Tercero v. C&S Logistics of Sacramento/Tracy LLC

• Court: District Court, E.D. California
• Decided: November 18, 2024
• Docket: 2:24-cv-02228
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TENIAH TERCERO, No. 2:24-cv-02228-DC-JDP 12 Plaintiff, 13 v. ORDER GRANTING PLAINTIFF’S MOTION TO REMAND AND REMANDING THIS 14 C&S LOGISTICS OF ACTION TO THE SACRAMENTO COUNTY SACRAMENTO/TRACY LLC, et al., SUPERIOR COURT 15 Defendants. (Doc. No. 10) 16 17 This matter is before the court on Plaintiff Teniah Tercero’s motion to remand this action 18 to the Sacramento County Superior Court. (Doc. No. 10.) The pending motion was taken under 19 submission to be decided on the papers pursuant to Local Rule 230(g). (Doc. No. 16.) For the 20 reasons explained below, the court will grant Plaintiff’s motion. 21 BACKGROUND 22 Defendants C&S Wholesale Grocers, LLC, and C&S Logistics of Sacramento/Tracy LLC 23 (“Defendants”) employed Plaintiff from July 2021 through August 2022, as an hourly non- 24 exempt employee in California. (Doc. Nos. 1 at ¶ 9; 1-1 at ¶¶ 8, 13.) On July 1, 2024, Plaintiff 25 filed this representative action under California’s Private Attorneys General Act, California Labor 26 Code §§ 2698, et seq., (“PAGA”), on behalf of herself and all other aggrieved employees, in the 27 Sacramento County Superior Court. (Doc. No. 1 at ¶ 1.) In her complaint, Plaintiff raises a single 28 cause of action against Defendants for violation of PAGA, predicated on Defendants’ alleged 1 violation of California’s wage and hour laws, including: 2 (1) failure to pay for all hours worked, including minimum, straight time, and overtime wages; (2) failure to provide meal 3 periods; (3) failure to authorize and permit rest breaks; (4) failure to pay all earned wages twice per month; (5) failure to 4 maintain accurate records of hours worked and meal periods; (6) failure to timely pay all wages at termination; (7) failure 5 to furnish accurate itemized wage statements; (8) failure to indemnify for necessary expenditures; and (9) failure to 6 produce requested employment records. 7 (Doc. No. 1-1 at ¶¶ 15–53.) 8 Defendants timely removed this action to federal court from the Sacramento County 9 Superior Court on August 16, 2024. (Doc. No. 1.) In their notice of removal, Defendants assert 10 this court has original jurisdiction over this action pursuant to both diversity and federal question 11 jurisdiction. (Id.) As to the latter, Defendants argue Plaintiff’s allegations that they violated 12 California’s wage and hour laws—the predicate for Plaintiff’s PAGA claim—are preempted 13 under the Labor Management Relations Act, 29 U.S.C. § 185 (“LMRA”). (Id.) In support of 14 removal, Defendants concurrently filed collective bargaining agreements between General 15 Teamsters Local #150 (“the Union”) and Defendants (“the CBAs”). (Doc. No. 3.) 16 Plaintiff filed the pending motion to remand this action back to Sacramento County 17 Superior Court on September 16, 2024. (Doc. No. 10.) Defendants filed an opposition to 18 Plaintiff’s motion to remand on September 30, 2024. (Doc. No. 15.) Plaintiff then filed a reply 19 and a request for judicial notice in support of her motion on October 10, 2024. (Doc. Nos. 17– 20 18.)1 21 LEGAL STANDARD 22 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized 23 by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (citing Kokkonen v. 24 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A federal district court has jurisdiction 25

1 Plaintiff requests the court take judicial notice of eight class actions that were remanded to 26 California state court. (Doc. No. 24.) The eight remand orders appear to be largely based on 27 unreasonable estimates of labor code violation rates. (See generally id.) Because the court finds remand of this action appropriate on other grounds, the court need not address Plaintiff’s request 28 for judicial notice. 1 over a civil action removed from state court only if the action could have been brought in the 2 federal court originally. 28 U.S.C. § 1441(a); See Libhart v. Santa Monica Dairy Co., 592 F.2d 3 1062, 1064 (9th Cir. 1979) (“The removal jurisdiction of the federal courts is derived entirely 4 from the statutory authorization of Congress.”). 