1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ANGEL ROJO, an Individual, on No. 2:20-CV-01526-WBS-DB behalf of himself, all others 13 similarly situated, and on behalf of the general public as 14 Private Attorneys General MEMORANDUM AND ORDER RE: DEFENDANT ROOFLINE INC.’S 15 MOTION TO DISMISS PLAINTIFF’S Plaintiff, TENTH CAUSE OF ACTION, OR IN 16 THE ALTERNATIVE TO STAY v. 17 ROOFLINE, INC., a Texas 18 Corporation, A TEXAS CORPORATION, ROOFLINE SUPPLY & 19 DELIVERY, a California Corporation, and DOES 1 through 20 250, 21 Defendants. 22 23 ----oo0oo---- 24 Plaintiff Angel Rojo (“plaintiff” or “Rojo”) brought 25 this action against Defendants Roofline Inc., Roofline Supply & 26 Deliver, and Does 1 through 250, (“defendants” or “Roofline”) 27 seeking damages related to Fair Employment and Housing Act 28 (“FEHA”) retaliation, disability discrimination, failure to 1 accommodate, wrongful termination, and violations of wage and 2 hour laws. 3 Plaintiff’s Tenth Cause of Action is a representative 4 claim on behalf of himself and other aggrieved employees to 5 recover civil penalties under the California Private Attorneys’ 6 General Act (“PAGA”) based on the alleged denial of meal and rest 7 breaks. (See generally Compl.) (Docket No. 1, Ex. A.) In the 8 motion presently before the court, defendants seek to dismiss or 9 in the alternative to stay that cause of action. (“Mot. to 10 Dismiss”) (Docket No. 4.) 11 I. Motion to Dismiss under Rule 12(b)(6) 12 PAGA “authorizes an employee to bring an action for 13 civil penalties on behalf of the state against [their] employer 14 for Labor Code violations committed against the employee and 15 fellow employees, with most of the proceeds of that litigation 16 going towards the state.” Sakkab v. Luxottica Retail N. Am., 17 Inc., 804 F.3d 425, 429 (9th Cir. 2015). The employees bringing 18 the action do so as agents or proxies of the state’s labor law 19 enforcement agencies. See id. at 435. “The civil penalties 20 recovered on behalf of the state under the PAGA are distinct from 21 the statutory damages to which employees may be entitled in their 22 individual capacities.” Iskanian v. CLS Transportation Los 23 Angeles, LLC, 59 Cal. 4th 348, 381 (2014). 24 Federal Rule 12(b)(6) allows a defendant to assert a 25 defense by motion for “failure to state a claim upon which relief 26 can be granted.” Fed. R. Civ. P. 12(b)(6). The inquiry before 27 the court is whether, accepting the allegations in the complaint 28 as true and drawing all reasonable inferences in the plaintiff’s 1 favor, the plaintiff has stated a claim to relief that is 2 plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009). “The plausibility standard is not akin to a ‘probability 4 requirement,’ but it asks for more than a sheer possibility that 5 a defendant has acted unlawfully.” Id. at 678. “Threadbare 6 recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Id. 8 Defendants contend that plaintiff is barred from 9 pursuing his PAGA cause of action because a substantially similar 10 suit pursuing the same PAGA claims on behalf of the same group of 11 employees is pending in state court. See Sifuentes v. Roofline, 12 Inc., Case No. 34-2019-00269947-CU-OE-GDS (Sacramento Sup. Ct., 13 filed Nov. 27, 2019) (“Sifuentes action”).1 The plain language 14 of California Labor Code § 2699(h) bars an employee from bringing 15 a PAGA action when the LWDA has cited an employer or pursued 16 action against them. See Tan v. Grubhub, Inc., 171 F. Supp. 3d 17 998, 1012 (N.D. Cal. 2017). However, the statute is silent with 18 respect to whether an employee may bring a PAGA action when 19 another private plaintiff has already sued the employer in a 20 1 Defendants request that the court take judicial notice 21 of three documents. (See generally RJN.) These documents are: 22 (a) a true and correct copy of the First Amended Complaint in Sifuentes v. Roofline, Inc., Case No. 34-2019-00269947-CU-OE-GDS 23 (Sacramento Sup. Ct., filed Nov. 27, 2019; First Am. Compl. filed July 8, 2020), (b) the November 27, 2019 Notice under Cal. Lab. 24 Code § 2699.3 filed by Sifuentes with the California Department of Industrial Relations and (c) a copy of the May 8, 2020 25 stipulation and the Sacramento Superior Court’s June 22, 2020 order permitting Sifuentes to file a First Amended Complaint. 