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Lessard v. Trinity Protection Services

August 2, 2010

MICHAEL P. LESSARD AND ROBERT L. REAGAN, FOR THEMSELVES AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED EMPLOYEES, PLAINTIFFS,
v.
TRINITY PROTECTION SERVICES, INC., AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through the present action, Plaintiffs Michael Lessard and Robert Reagan ("Plaintiffs") seek civil penalties from their employer, Defendant Trinity Protection Services, Inc. ("Defendant"), for violations of the California Labor Code. Plaintiffs bring their claim pursuant to the Private Attorney General Act of 2004 ("PAGA"), Cal. Lab. Code § 2698 et seq., which authorizes employees to bring claims for civil penalties against employers on behalf of all similarly situated employees.

Defendant now moves to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)*fn1 , alleging that Plaintiffs have failed to exhaust administrative remedies before bringing their claim. In the alternative, Defendant also brings a Rule 12(f) Motion to Strike the portion of the Complaint seeking civil penalties under Labor Code § 210, and for a more definite statement pursuant to Rule 12(e). For the reasons set forth below, Defendant's Motion is denied in its entirety.*fn2

BACKGROUND*fn3

PAGA allows "aggrieved employees" to act as private attorneys general by bringing claims for civil penalties against employers for violations of the Labor Code. Cal. Lab. Code § 2699(a) (West 2010). Seventy-five percent of any funds recovered go to the Labor and Workforce Development Agency ("LWDA") and the remaining twenty-five percent go to the aggrieved employees. Id. § 2699(i).

PAGA sets out procedural requirements that must be met before a claim can be brought. The proposed plaintiff must provide written notice to both the LWDA and the employer, listing "the specific provisions...alleged to have been violated, including the facts and theories to support the alleged violation." Id. § 2699.3(a)(1). Notice must be sent by certified mail, and the employee can only pursue a claim if the LWDA either declines to investigate or neglects to respond within 33 days. Id. § 2699.3(a)(2)(A). If the LWDA decides to investigate, it must do so within 120 days. Should it fail to investigate or decide not to issue a citation, the proposed plaintiff may then bring a cause of action. Id. § 2699.3(a)(2)(B).

Plaintiffs were employed as security guards and paid hourly by Defendant, a government contractor that provides security guards for government installations and buildings. They contend that Defendant had a policy of paying Plaintiffs and other similarly situated employees twelve days after the close of each pay period, and that this policy violates the wage payment parameters of California Labor Code § 204. They bring their PAGA claim on behalf of all other similarly situated employees, and seek civil penalties for each violation of the Labor Code. They ask to be awarded twenty-five percent of any penalties recovered, to which they are statutorily entitled.

Before filing the present action, Plaintiffs' attorney sent a certified letter to both Defendant and the LWDA; Defendant has attached a copy of this letter to its Motion to Dismiss.*fn4 In the letter, dated February 5, 2010, the attorney for Plaintiffs indicates that after speaking "to a number of employees of Trinity Protection Services, Inc." he concluded that Defendants were in violation of Labor Code provisions. (Def.'s Mot. Dismiss Ex. A.) Specifically, the letter states that "[y]our policy and practice is to pay wages 12 days after the pay period ends.

Thus, your pay practice violates Labor Code § 204." (Id.) The letter does not name the employees spoken to or specify which employees were represented, but rather states that "[w]e intend to file claims for violations of the following code section: 1. LC § 204: failure to make timely wage payments after close of pay period." (Id.) Plaintiffs waited the statutorily prescribed time period before filing their claim.

Defendant takes issue with the letter from Plaintiffs' attorney, contesting the specificity of the information provided as well as the sufficiency of notice. Defendant also seeks a more definite statement pursuant to Rule 12(e) as to the group of aggrieved employees Plaintiffs purport to represent. Finally, Defendant argues that Plaintiffs are barred from seeking civil penalties under Labor Code § 210, as only the Labor Commissioner is entitled to recover such penalties.

STANDARD

A. Motion to Dismiss Under Rule 12(b)(6)

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. ...


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