5 Federal courts possess diversity jurisdiction over all civil actions between citizens of 6 different states in which the alleged amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). 7 The amount in controversy includes “all relief claimed at the time of removal to which the 8 plaintiff would be entitled if [they] prevail,” Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 9 418 (9th Cir. 2018), which may include “damages (compensatory, punitive, or otherwise) . . . as 10 well as attorneys’ fees under fee shifting statutes.” Gonzales v. CarMax Auto Superstores, LLC, 11 840 F.3d 644, 648 (9th Cir. 2016). “A removing defendant’s notice of removal need not contain 12 evidentiary submissions but only plausible allegations of jurisdictional elements.” Arias v. 13 Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019) (quoting Ibarra v. Manheim Invs., 14 Inc., 775 F.3d 1193, 1197 (9th Cir. 2015)). However, if a plaintiff then contests the allegations in 15 the notice of removal, both sides may “submit proof and the court decides, by a preponderance of 16 the evidence, whether the amount in controversy requirement has been satisfied.” Dart Cherokee 17 Basin Operating Co., LLC v. Owens, 574 U.S. 81, 82 (2014); see also Johnson v. Wal-Mart 18 Assocs. Inc., No. 22-cv-07425-MWF-MRW, 2023 WL 2713988, at *4 (C.D. Cal. Mar. 30, 2023) 19 (finding the standards set forth in Dart and subsequent cases in this circuit are not limited to Class 20 Action Fairness Act removals). 21 A plaintiff may challenge the allegations in the notice of removal in two ways. First, a 22 plaintiff may bring a “facial attack” which “accepts the truth of the . . . allegations but asserts that 23 they ‘are insufficient on their face to invoke federal jurisdiction.’” Salter v. Quality Carriers, Inc., 24 974 F.3d 959, 964 (9th Cir. 2014) (quoting Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 25 2014)). When a plaintiff mounts a facial attack, the court resolves it in much the same way as a 26 motion to dismiss—by accepting the allegations as true, drawing all reasonable inferences in the 27 defendant’s favor, and determining whether the allegations are sufficient to invoke the court’s 28 jurisdiction. Id. Alternatively, a plaintiff may bring a “factual attack,” which “contests the truth of 1 the . . . factual allegations, usually by introducing evidence outside the pleadings.” Id. When a 2 plaintiff brings a factual attack, the defendant must support its allegations with “competent proof” 3 under the same evidentiary standard that governs in the summary judgment context. Id. 4 Federal courts also have original jurisdiction of all civil actions arising under the 5 Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 1331. For an action to be 6 removed based on federal questions these civil actions raise, the complaint must establish either 7 that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends 8 on the resolution of substantial questions of federal law. Franchise Tax Bd. State of Cal. v. 9 Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10–13 (1983). 10 Ultimately, the party invoking removal bears the burden of establishing that removal was 11 proper. Hamsen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018) (citing Geographic 12 Expeditions, Inc. v. Estate of Lhotka ex rel. Lhotka, 599 F.3d 1101, 1107 (9th Cir. 2010)); see 13 Gaus v. Miles, Inc., 980 F.2d 564, 566 (1992) (“The ‘strong presumption’ against removal 14 jurisdiction means that the defendant always has the burden of establishing that removal is 15 proper.”) (citations omitted). The removal statutes are to be strictly construed, and any doubt as to 16 the right of removal must be resolved in favor of remanding to state court. Durham v. Lockheed 17 Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006); Matheson v. Progressive Specialty Ins. Co., 18 319 F.3d 1089, 1090 (9th Cir. 2003) (citing Gaus, 980 F.2d at 566). “If at any time before final 19 judgment it appears that the district court lacks subject matter jurisdiction [over the removed 20 action], the case shall be remanded.” 28 U.S.C. § 1447(c). 