1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY RODRIGUEZ, individually and Case No. 1:22-cv-01181-CDB on behalf of all others similarly situated 12 ORDER DEYING PLAINTIFF’S MOTION Plaintiffs, TO REMAND 13 v. (ECF No. 8) 14 SUKUT CONSTRUCTION, INC. d/b/a 15 Sukut, a JV, a California corporation; DRAGADOS USA INC d/b/a/ Dragados, 16 a Delaware corporation; FLATIRON CONSTRUCTION CORPORATION 17 d/b/a/ Flatiron, a Delaware Construction Corporation and Does 1-50 inclusive, 18 Defendants. 19 20 Before the Court is Plaintiffs’ Motion to Remand, filed on October 14, 2022. (ECF No. 8, 21 “Motion”). Defendant Flatiron Construction Corporation (Flatiron) filed an Opposition on 22 October 28, 2022 (ECF No. 15, “Opposition”), to which Plaintiff filed a Reply on November 7, 23 2022. (ECF No. 16, “Reply”). The Court held a motion earing on December 8, 2022, at which 24 Michael Calvo appeared for Plaintiff, Andrew Russell appeared for Defendant Flatiron, Barbara 25 Cotter appeared for Defendant Dragados, and Mia Lomedico appeared for Defendant Sukut 26 Construction. Upon review of the relevant filings and hearing argument from the parties, the 27 Court DENIES Plaintiff’s motion for remand for the reasons stated below. / / / 1 BACKGROUND 2 This is a labor and employment action in which Plaintiff Jimmy Rodriguez alleges that his 3 former employers – the three named Defendant construction/contracting companies – failed to 4 remit to him numerous types of compensation and other benefits that he was entitled to receive 5 during the approximate two-year period he worked for Defendants (between May 2019 and June 6 2021). Specifically, Plaintiff alleges that Defendants failed to: (1) pay overtime wages; (2) 7 provide meal periods; (3) authorize and permit rest periods; (4) pay all wages owed timely upon 8 Plaintiff’s separation from employment; (5) provide accurate itemized wage statements; (6) pay 9 reporting time pay; (7) indemnify necessary business expenses; and (8) accurately record and pay 10 sick leave. Plaintiff also alleges Defendants committed unfair business practices. 11 On June 27, 2022, Plaintiff filed a class action complaint on behalf of himself and all 12 others similarly situated against Defendants in the Superior Court of California, in Kern County 13 on June 27, 2022. In the complaint, Plaintiff seeks to recover, among other things, unpaid wages, 14 liquidated damages, premium pay, statutory penalties, restitution, attorneys’ fees, interest, and 15 costs. 16 On September 16, 2022, Defendant Flatiron timely filed a Notice of Removal. (ECF No. 17 1).1 In the Notice, Flatiron asserted that removal from state court was appropriate on two separate 18 and independent grounds. First, that this court has jurisdiction pursuant to the Class Action 19 Fairness Act (“CAFA”). 28 U.S.C. §§ 1332(d)(3), 1441, and 1446. Second, that there is federal 20 question jurisdiction under Section 301 of the Labor Management Relations Act of 1947 21 (“LMRA”). 29 U.S.C. § 152(2), 28 U.S.C. §§ 1331, 1441, and 1446. (Id. at 2). Attached to 22 Flatiron’s Notice of Removal is a “Declaration of Shawn Golden” which contains a copy of the 23 Plaintiffs’ Collective Bargaining Agreement (CBA). (Id., Exhibit A). 24 / / /
26 1 Attachments to the Notice of Removal reflect that all three Defendants were served with the 27 complaint filed in Superior Court, Kern County, and that Flatiron and Sukut answered in that court. Dragados answered the complaint after it was removed to federal district court. (ECF No. 5). Dragados joined Flatiron’s notice of removal (ECF No. 4). Counsel for Sukut expressed during the hearing on 1 PARTIES POSITIONS AND CONTENTIONS 2 In his motion, Plaintiff argues that Defendants “improper[ly] and erroneous[ly]” removed 3 this action and that remand to state court is required. (Motion 7).2 First, as to CAFA-conferred 4 jurisdiction under 28 U.S.C. § 1332(d)(2), Plaintiff argues that Defendants fail to satisfy the $5 5 million dollar amount in controversy threshold. Plaintiff complains that the calculations set forth 6 in Defendants’ Notice of