26 Plaintiff has not objected. Accordingly, the court grants the 27 defendants’ request for judicial notice of documents from the Sifuentes proceedings in state court and from the LWDA. 28 1 representative capacity. See id. 2 Defendants have not cited a single case that bars 3 successive suits by different employees. Defendants principally 4 rely on dicta in Stafford v. Dollar Tree Stores, Inc., No. 13-cv- 5 1187 KJM CKD, 2014 WL 6633396, at *3 (E.D. Cal. Nov. 21, 2014) 6 and Brown v. Ralph’s Grocery Co., 197 Cal. App. 4th 489, 501 (2nd 7 Dist. 2012). These cases note that California Labor Code § 8 2699(h) prohibits an action by an aggrieved employee when the 9 agency or any of its divisions or employees are directly pursuing 10 enforcement against the employer on the same facts and theories 11 under the same section(s) of the Labor Code. See Cal. Lab. Code 12 § 2699(h). But, as the Tan court observed, the issue at bar here 13 was not raised in these cases nor do they explain why the section 14 “should be read to include deferring a suit by private plaintiffs 15 when the statutory language makes no such provision.” Tan, 171 16 F. Supp. 3d at 1012. 17 Here, the LWDA has not appeared in either case, nor 18 does it appear to have independently pursued an action against 19 Roofline based on the same facts and theories at issue. A 20 different analysis would be required if a judgment had been made 21 in the Sifuentes action, as it could be argued that such a 22 judgment would be binding on government agencies and any 23 aggrieved employee not a party to the proceeding. However, the 24 mere pendency of the Sifuentes action does not bar plaintiff’s 25 PAGA cause of action. Accordingly, the court will deny the 26 motion to dismiss. 27 II. Stay of PAGA Cause of Action 28 Defendants additionally contend that the court should 1 dismiss or stay plaintiff’s tenth cause of action under PAGA 2 pursuant to the abstention doctrine set forth in Colorado River 3 Water Conservation District v. United States, 424 U.S. 800 4 (1976), due to the greater progress of Sifuentes’ state-court 5 action.2 (See Mot. to Dismiss at 6–9.) Because the court will 6 stay plaintiff’s tenth cause of action pursuant to its inherent 7 authority to control the disposition of the cases on its docket, 8 the court need not delve into the parties’ arguments under the 9 Colorado River doctrine. 10 The power to stay proceedings “is incidental to the 11 power inherent in every court to control the disposition of the 12 cases on its docket with economy of time and effort for itself, 13 for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 14 248, 254 (1936). District courts ordinarily have authority to 15 issue stays where such a stay would be a proper exercise of 16 discretion. See Rhines v. Weber, 544 U.S. 269, 276 (2005). 17 Consideration of such a stay calls for “the exercise of judgment 18 2 Defendants argue that “[i]t is well accepted that a 19 party may move under
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ANGEL ROJO, an Individual, on No. 2:20-CV-01526-WBS-DB behalf of himself, all others 13 similarly situated, and on behalf of the general public as 14 Private Attorneys General MEMORANDUM AND ORDER RE: DEFENDANT ROOFLINE INC.’S 15 MOTION TO DISMISS PLAINTIFF’S Plaintiff, TENTH CAUSE OF ACTION, OR IN 16 THE ALTERNATIVE TO STAY v. 17 ROOFLINE, INC., a Texas 18 Corporation, A TEXAS CORPORATION, ROOFLINE SUPPLY & 19 DELIVERY, a California Corporation, and DOES 1 through 20 250, 21 Defendants. 22 23 ----oo0oo---- 24 Plaintiff Angel Rojo (“plaintiff” or “Rojo”) brought 25 this action against Defendants Roofline Inc., Roofline Supply & 26 Deliver, and Does 1 through 250, (“defendants” or “Roofline”) 27 seeking damages related to Fair Employment and Housing Act 28 (“FEHA”) retaliation, disability discrimination, failure to 1 accommodate, wrongful termination, and violations of wage and 2 hour laws. 3 Plaintiff’s Tenth Cause of Action is a representative 4 claim on behalf of himself and other aggrieved employees to 5 recover civil penalties under the California Private Attorneys’ 6 General Act (“PAGA”) based on the alleged denial of meal and rest 7 breaks. (See generally Compl.) (Docket No. 1, Ex. A.) In the 8 motion presently before the court, defendants seek to dismiss or 9 in the alternative to stay that cause of action. (“Mot. to 10 Dismiss”) (Docket No. 4.) 