United States District Court, S.D. California
CANDLE HORTON, KIMBERLEE WINSTON, and JEANETTE ZDANEK, individually and on behalf of themselves and others similarly situated, Plaintiffs,
NEOSTRATA COMPANY INC., a Delaware corporation; 24 SEVEN INC., a New York Corporation; 24 SEVEN EMPLOYMENT INC., a New York corporation, ET. AL., Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S SECOND AMENDED COMPLAINT (DOC. NO.
Anthony J. Battaglia United States District Judge.
before the Court is Defendant NeoStrata Company Inc.'s
(“Defendant NeoStrata”) motion to dismiss Candle
Horton, Kimberlee Winston, and Jeanette Zdanek's
(collectively referred to as “Plaintiffs”) second
amended complaint (“SAC”) or strike portions
thereof. (Doc. No. 38.) On January 11, 2017, Plaintiffs filed
an opposition, (Doc. No. 43), and on January 18, 2017,
Defendant NeoStrata replied. (Doc. No. 44.) Having reviewed
the parties' arguments and controlling legal authority
and pursuant to Civil Local Rule 7.1.d.1, the Court finds the
matter suitable for decision on the papers and without oral
argument. Accordingly, the motion hearing set for February
16, 2017, is hereby vacated. For the reasons set forth below,
the Court GRANTS Defendant NeoStrata's
motion to dismiss Plaintiffs' SAC.
following facts are taken from the SAC and construed as true
for the limited purpose of resolving the instant motion.
See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247
(9th Cir. 2013).
on behalf of themselves and all class members, brought a suit
against Defendant NeoStrata and 24 Seven Defendants. (Doc.
No. 36.) Six Defendants comprise “24 Seven
Defendants”: 24 Seven LLC, 24 Seven Employment Inc., 24
Seven Staffing LLC, 24 Seven Talent California LLC DBA 24
Seven Creative Solutions, 24 Seven Recruiting LLC, and
Celeste Gudas. (Id. ¶ 26.) Defendant 24 Seven
LLC provides temporary labor to Defendant NeoStrata.
(Id. ¶ 3.) Defendant NeoStrata “employ[s]
thousands of nonexempt employees, including the named
Plaintiffs, in California to sell its skincare
products.” (Id. ¶ 4.) The specific roles
of the other parties included in “24 SEVEN
Defendants” are unclear. (See Id. ¶¶
about October 1, 2015, Tim Dunn, the San Diego Account
Executive for “Exuviance Skincare, ” a product
owned and sold by Defendant NeoStrata, asked Plaintiff Horton
to join his sales team. (Id. ¶¶ 47-49.)
Plaintiff Horton was asked to sell Exuviance products as a
non-exempt Freelance Beauty Advisor and be paid $25 an hour
regardless of her sales. (Id. ¶¶ 49, 50.)
Mr. Dunn also informed Plaintiff Horton that she would report
to him for work assignments, be required to travel using her
personal vehicle, and have to sell Exuviance products
exclusively. (Id. ¶ 51.) Plaintiff Horton
accepted the job and worked selling Exuviance until she was
let go on December 18, 2015. (Id. ¶¶ 53,
66.) Similarly, Plaintiff Winston sold Exuviance products for
Defendant NeoStrata starting on October 17, 2015, until she
was terminated on April 13, 2016, and Plaintiff Zdanek
started work with Defendant NeoStrata on November 1, 2015,
till January 30, 2016, when she was likewise terminated.
(Id. ¶¶ 54, 58, 67, 68.)
contend that Defendant NeoStrata and 24 Seven Defendants
required Plaintiffs, and other similarly aggrieved employees,
to travel to more than one work site in the same day in their
personal vehicles without compensation for their travel time,
parking, or mileage. (Id. ¶¶ 76, 80, 88,
90, 106.) Additionally, Plaintiffs claim that Defendant
NeoStrata and 24 Seven Defendants required Plaintiffs to
attend weekly 30-minute phone calls, work from home, and use
their personal computers, cellphones, and home internet, all
without compensation. (Id. ¶¶ 99,
104-106.) Lastly, Plaintiffs attest that upon their
termination, Defendant NeoStrata and 24 Seven Defendants
failed to pay Plaintiffs their final paycheck in a timely
manner. (Id. ¶ 123.)
