United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS RE: ECF NO. 25
TIGAR United States District Judge
the Court is Defendants' Motion to Dismiss. ECF No. 25.
Plaintiffs oppose the motion. ECF No. 34. The Court will
grant the motion in part and deny the motion in part.
Facts and Procedural History
Chris Azpeitia, Eileen Foster, Antonio Garcia, and Samantha
West bring a putative class action asserting several claims
under California wage laws and related statutes against
Defendants Tesoro Refining & Marketing Company LLC, and
Tesoro Logistics GP, LLC (collectively,
Plaintiffs are or were employed as operators at
Defendants' Golden Eagle facility located in Martinez,
California, and Defendants' Los Angeles Refinery, located
in Carson and Wilmington, California. ECF No. 33 ¶ 9.
Because the oil refining and distribution process requires
constant monitoring, operators work a continuous 12-hour
shift and are required to remain on duty during the entire
shift. ECF No. 33 ¶ 18; 19.
gravamen of Plaintiffs' complaint is that Defendants do
not authorize or permit Plaintiffs to take off-duty rest
breaks for every four-hour work period or major fraction
thereof, as mandated by law. ECF No. 33 ¶ 21. Because
Defendants require operators to monitor the refining process,
respond to upsets and critical events, and maintain the safe
and stable operation of their units, they are required to
remain attentive, carry radios, and be reachable throughout
their shifts. ECF No. 33 ¶ 20. As a result, Plaintiffs
are responsible for their units at all times and do not
receive “designated rest breaks or relief.” ECF
No. 33 ¶ 21.
assert the following four causes of action under California
law: (1) violations of California Labor Code section 226.7
and California's Industrial Welfare Commission
(“IWC”) Wage Order 1-2001 for failure to provide
rest periods; (2) violation of Labor Code section 226 for
failure to provide accurate written wage statements; (3)
violation of California's Private Attorney General Act
(“PAGA”) (Cal. Lab. Code § 2698 et
seq); and (4) violation of California's Unfair
Competition Law (“UCL”) (Bus. & Prof. Code
§ 17200 et seq). ECF No. 33 ¶ 40-66.
April 14, 2017, Defendants moved to dismiss Plaintiffs'
First Amended Complaint (“FAC”), asserting that
Plaintiffs' state law claims are preempted by section 301
of the Labor Management Relations Act (“LMRA”)
and that several of Plaintiffs derivative claims are
deficiently pled. ECF Nos. 21, 25. On April 26, 2017, the
parties filed a stipulation requesting to direct
Defendants' Motion to Dismiss to the Plaintiffs'
soon-to-be-filed Second Amended Complaint
(“SAC”), which the Court granted. ECF Nos. 31,
32. Plaintiffs filed their SAC on May 3, 2017 to add
allegations that they had administratively exhausted their
PAGA claims. ECF No. 33 ¶ 55.
Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)
because the amount in controversy exceeds $75, 000 and the
opposing parties are of diverse citizenship.
REQUESTS FOR JUDICIAL NOTICE
turning to the merits of the motion to dismiss, the Court
resolves the Defendants' requests for judicial notice.
a general rule, we may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.”
United States v. Corinthian Colleges, 655 F.3d 984,
998-99 (9th Cir. 2011) (internal quotation marks and
citations omitted). Pursuant to Federal Rule of Evidence
201(b), however, “[t]he court may judicially notice a
fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” The Court may properly take
judicial notice of materials attached to the complaint and of
matters of public record. Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). A court
“must take judicial notice if a party requests it and
the court is supplied with the necessary information.”
Fed.R.Evid. 201(c)(2). However, the Court takes judicial
notice only of the existence of the document, not of the
veracity of allegations or legal conclusions asserted in it.
See Lee, 250 F.3d at 689-90.
request that the Court take judicial notice of the following
documents: (1) the “Joint Stipulation of Class Action
Settlement; Settlement Agreement and Release” in
Benjamin Burgess v. Tesoro Refining & Marketing
Company, United States District Court, Central District
of California Case No. 2:10-cv-05870-DMG-PLA, ECF No. 199-1.
ECF No. 25-1, Exh. A; (2) “The Order and Final Judgment
(a) Confirming Final Certification of Settlement Class; (b)
Granting Final Approval of Class Action Settlement; and (c)
Granting Plaintiffs' motion for award of Attorneys'
Fees” in Burgess, ECF No. 228. ECF No. 25-1,
Exh. B; (3) the Collective Bargaining Agreements
(“CBAs”) and Memoranda of Agreement attached to
the concurrently filed Declaration of Karen Kawano. ECF No.
25-2 through ECF No. 25-14; and (4) Form DF-43, Department of
Finance Bill Report Deferred to Department of Industrial
Relations, Bill No. AB 2509, ECF No. 35-1, Exh. A, and
California Legislative Counsel's digest of Senate Bill
1255, ECF No. 35-1, Exh. B. Defendants' request is not
a court “may take judicial notice of proceedings in
other courts . . . if those proceedings have a direct
relation to matters at issue, ” Bias v.
Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007), the Court
grants requests (1) and (2) for judicial notice. Because a
court may “take judicial notice of a CBA in evaluating
a motion to dismiss” the Court grants request (3) for
judicial notice of the attached CBAs. Jones v.