11 I. Motion to Dismiss under Rule 12(b)(6) 12 PAGA “authorizes an employee to bring an action for 13 civil penalties on behalf of the state against [their] employer 14 for Labor Code violations committed against the employee and 15 fellow employees, with most of the proceeds of that litigation 16 going towards the state.” Sakkab v. Luxottica Retail N. Am., 17 Inc., 804 F.3d 425, 429 (9th Cir. 2015). The employees bringing 18 the action do so as agents or proxies of the state’s labor law 19 enforcement agencies. See id. at 435. “The civil penalties 20 recovered on behalf of the state under the PAGA are distinct from 21 the statutory damages to which employees may be entitled in their 22 individual capacities.” Iskanian v. CLS Transportation Los 23 Angeles, LLC, 59 Cal. 4th 348, 381 (2014). 24 Federal Rule 12(b)(6) allows a defendant to assert a 25 defense by motion for “failure to state a claim upon which relief 26 can be granted.” Fed. R. Civ. P. 12(b)(6). The inquiry before 27 the court is whether, accepting the allegations in the complaint 28 as true and drawing all reasonable inferences in the plaintiff’s 1 favor, the plaintiff has stated a claim to relief that is 2 plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 3 (2009). “The plausibility standard is not akin to a ‘probability 4 requirement,’ but it asks for more than a sheer possibility that 5 a defendant has acted unlawfully.” Id. at 678. “Threadbare 6 recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Id. 8 Defendants contend that plaintiff is barred from 9 pursuing his PAGA cause of action because a substantially similar 10 suit pursuing the same PAGA claims on behalf of the same group of 11 employees is pending in state court. See Sifuentes v. Roofline, 12 Inc., Case No. 34-2019-00269947-CU-OE-GDS (Sacramento Sup. Ct., 13 filed Nov. 27, 2019) (“Sifuentes action”).1 The plain language 14 of California Labor Code § 2699(h) bars an employee from bringing 15 a PAGA action when the LWDA has cited an employer or pursued 16 action against them. See Tan v. Grubhub, Inc., 171 F. Supp. 3d 17 998, 1012 (N.D. Cal. 2017). However, the statute is silent with 18 respect to whether an employee may bring a PAGA action when 19 another private plaintiff has already sued the employer in a 20 1 Defendants request that the court take judicial notice 21 of three documents. (See generally RJN.) These documents are: 22 (a) a true and correct copy of the First Amended Complaint in Sifuentes v. Roofline, Inc., Case No. 34-2019-00269947-CU-OE-GDS 23 (Sacramento Sup. Ct., filed Nov. 27, 2019; First Am. Compl. filed July 8, 2020), (b) the November 27, 2019 Notice under Cal. Lab. 24 Code § 2699.3 filed by Sifuentes with the California Department of Industrial Relations and (c) a copy of the May 8, 2020 25 stipulation and the Sacramento Superior Court’s June 22, 2020 order permitting Sifuentes to file a First Amended Complaint. 26 Plaintiff has not objected. Accordingly, the court grants the 27 defendants’ request for judicial notice of documents from the Sifuentes proceedings in state court and from the LWDA. 28 1 representative capacity. See id. 2 Defendants have not cited a single case that bars 3 successive suits by different employees. Defendants principally 4 rely on dicta in Stafford v. Dollar Tree Stores, Inc., No. 13-cv- 5 1187 KJM CKD, 2014 WL 6633396, at *3 (E.D. Cal. Nov. 21, 2014) 6 and Brown v. Ralph’s Grocery Co., 197 Cal. App. 4th 489, 501 (2nd 7 Dist. 2012). These cases note that California Labor Code § 8 2699(h) prohibits an action by an aggrieved employee when the 9 agency or any of its divisions or employees are directly pursuing 10 enforcement against the employer on the same facts and theories 11 under the same section(s) of the Labor Code. See Cal. Lab. Code 12 § 2699(h). But, as the Tan court observed, the issue at bar here 13 was not raised in these cases nor do they explain why the section 14 “should be read to include deferring a suit by private plaintiffs 15 when the statutory language makes no such provision.” Tan, 171 16 F. Supp. 3d at 1012. 17 Here, the LWDA has not appeared in either case, nor 18 does it appear to have independently pursued an action against 19 Roofline based on the same facts and theories at issue. A 20 different analysis would be required if a judgment had been made 21 in the Sifuentes action, as it could be argued that such a 22 judgment would be binding on government agencies and any 23 aggrieved employee not a party to the proceeding. However, the 24 mere pendency of the Sifuentes action does not bar plaintiff’s 25 PAGA cause of action. Accordingly, the court will deny the 26 motion to dismiss. 