21 ANALYSIS 22 Plaintiff avers removal was improper because Defendants have failed to demonstrate 23 Plaintiff’s PAGA claim satisfies the amount in controversy requirement for diversity jurisdiction 24 or that Plaintiff’s claim is preempted under the LMRA. (Doc. No. 10.) The court addresses each 25 argument in turn. 26 A. Diversity Jurisdiction 27 With regard to diversity jurisdiction, the parties do not dispute that they have diversity of 28 citizenship; rather, the parties dispute only whether the amount in controversy exceeds $75,000. 1 (Doc. Nos. 10; 15 at 8 n.1.) In their notice of removal, Defendants estimate the amount in 2 controversy includes $36,325.00 for Plaintiff’s individual PAGA penalties and $75,000.00 in 3 attorneys’ fees. (Doc. No. 1 at ¶¶ 58–60.)2 Defendants assert “it is ‘more likely than not’ that 4 Plaintiff will collectively be seeking an attorneys’ fees award based on a lodestar of at least 150 5 hours at not less than $500 per hour—i.e., at least $75,000—if this case is litigated through trial 6 and to a judgment in Plaintiff’s favor on her individual PAGA claims.” (Id. at ¶ 60.) 7 Attorneys’ fees may be included in the amount in controversy when they are available 8 pursuant to a statute or statutes underlying the plaintiff’s claims. Shoner v. Carrier Corp., 30 F. 9 4th 1144, 1148 (9th Cir. 2022) (citing Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 10 1998)). “[W]hen a statute or contract provides for the recovery of attorneys’ fees, prospective 11 attorneys’ fees must be included in the assessment of the amount in controversy.” Arias, 936 F.3d 12 at 922 (citing Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 794 (9th Cir. 2018)). 13 However, district courts may exclude future fees if they are too speculative or if the defendant 14 fails to show with a “reasonable probability that the amount in controversy exceeds the 15 minimum.” Fritsch, 899 F.3d at 795. Under PAGA, “[a]ny employee who prevails in any action 16 shall be entitled to an award of reasonable attorney’s fees and costs.” Cal. Lab. Code § 17 2699(g)(1). Accordingly, the court will consider attorneys’ fees when assessing the amount in 18 controversy for this PAGA action. 19 Defendants assert they proffered a reasonable estimate of Plaintiff’s attorneys’ fees for 20 prosecuting her individual PAGA claim, and Plaintiff did not allege that Defendants’ estimate of 21 attorneys’ fees is inaccurate. (Doc. No. 15 at 18.) Defendants argue because Plaintiff has not 22 disputed that Defendants’ estimated hours or hourly rates were reasonable assumptions, Plaintiff 23 raises only a facial attack and its “allegations must be accepted as true.” (Id. at 18–19) (citing 24 Oddei v. Optum, Inc., No. 2:21-cv-03974-SB-MRW, 2021 WL 3013914, at *3 (C.D. Cal. Jul. 15, 25

2 Following the United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 26 596 U.S. 639 (2022), actions under PAGA are properly understood as a combination of two 27 claims: “individual PAGA claims, which are premised on Labor Code violations actually sustained by the plaintiff” and “representative . . . PAGA claims arising out of events involving 28 other employees.” Viking River, 596 U.S. at 648–49. 1 2021)). 2 The court finds Defendants’ argument unpersuasive. Although Plaintiff had not introduced 3 evidence outside the pleadings in her motion to remand, she expressly questioned the 4 reasonableness of Defendants’ assumption when calculating her counsels’ attorneys’ fees. 5 Plaintiff challenged Defendants’ alleged violation rates and asserted Defendants’ attorneys’ fees 6 assumption is “[f]lawed and [i]mproper” and that the calculation of the amount in controversy 7 was “bloated” because it includes fees for Plaintiff’s representative claim. (Doc. No. 10 at 13– 8 14.) Notably, in response to this attack, Defendants provided a declaration from defense counsel 9 Matthew C. Kane regarding his estimate of Plaintiff’s attorneys’ fees for Plaintiff’s individual 10 claim. (Doc. No. 15-1 at ¶¶ 4–6.) Thus, it appears Defendants have construed Plaintiff’s response 11 as a factual attack. Likewise, having considered the parties’ submissions, the court construes 12 Plaintiff’s challenge to Defendants’ notice of removal as a factual attack. 