Rose v. Cemex Construction Materials Pacific, LLC

• Court: District Court, E.D. California
• Decided: January 26, 2024
• Docket: 2:23-cv-01979
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 ROBERT ROSE and PAUL SIMI, on No. 2:23-cv-01979 WBS AC behalf of themselves and those 13 similarly situated, 14 Plaintiffs, MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION TO REMAND 15 v. AND DEFENDANT’S MOTION TO DISMISS 16 CEMEX CONSTRUCTION MATERIALS PACIFIC, LLC, and DOES 1 through 17 50, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiffs Robert Rose and Paul Simi brought this 22 putative labor class action against Cemex Construction Materials 23 Pacific, LLC, a cement pouring company that employed plaintiffs 24 as cement truck drivers, in Sacramento Superior Court. Defendant 25 removed to federal court. Plaintiffs allege multiple violations 26 of California law, including (1) failure to pay wages for all 27 hours worked, Cal. Lab. Code § 216; (2) failure to pay wages at 28 agreed upon rates, id. §§ 221-223; (3) failure to pay overtime 1 wages, id. § 510; (4) failure to pay meal period premiums, id. § 2 512; (5) failure to timely pay wages, id. § 204; (6) failure to 3 provide accurate itemized wage statements, id. § 226; (7) failure 4 to pay wages upon termination of employment, id. §§ 201-203; and 5 (8) unfair competition, Cal. Bus. & Prof. Code § 17200. (Compl. 6 (Docket No. 1-1 at 16-33).) 7 Defendant moves to dismiss the action in its entirety 8 (Docket No. 6), arguing that the claims are preempted by the 9 Labor Management Relations Act (“LMRA”) and that plaintiffs 10 failed to satisfy the requirement under the LMRA that plaintiffs 11 exhaust the remedies provided for by the collective bargaining 12 agreements (“CBAs”). Plaintiffs move to remand the action 13 (Docket No. 12), arguing that the court lacks federal question 14 jurisdiction because the LMRA does not preempt their claims. 15 I. Judicial Notice 16 Defendant requests that the court take judicial notice 17 of multiple documents. (Docket No. 60-2.) Though a court 18 generally may not consider material outside the complaint on a 19 motion to dismiss, the court may look beyond the pleadings at 20 “matters of which a court may take judicial notice.” Tellabs, 21 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). 22 Under Federal Rule of Evidence 201, a court may take judicial 23 notice of an adjudicative fact that is “not subject to reasonable 24 dispute because it: (1) is generally known within the trial 25 court’s territorial jurisdiction; or (2) can be accurately and 26 readily determined from sources whose accuracy cannot reasonably 27 be questioned.” Fed. R. Evid. 201(b). 28 Defendant requests that the court take judicial notice 1 of the applicable CBAs. Plaintiffs do not dispute the accuracy 2 of the CBAs provided by defendant and do not object to the court 3 taking judicial notice of the CBAs. (See Docket No. 11-1.) “It 4 is often necessary to consider the contents of a CBA to decide a 5 motion to dismiss based on an argument of complete preemption, 6 which is considered an ‘independent corollary to the well-pleaded 7 complaint rule.’” Patrick v. Nat’l Football League, No. 23-cv- 8 1069 DMG SHK, 2023 WL 6162672, at *3 (C.D. Cal. Sept. 21, 2023) 9 (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393 10 (1987)). See also Hall v. Live Nation Worldwide, Inc., 146 F. 11 Supp. 3d 1187, 1192–93 (C.D. Cal. 2015) (quoting Parrino v. FFIP, 12 Inc., 146 F.3d 699, 704 (9th Cir. 1998)) (taking judicial notice 13 of CBA “‘because complete preemption often applies to complaints 14 drawn to evade federal jurisdiction,’” and therefore “‘the court 15 may look beyond the face of the complaint to determine whether 16 the claims alleged as state law causes of action in fact are 17 necessarily federal claims’”) (alterations adopted). The court 18 therefore takes judicial notice of Exhibit 1 and Exhibit 2 to 19 defendant’s Request for Judicial Notice, which are the CBAs 20 covering July 1, 2018 through June 30, 2021, and July 1, 2021 21 through June 30, 2024, respectively. 