Stoddart v. Express Services, Inc.

          ORDER

         This matter is before the court on a motion to dismiss portions of the second amended complaint filed by defendants Express Services, Inc. and Phillips & Associates, Inc. (collectively, "Express" or "defendants"). Mot., ECF No. 97. Plaintiff opposed the motion. Opp'n, ECF No. 100. The court submitted the matter as provided by Local Rule 230(g). As explained below, the court DENIES Express's motion.

         I. BACKGROUND

         The court has summarized the factual and procedural background of this action in previous orders. See, e.g., ECF No. 91. Express's motion to dismiss raises two issues: (1) whether the court's September 16, 2015 order dismissed plaintiff's additional wage statement allegations as they relate to plaintiff's fourth cause of action for violation of California Labor Code section 226^[2]; and (2) if not, whether the court should now dismiss the allegations as time barred. See Mot. at 1.

         On April 20, 2015, plaintiff filed a first amended complaint. First Am. Compl. ("FAC"), ECF No. 76. The first amended complaint alleged seven claims: (1) failure to provide mandated meal periods in violation of Labor Code sections 226.7 and 512, and sections 11 and 12 of the applicable Industrial Welfare Commission ("IWC") Wage Order; (2) failure to pay overtime wages in violation of Labor Code sections 510, 1194, and 1198, and section 3 of the applicable IWC Wage Order; (3) failure to timely pay all wages upon termination in violation of Labor Code sections 201-03; (4) failure to provide accurate itemized wage statements in violation of Labor Code section 226; (5) failure to maintain accurate records in violation of Labor Code section 1174; (6) unfair competition in violation of California's Business and Professions Code section 17200, et seq. ("UCL"); and (7) a claim for civil penalties under California's Private Attorneys General Act of 2004 ("PAGA"), Labor Code section 2698, et seq. See generally id.

         On May 4, 2015, Express moved to dismiss and to strike portions of the first amended complaint. ECF No. 81. As relevant here, Express moved to dismiss as time barred plaintiff's Labor Code section 226(a)(6) claim based on the newly added allegation that defendants did not include on wage statements the inclusive dates of the one-week pay period. Id. at 6-9. Express argued the new "inclusive dates" theory did not relate back to the original section 226 claim, which was based solely on Western Wine Service, Inc.'s alleged failure to provide compliant meal periods, because the two theories are predicated on different facts. Id. at 7-9. In addition, Express moved to dismiss plaintiff's claim for PAGA penalties based on the "inclusive dates" allegation, arguing PAGA penalties based on a violation of section 226 are unavailable as a matter of law, and even if they were available, plaintiff failed to exhaust such a claim. Id. at 9-10, 13.

         On September 16, 2015, the court granted Express's motion to strike and granted in part and denied in part Express's motion to dismiss. ECF No. 91. With respect to plaintiff's section 226(a)(6) claim and the dependent PAGA claim, the court held:

In sum, the court GRANTS defendants' motion with respect to plaintiff's section 226 claim based on the allegations that defendants did not include on wage statements the inclusive dates of the one-week pay period, provide second meal periods and pay the correct rate of overtime pay. Plaintiff may not seek penalties under PAGA predicated on these theories.

. . .

Because plaintiff's "inclusive dates" allegation was not properly exhausted, the court need not address whether this claim "relates back" to the original complaint. Plaintiff is barred from asserting this new allegation based on a failure to exhaust theory.

Id. at 13.

         On October 7, 2015, plaintiff filed a second amended complaint, which included a claim for violation of section 226(a)(6) based on the "inclusive dates" allegation. Second Am. Compl. (SAC) ¶¶ 33, 76-77, ECF No. 94. On October 28, 2015, Express moved to dismiss plaintiff's claim for relief under section 226(a)(6) based on the "inclusive dates" allegation as barred by the court's September 16, 2015 order, or, alternatively, as time barred. Mot., ECF No. 97. Express has represented, and plaintiff has not disputed, that plaintiff agreed to amend the second amended complaint to reflect the court's dismissal of plaintiff's claims for PAGA penalties based on an alleged failure to: (1) provide plaintiff and allegedly aggrieved employees second meal periods; (2) pay plaintiff and allegedly aggrieved employees overtime wages at the correct regular rate; and (3) include the inclusive dates of the pay periods on employee itemized wage statements. See Id. at 7. Express further argues that the court previously found, by implication, that plaintiff's standalone section 226 claim was time-barred. Id. at 6-7.

         Plaintiff opposed Express's motion, ECF No. 100, and Express replied, ECF No. 103.

         II. DISCUSSION

         The court first finds it did not address in its September 16, 2015 order whether plaintiff's standalone section 226 claim based on the "inclusive dates" allegation was time barred. The court concluded it did not need to reach Express's argument that plaintiff's individual section 226 claim (fourth cause of action) was time barred, because plaintiff's claim for PAGA penalties predicated on a violation of section 226 based on the "inclusive dates" theory (seventh cause of action) was not properly exhausted. ECF No. 91 at 13. However, plaintiff correctly notes that his individual section 226 claim is distinct from his claim for PAGA penalties predicated on a violation of section 226, and there is no exhaustion requirement for his individual claim. See Opp'n at 1, 6 (citing Cal. Lab. Code § 226(e) and Caliber Bodyworks, Inc. v. Superior Court, 134 Cal.App.4th 365, 377-78 (2005)). Accordingly, upon reflection, the court determines it should have reached the merits of Express's argument that ...