13 Because this is a factual attack, Defendants bear the burden of establishing, by a 14 preponderance of the evidence, that the amount in controversy exceeds the jurisdictional 15 threshold. In Attorney Kane’s declaration, he reported he has significant experience litigating 16 wage and hour actions in California. (Doc. No. 15-1 at ¶ 2.) Based on his experience, Attorney 17 Kane declares that a conservative amount of time expended to complete litigation tasks in 18 individual actions is at least 35 hours to conduct written discovery and related motions, 20 hours 19 for non-expert depositions, 5 hours for expert witness discovery and depositions, and 40 hours for 20 non-discovery motion practice, including dispositive motions. (Doc. No. 15-1 at ¶¶ 4–6.) 21 Attorney Kane also declared it will take Plaintiff’s counsel at least 40 hours for trial preparation 22 and attendance and 10 hours for post-trial motions. (Id. at ¶ 5.) Attorney Kane then concluded 23 Plaintiff’s counsel would spend at least 150 hours litigating Plaintiff’s individual claims. (Id. at ¶ 24 6.) Defendants assert Attorney Kane’s estimate is reasonable for Plaintiff’s individual PAGA 25 claim and is “exceedingly conservative” as compared to similar individual wage and hour cases. 26 (Doc. No. 15 at 19.) 27 The court finds Attorney Kane’s declaration insufficient to support Defendants’ attorneys’ 28 fees estimate for the following reasons. First, Attorney Kane’s declaration does not mention, let 1 alone support, Defendants’ assumption that Plaintiff’s counsel will bill at $500 an hour. 2 Generally, a removing party will provide evidentiary support, such as fee petitions submitted in 3 similar cases, to substantiate plaintiff’s counsel’s hourly rate. See Martinez v. Ford Motor Co., 4 No. 1:18-cv-01607-LIO-JLT, 2019 WL 1988398, at *7 (E.D. Cal. May 6, 2019) (including 5 attorneys’ fees in the amount in controversy where defendant submitted “five petitions for 6 attorneys’ fees filed in other similar cases by the same counsel who represent Plaintiffs here”); 7 see also Ott v. Cooper Interconnect, Inc. A Corp., No. 2:23-cv-04501-SPG-JC, 2023 WL 8 5530028, at *3 (C.D. Cal. Aug. 25, 2023) (including attorneys’ fees in the amount in controversy 9 where defendants “point to two other wage and hour cases involving Plaintiff’s counsel . . . with 10 average rates of $525 and $650 per hour.”); see also Evers v. La-Z-Boy Inc., No. 21-cv-02100- 11 LL-BLM, Doc. No. 13-2 (C.D. Cal. Jul. 27, 2022) (including attorneys’ fees in the amount in 12 controversy where defendants identify multiple cases detailing opposing counsel’s hourly rate). 13 Defendants’ assumption that Plaintiff’s counsel will bill at least $500 an hour for all work 14 performed on Plaintiff’s individual PAGA claim is conjecture, which the court cannot use to 15 determine the reasonableness of Defendants’ fee estimate. Thus, the court finds Defendants’ 16 assumption that Plaintiff’s counsel will charge “not less than $500 per hour” unsupported by the 17 evidence. 18 Second, Attorney Kane’s declaration does not demonstrate why his estimate that it would 19 take at least 150 hours to litigate Plaintiff’s individual PAGA claim is reasonable. Attorney Kane 20 relies solely on his experience litigating wage and hour claims and he “does not explain what 21 ‘specific factors present in this case’ lead him to make [his] estimates.” Elias v. Integon Preferred 22 Ins. Co., No. 24-cv-01981-WLH-RAO, 2024 WL 2732228, at *2 (C.D. Cal. May 28, 2024). 23 Again, Attorney Kane’s declaration also lacks the evidentiary support, such as fee petitions 24 submitted in similar cases, that typically supports the inclusion of attorneys’ fees in the amount in 25 controversy calculation. Newsome v. FCA USA LLC, No. 20-cv-01189-JLT-BAK, 2022 WL 26 408631, at *6 (E.D. Cal. Feb. 10, 2022); see Gomez v. Old Dominion Freight Line Inc., No. 23- 27 cv-02212-HDV-SHK, Doc. No. 13-2 (C.D. Cal. Jan. 4, 2024) (defendant’s counsel filed a 28 declaration and attached fee petitions in support of the inclusion of attorneys’ fees in the amount 1 in controversy calculation); see also Lippold v. Godiva Chocolatier, Inc., No. 10-cv-00421-SI, 2 2010 WL 1526441, at *4 (N.D. Cal. Apr. 15, 2010) (defendants’ counsel attached settlement 3 agreements of wage and hour lawsuits in support of their estimate of attorneys’ fees in the amount 4 in controversy calculation). 