AT&T, 2008 WL 902292, at *2 (N.D. Cal. Mar. 31,
2008). See also Busey v. P.W. Supermarkets, Inc.,
368 F.Supp.2d 1045, 1049 (N.D. Cal. 2005) (granting judicial
notice of a CBA). Because courts may take judicial notice of
records and reports of administrative bodies and the
legislative history of state statutes, the Court grants
request (4) for judicial notice. See Anderson v.
Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012)
(explaining that a court may take judicial notice of
legislative history and records and reports of administrative
Motion to Dismiss
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). While detailed factual
allegations are not required, a complaint must have
sufficient factual allegations to “state a claim to
relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and
citations omitted). A party may move to dismiss based on the
failure to state a claim upon which relief may be granted.
See Fed.R.Civ.P. 12(b)(6). “Dismissal under
Rule 12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To
survive a motion to dismiss, a pleading must allege
“enough facts to raise a reasonable expectation that
discovery will reveal evidence” to support the
allegations. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007). For purposes of a motion to dismiss,
“all allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving
party.” Cahill v. Liberty Mut. Ins. Co., 80
F.3d 336, 337-38 (9th Cir. 1996).
Section 301 Preemption
section 301 provides federal jurisdiction over “[s]uits
for violation of contracts between an employer and a labor
organization." 29 U.S.C § 185(a). Section 301
embodies “a congressional mandate to the federal courts
to fashion a body of federal common law to be used to address
disputes arising out of labor contracts.”
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209
(1985) (footnote omitted). “This federal common law, in
turn, preempts the use of state contract law in CBA
interpretation and enforcement.” Matson v. United
Parcel Serv., Inc., 840 F.3d 1126, 1132 (9th Cir. 2016)
(citation and quotation omitted). “To give ‘the
policies that animate § 301 . . . their proper range,
' the Supreme Court has expanded “the pre-emptive
effect of § 301 . . . beyond suits alleging contract
violations' to state law claims grounded in the
provisions of a CBA or requiring interpretation of a
CBA.” Kobold v. Good Samaritan Reg'l Med.
Ctr., 832 F.3d 1024, 1032 (9th Cir. 2016) (quoting
Lueck, 471 U.S. at 210-11). However, “not
every dispute concerning employment, or tangentially
involving a provision of a collective-bargaining agreement,
is preempted by section 301.” Lueck, 471 U.S.
at 211. “[T]he Supreme Court has repeatedly admonished
that section 301 preemption is not designed to trump
substantive and mandatory state law regulation of the
employee-employer relationship; section 301 has not become a
'mighty oak' that might supply cover to employers
from all substantive aspects of state law.” Humble
v. Boeing Co., 305 F.3d 1004, 1007 (9th Cir. 2002)
(citing Lingle v. Norge Div. of Magic Chef Inc., 486
U.S. 399, 408-09 (1988); Livadas v. Bradshaw, 512
U.S. 107, 122 (1994)). “In extending the pre-emptive
effect of § 301 beyond suits for breach of contract, it
would be inconsistent with congressional intent under that
section to preempt state rules that proscribe conduct, or
establish rights and obligations, independent of a labor
contract.” Allis-Chalmers Corp., 471 U.S. at
Burnside v. Kiewit Pacific Corp., the Ninth Circuit
articulated a two prong inquiry to analyze whether section
301 preemption applies. 491 F.3d 1053, 1059-60 (9th Cir.
2007). A court must first determine “whether the
asserted cause of action involves a right conferred upon an
employee by virtue of state law, not by a CBA. If the right
exists solely as a result of the CBA, then the claim is
preempted and our analysis ends there.” Id. at
1059. However, if the court determines the right underlying
the state law claim(s) “exists independently of the
CBA” the court proceeds to the second prong, which
inquires whether the right is “substantially dependent
on analysis of a collective bargaining agreement.”
determining whether the first prong is met (whether a right
is independent of a CBA) a court must evaluate whether the
“legal character of a claim” is
“independent of rights under the collective-bargaining
agreement.” Livadas, 512 U.S. at 123. Section
301 preempts the claim if the claim is “founded
directly on rights created by a collective bargaining
agreement.” Caterpillar v. Williams, 482 U.S.
386, 394 (1987).
determining whether the second prong is met (whether the
claim is “substantially dependent” on a CBA) the
Court must evaluate whether the claim can be resolved by
“‘look[ing] to' versus interpreting the CBA.
If it is the latter, the claim is preempted, if it is the
former, it is not.” Burnside, 491 F.3d at 1060
(internal quotation marks and citations omitted). “When
the meaning of a contract term is not the subject of dispute,
the bare fact that a CBA will be consulted in the course of
the state-law litigation plainly does not require the claim
to be extinguished.” Livadas, 512 U.S. at 124.
the resolution of a state-law claim is substantially
dependent upon analysis of the terms of an agreement made
between the parties in a labor contract, that claim must
either be treated as a section 301 claim, or dismissed as
preempted by federal labor-contract law.”
Lueck, 471 U.S. at 220. It is usually difficult for
an employee to succeed in a suit under section 301
“unless the contractual grievance-arbitration procedure
is invoked on her behalf or on behalf of a group of employees
of which she is part. If the dispute is not ultimately
resolved by arbitration, the employee must establish that the
union violated its duty of fair representation by failing to
pursue the grievance to arbitration or pursuing it
arbitrarily.” Kobold v. Good Samaritan Regional
Medical Center, 832 F.3d 1024, 1034 (9th Cir. 2016).