United States District Court, C.D. California
Present: The Honorable Philip S. Gutierrez, United States
District Judge
CIVIL MINUTES - GENERAL
Honorable Philip S. Gutierrez, United States District Judge
Order
DENYING Plaintiff’s Motion to Remand
Before
the Court is Plaintiff Kimberly Gunther’s motion to
remand to Los Angeles Superior Court. Dkt. # 16. The Court
finds the matter appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; L.R. 7-15. After
considering the moving, opposing, and reply papers, the Court
DENIES the motion to remand.
I.
Background
Plaintiff
is a California citizen and a former employee of Defendant
International Business Machine Corporation
(“Defendant”). Dkt. # 19-1; Dkt. # 1, Notice
of Removal (“NOR”), Ex. 1
(“Compl.”) ¶ 3. Defendant is a citizen of
New York. See NOR ¶ 7. Defendant employed
Plaintiff as an exempt employee from October 21, 2013 to
June, 2015, during which time Plaintiff worked out of a home
office and traveled throughout California. Compl.
¶ 3.
On or
about February 1, 2016, Plaintiff gave written notice to
Defendant and to the California Labor and Workforce
Development Agency (“LWDA”) by certified mail.
Id. ¶ 15. In compliance with Labor Code §
2699.3(c), Plaintiff waited in excess of thirty-three days
for the LWDA to intervene. Id. When it did not do
so, Plaintiff filed a Private Attorney General Act
(“PAGA”) suit against Defendant in the Los
Angeles County Superior Court of California on March 11,
2016. See id.
Plaintiff
alleges that Defendant failed to pay her and all other
aggrieved employees:
all non-discretionary bonuses, including quarterly bonuses,
commissions, awards, and incentive pay that Plaintiff earned,
including by failing to pay all compensation for all work
performed, including but not limited to failing to pay all
earned and owed bonuses (including but not limited to the
Associate Partner Plan bonus, the Incentive Plan, the Plan to
Date achievements, Incremental Incentives, Pool Based
payments, Target Incentive pay, Growth Driven Profit Sharing)
earned and owed and due at each year end of fractional
payments within a year, including at end of employment, and
earned and owed when transitioning to another IBM position
within the company.
Id. ¶ 1. Plaintiff also alleges that Defendant
failed to pay her and other employees all accrued and unused
vacation wages and that Defendant had an illegal
“use-it-or-lose-it” vacation plan which resulted
in earned vacation wages being forfeited. Id.
Plaintiff states that when IBM did pay vacation days, it
failed to cash out those vacations days at the proper rate of
pay because it did not add bonuses and commissions to the
average daily compensation. Id. Defendant also:
failed to account for accrued vacation during paid leaves of
absences despite its agreement to do so; improperly deducted
vacation time that was “borrowed” as advanced
salary before it was earned, and then required it to be paid
back at the end of employment; and invalidly capped accrual
where it should not have done so. Id.
Additionally,
Plaintiff alleges that Defendant failed to pay her and other
aggrieved employees for work-related expenses and losses,
including:
all home office expenses, home office supplies, furniture,
pro rata value of home office space value, the pro rata of
utilities, all communication devices used for work, cell
phones and monthly plans, landline phones, pens, papers,
internet access charges, printer ink cartridges, and all
mileage pay and parking.
Id. Finally, Plaintiff challenges the wage
statements provided to her and all other aggrieved employees
on the basis that those wage statements (1) inaccurately
omitted the wages due as a result of Plaintiff’s other
claims; and (2) did not “state the inclusive dates of
the pay period for which the employees were paid.”
Id. As a result, Plaintiff and the other employees
became confused over whether they had received all the wages
owed to them and were not able to keep track of (and
therefore secure) the full amount owed to them on their last
day of work. Id. Plaintiff alleges that
Defendant’s conduct was “knowing and
intentional.” Id.
In
total, Plaintiff alleges that Defendant is responsible to her
and all other aggrieved employees for violations of
twenty-two sections of the California Labor
Code.[1]Id. Plaintiff seeks: (1) one
hundred dollars for each aggrieved employee per pay period
for the initial violation under Labor Code § 2699(f)(2);
(2) two hundred dollars for each aggrieved employee per pay
period for each subsequent violation, per Labor Code §
2699(f)(2); (3) fifty dollars for each underpaid employee for
each pay period for which the employee was underpaid in
addition to an amount sufficient to recover underpaid wages,
per Labor Code § 558(a)(1); (4) one hundred dollars for
each underpaid employee for each pay period for which the
employee was underpaid in addition to an amount sufficient to
recover underpaid wages, per Labor Code § 558(a)(2); (5)
two hundred and fifty dollars per employee per violation in
an initial citation per Labor Code § 226.3; (6) one
thousand dollars per employee per violation in a subsequent
citation, per Labor Code § 226.3; (7) two hundred and
fifty dollars per employee per violation in an initial
citation per Labor Code § 227.3; (8) five hundred
dollars per Labor Code § 1174.5 violation; (9) one
hundred dollars for each underpaid employee for each pay
period for which the employee is underpaid under Labor Code
...