Removal are speculative, conclusory, and not sufficiently supported 7 with evidence such that Defendants fail to carry their burden of proving amount in controversy by 8 a preponderance of evidence. Second, as to federal question jurisdiction under 28 U.S.C. § 1331, 9 Plaintiff argues that Defendants are incorrect in asserting that Plaintiff’s claims are preempted by 10 the LMRA. Instead, Plaintiff asserts, the claims arise independently under California state law 11 and in all events do not require the Court to interpret or refer to the collective bargaining 12 agreement. (Id. 8) 13 Defendants’ opposition maintains that removal is appropriate under both CAFA and 14 federal question jurisdiction. In support of satisfying the amount in controversy threshold, 15 Defendants proffer the declaration of Christine Denio, a Payroll and Accounts Payable Shared 16 Services Director for Flatiron. Ms. Denio attests to having reviewed Defendant’s business 17 information and records relevant to the time associated with Plaintiff’s claims. After identifying 18 relevant employee populations, Ms. Denio analyzed data implicated by Plaintiffs’ claims, 19 including number of wage statements issued, number of separated employees, average work 20 hours and average hourly pay rates. 21 Ms. Denio used an average effective hourly rate of $50.53 per hour and aggregated the 22 weekly wage hours to 11,265 wage statements for 332 employees in the 1-year period relevant to 23 Plaintiff’s claims; 598 employees who worked an aggregate total of 130,680 workdays which 24 counts the total number of days for which each employee recorded actual hours worked in the 25 relevant 3-year period; and 637 who worked for 142,433 workdays for the relevant 4-year period. 26 Defendants’ Opposition used even more conservative estimates to aggregate damages as further 27
2 Citations in this Order to the Motion, Opposition and Reply refer to the ECF Header-assigned 1 discussed below. Based on Ms. Denio’s calculations, other information and certain assumptions 2 discussed herein, Defendants conclude that the damages and other relief Plaintiff seeks exceeds 3 $5 million dollars. 4 Defendants also argue that the Court maintains original jurisdiction of the action because 5 Plaintiff’s principal claims are preempted under Section 301 of the LMRA and any remaining 6 non-preempted claims are derivative of the preempted claims (and, thus, properly removed). 7 In his Reply, Plaintiff forcefully maintains that Defendants “inappropriate[ly] and 8 improper[ly]” raised and relied in their opposition papers on new amounts in controversy that 9 were not advanced in the Notice of Removal, including attorney’s fees and additional calculations 10 for meal period and wage statement violations, and asks the Court to disregard such calculations. 11 (Reply 4, 12-13, 15-16)3 Plaintiff also raised various challenges to Defendants’ amount in 12 controversy calculations, which are addressed below. 13 Responding to Defendants’ preemption arguments, Plaintiff argues that despite the 14 existence of the collective bargaining agreement, all his claims arise under state law and are 15 independent of the CBA. To the extent exemptions under the California Labor Code may apply 16 to Plaintiff’s claims because of the CBA, Plaintiff points out that a Court’s mere need to review 17 or analyze a CBA to resolve a claim does not amount to per se federal preemption; instead, 18 preemption applies only where a Court is called upon to “interpret” the CBA. 19 STANDARD OF LAW 20 A suit brought in state court may be removed to federal court if the court would have 21 original jurisdiction over the suit. 28 U.S.C § 1441(a); see also Libhart v. Santa Monica Dairy 22 Co., 592 F.3d 1062, 1064 (9th Cir. 1979) (“The removal jurisdiction of the federal courts is 23 derived entirely from statutory authorization of Congress.”). 