5 Additionally, Defendants’ attorneys’ fees estimates are flawed because they fail to 6 account for the impact of Plaintiff’s representative PAGA claim. Defendants assert their 7 attorneys’ fees calculation is based solely on Plaintiff’s individual PAGA claim. (Doc. No. 15 at 8 19.) However, Attorney Kane’s estimate includes legal work that will inevitably involve 9 Plaintiff’s representative claim, including discovery, pretrial motions, trial, and post-trial motions. 10 (Doc. 15-1 at ¶¶ 4-5); C.f. Rodriguez v. Goodrich Corp., No. 14-cv-01026-JAM-AC, 2014 WL 11 3842904, at *4 (E.D. Cal. Aug. 1, 2014) (defendants’ attorneys’ fees estimates were not based 12 solely on fees applicable to plaintiff because they include pretrial activities that “would be 13 conducted on behalf of the entire putative class, not merely Plaintiff as an individual.”). 14 Taking all these points into account, Defendants have not established by a preponderance 15 of the evidence that Plaintiff’s attorneys’ fees will amount to $75,000. For this reason, the court 16 will not credit Defendants’ estimate of attorneys’ fees in calculating the amount in controversy. 17 Consequently, because the estimated amounts for Plaintiff’s individual PAGA penalties do not 18 exceed the $75,000 jurisdictional threshold on their own, even if this court were to accept all of 19 the remaining estimates as true, Defendants would still fail to meet their burden. Accordingly, the 20 court finds that Defendants have not proven by a preponderance of the evidence that the $75,000 21 amount in controversy threshold is satisfied and has therefore failed to establish diversity 22 jurisdiction. 23 B. Preemption Under the LMRA 24 Under the “well-pleaded complaint” rule, “federal jurisdiction exists only when a federal 25 question is present on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. 26 Williams, 482 U.S. 386, 392 (1987). However, “[a] corollary to the well-pleaded complaint rule is 27 the ‘complete preemption’ doctrine, which applies in cases in which ‘the preemptive force of a 28 statute is so extraordinary that it converts an ordinary state-common law complaint into one 1 stating a federal claim for purposes of the well-pleaded complaint rule.’” In re NOS Commc’ns, 2 MDL No. 1357, 495 F.3d 1052, 1057 (9th Cir. 2007) (quoting Caterpillar, 482 U.S. at 393). 3 Section 301 of the LMRA is one such extraordinary preemptive force. Curtis v. Irwin Indus., Inc., 4 913 F.3d 1146, 1152 (9th Cir. 2018) (citing Metro. Life Ins. v. Taylor, 481 U.S. 58, 65 (1987)). 5 Congress enacted the LMRA to “promote the full flow of commerce” by providing 6 “orderly and peaceful procedures for preventing [] interferences by [employees or employers] 7 with the legitimate rights of the other.” Columbia Export Terminal, LLC v. Int’l Longshore and 8 Warehouse Union, 23 F.4th 836, 840–41 (9th Cir. 2022) (quoting 29 U.S.C. §141(b)). Under 9 § 301 of the LMRA, “[s]uits for violation of contracts between an employer and a labor 10 organization . . . may be brought in any district court of the United States.” 29 U.S.C. § 185(a); 11 see McCray v. Marriott Hotel Servs., Inc., 902 F.3d 1005, 1009 (9th Cir. 2018) (Section 301 of 12 the LMRA “vests federal courts with jurisdiction” to hear suits between an employer and labor 13 organization “without respect to the amount in controversy or without regard to the citizenship of 14 the parties.”) (citing 29 U.S.C. § 185(a)). 15 On its face, § 301 reads as a jurisdictional statute, and “contains no express language of 16 pre-emption.” Curtis, 913 F.3d at 1151. However, the Supreme Court has long interpreted the 17 LMRA as authorizing federal courts to create a uniform body of federal common law to 18 adjudicate disputes that arise out of labor contracts. Id. (citing Allis-Chalmers Corp. v. Lueck, 471 19 U.S. 202, 210 (1985) and Teamsters v. Lucas Flour Co., 369 U.S. 95, 103–04 (1962)). Thus, 20 preemption by the LMRA may arise in cases where a plaintiff files a complaint asserting state law 21 claims, but their employment was governed by a collective bargaining agreement. 