 3. The Clerk of the Court is directed to update the docket to reflect that defendants 23 Bolt House Farms, Bolthouse Farms Cuyama, and Bolthouse Farms Kern County 24 have been terminated from this action. 25 ///// 26 ///// 27 ///// 28 ///// 1 4. Within twenty-one (21) days of the date of this order, plaintiff shall file any second 2 amended complaint or notify the court of his intention to proceed on his first 3 amended complaint only against the remaining defendant Medina. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ August 17, 2022 we fo = 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19