United States District Court, N.D. California
ORDER RE MOTION TO DISMISS
SUSAN ILLSTON, District Judge.
Currently before the Court is defendant Bank of America Corporation's motion to dismiss, or in the alternative, to strike portions of plaintiff Sheri Garibaldi's fourth amended complaint. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing scheduled for April 4, 2014. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the motion to dismiss.
The Court set forth the relevant factual background of this case in its Order on the defendant's previous motion to dismiss, and so will not repeat it here. See Garibaldi v. Bank of Am. Corp., No. C 13-02223 SI, 2014 WL 172284, at *1 (N.D. Cal. Jan. 15, 2014). On February 13, 2014, pursuant to the Court's prior Order, plaintiff filed her fourth amended complaint ("FAC"). The FAC contains ten causes of action, and related class allegations.
On March 3, 2014, defendant filed a motion to dismiss, or in the alternative, to strike portions of the FAC. Defendant asks the Court to dismiss: (1) plaintiff's first cause of action for breach of contract; (2) plaintiff's second cause of action for failure to pay accrued wages upon termination; (3) plaintiff's sixth cause of action for waiting time penalties; (4) plaintiff's seventh cause of action for failure to provide accurate wage statements; (5) plaintiff's ninth cause of action for unfair business practices; and (6) plaintiff's tenth cause of action for penalties under the Private Attorney General Act ("PAGA").
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a Defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require "heightened fact pleading of specifics, " a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 544, 555. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id.
In reviewing a Rule 12(b)(6) motion, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. See al -Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, a district court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). As a general rule, the Court may not consider any materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001). However, pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of "matters of public record, " such as prior court proceedings, without thereby transforming the motion into a motion for summary judgment. Id. at 688-89. If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
Defendant moves the Court to dismiss plaintiff's first, second, sixth, seventh, ninth, and tenth causes of action. Defendant argues that: (1) plaintiff's first cause of action is deficient because the employee handbook at issue does not constitute a contract, and even if its does, the handbook's language contradicts plaintiff's allegations; (2) plaintiff's second cause of action is deficient because the "occasional illness" days are not subject to the legal requirements for vacation; (3) plaintiff's sixth cause of action is deficient because it is wholly derivative of her other failed claims; (4) plaintiff's seventh cause of action is deficient because it is wholly derivative of her other failed claims; (5) plaintiff's ninth cause of action is deficient because it is wholly derivative of her other failed claims; and (6) plaintiff's tenth cause of action is deficient because it is wholly derivative of her other failed claims. Defendant also moves to strike plaintiff's class allegations and plaintiff's reference to "floating holidays." The Court will address each argument in turn.
1. First Cause of Action - Breach of Contract.
Plaintiff's first cause of action alleges a breach of contract based on defendant's alleged failure to provide accrual of paid time off based upon the actual hours worked, as well as defendant's policy of permitting "occasional illness days" to lapse if not used in the year they were earned. FAC ¶¶ 66-69. In its prior Order, the Court granted defendant's motion to dismiss plaintiff's first cause of action because plaintiff failed to attach a copy of the employee handbook she claimed constituted a contract between the parties. Garibaldi, 2014 WL 172284, at *3. Plaintiff therefore attached portions of the employee handbook to her FAC. However, defendant contends that plaintiff omitted the portion of the handbook entitled "About this Handbook, " and asks the Court to take judicial notice of this omitted portion. The Court finds that this excerpt is properly subject to judicial notice and therefore GRANTS defendant's request for judicial notice of the handbook excerpt.
Defendant argues that the employee handbook did not create a contract between the parties due to language contained in the "About this Handbook" portion of the employee manual. Specifically, the excerpt states that "[t]he provisions of the Associate Handbook do not establish enforceable rights, contractual or otherwise, and they do not establish an employment relationship enforceable by associates." Defendant's Motion to Dismiss ("Def.'s Mot."), Ex. A.
"To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage." Harris v. Rudin, Richman & Appel, 74 Cal.App.4th 299, 307 (Cal.Ct.App. 1999). A valid contract requires the consent of the contracting parties; that is, mutual assent. Donovan v. RRL Corp., 26 Cal.4th 261, 270 (2001). Mutual assent ...