24 3 At the hearing on December 8, 2022, when asked by the Court, Plaintiff’s counsel could not offer 25 authority for the proposition that the Court should disregard Defendants’ later-provided removal 26 arguments and calculations. In fact, a district court may consider such evidence as amending a defendant’s notice of removal. E.g., Cohn v. Petsmart, Inc., 281 F.3d 837, 839-40 & n.1 (9th Cir. 2002) 27 (“The district court did not err in construing Petsmart's opposition as an amendment to its notice of removal.”); Taylor v. United Road Services, Inc., 313 F. Supp.3d 1161, 1174 n.5 (E.D. Cal. 2018) (“Under Ninth Circuit law, it is permissible for a party to supplement the allegations in a notice of removal by 1 In their notice of removal, Defendants assert the Court has original jurisdiction under two 2 federal statutes. First, they argue jurisdiction exists under CAFA because it is a class action with 3 minimal diversity, a putative class membership of more than 100 members, and an amount in 4 controversy of greater than $5,000,000. (ECF No. 1 ¶¶ 12-37.) Plaintiff only disputes the amount 5 in controversy calculation. (Motion 11-14.) Second, Defendants argue jurisdiction attaches under 6 the LMRA because the federal statute preempts Plaintiff’s state law claims. (Id. ¶¶ 40-57.) 7 I. Original Jurisdiction Under CAFA 8 Under CAFA, federal courts have original jurisdiction over certain class actions if the 9 class has more than 100 members, the parties are minimally diverse, and the amount in 10 controversy exceeds $5 million. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 11 81, 84-85 (2014) (citing Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013)). Contrary 12 to Plaintiff’s argument (Motion 10, citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)), 13 under CAFA, there is “no presumption against removal jurisdiction,” and, in fact, “CAFA should 14 be read ‘with a strong preference that interstate class actions should be heard in a federal court if 15 properly removed by any defendant.’” Garza v. Winco Holding, Inc., No. 1:20-cv-01354-JLT- 16 HBK, 2022 WL 902782, at *4 (E.D. Cal. Mar 28, 2022) (quoting Allen v. Boeing Co., 784 F.3d, 17 625, 633 (9th Cir. 2015)). 18 A defendant seeking removal under CAFA must file in the district court of removal a 19 notice that contains “a short and plain statement of the grounds for removal.” 28 U.S.C. § 20 1446(a). “[A] defendant’s notice of removal need include only a plausible allegation that the 21 amount in controversy exceeds the jurisdictional threshold,” and evidentiary submissions are not 22 required. Dart, 574 U.S. at 89. 23 However, once plaintiff contests defendant’s assertion of the amount in controversy, the 24 Court must consider the parties’ submissions and decide whether the amount in controversy 25 requirement has been satisfied. Id. at 88 (citing 28 U.S.C. § 1446(c)(2)(B)). The parties may 26 submit evidence outside of the complaint, including affidavits, declarations, or other “summary- 27 judgment-type evidence relevant to the amount in controversy at the time of removal.” Singer v. 1 In determining the amount in controversy, if damages are unstated in the complaint, or are 2 understated in the defendant’s view, then “the defendant seeking removal bears the burden to 3 show by a preponderance of the evidence that the aggregate amount in controversy exceeds $5 4 million when federal jurisdiction is challenged.” Ibarra v. Manheim Investments, Inc., 775 F.3d 5 1193, 1197 (9th Cir. 2015) (citations omitted). The defendant does not need to make plaintiff’s 6 case or prove the amount of controversy beyond a legal certainty. Harris v. KM Industrial Inc., 7 980 F.3d 694, 701 (9th Cir. 2020). Nor does the preponderance requirement require a district 8 court to perform detailed mathematical calculations of the amount in controversy before 9 determining whether defendant satisfied its burden. Id. “CAFA’s requirements are to be tested by 10 consideration of real evidence and the reality of what is at stake in the litigation, using reasonable 11 assumptions underlying the defendant’s theory of damages exposure.” Ibarra, 775 F.3d at 1198. 