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Finder v. Leprino Foods Co.

United States District Court, E.D. California

July 29, 2016

JERROD FINDER, on behalf of himself and a class of others similarly situated Plaintiff
v.
LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1 through 50, inclusive, Defendants

          ORDER GRANTING CERTIFICATION FOR INTERLOCUTORY APPEAL, DENYING DISMISSAL OF CLAIMS, AND DENYING STAY OF PROCEEDINGS

         Defendants Leprino Foods Company and Leprino Foods Dairy Products Company made a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for interlocutory appellate certification pursuant to 28 U.S.C. § 1292(b) and to stay proceedings pending disposition of appeal. Doc. 38. Plaintiff Jerrod Finder filed an opposition. Doc. 41.

         I. Background

         Jerrod Finder (“Plaintiff”) is a former employee of Leprino Foods Company (“Defendants”). Plaintiff alleges that during his employment Defendants did not provide him and other employees meal breaks as required by California law. Plaintiff filed a class action suit in state court and Defendants removed the claims to this Court based on the Class Action Fairness Act, codified at 28 U.S.C. § 1332(d). Doc. 1.

         Defendants filed for a motion for judgement on the pleadings. Doc. 6. Plaintiff opposed the motion for judgement. Doc. 8. The Court granted Defendants’ motion to dismiss and dismissed all claims without prejudice. Doc. 20. Plaintiff filed the first amended complaint. Doc. 24. Defendants filed a motion to dismiss. Doc. 25. The Court granted the motion to dismiss in part and denied in part. Doc. 35. Plaintiff filed a second amended complaint with five causes of action: (1) failure to provide meal periods in violation of California Labor Code §§ 512 and 226.7, (2) failure to provide accurate wage statements in violation of California Labor Code § 226, (3) failure to promptly pay wages due in violation of California Labor Code §§ 201 and 202, (4) violation of California Business & Professions Code § 17200, and (5) enforcement of California Labor Code provisions under the Private Attorney Generals Act (“PAGA”). Doc. 37.

         Defendants moved for a 12(b)(6) motion to dismiss as a procedural prerequisite to Defendants’ motion seeking certification for interlocutory appeal under 28 U.S.C. § 1292(b) and a stay of proceedings in this Court pending the Ninth Circuit’s resolution of the § 1292(b) appeal. Doc. 38. Defendants moved to dismiss Plaintiff’s third cause of action in its entirety and Plaintiff’s second, fourth, and fifth causes of action to the extent that they raise claims asserting that failure to itemize or pay meal period premiums constitutes failure to itemize or pay wages. Id.

         II. Legal Standard

         The general rule is that an appellate court should not review a district court ruling until after entry of a final judgment. In re Cement Antitrust Litig., 673 F.2d 1020, 1022-23 (9th Cir. 1982). However, § 1292(b) provides an exception for litigants to bring an immediate appeal of a non-dispositive order with the consent of both the district court and the court of appeals. 28 U.S.C. § 1292(b); id. at 1225-26. The party seeking certification has the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). The district court has the discretion to certify an order for interlocutory appellate review under § 1292(b) if all of the following three requirements are met: (1) there is a controlling question of law, (2) there are substantial grounds for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. In re Cement Antitrust Litig., 673 F.2d at 1026.

         III. Discussion

         A. Motion to Dismiss

         Defendants filed a Rule 12(b)(6) motion to dismiss as a procedural prerequisite for the motion seeking to certify an interlocutory appeal. Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff’s “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011).

         Defendants have moved to dismiss Plaintiff’s third cause of action in its entirety and Plaintiff’s second, fourth, and fifth causes of action to the extent they raise claims asserting that failure to itemize or pay “meal period premiums” constitutes failure to itemize or pay “wages.” Doc. 38. Although courts have split on whether meal period premiums constitute wages or penalties, this Court did previously rule that they are wages in the context of Plaintiff’s claims. Doc. 20.

         (1) Plaintiff’s first cause of action is failure to provide meal periods in violation of California Labor Code §§ 512 and 226.7. Doc. 37. Under § 512, employers are required to provide meal periods after five and ten hours of work. Cal. Lab. Code § 512. Under § 226.7, if employers fail to provide the aforementioned meal periods, they must instead provide “one additional hour of pay at the employee’s regular rate of compensation for each work day” with a missed meal period. Id. at § 226.7. Although Defendants are not moving to dismiss this claim, it is still relevant to the extent Plaintiff’s fourth and fifth claims are derivative of this cause of action.

         (2) Plaintiff’s second cause of action is failure to provide accurate wage statements in violation of California Labor Code § 226. Doc. 37. Under § 226, employers are required to maintain accurate records of each employee’s hours of work and meal breaks. Cal. Lab. Code § 226. Defendants allege missed meal period allegations cannot support a claim for inaccurate wage statements as a matter of law. Doc. 38. However, this Court found the opposite in “conclud[ing] that [meal] premiums should qualify as wages that are governed by the requirements of Section 226.” Doc. 20 at 8. Plaintiff also alleges Defendants failed to provide the name of the legal entity as required by § 226(a)(8). Regardless of the meal premium itemization allegation, the failure to provide the name of the legal entity aspect of this claim would survive.

         (3) Plaintiff’s third cause of action is failure to promptly pay wages due in violation of California Labor Code §§ 201 and 202. Doc. 37. Under §§ 201 and 202, employers must pay separating employees all wages promptly at the end of their employment. Cal. Lab. Code §§ 201 and 202. Defendants allege missed meal period premiums are not wages and seek to dismiss the claim in its entirety. Doc. 38. However, this Court found the ...


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