22 The preemptive power of § 301 of the LMRA is not limitless. Section 301 may not be 23 read so broadly as to “pre-empt nonnegotiable rights conferred on individual employees as a 24 matter of state law.” Curtis, 913 F.3d at 1152 (quoting Livadas v. Bradshaw, 512 U.S. 107, 123 25 (1994)). If a “claim is plainly based on state law, § 301 preemption is not mandated simply 26 because the defendant refers to [a collective bargaining agreement] in mounting a defense.” 27 Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001). Likewise, if a contract 28 cannot waive or alter a state law, and if the rights of the state law can be enforced without 1 consideration of the contract’s terms, § 301 preemption does not apply. Miller v. AT & T Network 2 Sys., 850 F.2d 543, 546 (9th Cir. 1988); see Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 3 1024, 1032 (9th Cir. 2016) (“Critically, ‘not every dispute concerning employment, or 4 tangentially involving a provision of a collective-bargaining agreement, is pre-empted by 5 § 301.’”). 6 To determine if § 301 preemption applies, courts look to the Ninth Circuit’s two-step 7 analysis articulated in Burnside v. Kiewit Pac. Corp., 491 F.3d 1053 (9th Cir. 2007). Curtis, 913 8 F.3d at 1152. First, if the asserted cause of action involves a “right [that] exists solely as a result 9 of the [collective bargaining agreement],” then the claim is preempted, and the analysis ends 10 without proceeding to step two. Id. (quoting Kobold, 832 F.3d at 1032; Burnside, 491 F.3d at 11 1059). 12 If not, the court proceeds to the second step and asks whether a plaintiff’s state law right 13 is nevertheless “substantially dependent” on analysis of the collective bargaining agreement. 14 Burnside, 491 F.3d at 1059. This second step “turns on whether the claim cannot be resolved by 15 simply ‘look[ing] to’ versus ‘interpreting’ the [collective bargaining agreement].” Curtis, 913 16 F.3d at 1153 (citing Kobold, 832 F.3d at 1033). Interpretation is construed narrowly in this 17 context, it means something more than consider, refer to, or apply. Id.; Balcorta v. Twentieth 18 Century-Fox Film Corp., 208 F.3d 1102, 1108 (9th Cir. 2000). Accordingly, at the second step of 19 LMRA § 301 preemption analysis, claims are only preempted to the extent there is an active 20 dispute over “the meaning of contract terms.” Alaska Airlines, Inc. v. Schurke, 898 F.3d 904, 921 21 (9th Cir. 2018) (citing Livadas, 512 U.S. at 124). 22 Plaintiff asserts LMRA preemption does not apply in this case because her complaint 23 makes no reference to a collective bargaining agreement or its terms. (Doc. No. 10 at 17.) The 24 court finds Plaintiff’s argument unpersuasive. As discussed above, the Ninth Circuit has expressly 25 found that “§ 301 has such ‘extraordinary pre-emptive power’ that it ‘converts an ordinary state 26 common law complaint into one stating a federal claim for purposes of the well-pleaded 27 complaint rule.” Curtis, 913 F.3d at 1152 (citation omitted). Plaintiff’s omission of the CBAs 28 between Defendants and the Union in her complaint does not allow her necessarily to avoid 1 preemption under § 301. 2 Defendants do not argue that Plaintiff’s allegations involve a right existing solely as a 3 result of the CBAs. Instead, Defendants contend Plaintiff’s allegations of “overtime and meal and 4 rest break violations—and the derivative [allegations] based thereon” directly implicate the CBAs 5 and interpretation of the CBAs are essential to the resolution of Plaintiff’s PAGA claim. (Doc. 6 Nos. 1 at ¶ 71; 15 at 21.) Thus, the court will not analyze Plaintiff’s allegations under step one of 7 Burnside. 8 As to step two of Burnside, Plaintiff asserts Defendants have not offered any evidence of a 9 dispute as to any of the CBAs’ terms, and at most the court will need to reference the agreements 10 to adjudicate her claim. (Doc. No. 10 at 17–18.) In opposition, Defendants aver the CBAs have 11 “not specifically define[d] which wages are encompassed in the [regular rate or] ‘straight-time 12 rate.’” (Doc. No. 15 at 21.) Defendants analogize this case to McKinley v. Southwest Airlines Co. 13 and conclude “to determine what comprises the regular rate of pay and whether [Defendants] 14 properly calculated it, the [c]ourt will have to ‘examine each form of pay provided by the 15 [CBAs], determine when that pay was due, and then decide whether the pay should have been 16 included in Plaintiff’s regular rate.’” Id. (citing McKinley v. Sw. Airlines Co., No. 2:15-cv-02939- 17 AB-JPR, 2015 WL 2431644, at *6 (C.D. Cal. May 19, 2015), aff’d, 680 F. App’x 522 (9th Cir. 18 2017)). 