20, 2016, Plaintiff Horton first filed a complaint in the
Superior Court of California, San Diego County. (Doc. No.
1-2.) On August 29, 2016, 24 Seven Defendants removed
Plaintiff Horton's Complaint to this Court. (Doc. No. 1
at 1.) On September 2, 2016, Defendant NeoStrata
filed a motion to dismiss or strike portions of Plaintiff
Horton's Complaint. (Doc. No. 8.) On September 15, 2016,
Plaintiff Horton filed her first amended complaint
(“FAC”). (Doc. No. 15.) On September 29, 2016,
Defendant NeoStrata filed its second motion to dismiss, (Doc.
No. 19), which was granted on November 22, 2016. (Doc. No.
December 12, 2016, Plaintiff Horton, along with added
Plaintiffs Winston and Zdanek, filed their SAC. (Doc. No.
36.) Plaintiffs' SAC alleges causes of action for: (1)
Failure to Pay State Overtime Wages; (2) Failure to Pay State
Minimum/Regular Wages; (3) Failure to Make Payments Within
the Required Time; (4) Violation of Labor Code § 226;
(5) Failure to Maintain Required Records in Violation of
California Labor Code § 1174; (6) Failure to
Indemnify/Reimburse Business Expenses in Violation of
California Labor Code § 2802; (7) Remedies Under Private
Attorney General Act (PAGA California Labor Code §§
2698, 2699); and (8) Unfair Business Practices in Violation
of California Business and Professional Code §§
1700 and 17200. (See generally Doc. No. 36.)
On December 20, 2016, Defendant NeoStrata filed the present
motion to dismiss. (Doc. No. 38.)
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiff's complaint. See Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A]
court may dismiss a complaint as a matter of law for (1) lack
of cognizable legal theory or (2) insufficient facts under a
cognizable legal claim.” SmileCare Dental Grp. v.
Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir.
1996) (citation omitted). However, a complaint will survive a
motion to dismiss if it contains “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In making this determination, a court reviews the
contents of the complaint, accepting all factual allegations
as true and drawing all reasonable inferences in favor of the
nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l
League of Postmasters of U.S., 497 F.3d 972, 975 (9th
this deference, the reviewing court need not accept legal
conclusions as true. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). It is also improper for a court to assume
“the [plaintiff] can prove facts that [he or she] has
not alleged.” Assoc. Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
(1983). However, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Iqbal, 556 U.S. at 664.
NeoStrata argues that Plaintiffs' SAC should be dismissed
in its entirety because Plaintiffs fail to plead plausible
facts beyond the mere conclusory and impermissibly lumps
Defendant NeoStrata and 24 Seven Defendants together. (Doc.
No. 38-1 at 9.) Defendant NeoStrata also contends that
Plaintiffs have not set forth any new factual allegations in
the SAC that would plausibly plead that Defendant NeoStrata
is liable with 24 Seven Defendants under theories of alter
ego, agency, integrated enterprise, or joint venture.
(Id. at 22.)
direct contrast, Plaintiffs assert that the written
agreement, and the emails sent between Defendant
NeoStrata's management and Plaintiffs, all clearly
demonstrate that Defendant NeoStrata is a joint employer as
established by California Labor Code § 2810.3. (Doc. No.
43 at 12-13.) However, Plaintiffs' Opposition is devoid
of any arguments to contest Defendant NeoStrata's
assertions that no liability exists under theories of agency,
joint venture, alter ego, or integrated enterprise. (See
generally Doc. No. 43.) For the reasons set forth more
fully below, the Court GRANTS Defendant
NeoStrata's motion to dismiss Plaintiffs' SAC.
Plaintiffs Addition of Two New Plaintiffs and a New Theory of
Liability Complied with ...