United States District Court, E.D. California
MICHAEL H. STODDART, individually and on behalf of similarly situated and similarly aggrieved current and former employees of defendants,
EXPRESS SERVICES, INC. d/b/a EXPRESS EMPLOYMENT PROFESSIONALS, PHILLIPS & ASSOCIATES, INC. d/b/a EXPRESS EMPLOYMENT PROFESSIONALS, WESTERN WINE SERVICES, INC., and Does 1 through 100, inclusive, Defendants. Plaintiffs,
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.
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; and (2) if not,
whether the court should now dismiss the allegations as time
barred. See Mot. at 1.
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.
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
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
. . .
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.
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
opposed Express's motion, ECF No. 100, and Express
replied, ECF No. 103.
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