22 The court further takes judicial notice of Exhibit 4 to 23 defendant’s Request for Judicial Notice, which is an information 24 page concerning the California minimum wage. This document was 25 retrieved from the State of California Department of Industrial 26 Relations website and is therefore a matter of public record not 27 subject to reasonable dispute. See Khoja v. Orexigen 28 Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018); Gerritsen 1 v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2 2015).1 3 II. LMRA Preemption 4 The court will first address the underlying question of 5 whether the claims are preempted by the LMRA, and then turn to 6 the motions to remand and dismiss. 7 Section 301 of the LMRA provides federal question 8 jurisdiction over “suits for violation of contracts between an 9 employer and a labor organization.” 29 U.S.C. § 185(a). Here, 10 there was a CBA between defendant and a union. (See Ex. 1, 2.) 11 “[T]he Supreme Court has interpreted [section 301] to compel the 12 complete preemption of state law claims brought to enforce 13 collective bargaining agreements.” Valles v. Ivy Hill Corp., 410 14 F.3d 1071, 1075 (9th Cir. 2005) (citing Avco Corp. v. Aero Lodge 15 No. 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 16 557, 560 (1968)). 17 Whether a claim is preempted by the LMRA is a two-step 18 inquiry. First, a court must determine whether the asserted 19 claim involves a right which “exists solely as a result of the 20 CBA” or “by virtue of state law.” Kobold v. Good Samaritan Reg’l 21 Med. Ctr., 832 F.3d 1024, 1032 (9th Cir. 2016) (internal 22 quotation marks omitted). If the right exists solely because of 23 the CBA, then the state law claim is preempted. Id. If the 24 right exists independently of the CBA, then the court must move 25 to the second step, “asking whether the right is nevertheless 26 substantially dependent on analysis of a [CBA].” Id. (internal 27 1 The court does not take judicial notice of Exhibit 3, 28 which is not necessary to resolution of the motions. 1 quotation marks omitted). If it is, then the state law claim is 2 preempted. 3 A. First Claim 4 The court first examines whether plaintiffs’ first 5 claim for failure to pay wages for all hours worked under Cal. 6 Lab. Code § 216 involves a right which “exists solely as a result 7 of the CBA” or “by virtue of state law.” See Kobold, 832 F.3d at 8 1032. For the first step of the preemption inquiry, “a court 9 must focus its inquiry on the legal character of a claim . . . 10 and not whether a grievance [under the CBA] arising from 11 precisely the same set of facts could be pursued.” Id. at 1033 12 (quoting Caterpillar, 482 U.S. at 394) (emphasis in original). 13 “Only if the claim is ‘founded directly on rights created by a 14 collective-bargaining agreement’ does § 301 preempt it.” Id. 15 (quoting Livadas v. Bradshaw, 512 U.S. 107, 123 (1994)). Claims 16 are not preempted under the first step “if they just refer to a 17 CBA-defined right, rely in part on a CBA’s terms of employment, 18 run parallel to a CBA violation, or invite use of the CBA as a 19 defense.” Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 921 20 (9th Cir. 2018) (en banc) (internal citations omitted). 21 Plaintiffs’ claim under § 216 clearly does not arise 22 directly from the CBAs, but rather from the California Labor 23 Code. And “‘the mere existence of a CBA does not compel 24 preemption of plaintiff’s state law . . . claims.’” See McGinty 25 v. Holt of Cal., No. 2:22-cv-00865 WBS AC, 2022 WL 3226130, at *2 26 (E.D. Cal. Aug. 10, 2022) (quoting Miller v. Bimbo Bakeries USA, 27 Inc., No. 11-cv-00378 WHA, 2011 WL 1362171, at *3 (N.D. Cal. Apr. 28 11, 2011)) (alterations adopted). The court therefore turns to 1 the second step of the inquiry. 