The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE (Docs. No. 9, 10)
Presently before the Court is Defendants' motion to dismiss and motion to strike portions of Plaintiff's Complaint. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion.
I. Factual Background*fn1
Plaintiff Kirkland Singer began employment with Defendants on February 23, 2004. His employment ended on or about March 1, 2007. On or about March 27, 2008, Plaintiff commenced this action against Defendants in the Superior Court of the State of California, County of San Diego alleging various causes of action for wage and employment violations. Plaintiff brought the suit as a class action. On May 6, 2008, Defendants timely removed the action to this Court.
The Complaint alleges ten causes of action:
(1) Failure to Provide Mandated Meal Periods in Violation of California Industrial Welfare Commission ("IWC") Wage Order and Labor Code § 226.7;
(2) Failure to Provide Mandated Rest Periods in Violation of California IWC Wage Order and Labor Code § 226.7 and § 512;
(3) Failure to Pay Minimum Wages in Violation of Labor Code §1197;
(4) Failure to Pay Overtime Wages in Violation of Labor Code § 510;
(5) Failure to Pay Reporting Time Wages in Violation of California IWC Wage Order;
(6) Illegal Vacation Policy/Failure to Pay Vacation Wages in Violation of Labor Code § 227.3;
(7) Failure to Pay All Wages Timely During Employment in Violation of Labor Code § 204;
(8) Failure to Pay Wages Within Required Time Upon Separation of Employment in Violation of Labor Code §§ 201 and 202;
(9) Failure to Provide and Maintain Itemized Wage Statements in Violation of Labor Code § 226; and
(10) Violation of California Business & Professions Code section 17200, et seq.
In addition, Plaintiff requests civil penalties and liquidated damages under the Labor Code and seeks to proceed with a representative action and recover civil penalties and attorneys' fees under the "Private Attorney General's Act" (the "PAGA").
Defendants' motion centers on the parties' disagreement as to which of two complimentary statutes of limitation apply to the following challenged claims: (1) Plaintiff's seventh cause of action; (2) Plaintiff's ninth cause of action; (3) Plaintiff's claim for penalties pursuant to the PAGA; (4) Plaintiff's claim for liquidated damages under section 1194.2. Under the California Code of Civil Procedure ("CCP") section 338(a), a three year statute of limitations applies to an action upon a liability created by statute, other than a penalty or forfeiture. Under section 340(a), a one year statute of limitations applies to an action upon a statute for a penalty or forfeiture.
Defendants assert the one year statute of limitations applies to the challenged claims while Plaintiff maintains that the three year statute of limitations is proper.
There is no dispute that Plaintiff's lawsuit was initiated more than one year after his employment with Defendants ended.
Plaintiff filed his Complaint in San Diego County Superior Court on March 27, 2008. On May 6, 2008, Defendants removed to this Court. (Doc. No. 1.)
On May 13, 2008, Defendants filed the present motion. (Docs. No. 9, 10.) On June 9, 2008,
Plaintiff filed an opposition. (Doc. No. 11.) Defendants filed a reply on June 16, 2008. (Doc. No. 12.) The Court held oral argument on June 23, 2008.
A motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. Proc. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1974 (2007).
In deciding a motion to dismiss for failure to state a claim, the court's review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995) (citing Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, a court is not required to credit ...