12 II. Original Jurisdiction Under Preemption and Federal Question Doctrines 13 Separately, original jurisdiction over a state law claim “‘will lie if a federal issue is: (1) 14 necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal 15 court without disrupting the federal-state balance approved by Congress.’” Negrete v. City of 16 Oakland, 46 F.4th 811, 817 (9th Cir. 2022) (citing Gunn v. Minton, 568 U.S. 251, 258 (2013)). 17 In the context of state law-based wage and compensation claims implicating the LMRA 18 (i.e., where a CBA exists), preemption applies unless (1) the challenged rights are conferred by 19 state law independent of a CBA, and (2) the claim can be resolved without interpreting the 20 relevant CBA. Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1058 (9th Cir. 2007). “This is true 21 even in some instances in which the plaintiffs have not alleged a breach of contract in their 22 complaint, if the plaintiffs’ claim is either grounded in the provisions of the labor contract or 23 requires interpretation of it.” Id. at 1059. See Curtis v. Irwin Indus., 913 F.3d 1146, 1154 (9th 24 Cir. 2019) (“If [the employee]’s CBAs in this case meet the requirements of [Cal. Labor Code] 25 section 514, [his] right to overtime exists solely as a result of the CBA, and therefore is 26 preempted under § 301.”) (quotation omitted). Even if “the right exists independently of the 27 CBA, [a court] must still consider whether it is nevertheless ‘substantially dependent on analysis 1 Williams, 482 U.S. 386, 393 (1987). 2 DISCUSSION 3 I. The Court has Original Jurisdiction Under CAFA 4 As set forth below, conservative calculations of the damages and other relief Plaintiff 5 seeks in just four of his causes of action exceed CAFA’s $5 million dollar amount in controversy 6 threshold. 7 A. Rest Periods 8 Plaintiff claims Defendants violated Cal. Labor Code § 226.7, which prohibits an 9 employer from requiring any employee to work during any rest period mandated by an appliable 10 order of California’s Industrial Welfare Commission (IWC). Plaintiff alleges that “Defendants 11 failed and refused to authorize and permit Plaintiff and Class Members, to take ten (10) minute 12 rest periods for every four (4) hours worked, or major fraction thereof.” 13 Defendants point to Plaintiff’s allegation that he “was never given a single ten-minute 14 break during his employment with Defendants” (Complaint ¶ 55) and base their rest period 15 amount in controversy calculation on the assumption that no putative class member ever received 16 a ten-minute rest period. (Motion 20). Defendants then calculate a total amount in controversy for 17 § 226.7 damages as $4,778,627.15 based on an estimate of total workdays at issue (142,433 days) 18 multiplied by an average hourly wage of $33.55 (which Defendants note is less than the premium 19 rate a claimant would receive for a § 226.7 violation, see Opposition 20).4 20 The Court declines to include in its calculation of total amount in controversy Defendants’ 21 full estimate of potential § 226.7 liability. Although Plaintiff alleges in the complaint’s “Factual 22 Allegations” that Defendants “systematically” prevented employees from receiving their required 23 rest breaks (Complaint ¶ 54), in the allegations associated with the rest break claim, Plaintiff 24 alleges that class members were “not provided all their rest periods due to shift scheduling and/or 25
26 4 Although Plaintiff adamantly maintains that the $33.55 hourly wage used by Defendants in its amount in controversy calculations is speculative and inflated (Motion 13; Reply 6,12), the Court notes 27 that the minimum wage provided for in the CBA is for a warehouseman ($31.59). During the hearing on December 8, 2022, Plaintiff’s counsel offered no reason why using this minimum wage would be improper. Even with this slightly reduced hourly rate, Defendants easily satisfy the $5 million dollar 1 work related demands placed upon them by Defendants ….” (Id. at ¶ 97). The Court concludes 2 the relevant allegations do not assert that each and every putative class member was deprived of 3 each and every rest break to which he was entitled. 