2 “[T]o determine whether a state [statutory claim] is 3 ‘substantially dependent’ on the terms of a CBA” under the second 4 step of the test, a court must “decide whether the claim can be 5 resolved by looking to versus interpreting the CBA.” Burnside v. 6 Kiewit Pac. Corp., 491 F.3d 1053, 1060 (9th Cir. 2007). A state 7 statutory claim that requires “interpreting” a CBA is said to be 8 “substantially dependent” on the CBA, and thus preempted by LMRA 9 section 301. Id. A state statutory claim that merely requires 10 “looking to” a CBA, on the other hand, is said not to be 11 “substantially dependent” on the CBA, and thus is not preempted 12 by the LMRA. Id. “At this second step of the analysis, claims 13 are only preempted to the extent there is an active dispute over 14 the meaning of contract terms.” Curtis v. Irwin Indus., Inc., 15 913 F.3d 1146, 1153 (9th Cir. 2019) (internal quotation marks 16 omitted). 17 Defendant does not detail what interpretation of -- 18 rather than mere reference to -– the CBAs would be required to 19 resolve the first claim. The motion provides excerpts of the 20 CBAs that lay out the relevant wage and hour terms but does not 21 explain which terms would potentially be contested. There is no 22 indication that there are any “questions about the scope, 23 meaning, or application of” the terms establishing the hour 24 calculations and rates of pay. See Livadas, 512 U.S. at 125. 25 As far as the court can see, resolving plaintiffs’ 26 first claim would only require “looking to” the CBAs to aid in 27 calculating the hours and pay rates to be used in determining 28 whether defendant violated the Labor Code. See Burnside, 491 1 F.3d at 1060. The court therefore concludes that plaintiffs’ 2 first claim is not preempted by the LMRA. See Livadas, 512 U.S. 3 at 125 (claims under California Labor Code were not preempted by 4 LMRA where, “[b]eyond the simple need to refer to bargained-for 5 wage rates in computing the penalty, the collective-bargaining 6 agreement [was] irrelevant to the dispute”); Beck v. Saint-Gobain 7 Containers, No. 2:16-cv-03638 CAS SK, 2016 WL 4769716, at *5 8 (C.D. Cal. Sept. 12, 2016) (LMRA does not preempt a claim where 9 “the terms of the CBA will only be considered by way of reference 10 and will not be reasonably disputed by the parties”). 11 B. Second Claim 12 Plaintiffs’ second claim alleges that defendant failed 13 to pay agreed-upon wages in violation of California Labor Code §§ 14 221-23. 15 Defendant argues that plaintiffs’ second claim is 16 preempted at step one because, insofar as it is brought under 17 sections 222 and 223, it expressly relies upon the CBAs. Section 18 222 makes it “unlawful, in case of any wage agreement arrived at 19 through collective bargaining . . . to withhold from said 20 employee any part of the wage agreed upon.” Id. § 222 (emphasis 21 added). Section 223 provides that “[w]here any statute or 22 contract requires an employer to maintain the designated wage 23 scale, it shall be unlawful to secretly pay a lower wage while 24 purporting to pay the wage designated by statute or by contract.” 25 Id. § 223 (emphasis added). 26 The court is unconvinced. In Schurke, the en banc 27 Ninth Circuit considered a preemption challenge to a “state law 28 right to reschedule vacation leave for family medical purposes” 1 where the plaintiff’s “underlying right to vacation leave” was 2 established by a CBA. 898 F.3d at 913. Like California Labor 3 Code §§ 222-23, the state statute at issue in Schurke expressly 4 relied upon the terms established by CBAs. See id. at 914. The 5 Ninth Circuit nonetheless concluded that the claim at issue arose 6 directly from state law at step one because the plaintiff alleged 7 a violation of a “state law right,” not the CBA itself. See id. 8 at 927. See also Sarmiento v. Sealy, Inc., 367 F. Supp. 3d 1131, 9 1143-44 (N.D. Cal. 2019) (collecting cases and concluding that 10 claims arising under California Labor Code sections 222 and 223 11 are not preempted). Here, plaintiffs similarly allege violation 12 of a state law right, namely the right to agreed-upon wages. The 13 second claim therefore arises from state law rather than directly 14 from the CBAs. 15 The court thus turns to the second step. As with the 16 first claim, defendants have not pointed to any potentially 17 contested term that might require that the court interpret, 18 rather than merely refer to, the CBAs at issue in determining 19 whether it violated the California Labor Code. The second claim 