27 II. Stay of PAGA Cause of Action 28 Defendants additionally contend that the court should 1 dismiss or stay plaintiff’s tenth cause of action under PAGA 2 pursuant to the abstention doctrine set forth in Colorado River 3 Water Conservation District v. United States, 424 U.S. 800 4 (1976), due to the greater progress of Sifuentes’ state-court 5 action.2 (See Mot. to Dismiss at 6–9.) Because the court will 6 stay plaintiff’s tenth cause of action pursuant to its inherent 7 authority to control the disposition of the cases on its docket, 8 the court need not delve into the parties’ arguments under the 9 Colorado River doctrine. 10 The power to stay proceedings “is incidental to the 11 power inherent in every court to control the disposition of the 12 cases on its docket with economy of time and effort for itself, 13 for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 14 248, 254 (1936). District courts ordinarily have authority to 15 issue stays where such a stay would be a proper exercise of 16 discretion. See Rhines v. Weber, 544 U.S. 269, 276 (2005). 17 Consideration of such a stay calls for “the exercise of judgment 18 2 Defendants argue that “[i]t is well accepted that a 19 party may move under Federal Rule of Civil Procedure 12(b)(1) to dismiss or stay an action pursuant to the Colorado River 20 doctrine.” (Mot. to Dismiss at 3.) The cases that defendants cite for this proposition do not support this point. See, e.g. 21 Fireman’s Fund Ins. Co. v. Quackenbush, 87 F.3d 290, 298 (9th 22 Cir. 1996); Am. Int’l Underwriters (Philippines), Inc. v. Continental Ins. Co., 84 F.2d 1253, 1261 (9th Cir. 1988); 23 Robinson v. Nestle Waters N. Am., Inc., Case No. CIV-S-11-856- LKK/KJN, 2011 WL 2174375 (E.D. Cal. June 1, 2011). Those cases 24 discuss dismissal under Colorado River, but do not hold that moving to dismiss under Colorado River constitutes a 12(b)(1) 25 motion. A motion to dismiss under Rule 12(b)(1) seeks dismissal of an action over which a court lacks subject matter 26 jurisdiction. See Fed. R. Civ. P. 12(b)(1). In contrast, the 27 Colorado River doctrine applies where the court has jurisdiction over the matter but is declining or postponing the exercise of 28 this jurisdiction. See Colorado River, 424 U.S. at 817. 1 which must weigh competing interests and maintain an even 2 balance.” See Landis, 299 U.S. at 254–55. Here, plaintiff’s 3 case was only filed in this court very recently, in late July of 4 2020. ((See generally Compl.) From the limited information that 5 the court has received from defendants in their motion and at 6 oral argument, the Sifuentes action appears to be proceeding 7 regularly in state court. Plaintiff’s counsel has provided no 8 persuasive reason why the PAGA claim in this case should go 9 forward before completion of the Sifuentes action. Due to the 10 progress of the Sifuentes action in state court, this court 11 concludes it is in the best interest of judicial economy to stay 12 plaintiff’s tenth cause of action in this action pending a 13 determination of the PAGA claims in the Sifuentes action. 14 IT IS THEREFORE ORDERED that defendants’ motion to 15 dismiss pursuant to 12(b)(6) (Docket No. 4) be, and the same 16 hereby is, DENIED. 17 IT IS FURTHER ORDERED THAT the Tenth Cause of Action of 18 the Complaint is hereby STAYED pending the resolution of 19 Sifuentes v. Roofline, Inc., Case No. 34-2019-00269947-CU-OE-GDS, 20 in the Superior Court of the State of California, in and for the 21 County of Sacramento. This Order does not affect the remaining 22 causes of action of the Complaint. 23 The parties shall file a joint status report within 14 24 days after the resolution of Sifuentes v. Roofline, Inc. Should 25 the resolution of the Sifuentes case not dispose of plaintiff’s 26 tenth cause of action, the parties’ joint status report shall set 27 forth an agreed proposed date for a status conference and agreed 28 proposed deadlines, including for any motion to dismiss by wOAOe 2 OU UV VE VOU YY RYDER MVOC OPIN ee YN
1 defendants. 2 IT IS SO ORDERED. 3 | Dated: September 23, 2020 □□ tteom. Ad. bt—~ 4 WILLIAMB.SHUBB ©. | UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28