United States District Court, S.D. California
PAULA DITTMAR, et al. Plaintiffs,
COSTCO WHOLESALE CORPORATION, Defendant.
ORDER ON COSTCO'S MOTION TO DISMISS OR
HONORABLE LARRY ALAN BURNS UNITED STATES DISTRICT JUDGE
putative wage and hour class action arises out of Paula
Dittmar and Pauline Tilton's employment with Costco.
Costco has moved to dismiss or strike the First Amended
Complaint. (Docket no. 52.) It argues: (1) Plaintiffs failed
to allege facts sufficient to satisfy Fed.R.Civ.P. 23; (2)
Tilton lacks standing to represent the Proposed Pharmacist
Class; (3) Plaintiffs failed to plead facts supporting a Cal.
Labor Code § 2802 claim; (4) Plaintiffs failed to plead
a claim for conversion; (5) Plaintiffs failed to plead a
violation of Cal. Labor Code §§ 221 and 223; (6)
Plaintiffs' request for Cal. Labor Code § 225.5
penalties fails; (7) Plaintiffs lack standing to seek
injunctive relief; (8) attorney's fees and costs cannot
be recovered on meal and rest break clams; (9)
Plaintiffs' claim under the unlawful prong of
California's Unfair Competition Law (UCL), Cal. Bus. &
Prof. Code § 17200, et seq., is improper to the
extent that it relies on Cal. Labor Code §§ 226.7
and 512(a); and (10) Plaintiffs' claim for Cal. Labor
Code § 203 penalties fails.
agree to remove references to their § 2802 claim, §
225.5 request, injunctive relief claim, and prayer for
penalties under § 203. (Docket no. 54 at 2 n.1.)
Request for Judicial Notice
request for judicial notice (Docket no. 52-3) of an order
granting a demurrer and motion to strike in Aguilar v.
Marriot Int'l is GRANTED. See Reyn's Pasta
Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 (9th
Cir. 2006) ("We may take judicial notice of court
filings and other matters of public record.").
Sufficiency of Class Allegations
seeks dismissal of the class allegations, arguing that they
don't sufficiently allege typicality, adequacy of
representation, commonality, predominance, and superiority of
class resolution. Plaintiffs argue that Costco's
challenge to the sufficiency of the class allegations is
premature. The Court agrees with Plaintiffs; each of
Coscto's arguments are more appropriately reserved for a
motion for class certification. See In re Wal-Mart
Stores, Inc. Wage & Hour Litig., 505 F.Supp.2d 609,
615-16 (N.D. Cal. 2007) (finding that a motion to dismiss
class allegations was premature where the defendant had not
answered the complaint, discovery had not yet commenced, and
no motion for class certification had been filed);
Cholakyan v. Mercedes-Benz USA, LLC, 796 F.Supp.2d
1220, 1246 (C.D. Cal. 2011) (finding that a motion to strike
class allegations was premature where defendant had not filed
an answer and discovery had not begun). In the absence of
discovery and the presentation of specific arguments from
both parties concerning class certification, the Court lacks
sufficient information to rule on the propriety of the class
allegations. The allegations in the complaint are sufficient
to survive Costco's motion to dismiss.
Tilton's Standing to Represent Proposed Pharmacist
argues that Tilton doesn't have standing to represent the
Proposed Pharmacist Class because she wasn't a pharmacist
during the four years before this case was filed. (Docket no.
52 at 11.) Plaintiffs respond that Tilton was a pharmacist
during the period. They explain "[a]lthough Tilton was
promoted from pharmacist to manager, she continued working as
a pharmacist, as did all of the managers of all of
Costco's pharmacy departments." (Docket no. 54 at
20.) They offer to amend the complaint to clarify the issue.
(Id.) The Court agrees with Costco that the First
Amended Complaint suggests that Tilton wasn't a member of
the Propose Pharmacist Class, so its motion to strike Tilton
as a representative of that class is GRANTED. But, the Court
will give Plaintiffs leave to amend to clarify Tilton's
role during the relevant time period.
parties dispute whether Plaintiffs can maintain a conversion
claim based on California Labor Code violations. Following
several federal district court decisions, the Court
previously held that they can't because the Labor Code
provides an exclusive statutory remedy. (Docket no. 43 at 9.)
Now the Plaintiffs have notified the Court of a second line
of cases that contradict the Court's previous holding on
the issue. (Docket no. 54 at 19 (citing Sims v. AT & T
Mobility Servs. LLC, 955 F.Supp.2d 1110 (E.D. Cal.
a general rule, where a statute creates a right that did not
exist at common law and provides a comprehensive and detailed
remedial scheme for its enforcement, the statutory remedy is
exclusive." Rojo v. Kliger, 52 Cal.3d 65, 79
(1990). Sims points out that employees were
entitled to recover unpaid wages and overtime compensation at
common law. 955 F.Supp.2d at 1117. Thus, it held, the Labor
Code doesn't provide an exclusive statutory remedy.
Id.; see also Alvarenga v. Carlson Wagonlit
Travel, Inc., 2016 WL 466132, at *4 (E.D. Cal. Feb. 8,
2016); Rodriguez v. Cleansource, Inc., 2015 WL
5007815, at *9 (S.D. Cal. Aug. 20, 2015). After reviewing the
Sims line of cases, the Court agrees that a cause of
action for conversion of unpaid wages is viable. See also
Dep't of Indus. Relations v. UI Video Stores, Inc.,
55 Cal.App.4th 1084, 1096 (1997).
motion to dismiss the conversion claim is denied. Mann v.
Cty. of San Diego, 2015 WL 7458613, at *3 (S.D. Cal.
Nov. 23, 2015) ("District courts retain inherent
authority to revise interim or interlocutory orders any time
before entry of judgment.").
Plaintiffs' Cal. Labor Code §§ ...