20 is therefore not preempted by the LMRA. 21 C. Third Claim 22 Plaintiffs’ third claim alleges that defendant failed 23 to pay overtime wages in violation of California Labor Code § 24 510. Section 510 provides that the “requirements of this section 25 do not apply to the payment of overtime compensation to an 26 employee working pursuant to . . . [a]n alternative workweek 27 schedule adopted pursuant to a collective bargaining agreement 28 pursuant to Section 514.” Cal. Lab. Code § 510(a)(2). Section 1 514 states that “Sections 510 and 511 do not apply to an employee 2 covered by a valid collective bargaining agreement if the 3 agreement expressly provides for the wages, hours of work, and 4 working conditions of the employees, and if the agreement 5 provides premium wage rates for all overtime hours worked and a 6 regular hourly rate of pay for those employees of not less than 7 30 percent more than the state minimum wage.” Id. § 514. “By 8 its terms, therefore . . . section 510 does not apply to an 9 employee who is subject to a qualifying CBA.” Curtis, 913 F.3d 10 at 1153–54. 11 As explained by the Ninth Circuit in Curtis, if the 12 applicable CBA “meet[s] the requirements of section 514, [the 13 employee’s] right to overtime exists solely as a result of the 14 CBA, and therefore is preempted under § 301.” Id. at 1154 15 (internal quotation marks omitted). The CBAs here plainly meet 16 these requirements, which plaintiffs do not appear to dispute. 17 (See Ex. 1 at 2-17, Ex. 2 at 4-19 (providing wage and hour 18 policies, descriptions of job duties and various working 19 conditions, overtime premiums for all employees, and a starting 20 minimum wage rate of $28.36 for concrete truck drivers); Ex. 4 at 21 2 (stating that California’s minimum wage for employers with 26 22 employees or more was $11 in 2018 and increased to $15.50 by 23 2023).) Plaintiffs’ third claim is therefore completely 24 preempted by the LMRA. See Curtis, 913 F.3d at 1154. 25 Plaintiffs try to distinguish the instant case from 26 Curtis on the basis that the claim does not require 27 interpretation of the underlying CBAs; however, this argument 28 confuses the analysis. Whether the claim requires interpretation 1 of a CBA is part of the second step of the analysis, not the 2 first. As the court has concluded, the third claim is preempted 3 at step one. 4 C. Fourth Claim 5 Plaintiffs’ fourth claim alleges that defendant failed 6 to pay meal period premiums in violation of California Labor Code 7 § 512. Section 512’s protections do not extend to certain 8 employees, including those in construction occupations, who are 9 covered by a valid collective bargaining agreement that 10 “expressly provides for the wages, hours of work, and working 11 conditions of employees, and expressly provides for meal periods 12 for those employees, final and binding arbitration of disputes 13 concerning application of its meal period provisions, premium 14 wage rates for all overtime hours worked, and a regular hourly 15 rate of pay of not less than 30 percent more than the state 16 minimum wage rate.” See Cal. Lab. Code § 512(e)-(f). Plaintiffs 17 are engaged in a construction occupation and the CBAs here 18 plainly meet section 512(e)’s requirements, which plaintiffs do 19 not appear to dispute. (See Ex. 1 at 2-23, Ex. 2 at 4-24 20 (providing wage and hour policies, descriptions of job duties and 21 various working conditions, meal periods for all employees, final 22 and binding arbitration of meal period grievances, overtime 23 premiums for all employees, and a starting minimum wage rate of 24 $28.36 for concrete truck drivers); Ex. 4 at 2 (stating that 25 California’s minimum wage for employers with 26 employees or more 26 was $11 in 2018 and increased to $15.50 by 2023).) 27 As discussed above, the Ninth Circuit in Curtis held 28 that because section 514 excludes employees who are subject to a 1 qualifying CBA from the protections of section 510, claims under 2 section 510 are completely preempted when there is a qualifying 3 CBA. See 913 F.3d 1154. Curtis did not address whether claims 4 subject to section 512’s CBA exception are completely preempted. 