19 The court finds Defendants’ reliance on McKinley unpersuasive. In McKinley, the parties 20 disputed the method for calculating the regular rate of pay. 2015 WL 2431644, at *5–8 (“The 21 Court would have to interpret the CBA to determine whether the types of remuneration Plaintiff 22 identifies fall into [the Fair Labor Standards Act’s] exceptions.”); see also Firestone v. S. Cal. 23 Gas Co., 219 F.3d 1063, 1056–66 (9th Cir. 2000) (the parties disputed the method for calculating 24 the regular rate); Raphael v. Tesoro Ref. Mktg. Co., LLC, No. 2:15-cv-02862-ODW-E, 2015 WL 25 3970293, at *6 (C.D. Cal. Jun. 30, 2015) (same). In contrast, Defendants have not identified any 26 active dispute between the parties for calculating the regular rate or straight-time rate of pay. 27 Instead, the parties do not dispute that the regular rate will be determined by analyzing the 28 different pay rates and applying those distinctions. (Doc. Nos. 15 at 21–22; 17 at 11.) 1 In McKinley, the court also held that the interpretation of the CBA was necessary because 2 the plaintiff’s claims involved “many different provisions” and “[i]n order to assess [the] 3 Plaintiff’s claim, the Court would have to examine the interaction of those provisions.” 2015 WL 4 2431644, at *8. Analogizing to McKinley, Defendants suggest that here too the CBAs’ provisions 5 could affect an employee’s straight-time rate and the court will be required to search the 6 agreements to determine an employee’s wages. (Doc. No. 15 at 22.) Defendants also point to a 7 provision concerning premium rates for lead work and performance for employees with perfect 8 attendance that could affect an employee’s straight-time rate. (Id.) (citing Doc. No. 3 at 30, 71– 9 72.) But Defendants offer no analysis on why the court would be required to interpret the CBAs, 10 as opposed to refer to them. Defendants fail to identify any terms or issues that would complicate 11 the court’s determination of the applicable regular or straight-time rate. C.f. Raphael, 2015 WL 12 3970293, at *6 (the defendant “describe[d] the complexity involved in calculating the proper 13 wage and premium rates under only a single [collective bargaining agreement], highlighting 14 essential terms that…need[ed] to be interpreted.”) (emphasis added); see also Wilson-Davis v. 15 SSP Am., Inc., 434 F. Supp. 3d 806, 813 (C.D. Cal. 2020) (“It is not enough for Defendants to 16 provide a laundry list of provisions that they allege the court must interpret to resolve Plaintiff’s 17 claims; Defendants must explain why interpretation, as opposed to mere reference to the 18 [collective bargaining agreement] is necessary.”). 19 Defendants appear to conflate the need to interpret the CBAs’ provisions with the need to 20 simply apply those provisions. To the extent the Court must look to a provision from the CBAs to 21 calculate the straight-time rate, their application requires nothing more than simple math. 22 Accordingly, the court finds Plaintiff’s allegations of overtime and meal and rest break 23 violations—and the derivative allegations based thereon—do not depend substantially on 24 interpretation of the CBAs, and consequently are not preempted. 25 Thus, Plaintiff’s motion to remand this action based on a lack of diversity jurisdiction and 26 federal question jurisdiction will be granted. 27 /// 28 /// 1 CONCLUSION 2 For the reasons explained above: 3 1. Plaintiff's motion to remand this action (Doc. No. 10) is granted; 4 2. This action is remanded to the Sacramento County Superior Court for all further 5 proceedings; and 6 3. The Clerk of the Court is directed to close this case. 7 8 9 IT IS SO ORDERED. □ 10 | Dated: _ November 15, 2024 LY os Dena Coggins 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13