4 Nevertheless, the Court concludes based on Plaintiff’s allegations that the rest break 5 violations he allegedly suffered were sufficiently widespread and frequently suffered by other 6 putative class members, that a conservative estimate is appropriate. See, e.g., Altamirano v. Shaw 7 Industries, Inc., 2013 WL 2950600, at *7 (N.D. Cal. June 14, 2013) (finding that allegations of 8 policy’s “pervasiveness” were sufficient to support 100 percent violation rate); Jasso v. Money 9 Mart Express, Inc., 2012 WL 699465, at *5-6 (N.D. Cal. Mar. 1, 2012) (assumption of one 10 violation per week was reasonable when complaint alleged “uniform policy and scheme” during 11 class period).5 Assuming here that every class member suffered at least one rest break violation 12 per five-day workweek (e.g., 20% of Defendants’ amount in controversy calculation), the 13 estimated § 226.7 liability for amount in controversy purposes is $955,725.43. 14 B. Meal Periods 15 Plaintiff alleges that “Defendants failed to provide Plaintiff and Class members, timely 16 and uninterrupted meal periods of not less than thirty . . . minutes pursuant to the IWC wage 17 orders,” in violation of Labor Code §§226.7 and 512 as well as the applicable IWC wage orders. 18 (Complaint ¶ 90). Plaintiff seeks statutory damages in the amount of one hour of premium pay 19 for each day Defendants deprived him and other class members of a mandatory meal period. (Id. 20 Prayer for Relief). 21 “When a complaint alleges violations in broad, vague terms, the removing defendant must 22 make some estimate of how frequently violations occurred.” Herrera v. Carmax Auto Superstore, 23 2014 WL 12586254, at *4 (C.D. Cal. June 12, 2014). Based on Plaintiff’s allegations, 24 Defendants estimate meal period damages at a 20% rate (e.g., Plaintiff and class members were 25 deprived of at least one meal period during a five-day workweek), amounting to $955,725.43. 26 See Avila, 432 F. Supp.3d at 1189; Jasso, 2012 WL 699465, at *5-6. Plaintiff does not credibly 27 5 Accord, Avila v. Rue21, Inc., 432 F. Supp.3d 1175, 1189 (E.D. Cal. 2020) (finding that a 25% to 60% violation rate “can be reasonably assumed as a matter of law based on ‘pattern and practice’ or 1 challenge this calculation and the Court finds the calculation reasonable and supported by a 2 preponderance of the evidence. 3 C. Waiting Time Penalties 4 Plaintiff seeks damages for alleged waiting time penalties under Cal. Labor Code § 203. 5 (Complaint ¶ 103). Plaintiff’s claim for penalties is based on his allegation that Defendants 6 “willfully failed and refused, and continue to willfully fail and refuse, to pay Plaintiff and Class 7 Members their wages, earned and unpaid, either at the time of discharge, or within seventy-two 8 (72) hours of their voluntarily leaving Defendants’ employ. These wages include regular and 9 overtime.” 10 Based on Plaintiff’s broad allegations, Defendants presumed that each putative class 11 member (PCM) during the relevant period incurred some amount of unpaid or underpaid time at 12 least once, and that under § 203, a single such incident commonly triggers entitlement to penalties 13 for the entire 30-day post-employment period. (Opposition 18) (citing inter alia Nunes v. Home 14 Depot U.S.A., Inc., No 2:19-cv-01207-JAM-DB, 2019 WL 4316903, at *3 (E.D. Cal. Sep 12, 15 2019) (upholding similar assumption)). 16 Plaintiff counters that courts under “well settled” Ninth Circuit authority reject the basis 17 for which Defendants here apply the maximum, 30-day waiting time penalty. (Reply 14-15). For 18 this proposition, Plaintiff relies on a single, unpublished Ninth Circuit case (Garibay v. Archstone 19 Communities LLC, 539 Fed. Appx.763 (9th Cir. 2013)). However, numerous courts have 20 characterized the nonprecedential Garibay opinion as having little utility, and instead permit 21 defendants to assume violation rates that are supported directly by, or reasonably inferred from, 22 the allegations of the complaint. See Sanchez v. Abbot Laboratories, No. 2:20-cv-01436-TLN- 23 AC, 2021 WL 2679057, *3 (E.D. Cal. June 30, 2021) (collecting cases). 