5 However, “both sections 512 and 514 have nearly identical 6 exemptions that make the rights they confer negotiable.” 7 Radcliff v. San Diego Gas & Elec. Co., 519 F. Supp. 3d 743, 751– 8 52 (S.D. Cal. 2021). The court therefore “sees no reason why 9 Curtis should not be extended to preempt meal period claims made 10 by an employee who falls within the exemption set forth in 11 section 512(e).” See id. 12 In line with this conclusion, the Ninth Circuit has 13 extended Curtis’s logic to section 512’s CBA exemption in an 14 unpublished memorandum decision. See Marquez v. Toll Glob. 15 Forwarding, 804 F. App’x 679, 680 (9th Cir. 2020). Multiple 16 district courts have similarly applied Curtis to section 512. 17 See, e.g., Radcliff, 519 F. Supp. 3d at 751-52; Schwanke v. Minim 18 Prods., Inc., No. 2:21-cv-00111 SVW JPR, 2021 WL 4924772, at *2 19 (C.D. Cal. May 24, 2021); Rodriguez v. USF Reddaway Inc., No. 20 2:22-cv-00210 TLN DB, 2022 WL 18012518, at *4 (E.D. Cal. Dec. 30, 21 2022); Jimenez v. Young’s Mkt. Co., LLC, No. 21-cv-02410 EMC, 22 2021 WL 5999082, at *11 (N.D. Cal. Dec. 20, 2021); Blackwell v. 23 Com. Refrigeration Specialists, Inc., No. 2:20-cv-01968 KJM CKD, 24 2021 WL 2634501, at *5 (E.D. Cal. June 25, 2021). The court 25 agrees with this line of cases and therefore concludes that 26 plaintiffs’ fourth claim under section 512 is completely 27 preempted by the LMRA. 28 Plaintiffs argue that the exemption does not apply here 1 because the CBAs provide that defendant “will comply with all 2 applicable law and regulations governing meal periods” (see Ex. 1 3 at 7, Ex. 2 at 9), indicating a contractual intent for section 4 512’s protections to apply. The court is unpersuaded. The 5 unambiguous text of section 512 mandates that all employees be 6 excluded from the section’s protections when an applicable CBA 7 has the required terms, without regard to the intent of the 8 parties. See Cal. Lab. Code § 512(e). 9 Even if the court accepted plaintiffs’ argument, the 10 claim would be preempted at step two of the analysis. By arguing 11 that language from the CBA indicates that the parties intended to 12 circumvent section 512’s CBA exemption, plaintiffs have put the 13 meaning of a contract term at issue. As a result, the court 14 would be required to interpret, rather than merely refer to, the 15 terms of the CBA in deciding the claim. See Burnside, 491 F.3d 16 at 1060-61. The claim would therefore be preempted. See id.; 17 Curtis, 913 F.3d at 1153. 18 D. Fifth Claim 19 Plaintiffs’ fifth claim alleges that defendant failed 20 to timely pay wages in violation of California Labor Code § 204. 21 Section 204 provides that “when employees are covered by a 22 collective bargaining agreement that provides different pay 23 arrangements [than those provided for in section 204], those 24 arrangements shall apply to the covered employees.” Cal. Lab. 25 Code § 204(c). The CBAs here plainly meet these requirements. 26 (Compare Ex. 1 at 9, Ex. 2 at 10 (“All employees will be paid 27 their wages at regular weekly paydays.”) with Cal. Lab. Code § 28 204(a) (“All wages . . . are due and payable twice during each 1 calendar month . . . .”).) 2 As discussed above, the Ninth Circuit in Curtis held 3 that claims subject to a statutory exception are completely 4 preempted. See 913 F.3d 1154. Several district courts have 5 extended Curtis’s reasoning to section 204. See, e.g., Renteria- 6 Hinjosa v. Sunsweet Growers, Inc., No. 2:23-cv-01413 DJC DB, 2023 7 WL 6519308, at *4 (E.D. Cal. Oct. 5, 2023); Ariola v. Raytheon CA 8 Techs. Corp., No. 23-cv-4664 MWF AGR, 2023 WL 5764296, at *7 9 (C.D. Cal. Sept. 6, 2023); Johnson v. San Francisco Health Care & 10 Rehab Inc., No. 22-cv-01982 JSC, 2022 WL 2789809, at *9 (N.D. 11 Cal. July 15, 2022); Tolentino v. Gillig, LLC, No. 20-cv-7427 12 MMC, 2021 WL 121193, at *3 (N.D. Cal. 2021). The CBA exception 13 under section 204 operates similarly to the exception discussed 14 in Curtis, and as such the court “sees no principled reason why 15 the holding of Curtis would not extend to section 204 claims.” 