24 Given Plaintiff’s characterization of the pervasive nature of Defendants’ alleged Labor 25 Code violations, it is reasonable to conclude that Defendants allegedly failed to pay amounts 26 owed to every putative class member such that Defendants may include in the amount in 27 controversy calculation the full 30-day waiting time penalty. E.g., Salonga v. Aegis Senior 1 percent violation rate, courts in this district and others within the Ninth Circuit have accepted a 2 100-percent violation rate where the plaintiff has (1) tied waiting-time penalties to other claims 3 and (2) the defendant specifically accounts for only terminated employees”) (citing cases). 4 Defendants calculated a total amount in controversy of $3,816,648 in waiting time losses 5 based on a conservatively estimated average hourly wage rate across the total employee 6 population (discussed above, Section I(A)). Plaintiff does not credibly challenge this calculation 7 and the Court finds the calculation reasonable and supported by a preponderance of the evidence. 8 D. Wage Statement Penalties 9 Plaintiff seeks penalties under Cal. Labor Code § 226(a) based on allegations that 10 Defendants’ wage statements did not accurately record the meal and rest period premiums and 11 wages owed per pay period. Plaintiff and Defendants agree that a violation may trigger a 12 maximum penalty of up to $4,000 per employee (cf. Complaint ¶ 112, with Opposition 13) but 13 disagree as to the per-violation statutory penalty (cf. ECF No. 1, Complaint ¶ 112 [$250/$,1000], 14 with Opposition 13 [$50/$100]). Because Defendants use a lesser amount which results in a more 15 favorable outcome for Plaintiff, the Court considers Defendants’ calculation below. 16 Defendants estimate that each PCM whom Plaintiff seeks to represent received at least 17 one inaccurate wage statement per week. (Opposition 19) (citing Nunes, 2019 WL 4316903, at 18 *3 (E.D. Cal. Sep 12, 2019) (upholding similar assumption)). Based on the applicable statute of 19 limitations, Defendants calculated the amount in controversy for § 226(a) penalties to be 20 $1,109,900, which is the product of $3,343 per PCM6 times 332 PCMs. 21 Defendants’ calculation of amount in controversy for § 226(a) penalties is based on 22 certain assumptions the Court finds reasonable. For instance, despite allegedly being entitled to 23 two daily rest breaks per eight-hour workday, Plaintiff alleges that he never received a single rest 24 break during his two-year employment (Complaint ¶ 55). Plaintiff alleges other systematic 25 violations committed by Defendants, including failure to provide for required meal breaks, all of 26 which implicate wages and all of which would cause injury to each PCM Plaintiff seeks to 27
6 The $3,343.07 per PCM figure is explained through the following calculation: [(332 PCMs x $50 1 represent “since they could not determine from the wage statements the correct wages to which 2 they were entitled.” Naranjo v. Spectrum Security Services, Inc., 13 Cal.5th 93, 120 (2022) 3 (failure to include in pay statements credited hour of work and premium pay to be awarded 4 “deprives the employee of information needed to evaluate whether the payment is correct, and in 5 so doing results in injury under the terms of” § 226). 6 Plaintiff does not credibly challenge this calculation and the Court finds the calculation 7 reasonable and supported by a preponderance of the evidence. See Naranjo, 13 Cal.5th at 121 8 (holding “failure to report premium pay for missed breaks can support monetary liability under 9 section 226 for failure to supply an accurate itemized statement reflecting an employee’s gross 10 wages earned, net wages earned, and credited hours worked.”). 11 * * * * * 12 Based only on amounts in controversy relating to allegedly withheld rest breaks and meal 13 periods, along with waiting time and wage statements penalties, a preponderance of the evidence 14 demonstrates Plaintiff’s complaint conservatively puts far more than $5 million dollars at issue. 15 As such, the Court declines to address other amounts that potentially could increase the amount in 16 controversy (i.e., attorney’s fees). 17 II. Plaintiffs’ Claims are Preempted by the LMRA 18 Section 301 of the LMRA states:
19 Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, 20 or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in 21 controversy or without regard to the citizenship of the parties. 22 29 U.S.C § 185(a). Once preempted, “any claim purportedly based on [a] . . . state law is 23 considered, from its inception, a federal claim and therefore arises under federal law.” 24 Caterpillar, 482 U.S. at 393. 25 A. Plaintiff’s Overtime Claim is Preempted 26 Cal. Labor Code § 514’s exemption clause provides:
27 Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of 1 premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage. 2 3 If the CBA at issue meets the requirements set forth in § 514, then Plaintiff’s overtime 4 compensation claim is preempted by Section 301 of the LMRA as it exists “solely as a result of 5 the CBA.” Curtis, 913 F.3d at 1154. The Court agrees with Defendants that the CBA provides 6 for wages, hours of work, working conditions, as well as premium wages to be paid, and an 7 hourly rate above the statutory threshold. (See ECF No. 1, Exhibit A at pp. 10-17, 20-22, 25-36.) 8 Accordingly, Plaintiff’s overtime claim is preempted, and the Court has federal question 9 jurisdiction over this cause of action. 10 B. Plaintiff’s Meal Break Claim is Preempted 11 Cal. Labor Code §512(e) provides that the state statute governing an employer’s 12 requirement to provide meal breaks is inapplicable where the employee is covered by a valid 13 collective bargaining agreement that provides for wages, hours of work, working conditions, and 14 meal periods, and compels arbitration of disputes relating to meal period provisions. 15 If the CBA at issue meets the requirements set forth in § 514, then Plaintiff’s overtime 16 compensation claim is preempted by Section 301 of the LMRA as it exists “solely as a result of 17 the CBA.” E.g., Blackwell v. Commercial Refrigeration Specialists, Inc., No. 2:20-cv-01968- 18 KJM-CKD, No. 2:20-cv-02281-KJM-CKD, 2021 WL 2634501, at *5 (“The CBA here meets [the 19 requirements of Labor Code § 512(e)] … [and as] a result, plaintiff’s meal period claim exists 20 only because of his CBA and is thus preempted.”). Accordingly, Plaintiff’s meal break claim is 21 preempted, and the Court has federal question jurisdiction over this cause of action. 22 C. Supplemental Jurisdiction over Non-Preempted Claims. 23 Pursuant to 29 U.S.C. § 1367(a), supplemental jurisdiction is appropriate when state and 24 federal claims “derive from a common nucleus of operative facts.” United Mine Workers of 25 America v. Gibbs, 383 U.S. 715, 725 (1966). See also, Van Bebber v. Dignity Health, 1:19-cv- 26 00264-DAD-EPG, 2019 WL 4127204, at *9 (E.D. Cal. Aug. 30, 2019) (exercising supplemental 27 jurisdiction over a plaintiff’s remaining causes of action because they arose out of the same employment relationship as their overtime claim). 1 Because Plaintiff's remaining claims largely are derivate from the preempted overtime 2 | and meal break claims, the Court shall exercise supplemental jurisdiction over the claims 3 | pursuant to 28 U.S.C. § 1367(a) to avoid needless expense of judicial resources and the potential 4 | for inconsistent judgments due to parallel proceedings. E.g., Estrada v. Kaiser Foundation 5 | Hospitals, 678 Fed. Appx. 494, 497 (9th Cir. 2017) (finding that when a claim derives from a 6 | LMRA-preempted claim, the derivative claim also fails); Jimenez v. Young’s Market Company, 7 | LLC, 2021 WL 5999082 at *13 (N.D. Cal. Dec. 20, 2021) (finding that claims for failure to pay 8 | final wages and provide accurate wage statements were preempted because they were derivative 9 | of substantive claims for owed overtime and meal break violations). 10 CONCLUSION AND ORDER ll For the reasons set forth above, Plaintiffs’ motion for remand is DENIED. 12 | IT IS SO ORDERED. Dated: _ December 9, 2022 | Vv Vv RR 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13