16 See Ariola, 2023 WL 5764296, at *8. The court therefore 17 concludes that plaintiffs’ fifth claim under section 204 is 18 completely preempted by the LMRA. 19 E. Sixth, Seventh, and Eighth Claims 20 Plaintiffs’ sixth claim alleges failure to provide 21 accurate itemized wage statements, Cal. Lab. Code § 226; the 22 seventh claim alleges failure to pay wages owed upon termination 23 of employment, id. §§ 201-203; and the eighth claim alleges 24 unfair competition, Cal. Bus. & Prof. Code § 17200. Defendant 25 argues only that because plaintiffs’ first through fifth claims 26 are preempted, the remaining claims –- which, as pled, are 27 derivative of the first through fifth claims –- must also fail. 28 However, as discussed above, the first and second claims are not 1 preempted. The court therefore concludes that the sixth, 2 seventh, and eighth claims are not preempted by the LMRA. 3 III. Motion to Remand 4 “Under 28 U.S.C. § 1441, a defendant may remove an 5 action filed in state court to federal court if the federal court 6 would have original subject matter jurisdiction over the action.” 7 Moore-Thomas v. Ala. Airlines, Inc., 553 F.3d 1241, 1243 (9th 8 Cir. 2009). If “it appears that the district court lacks subject 9 matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 10 1447(c). 11 Federal courts have original jurisdiction over actions 12 arising under federal law. 28 U.S.C. § 1331. Pursuant to the 13 doctrine of complete preemption, a state law claim preempted by 14 section 301 of the LMRA “is considered, from its inception, a 15 federal claim, and therefore arises under federal law.” Balcorta 16 v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th 17 Cir. 2000). Such claims may be removed to and heard in federal 18 court. Jackson v. S. California Gas Co., 881 F.2d 638, 646 (9th 19 Cir. 1989). 20 As explained above, several of plaintiffs’ state law 21 claims are completely preempted by section 301 of the LMRA. 22 Accordingly, the court has federal question jurisdiction and will 23 deny plaintiffs’ motion to remand. 24 IV. Motion to Dismiss 25 “Prior to bringing suit, an employee seeking to 26 vindicate personal rights under a collective bargaining agreement 27 must first attempt to exhaust any mandatory or exclusive 28 grievance procedures provided in the agreement.” Soremekun v. 1 Thrifty Payless, Inc., 509 F.3d 978, 985–86 (9th Cir. 2007). 2 Therefore, a claim preempted by section 301 of the LMRA should be 3 dismissed if brought by an employee who failed to exhaust the 4 applicable CBA’s mandatory grievance procedure. See Kobold, 832 5 F.3d at 1036. 6 At oral argument, plaintiff conceded that all claims 7 arising under the CBAs must be grieved pursuant to the procedures 8 outlined therein. Defendant argues that because plaintiffs do 9 not plead that they utilized the mandatory grievance procedures 10 outlined in the CBAs, the preempted claims must be dismissed. As 11 explained above, the court concludes that the third, fourth, and 12 fifth claims are completely preempted by the LMRA. Because 13 plaintiffs do not plead that they exhausted the remedies provided 14 for in the CBAs, those claims must be dismissed. 15 Also as explained above, the court concludes that the 16 first, second, sixth, seventh, and eighth claims are not 17 preempted by the LMRA. Accordingly, the motion to dismiss those 18 claims will be denied. 19 IT IS THEREFORE ORDERED that plaintiffs’ motion to 20 remand (Docket No. 12) be, and the same hereby is, DENIED. 21 IT IS FURTHER ORDERED that defendant’s motion to 22 dismiss (Docket No. 6) be, and the same hereby is, GRANTED as to 23 the third claim for overtime wages, fourth claim for failure to 24 pay meal period premiums, and fifth claim for failure to timely 25 pay wages, which are hereby DISMISSED. The motion to dismiss is 26 DENIED in all other respects. 27 Plaintiffs have twenty days from the date of this Order 28 to file an amended complaint, if they can do so consistent with enn enone nn nn nn nn nn nn en OI IEE OD NE

1 this Order. . 2 Dated: January 25, 2024 ehh A, ha bee WILLIAM B. SHUBB 3 UNITED STATES DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16